Karnataka High Court
Sri B Suresh Gowda vs Sri D C Gowrishankaraswamy on 30 March, 2023
Author: S. Sunil Dutt Yadav
Bench: S. Sunil Dutt Yadav
1
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF MARCH 2023
BEFORE
THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV
ELECTION PETITION No. 1 OF 2018
Between:-
Sri B. Suresh Gowda,
S/o late Sri Bettaiah,
Aged about 53 years,
Residing at Kempanahalli
Village & Post,
Hutalidurga Hobli,
Kunigal Taluk,
Tumkur District 572 126.
And also at:
No.220, 2nd Main, 3rd Cross
AECS Layout,
Sanjaynagar
Bengaluru 560 094.
... Petitioner
(By: Ms.Nalina Mayegowda, Senior Advocate
for Sri Manjunath Hiral. H, Advocate)
And:
1. Sri D.C.Gowrishankaraswamy
S/o Sri C.Chennigappa
2
Aged about 41 years
Residing at Doddahuchaiahnapalya
Nelamangala Taluk
Bengaluru Rural District 562 123.
2. Sri Rayasandra Ravikumar
S/o Sri Shanmukha Swamy
Aged major
Residing at No.14,
Rayasandra
Machenahalli Post,
Dandinashivara Hobali
Turuvekere Taluk
Tumkur District 572 215.
3. Sri Tajuddin Shariff
S/o Sri Husain Shariff
Aged major
Residing at 1 to 5th Cross,
Housing Board Main Road,
Jaipur,
Tumkur City 572 101.
4. Sri Sunil Yadav
S/o Sri Subramani Raju
Aged major
Residing at No.7, 1st Cross,
7th Main, Jayanagara 3rd Block
Bengaluru 560 041.
5. Sri Anwar
S/o late Sri Ameer Saab
Aged major
Residing at Hirehalli Post
Urdigere Hobali
Tumkur Taluk and District 572 104.
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6. Sri Arun Gowda H.B.
S/o Sri Byle Gowda
Aged major
Residing at Haydalu
Mylanahalli Post
Nelamangala Taluk 562 123.
7. Sri Guluru Rangaiah Nagaraju
S/o late Sri T.Rangaiah
Aged major
Residing at Guluru, Guluru Post
Tumkur Taluk 572 118.
8. Sri Yoganarasimhamurthy T.H.
S/o Sri Hanumanarasimhaiah
Aged major
Residing at No.323, 1st Main Road
Belgumba Road, N.R.Colony
Tumkur 572 103.
9. Sri Shabeer Ahmed
S/o Sri Azim Khan
Aged major
Residing at 13th Main Road
P.H.Colony
Tumkur 572 101.
10. Sri K.V.Srinivasakalkere
S/o Sri Venkataiah
Aged major
Residing at Kalkere
Hebburu Post
Tumkur Taluk 572 120.
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11. Sri Siddaramegowda T.B.
S/o Sri Basappa
Aged major
Residing at Tammadihalli
Gulur Hobli, Maskal Post
Tumkur Taluk 572 118.
...Respondents
(By:Sri Ashok Haranahalli, Senior Advocate for
Sri R. Hemanth Raj & Sri K. Raghupathi,
Advocates for R-1;
R2 - Sri Rayasandra Ravikumar, vide Court order
R3 - Sri Tajuddin Shariff, dated 07.12.2018
R4 - Sri Sunil Yadav, served and are
placed ex-parte.
R7 - Sri Guluru Rangaiah Nagaraju
R9 - Sri Shabeer Ahmed
R6 - Sri Arun Gowda H.B - vide court order dated
12.10.2018, service of summons is held sufficient
and placed ex-parte;
Sri Shivayogesha Shivayogimath, Advocate for R-5;
Sri C.M.Mahesh, Advocate for R-8;
R10 - Sri K.V. Srinivaskalkere vide Court order dated
07.09.2018 are placed
R11 - Sri Siddaramegowda ex-parte.
Sri Kashinath J.D, Sri Rameshappa. N, Sri G.Suhan.S and
Smt.Pushpalatha.Y, Advocates for Noticee (Sri
D.C.Venugopal, President, KMSS);
Sri K.Ravishankar and Sri B.M.Halaswamy, Advocates for
Noticee (Sri Krishnegowda and Smt.Sunanda);
5
Sri Parameshwar N. Hegde, Advocate for Noticee
(Sri Palanethraiah. G, Sri Arehalli Manjunath
and Smt.Renukamma);
***
This Election Petition is filed under Sections 80,
81, 100 r/w Section 123 of the Representation of the
People Act, 1951 praying to (i) set aside the election of
respondent No.1 to the 15th Karnataka Legislative
Assembly from 133-Tumkur Rural Assembly
Constituency, (ii) declare petitioner as duly elected to
fill the seat of Karnataka Legislative Assembly from
133-Tumkur Rural Assembly Constituency and (iii) pass
such other order/s as this Hon'ble Court deems fit in
the fact and circumstances of the case and etc.
This Election Petition pertaining to Principal Bench,
Bengaluru having been heard and reserved on
17.02.2023 and coming on for pronouncement of
orders, this day at Kalaburagi Bench through Video
Conference, the Court made the following:
6
ORDER
S. SUNIL DUTT YADAV. J This order has been divided into the following sections to facilitate analysis:
I BRIEF FACTS 7 II ISSUES FRAMED 15 III ANALYSIS: 17
PART A - CONSIDERATION OF ISSUE NOS. ii(a) AND ii(b) 17 PART B - CONSIDERATION OF ISSUE NOS. ii(c), ii(d) AND v 25 ISSUANCE OF MEDI ASSIST POLICY ON 26.02.2018 31 ISSUANCE OF MEDI ASSIST POLICY IN THE NAME OF 38 KMSS ASSOCIATION OF RESPONDENT NO.1 WITH KMSS 48 CANCELLATION OF MEDI ASSIST POLICY 53 PART C - CONSIDERATION OF ISSUE NO.(iii) 57 MEDI ASSIST POLICY AND CORRUPT PRACTICE 60 ALLEGATIONS AGAINST PALANETHRAIAH 64 DISTRIBUTION OF MEDI ASSIST CARDS 79 MEDI ASSIST CARDS AND ENTICEMENT 88 CONSENT OF RETURNED CANDIDATE/RESPONDENT NO.1 90 PART D - CONSIDERATION OF ISSUE NO. (iv) 101 PART E - CONSIDERATION OF ISSUE NO. (vii) 104 PART F - CONSIDERATION OF ISSUE NO. (i) 108 IV ANALYSIS OF PROCEEDINGS UNDER SECTION 99 OF R.P ACT 132 ANNEXURE 183 7 The present Election Petition has been filed under Sections 80, 81, 100 read with Section 123 of the Representation of the People Act, 1951 ('R.P. Act') seeking to set aside the election of respondent No.1 to the 15th Karnataka Legislative Assembly from Tumkur Rural Assembly Constituency held during May 2018 and consequently declare the petitioner as duly elected to fill the seat of Karnataka Legislative Assembly as regards Tumkur Rural Assembly Constituency (No.133).
I. BRIEF FACTS:
2. The facts make out that the petitioner and respondent No.1 had filed nomination seeking election to the Karnataka Legislative Assembly from Tumkur Rural Assembly Constituency. The petitioner belongs to the Bharatiya Janata Party (BJP), while the respondent No.1 belongs to Janata Dal (S) Party [JD(S) Party]. In the ensuing elections, the petitioner is stated to have obtained 77,100 votes, while the respondent No.1 had secured 82,740 votes and was declared as elected by margin of 8 5,640 votes and the Returning Officer had issued Form No.21-C under Section 64 of the R.P. Act declaring the respondent No.1 as elected.
3. The petitioner has challenged the validity of the election of respondent No.1 contending that his election was vitiated by commission of corrupt practices as defined under Sections 123(1) and 123(2) of the R.P. Act.
4. Amongst the corrupt practices that are stated to have been resorted to by the respondent No.1 are the following:-
(i) Payment of Rs.5,00,000/- by the Kammagondanahalli Sri Maruthi Seva Samithi [KMSS] which is a Registered Society alleged to have been controlled by first respondent's father and having as its office bearers, mother, brother and members of the extended family, for renovation of Shanidevaru Temple at Dasarahalli.9
(ii) The promise of 1000 free seats in Engineering College run by KMSS in the event the JD(S) Party comes to power.
(iii) The followers of JD(S) Party, Smt.Gowramma and Sri Anantha were
distributing Medi Assist Cards while canvassing on 02.04.2018 in order to lure the voters to vote for the respondent No.1. It is stated that there was seizure of 56 Medi Assist Bonds from the house of Smt.Gowramma and Sri Anantha.
(iv) It is further submitted that on 11.05.2018, the FST-II Squad was visiting Gulur and Hebbur Hobli and Sri C.Rangadhamappa, Sri Jayaram C.N. and Sri Devaraju intercepted a Scorpio vehicle bearing registration number KA-06-N- 2725, coming from the opposite direction and the said vehicle was abandoned by inmates. The Medi Assist cards, cash and other materials 10 along with materials which contained details of JD(S) Party workers were seized. Subsequently, the investigation report revealed that the vehicle belonged to Sri Palanethraiah, who eventually pleaded guilty for the offence under Section 171E of IPC, who is alleged to be the Counting Agent of respondent No.1.
(v) That Medi Assist Policy was taken out by KMSS whereby there would be reimbursement of the medical expneses incurred by the children of electors. Pursuant to such Policy, there was distribution of Medi Assist cards on behalf of respondent No.1 with his consent to the parents of the children which was an enticement, with a request to vote in favour of respondent No.1 in the 2018 General Elections.
(vi) Upon complaint being made by PW.2 as regards the issuance of Medi Assist Policy, it is stated that M/s.New India Assurance Co. Ltd., 11 which had issued the policies had cancelled the said policies with effect from 08.05.2018. It is further alleged that the factum of cancellation of Medi Assist Policy was not intimated to the recipients.
5. It is further submitted that by benefiting from such corrupt practices, the respondent No.1 was declared elected and the present Election Petition has been filed within the time stipulated assailing the validity of the election on the grounds referred to above.
6. The respondent No.1 upon notice of the petition filed his written statement denying the allegations made while asserting that a Non-Governmental Organization (NGO) by the name 'One Rupee Charity Foundation' ('ORCF') had entered into a Memorandum of Understanding (MoU) with 'KMSS' and after obtaining the data with regard to poor students residing in the vicinity had paid the 12 premium and taken the Medi Assist Policy and issued the Medi Assist Cards.
7. It was further asserted that the Medi Assist Policy was issued prior to the Election Notification by the Election Commission of India. It was specifically contended that the respondent No.1 resides separately from his parents and does not have any transaction with his parents or relatives subsequent to the execution of Release Deed in the year 2007, and that he is not associated with KMSS.
8. It was also contended that the JD(S) Party had declared the respondent No.1 as its candidate only by issuance of 'B' Form on 21.04.2018, while denying the allegation that the declaration was made by the JD(S) Party on 18.02.2018 itself.
9. It was specifically asserted that the respondent No.1 did not have any relationship with Smt.Gowramma and Sri Anantha, who were neither the official agents nor authorized agents of respondent No.1.
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10. The respondent No.1 has also denied any connection with the incident of 11.05.2018 where the Election Squad had intercepted the 'Scorpio' vehicle bearing registration No.KA-06-N-2725 and made the seizure of articles.
11. The respondent No.1 has specifically raised the defence regarding irregularity of verification in light of requirement under Section 83(1)(c) of R.P. Act and Order VI Rule 15 of C.P.C; that separate affidavit verifying averments made in the Election Petition was not filed as required under Order VI Rule 15(4) of C.P.C., that affidavit filed by the petitioner in Form-25 at page Nos.30 and 31 do not meet the requirements of law, that verification of Annexures are not done in accordance with Section 83(2) of the R.P. Act.
12. The respondent No.1 has filed I.A.No.1/2018 under Sections 81, 83, and 86 of the R.P. Act read with Order VII Rule 11 of C.P.C. to dismiss the Election Petition, I.A.No.2/2018 under Sections 81, 83, 86 and 87 of the R.P. 14 Act read with Order VI Rule 16 of C.P.C. seeking for an order to strike out all the sentences of paragraph Nos.3 to 6, 7, 8, 11 to 24, 26 to 30, 32 to 42 and the prayer at Sl.No(ii) of the Election Petition, I.A.No.1/2019 has been filed under Section 151 of C.P.C. by the petitioner to permit him to submit fresh affidavit in Form-25 in compliance with Section 83(1) and Rule 94-A of the R.P. Act and furnish affidavit as contemplated under C.P.C.
13. This Court, by order dated 06.12.2019, has disposed off the abovementioned Interlocutory Applications. I.A.No.1/2018 and I.A.No.2/2018 have been dismissed and I.A.No.1/2019 seeking permission to furnish fresh affidavit has been disposed off as not requiring adjudication in light of dismissal of I.A.Nos.1/2018 and 2/2018. The said order was challenged before the Apex Court in SLP (Civil) No.409/2020 and the same came to be dismissed as withdrawn bringing finality to the order dated 06.12.2019. 15 II. ISSUES FRAMED:
14. The following issues have been framed on 24.01.2020 and as per order dated 06.03.2020, Issue No.6 came to be deleted and the Issues as on date stand as follows:-
"(i) Whether the petitioner has complied with all the requirements of Section 83 of the Representation of People Act, 1950 (R.P. Act for brevity)?
(ii) Whether the petitioner proves that the respondent no.1, his election agents and others with first respondent's knowledge and consent has committed the following corrupt practices as defined under the R.P. Act and hence his election is to be declared as void.-
a) Whether petitioner proves donations were made to the Shanidevaru Temple at Dasarahalli through Sri Maruti Seva Samithi in order to entice the voters to vote in favour of respondent No.1 ?
b) Whether the petitioner proves respondent no.1 either by himself or through persons associated with him had promised to distribute free seats in Engineering College?
c) Whether the petitioner proves that Sri Maruthi Seva Samithi has taken out insurance policies on the wards of the voters and distributed the same at the instance and on behalf of 16 respondent No.1 and thereby committed corrupt practice by enticing the voters?
d) Whether the petitioner proves that the Medi Assist Policies were cancelled on the basis of complaints?
(iii) Whether the petitioner proves that the respondent no.1, election agents and the persons associated or claiming through him have committed any other corrupt practice as made out in the petition within the meaning of Section 123 of R.P.Act ?
(iv) Whether all allegations regarding corrupt practice relate to a period subsequent to the nomination? If not, whether the other allegations can be taken note of ?
(v) Does the petitioner prove that respondent no.1 is associated with Sri Maruthi Seva Samithi and if so, in what manner ?
(vi) Issue deleted vide Order dated 06.03.2020.
(vii) Whether the petitioner is entitled to be declared as elected in place of the first respondent in terms of Section 101 of R.P. Act as a consequential relief if the election of the returned candidate is set aside ?"17
III. ANALYSIS:
PART - A
15. Issue Nos.(ii)(a) and (ii)(b) are taken up together for consideration as relevant facts and evidence that is considered for disposal of the said issues are common.
The issues framed are as follows:-
(ii) WHETHER THE PETITIONER PROVES THAT THE RESPONDENT NO.1, HIS ELECTION AGENTS AND OTHERS WITH FIRST RESPONDENT'S KNOWLEDGE AND CONSENT HAS COMMITTED THE FOLLOWING CORRUPT PRACTICES AS DEFINED UNDER THE R.P.ACT AND HENCE HIS ELECTION IS TO BE DECLARED AS VOID. -
(a) WHETHER PETITIONER PROVES DONATIONS WERE MADE TO THE SHANIDEVARU TEMPLE AT DASARAHALLI THROUGH SRI MARUTI SEVA SAMITHI IN ORDER TO ENTICE THE VOTERS TO VOTE IN FAVOUR OF RESPONDENT NO.1 ?18
(b) WHETHER THE PETITIONER PROVES RESPONDENT NO.1 EITHER BY HIMSELF OR THROUGH PERSONS ASSOCIATED WITH HIM HAD PROMISED TO DISTRIBUTE FREE SEATS IN ENGINEERING COLLEGE?
16. The above issues relate to the assertion of petitioner that with the consent of respondent No.1, the persons acting on his behalf have made donations to Shanidevaru Temple at Dasarahalli Village through KMSS in order to entice the voters and that further, the respondent No.1 by himself or through persons associated with him had promised to distribute free seats in the Engineering College managed by KMSS.
17. Both the issues are taken up together insofar as there is commonality regarding the period during which donation was made to Shanidevaru Temple as well as promise made to distribute the free seats in Engineering College.19
18(i) The petitioner has asserted that the respondent No.1 has a 'facebook account1' which is a social networking platform and in his 'facebook account' he has posted on 25.03.2018 that respondent No.1 has notified the public that the Society had paid Rs.5,00,000/- for renovating Shanidevaru Temple at Dasarahalli Village, Hebbur Hobli. A screen shot of the photograph posted on the facebook has been marked as Ex.P8.
18(ii) It is further asserted that a post on the facebook account of respondent No.1 on 30.03.2018, wherein public were informed through an interview that the father of respondent No.1 who was also the President of Tumkur District JD(S) Party had informed the public that if JD(S) Party returns to power, he would give 1,000 free seats in the Engineering College run by the Society. A Video clip of the said statement had been shared by the respondent No.1 on his facebook page, which is marked as Ex.P9.
1 see ¶18 of Election Petition 20 18(iii) It is submitted that donation to Shanidevaru Temple at Dasarahalli and the statement made by the father of respondent No.1 were made with an intention of luring the electorate to vote for respondent No.1 who was declared as the candidate of JD(S) Party.
19(i) In the written statement filed by respondent No.1, the allegations have been denied. It is asserted that respondent No.1 did not have any facebook account and that KMSS had not paid any amount for the renovation of Shanidevaru Temple at Dasarahalli Village on 25.03.2018.
19(ii) It was specifically asserted that even otherwise, the date on which the alleged amount is stated to have been paid is prior to the date of filing of nomination pursuant to the Notification of election issued by the Election Commission dated 17.04.2018 and accordingly, cannot be taken note of2.
2 see ¶ 21 of the written statement filed by respondent No.1 21 19(iii) Insofar as the allegation relating to father of respondent No.1 informing the public through an interview that if JD(S) Party is returned to power, he would give 1,000 free seats in the Engineering College run by KMSS, the said allegation has been specifically denied.
20. It must be noted that the donation by Society to the Shanidevaru Temple even as per the pleadings is stated to have been made on 25.03.20183 and insofar as the statement in a Television channel relating to giving of 1,000 free seats in the Engineering College was also stated to have been made on 30.03.20184, whereas, the respondent No.1 is stated to have filed his nomination on 23.04.2018.
21. Insofar as corrupt practice falling within the scope of Section 123 of R.P. Act, it is clear that the same must be committed by a candidate. A 'candidate' has been defined under Section 79(b) of the R.P. Act as "a person who has been or claims to have been duly nominated as a candidate at any election." Section 34 of the R.P. Act 3 see ¶18 of the petition 4 see ¶19 of the petition 22 provides that a candidate shall not be deemed to be duly nominated unless he deposits or causes to be deposited in case of an election from an Assembly Constituency, a sum of Rs.10,000/-. It is further specified under Section 34(2) of R.P. Act that any sum required to be deposited under sub-section (1) shall not be deemed to have been deposited unless at the time of delivery of nomination paper, the candidate has deposited the said amount.
Accordingly, unless a person is a 'candidate' in terms of Section 34 of R.P. Act, any corrupt practice committed earlier cannot be taken note of for the purpose of Section 123 of the R.P. Act5.
5 This is however subject to an exception where the corrupt practice is constituted by a chain of linked events which may have commenced prior to the date of the candidate filing his nomination and is linked to other acts subsequent to the candidate filing his nomination which interpretation has been applied to the allegation which is a subject matter of issue No.(iii) discussed infra. This however is an interpretation based on appreciation of evidence. The Apex Court in the case of Mohan Rawale v. Damodar Tatyaba-(1994) 2 SCC 392) has kept the question open as regards incident prior to the notified date being admissible and relevant for other purposes during the subsequent stage 23
22. The Apex Court has also laid down the law on this aspect in Subhash Desai v. Sharad J. Rao6. The observations made are as follows7:
"18. On behalf of the appellant, it was then pointed out that in election petition, while alleging corrupt practices, reference has been made in respect of the speeches and publications, of period prior to 31-1-1990, which was the date when nomination papers were filed. The publications and speeches alleged to have been made prior to 31-1-1990 have to be ignored because the framers of the Act, required the High Court to judge the conduct of the candidate, his agent or persons with the consent of the candidate or his election agent, only after a person becomes a candidate for the particular election. A person becomes a candidate for the election in question only after filing the nomination paper. In this connection, reference may be made to Section 79(b) of the Act which defines 'candidate' to mean a person, who has been or claims to have been duly nominated as a candidate at any election. Section 34 of the Act says that a candidate shall not be deemed to be duly nominated for election from a constituency unless he deposits or causes to be deposited the amounts 6 AIR 1994 SCC 2277 7 This observation has been affirmed in Chandrakanta Goyal v. Sohan Singh Jodh Singh Kohli - (1996) 1 SCC 378 (see para-3) and also in the case of Sri D.T.Sridhar v. Sri B.K.Sangameshwar and Others - ILR 2012 KAR 1995, a judgment by this Court (see para-22) 24 prescribed in the said section. When a person becomes a candidate, was examined by this Court in the well- known case of Indira Nehru Gandhi v. Raj Narain [1975 Supp SCC 1] and it was held: (SCC p. 64, para 146) ...
Recently, this Court in the case of Mohan Rawale v. Damodar Tatyaba alias Dadasaheb, (Special Leave Petition (Civil) No.5594/1992 disposed of on August 6 1992,) has said:
"We hold that all the averments in paragraphs 1 to 20 of the memorandum of election petition insofar as they refer to a period prior to 23-4-1991 cannot amount to allegations of corrupt practice."
This cut-off date 23-4-1991 was fixed with reference to the date when nomination papers were filed by the appellant concerned, because since that date the appellant will be deemed to have legally acquired the status of a candidate. According to us, any allegation of corrupt practice against the appellant, made by the respondent in respect of the period prior to the filing of nomination by the appellant on 31-1-1990, cannot be taken into consideration for judging the legality or validity of his election."
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23. Accordingly, both the alleged corrupt practices relate to the period prior to respondent No.1 filing his nomination hence, there arises no other reason for enquiring into the said aspect any further.
24. Accordingly, the issue Nos.ii(a) and ii(b) are answered in the negative.
PART - B
25. Issue Nos.-(ii)(c), (ii)(d) and (v) are taken up together for consideration, as relevant facts and evidence that are considered for disposal of the said issues are common.
The issues are as follows:-
(ii) WHETHER THE PETITIONER PROVES THAT THE RESPONDENT NO.1, HIS ELECTION AGENTS AND OTHERS WITH FIRST RESPONDENT'S KNOWLEDGE AND CONSENT HAS COMMITTED THE FOLLOWING CORRUPT PRACTICES AS DEFINED UNDER THE R.P.ACT AND HENCE HIS ELECTION IS TO BE DECLARED AS VOID. -26
(c) WHETHER THE PETITIONER PROVES THAT SRI MARUTHI SEVA SAMITHI HAS TAKEN OUT INSURANCE POLICIES ON THE WARDS OF THE VOTERS AND DISTRIBUTED THE SAME AT THE INSTANCE AND ON BEHALF OF RESPONDENT NO.1 AND THEREBY COMMITTED CORRUPT PRACTICE BY ENTICING THE VOTERS?
(d) WHETHER THE PETITIONER PROVES THAT THE MEDI ASSIST POLICIES WERE CANCELLED ON THE BASIS OF COMPLAINTS?
(v) DOES THE PETITIONER PROVE THAT RESPONDENT NO.1 IS ASSOCIATED WITH SRI MARUTHI SEVA SAMITHI AND IF SO, IN WHAT MANNER ?
26(i) It is the case of the petitioner that KMSS is a family controlled Society and that the family members of the respondent No.1 control it by virtue of being the office bearers, that the Medi Assist Policy was taken out by KMSS, which would enable the insured who are children studying in schools to obtain the benefit of reimbursement of medical expenses upto Rs.10,000/- in the event of treatment and that there was distribution of the Medi Assist Identity Cards, 27 which were in a cover containing the photograph of Sri.H.D.Devegowda, Former Prime Minister, Sri.H.D.Kumaraswamy, Former Chief Minister and Sri.C.Chennigappa by Sri Arehalli Manjunath, Smt.Renukamma, Sri Krishnegowda and Smt.Sunandamma, who are JD(S) Party workers. It was further alleged that the distribution of Medi Assist cards was for the purpose of luring the voters to vote for respondent No.1. It was also contended that distribution is done to Sri Lakshminarayana V.N, Sri Gopalaiah, Sri Mahadevaiah, Sri D.R.Ramesh, Smt.Ramamani, whose children were beneficiaries and have produced the said Medi Assist cards in their evidence.
26(ii) It was specifically asserted that policies were taken to benefit the students studying in various schools i.e., about 50 to 100 schools situated in Tumkur Rural Assembly Constituency and the students residing in approximately 200 villages.
26(iii) It is further asserted that the agents of the respondent No.1 had distributed insurance bonds in 28 Doddasarangipalya on 26.04.2018, in Virupasandra village on 27.04.2018, in Mallasandra village on 30.04.2018 and in Honnudike village on 03.05.2018. That the said issue was covered by the Media in "Prajavani" Newspaper and Sri Mahesh, President of JD(S) Yuva Morcha had held a Press Meet on 11.05.2018, in which it was admitted that 17,000 students had been insured for obtaining the benefit under the Medi Assist Policy by the respondent No.1 and the said clarification was covered by the "Prajavani" Newspaper and also in the local media "Tumkur Varthe".
26(iv) It is asserted that Sri Narasimha Murthy had intimated the Deputy Commissioner and the Tahsildar, upon whose information the Flying Squad of Election Commission conducted a search operation in the house of Sri Anantha (referred to as Ananthu in deposition by the parties) and Smt.Gowramma and had recovered 56 Medi Assist cards issued by M/s.New India Assurance Co. Ltd., favouring the students.
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26(v) It was specifically asserted that KMSS had paid a sum of Rs.6.00 lakhs as premium, that the Policy bearing Number-67210034170500000258 came to be issued which was valid for the period between 26.02.2018 to 25.02.2019 and that holder of the policy was KMSS.
26(vi) Accordingly it is averred that the respondent No.1 with the aid of his father had indulged in corrupt practice falling within the scope of Section 123 of the R.P. Act.
26(vii) It is further specifically asserted that the petitioner's brother Sri Ramesh Bettaiah (PW-2), on coming to know of the said Medi Assist cards on 07.04.2018 had made out plaints by way of Email to Smt.Jyothi, who is in- charge of customer care and also to the Vigilance of Insurance Regulatory and Development Authority of India (IRDAI).
26(viii) It is asserted that there were various Email correspondence with the Election Commission and 30 Insurance Authorities and eventually a communication was received on 08.05.2018 from the Regional Manager of M/s.New India Assurance Co. Ltd., that decision was taken to cancel the Medi Assist policies.
27(i) In the written statement filed by respondent No.1, it was contended that after receipt of notice in the present petition, an enquiry was made with the KMSS and had learnt that an NGO named ORCF which was registered on 01.07.2013 had entered into an understanding with KMSS and in terms of the said MoU, KMSS was to furnish the data with regard to poor students residing in its jurisdiction to ORCF and thereafter ORCF would pay the premium for the poor students and issue Medi Assist Policies to the poor students.
27(ii) It is specifically asserted that the respondent No.1 is neither a member nor an office bearer of KMSS and respondent No.1 did not have any relationship with KMSS. It was asserted that KMSS had not paid premium for issuance of Medi Assist policies and the 31 premium was paid by ORCF and policies were taken for the period from 26.02.2018 to 25.02.2019, and in terms of the said policy, the date of issuance of policy was prior to the election notification issued by the Election Commission of India.
27(iii) It is specifically asserted by respondent No.1 that he has severed ties with his family by entering into a Release Deed in the year 2007 and was residing separately from his parents.
ISSUANCE OF MEDI ASSIST POLICY ON 26.02.2018
28. A legal contention that requires to be considered is as to whether the issuance of Medi Assist Policy at Ex.P.80 on 26.02.2018 could be taken note of and finding recorded regarding commission of corrupt practice relating to Ex.P.80, while the schedule for the election was published in the Gazette on 17.04.2018 and the nomination was stated to have been filed on 23.04.2018. This assumes importance in light of the settled position that the 32 commission of a corrupt practice could be taken note of only after the returned candidate pursuant to his nomination has made deposit as envisaged under Section 34 of the R.P. Act. Section 79(B) defines a 'candidate' as a person who has been duly nominated as a candidate which must be read in conjunction with Section 34 which provides that the candidate shall not be deemed to be duly nominated unless he deposits the sum prescribed.
29. Initially a Medi Assist Policy was taken and subsequently Medi Assist cards were stated to have been distributed to the Voters. It must be noted that in the facts of the present case, the distribution of the Medi Assist cards is admittedly after the date of nomination of the respondent No.1. The distribution of the Medi Assist cards by itself coupled with enticement to vote for the returned candidate would amount to bribery in terms of Section 123 of the R.P. Act.
30. However, the fact that the policy at Ex.P.80 was taken before the respondent No.1 became a candidate 33 would not have the effect of negativing the corrupt practice of bribery constituted by distribution of Medi Assist cards after the date on which respondent No.1 has been declared a candidate. The issuance and distribution of Medi Assist cards irrespective of their genuineness would as a matter of fact still constitute bribery in terms of Section 123 of R.P. Act, if the said document constituting the Medi Assist card was held out to be reflective of a Medi Assist Policy and used to entice the electors to vote for him. The fact that the validity of the Medi Assist cards even if not proved but still is construed by the receiver to be a document capable of enticement is by itself sufficient. The handing over of the Medi Assist card being a gift/gratification and intended to be so, would serve the purpose of falling within the mischief sought to be curbed under Section 123 of the R.P. Act. In fact, the cancellation of the policy on 08.05.2018, i.e. four days before polling by the M/s.New India Assurance Co. Ltd., not having been made known to the recipient has still served the purpose of acting as enticement and has influenced the voter to vote in a particular manner. An 34 example of a coupon being distributed during polling period to the electorate which is capable of being encashed and constituting gift/gratification having been accepted and acted upon and votes are cast on the basis of such enticement and the subsequent discovery of it being a fake coupon and could not be encashed, would not have the effect of not treating such act of distribution of coupon constituting bribery in terms of Section 123 of the R.P. Act.
31. In the present factual matrix, the issuance of the Medi Claim Policy at Ex.P.80 was admittedly prior to date of nomination of respondent No.1. That by itself would not form an act of corrupt practice. However, where pursuant to the issuance of policy as per Ex.P.80, Medi Assist cards were distributed subsequent to the date of nomination with the purpose of enticement to the electors to vote for the respondent No.1, such distribution of Medi Assist cards with enticement, subject to proof, would be a stand alone corrupt practice. Nevertheless, the taking out of Medi Ass ist Policy prior to the date of nomination, seizure including 35 Medi Assist cards as detailed in P.F. No.31/2018 in Crime No.0073/20188 and acts of distribution of Medi Assist cards after the cut off date would be circumstances to be taken note of to come to a conclusion regarding the pattern of commission of bribery as is made out in the present case.
32. The Apex Court in Mohan Rawale v. Damodar Tatyaba alias Dadasaheb9 (Mohan Rawale), has considered the precise question as to whether acts of alleged corrupt practice though prior to the relevant date could be made use of for other purposes, has been commented upon as follows:-
"7. Shri R.F. Nariman for the first respondent found it difficult to support the view taken by the High Court as to the time at which appellant's candidature could be said to have commenced. However, Shri Nariman endeavoured to contend that even if the allegations in 8 on 11.05.2018, the FST-II Squad was visiting Gulur and Hebbur Hobli and Sri C.Rangadhamappa, Sri Jayaram C.N. and Sri Devaraju intercepted a Scorpio vehicle bearing registration number KA-06-N-2725, coming from the opposite direction and the said vehicle was abandoned by inmates. The Medi Assist cards, cash and other materials along with materials which contained details of JD(S) Party workers were seized. Subsequently, the investigation report revealed that the vehicle belonged to Sri Palanethraiah, who eventually pleaded guilty for the offence under Section 171E of IPC, who is alleged to be the Counting Agent of respondent No.1.9
(1994) 2 SCC 392 36 paragraphs 1 to 20 did not, by themselves, establish corrupt practice in law by virtue of their commission prior to the appellant becoming a candidate, these averments and allegations must be read as parts of similar transactions pleaded in the later and subsequent paragraphs of the memorandum of the election petition. Shri Nariman said that, at all events, the allegations in paragraphs 1 to 20 cannot be said to be irrelevant if they can be sustained for the purposes of probabilising or furnishing "similar-fact" evidence of the allegations of corrupt practice made in the later paragraphs of the election petition.
8. We hold that all the averments in paragraphs 1 to 20 of the memorandum of election petition insofar as they refer to a period prior to April 23, 1991 cannot amount to allegations of corrupt practice. But on the question whether they are relevant and admissible for other purposes for the reasons submitted by Shri Nariman we abstain from expressing any opinion. This aspect did not engage the attention of the High Court and was not considered by it. It is for the High Court to consider them at the appropriate time. We, therefore, declare that the allegations in paras 1 to 20 relating to the period anterior to the commencement of the candidature cannot be relied upon to establish corrupt practice proprio vigore."
(emphasis supplied) 37 It is relevant to note that the Apex Court has not expressed any opinion in light of its observation that "this aspect did not engage the attention of the High Court and was not considered by it", in effect, the said aspect has been kept open and is a matter that could be adjudicated upon.
33. In light of the discussion made above, this Court is of the view that though certain acts do not constitute bribery and corrupt practice in light of the said incident having occurred prior to the relevant date, however, as in the present case, it may be taken as a circumstance constituting a chain of events where subsequent events alongwith the prior event together reveals a pattern and design in commission of the corrupt practice. The contention that other judgments of the Apex Court have not approved this view may not be correct as the question as noticed in Mohan Rawale (supra) which was kept open and has not been overruled and is essentially the matter to be factually demonstrated. In terms of the discussion infra, such a chain 38 of events as referred to above is found to be established. Even otherwise, de hors the reliance on Ex.P.80, the distribution of Medi Assist cards after the designated date by themselves constitute bribery and corrupt practice. ISSUANCE OF MEDI ASSIST POLICY IN THE NAME OF KMSS
34. Ex.P.80 is the policy issued by M/s.New India Assurance Co. Ltd., wherein the name of the insured is Kammagondanahalli Sri Maruthi Seva Samithi. The address relating to the name of the insured is shown as "No.6, Kammagondanahalli, Abbigere Main Road, Bangalore North Taluk, Bangalore". Policy Number is 67210034170500000258. The address mentioned in Ex.P80 tallies with the address mentioned in the Bye-laws of KMSS which is marked as Ex.P5. Both Ex.P80 and Ex.P5 are not in dispute. Ex.P80 is the best available evidence regarding the existence of the Medi Assist policy. The policy is marked through the Regional Manager of M/s. New India Assurance Co. Ltd., Sri Kittuswamy.A, who was examined as PW.10. The evidence of PW.10 would also reveal that 39 upon cancellation of the policy, refund of the premium has been made to the KMSS as is evidenced from Ex.P90.
35. The voucher at Ex.P90 is dated 25.06.2018 and the receiver's name is shown as "Kammagondanahalli Sri Maruthi Seva Samithi, No.6, Kammagondanahalli, Abbigere Main Road, Bangalore North Taluk, Bangalore- 560064, Karnataka, India." Policy Number is shown as 67210034170500000258 and refund of Rs.5,29,527/- has been paid through "Cheque favouring:
KAMMAGONDANAHALLI SRI MARUTHI SEVA SAMITHI® (PO 5778459)". Payment is stated to have been made through Cheque bearing No.4518.
36. The statement of account of M/s. New India Assurance Co. Ltd., Disbursement Account is produced and marked through PW.10 as Ex.P93 and indicates transfer of funds to KMSS on 27.06.2018 i.e., two days after the issuance of voucher at Ex.P90 for an amount of Rs.5,29,527/-. The voucher number is 1819000316, which tallies with the voucher number of Ex.P90 and Ex.P90(a). 40 PW.10 has specifically asserted that refund is made to KMSS. Though it is contended by respondent No.1 that a fake KMSS account had been created, in light of the refund voucher in the name of KMSS at Ex.P90, the burden of proving that it was a fake account was on the respondent No.1 and no efforts have been made to discharge such burden.
37. On the basis of the said evidence, it can be stated that the policy has been issued in the name of KMSS and upon cancellation, the refund is also made to KMSS.
38. The only serious contention that is taken is that the premium was paid by ORCF which requires consideration. The payment of premium however will not have the effect of altering the terms of Ex.P80 insofar as policy is undoubtedly issued in the name of KMSS and accordingly, any contention that the policy must be construed as having been taken out by ORCF cannot be looked into.
41
39. Insofar as the payment of premia, it comes out from Ex.P80 that the total premia paid is Rs.6,57,406/- and the receipt number and date is mentioned as 67210081170000006739 dated 05.03.2018. In terms of Ex.P81 marked through PW.10, the collection number mentioned is 67210081170000006739 which tallies with the receipt number in Ex.P80. The amount received shown in Ex.P81 is Rs.6,57,406/-. The receipt is issued in the name of "KAMMAGONDANAHALLI SRI MARUTHI SEVA SAMITHI(R)".
40. As per Exhibits-P82, P83, P84 and P85, advance premium deposit receipt issued in the name of KMSS refers to an amount of Rs.1,90,000/- in each of the receipts and there are three cheque numbers viz., Ex.P82- Ch.No.555019, Ex.P83-Ch.No.555020, Ex.P84- Ch.No.555021 and Ex.P85-Ch.No.555022 and the sum total of these three cheques is Rs.6,60,440/- (1,90,000 x 3 = 5,70,000 + 90,440/-). The payment is stated to have been made by Sri T.L.Krishnamurthy as per Ex.R2(a) which is 42 the bank statement that would indicate payment to M/s.New India Assurance Co. Ltd., in a sum of Rs.6,60,440/-. The fact that Sri.T.L.Krishnamurthy is the Founder Trustee of ORCF which comes out from Ex.R13 which is the Trust Deed of ORCF and the payment reflected in the account statement at Ex.R2(a) could be construed as payment being made by the Founder Trustee of ORCF. However, that by itself would not alter the factum of issuance of Policy in terms of Ex.P80 in the name of KMSS, as all the receipts for payment of premia viz., Adjustment Voucher at Ex.P81, Advance Premium Deposit Receipts at Ex.P82 to Ex.P85 are issued in the name of "KAMMAGONDANAHALLI SRI MARUTHI SEVA SAMITHI(R)."
41. The specific stand of respondent No.1 in the written statement was to the effect that ORCF which is a Trust has entered into a MoU with KMSS, according to which there was an understanding whereby the KMSS was required to furnish data to ORCF which would pay premium 43 for the policy10. However, the said MoU has not been placed before the Court or summoned from the custody of the person who is in possession of the same in order to establish the assertion regarding the MoU and the limited role of KMSS insofar as the Medi Assist Policy is concerned.
42. As regards the MoU, the respondent No.1 who is examined as RW.1 was specifically asked and his response to the same is as follows:
"Question:
Have you seen the Memorandum of
Understanding?
Answer:
They have shown a letter. It is false to state that I have not seen the Memorandum of Understanding. I have seen the same."10
¶ 4 and 5 of the written statement, which is of relevance are as follows:
"4. As per the information furnished by the Kammagondanahalli Sri Maruti Seva Samithi to the Respondent No. I in respect of the issue of Medi Assist policies, it is learnt by the Respondent No. I that, The One Rupee Charity Foundation Trust had entered into an understanding with the Kammagondanahalli Sri Maruti Seva Samithi and as per the Memorandum of Understanding, the Kammagondanahalli Sri Maruti Seva Samithi has to furnish the data with regard to the poor students residing in its jurisdiction to the One Rupee Charity Foundation Trust and the One Rupee Charity Foundation Trust thereafter pays the premium for the poor students and issues Medical Health Policy to the poor students .
5. The Respondent No. l further submits that even the NGO named as One Rupee Charity Foundation Trust had issued the Mediclaim policies after entering into an understanding with Kammagondanahalli Sri Maruti Seva Samithi prior to the Gazette Notification issued by the Election Commission of lndia on 27.03.2018 ."44
43. It is relevant to notice simultaneously the evidence of Sri Kishore Varadachari, who was examined as RW.2 and who is a Trustee of ORCF, has specifically stated in his examination-in-chief recorded on 04.04.2022 as follows:-
"The understanding between One Rupee
Charity Foundation and Kammgondanahalli Sri
Maruthi Seva Samithi was in the nature of written understanding.
The written understanding between the One Rupee Charity Foundation and Kammgondanahalli Sri Maruthi Seva Samithi which was in my possession was handed over to Tumakuru Rural Police Station in connection with the investigation of the case.
All the documents given by Kammgondanahalli Sri Maruthi Seva Samithi were handed over to the police authorities and whatever documents we gave in the form of proposal, etc., to the Kammgondanahalli Sri Maruthi Seva Samithi was in possession of Sri Chennigappa."
44. It is clear from the stand of RW.1 that there was a Memorandum of Understanding. It is the stand of RW.1 45 also that it was the understanding that KMSS would furnish data to ORCF. If it is the case that the role of KMSS insofar as the policy is concerned was only limited to the furnishing of data of students to ORCF which would further take steps to obtain policy, which is also the stand taken by RW.2 and there was no other role of KMSS, then the best evidence available to support such assertion was the Memorandum of Understanding between KMSS and ORCF.
45. As pointed out above, the existence of MoU has been asserted by RW.1 as well as RW.2. As it is the case put forward by RW.2 that the copy of MoU had been submitted to the Police Authorities and in light of specific assertion by RW.1 in the written statement as well as in his deposition regarding the MoU, the burden of proving the scope of MoU rested on RW.1. Further, once Ex.P80 reveals that policy is taken in the name of KMSS and by way of a counter it is stated that premium is paid by ORCF and that limited role of KMSS was only to furnish data to ORCF and nothing more, the onus shifts on RW.1 to prove such an 46 assertion as regards the scope of MoU which could be accomplished only by the production of MoU by taking steps to have the same produced from the custody of Police Authorities as stated by RW2. No steps have been taken by RW.1 to summon the said MoU and it could be concluded that the onus on RW.1 regarding the assertion of limited role of KMSS vis-à-vis the Medi Assist policies does not stand discharged. In fact, not taking appropriate steps for summoning such documents which would support the case of respondent No.1 would lead to drawing an adverse inference as it could be construed that no steps were taken to summon the MoU, as the said document if produced may reveal material contrary to their stand.
46. It is also relevant to note that as regards the scope of MoU stated to have been entered into between KMSS and ORCF, the non-examination of Sri T.L. Krishnamurthy who was the Founder Trustee and from whose account amount asserted to be premia has been transferred to the M/s. New India Assurance Co. Ltd., calls 47 for drawing an adverse inference against KMSS and respondent No.1. The evidence of Sri T.L.Krishnamurthy would have had the effect of clarifying the issue insofar as MoU is concerned.
47. Once it is the specific stand of respondent No.1 that there was an understanding that KMSS would share data with ORCF regarding the students, it would indicate the willingness of KMSS to collaborate with ORCF as regards Medi Assist Policy. In the absence of MoU being produced and eventually policy being issued in the name of KMSS as per Ex.P80, there can be no doubt regarding the existence of policy and the respondents have failed to prove their assertion that the understanding between KMSS and ORCF was only as regards the limited role of providing data of school students to facilitate obtaining of policy and not beyond such limited understanding.
48. However, the payment of premia by third party other than the insured does not have the effect of altering the policy holder as the policy depicts the name of the 48 insured as KMSS and the premium receipts are still issued in the name of KMSS. Accordingly, it is held that Medi Assist Policy has been taken in the name of KMSS. ASSOCIATION OF RESPONDENT NO.1 WITH KMSS
49. A significant contention raised is that the respondent No.1 had nothing to do with KMSS and even if KMSS has committed a lapse, he has nothing to do with it.
50. It is the specific defence that the respondent No.1 had severed ties with the family, that he had executed Release Deed and was residing separately and had nothing to do with KMSS, which was allegedly controlled by his family.
51. What requires to be determined is as to whether KMSS with the consent of respondent No.1 has acted in a manner so as to benefit the respondent No.1 in issuance of Medi Assist Policy.
49
52. The execution of Release Deed is stated to be of the year 2007, dated 19.05.2007 and is produced as Ex.R9. Even if the same is admitted, it would by itself not have any effect, if otherwise it is demonstrated that KMSS which admittedly is controlled by the family has acted in a manner so as to benefit the respondent No.1. An aspect of relevance would be as to whether the family members nursed any animosity against respondent No.1 and in the absence of which, it would be the common course of human conduct of other members of the family to support respondent No.1 and enhance his prospects in the election, if relevant facts are demonstrated which would be a permissible presumption under Section 114 of the Indian Evidence Act.
53. The fact that the office bearers of KMSS are family members of respondent No.1 is not in dispute and has come out during evidence. RW.1 in his cross- examination recorded on 25.02.2022 has deposed as follows:-
50
"My father's name is found at Sl.No.1 of Ex.P5 which relates to list of office bearers of Kammagondanahalli Sri Maruthi Seva Samithi ... the name G.S.Siddagangamma shown at Sl.No.6 is of my mother ..."
54. The persons at Sl.No.1 Sri C.Chennigappa is the father; Sl.No.2 Sri D.C.Venugopal is the brother; Sl.No.4 Smt.G.H.Siddagangamma is the mother.
55. Though the Release Deed is stated to have been executed in 2007, it is a document between respondent No.1 and other members of the family. The respondent No.1 (RW.1) states in his cross-examination as follows:-
"there are four houses where I am staying ... In the other houses in the compound, my mother and my younger brother stay."
This would indicate that the brother and mother of respondent No.1 are staying in close vicinity. The above would indicate that the members of the family are on cordial terms and there would be a presumption permissible to be drawn taking note of common course of human 51 conduct in the absence of any other fact to indicate animosity amongst them being presented before the Court. Accordingly, it can be stated that the KMSS has acted to further the interest of the respondent No.1 in the act of taking out the Medi Assist Policy.
56. The admitted fact of entering into an understanding with ORCF by KMSS in order to share data of students and further understanding that the premia would be paid by the ORCF even as per the stand of respondent No.1 in the written statement would indicate that there was an intention of having Medi Assist Policies to be taken in the name of students11. It must be noted that KMSS has its Office situated at Abbigere which is in Bengaluru City, that predominantly the policies were taken benefiting the students studying in Tumkur Rural Constituency during the 11 Para-4 of the written statement reads as follows:-
"4. As per the information furnished by the Kammagondanahalli Sri Maruti Seva Samithi to the Respondent No. I in respect of the issue of Medi Assist policies, it is learnt by the Respondent No. I that, The One Rupee Charity Foundation Trust had entered into an understanding with the Kammagondanahalli Sri Maruti Seva Samithi and as per the Memorandum of Understanding, the Kammagondanahalli Sri Maruti Seva Samithi has to furnish the data with regard to the poor students residing in its jurisdiction to the One Rupee Charity Foundation Trust and the One Rupee Charity Foundation Trust thereafter pays the premium for the poor students and issues Medical Health Policy to the poor students ."52
time coinciding with election to Tumkur Rural Constituency wherein the respondent No.1 was contesting, and the timing of such activity and geographical location of the schools as regards students of which policies were taken; all of such would lead to a logical deduction that KMSS had taken up this task of facilitating issuance of Medi Assist Policy to help the respondent No.1. Even if it is assumed that the premium of policy was paid by ORCF which would not have the effect of altering Ex.P80, the whole exercise of taking Medi Assist Policy in the name of students who were predominantly belonging to Tumkur Rural Constituency as would come out from the majority of Medi Assist cards marked as Ex.P23 series would only indicate that willingness of KMSS to act in support of the respondent No.1 so as to promote his election prospects.
57. Accordingly, it is held that respondent No.1 is associated with KMSS.
53
58. The aspect as to whether the action of KMSS was with the consent of respondent No.1 has been considered separately.
CANCELLATION OF MEDI ASSIST POLICY
59. Insofar as issue No.ii(d) is concerned, the factum of cancellation of policy is admitted. In terms of Ex.P42, which is an Email correspondence by Ms.Preetha, an employee of M/s. New India Assurance Co. Ltd., communicating to PW-2, brother of petitioner that Sri Devendra Prasad, Divisional Manager, had been advised to issue cancellation notice as per internal guidelines. In terms of Ex.P87, the policy has been cancelled with effect from 08.05.2018 and the premium has been refunded. The said document issued by M/s.New India Assurance Co. Ltd., is conclusive of the factum of cancellation and is not in dispute. The reason assigned for cancellation as enumerated in Ex.P87 is that the policy was cancelled as there was "NO INSURABLE INTEREST IN THE STUDENTS COVERED AS ALSO THE GROUP OF STUDENTS COVERED 54 DO NOT FALL UNDER THE DEFINITION OF irdai SPECIFIED HOMOGENOUS GROUP."
60. It is made out from the correspondences exchanged between employees of M/s. New India Assurance Co. Ltd., and Sri Ramesh Bettaiah and the PMO that the Medi Assist Policy was cancelled at the instance of Sri Ramesh Bettaiah. The correspondence between PW2 and M/s. New India Assurance Co. Ltd., is marked as Ex.P33 to Ex.P38. This fact has been spoken to by PW.10 Sri Kittuswamy, Regional Manager, M/s.New India Assurance Co. Ltd., who has got marked the Medi Assist Policy cancellation document as Ex.P87. However, the assertion of the petitioner regarding its cancellation is not so much the factum of cancellation, but the reason for such cancellation which the petitioner seeks to take benefit of by contending that the policy came to be cancelled only on the ground of it being capable of misuse during election period.
61. After cancellation of the Medi Assist Policy with effect from 08.05.2018 in terms of Ex.P90(f), though PW.2 55 had issued a statement in 'Prajavani' newspaper to the effect that the Medi Assist Policy was cancelled on the ground of misuse, however in terms of the media report covering the statement of Sri Mahesh, President JD(S) Yuva Morcha, an assertion was made that policy was taken out keeping in mind the health benefit of the local people and that many beneficiaries had taken benefit of the same and were in fact present in the press conference. Copy of which is marked as Ex.P11(a).
62. No doubt, the content of Exhibits P10(a) and P11(a) cannot be taken note of as being conclusive proof regarding the incidents narrated but could be taken note of only for the purpose of inferring that the issue regarding cancellation was in public domain as on 09.05.2018 [Ex.P10(a)] and on 11.05.2018 [Ex.P11(a)], both of which were prior to the date of polling on 12.05.2018. The contradictory stand taken in Exhibits-P10 and P11 regarding the cancellation and absence of any clarification by M/s. New India Assurance Co. Ltd. and KMSS, or any stand by 56 respondent No.1 distancing himself from the Medi Assist cards alleged to have been issued with his consent, while further noticing that no effort was made by M/s. New India Assurance Co. Ltd. or the Authorities to withdraw the Medi Assist cards has had the effect of continuance of impression in the minds of those who had received the Medi Assist cards regarding its benefits and accordingly its capability of enticing the voters as on the polling date continued. Accordingly, though the issue as to whether the Medi Assist Policy was cancelled on the basis of complaints is answered in the affirmative, it in fact has no effect insofar as the capability of Medi Assist cards to act as an object of enticement.
63. Accordingly, the issue Nos.2(d) and (v) are answered in the affirmative. As regards issue No.ii(c), a part of the issue that KMSS has taken out policies on the wards of the voters, the issue is held in the affirmative. However, there is no direct evidence of KMSS distributing the policies directly and the portion of the issue regarding 57 KMSS having distributed the policies is held in the negative, though it may have facilitated such distribution as circumstances are made out as per discussion infra. PART - C
64. Issue No.(iii) is taken up for consideration and the issue framed is as follows:
"WHETHER THE PETITIONER PROVES THAT THE RESPONDENT NO.1, ELECTION AGENTS AND THE PERSONS ASSOCIATED OR CLAIMING THROUGH HIM HAVE COMMITTED ANY OTHER CORRUPT PRACTICE AS MADE OUT IN THE PETITION WITHIN THE MEANING OF SECTION 123 OF R.P. ACT ?"
65. The election of a returned candidate could be declared to be void by the High Court, if a corrupt practice has been committed by the returned candidate, his election agent/any other person with the consent of the returned candidate in terms of Section 100(1)(b) of the R.P. Act12. 12
100. Grounds for declaring election to be void.--(1) Subject to the provisions of sub-section (2) if the High Court is of opinion--
(b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent;
the High Court shall declare the election of the returned candidate to be void. 58
66. Section 123 of the R.P. Act provides for what would constitute corrupt practice and what is of relevance in the present case is the definition of 'bribery'. The relevant portion of Section 123 is extracted hereinbelow:-
"123. Corrupt practices.--The following shall be deemed to be corrupt practices for the purposes of this Act:--
(1) "Bribery", that is to say--
(A) any gift, offer or promise by a candidate or his agent or by any other person with the consent of a candidate or his election agent of any gratification, to any person whomsoever, with the object, directly or indirectly of inducing--
(a) xxx
(b) an elector to vote or refrain from voting at an election, or as a reward to--
(i) xxx
(ii) an elector for having voted or refrained from voting;"
Accordingly, any gift or offer of gratification to any person with the object of directly or indirectly inducing the elector to vote at the election in favour of the candidate 59 from whom enticement has been made would amount to bribery.
67. Section 123(1)(B) provides 'bribery' that would include the receipt of any gratification with the purpose of directly or indirectly inducing the elector to vote and the Explanation provides for a wider understanding of 'gratification' and includes all forms of gratifications 'estimable in money'. The relevant portion of Section 123 is extracted hereinbelow:-
Section 123 - (1) xxx (A) xxx (B) the receipt of, or agreement to receive, any gratification, whether as a motive or a reward--
(a) xxx
(b) by any person whomsoever for himself or any other person for voting or refraining from voting, or inducing or attempting to induce any elector to vote or refrain from voting, or any candidate to withdraw or not to withdraw his candidature.
Explanation.--For the purposes of this clause the term "gratification" is not restricted to pecuniary gratifications or gratifications estimable in money and it includes all forms of entertainment and all forms of employment for reward but it does not 60 include the payment of any expenses bona fide incurred at, or for the purpose of, any election and duly entered in the account of election expenses referred to in section 78."
68. In the present case, the alleged corrupt practice is the distribution of Medi Assist cards by agents/Party workers/other persons with the express quid pro quo of the recipient voting for the returned candidate. MEDI ASSIST POLICY AND CORRUPT PRACTICE
69. The Medi Assist Policies were designed such that the expenses upto the limit of Rs.10,000/- relating to sickness of children is covered under the policy.
70. In terms of the definition of 'bribery', the delivery of the policy to the parents of the children could be either: (a) gift or offer of gratification with the object of inducing the electors to vote. The delivery of Medi Assist Cards pursuant to the policy would constitute the gift or offer. (b) It could also constitute gratification estimable in 61 money, as medical expenses upto Rs.10,000/- of children was covered under the Medi Assist Policies to be invoked by the parents who are the electors.
71. Accordingly, the same could fall within the definition of 'corrupt practice' under Section 123 of the R.P. Act. It must be noted that the inducement could also be indirect and could be gathered from circumstances.
72. The aforesaid aspect including the meaning of 'gift' in the context of R.P. Act and manner of proof of bribery as well as the contention that there must be a bargain between the returned candidate and the electors has been adverted to by the Apex Court in C. Narayanaswamy v. C.K. Jaffer Sharief and Others13 and the observations made by the Apex Court are as follows:-
"6. The next aspect which needs examination is as to whether before arranging any such mass feeding, or in course thereof, the factum of any negotiation between the electors on one side, and 13 (1994) Supp.(3) SCC 170 62 candidate or his agent or any person arranging such mass feeding on behalf and with the consent of the candidate or his election agent on the other side has to be proved. The framers of the Act while specifying as to what shall be deemed to be 'bribery', did not provide that the negotiation between the candidate or his agent or any other person with the consent of such candidate or his election agent on the one hand and the electors on the other should be proved. Section 123(1)(A) says that any gift, offer or promise by a candidate or his agent or any other person with the consent of such candidate or his election agent, of any gratification made to the elector "with the object, directly or indirectly of inducing" such an elector to vote, shall be deemed to be 'bribery'. Section 123(1)(A) does not require the electors to express or convey their acceptance or assurance that they shall vote for such candidate. On the material on record, of course the court has to be satisfied that such gift, offer or promise of any gratification has been made to the electors with the object directly or indirectly to induce the electors to vote in favour of such candidate. A nexus between the gift, offer or promise of gratification and the inducement to vote has to be established. This can be established even by circumstantial evidence. The election petitioner is not required to prove any direct negotiation 63 between the candidate or his agent on the one hand and the electors on the other.
7. In the case of S.B. Adityan v. S. Kandaswami [AIR 1958 SC 857 : (1958) 2 MLJ (SC) 187] , it was said:
"The words 'gift, offer or promise by a candidate or his agent or by any other person' clearly show that what is contemplated is the making of a gift. These words are wholly inappropriate to describe the acceptance of a gift. The words 'with the object, directly or indirectly, of inducing' also indicate that only the making of a gift is contemplated, for the object is of the person making the gift, and clearly not of the person accepting it."
8. ...
9. But before the charge of bribery, as contemplated in Section 123(1)(A) of the Act, is held to have been proved, against the candidate concerned, because of mass feeding arranged by him or his agent or any other person with his consent or the consent of his election agent, it must be established that the object of such mass feeding was directly or indirectly to induce the electors to vote in favour of such candidate. In some cases, on material being produced, this charge can be established 64 directly if the candidate or his agent or any other person with the consent of the candidate or his election agent, at such mass feeding of the electors, seeks their support and votes at the election in question. But there may be cases, where the inducement to vote is not direct but only indirect one. The candidate or his agent or any other person who has arranged such mass feedings with the consent of the candidate or his election agent, may not make a direct appeal to the electors either before, during or after the feast."
ALLEGATIONS AGAINST PALANETHRAIAH
73. It has been averred in the Election Petition that on 11.05.2018, a day prior to the election at 9.00 p.m., the FST-II Squad had visited Gulur, Hebbur Hobli and when it was approaching K.Palasandra Village, Scorpio vehicle bearing registration No.KA-06-N-2725 was intercepted. It is submitted that the vehicle was abandoned by the inmates and the Squad was able to seize the following: (a) Scorpio vehicle bearing registration No.KA-06-N-2725 (b) Note Book where JD(S) was written; (c) JD(S) Students' indemnity 65 letter14; (d) xxx (e) Eight pages containing names of Booth Level workers and their telephone numbers; (f) A bundle of Rs.500/- notes totaling Rs.50,000/-; (g) One Cheque Book and (h) one pass book.
74. Accordingly, it is averred that the JD(S) Party workers were distributing money in connection with the election and that Mahazar was drawn and FIR was registered in Crime No.0073/2018 dated 11.05.2018 against four unknown persons.
75. The same position has been reiterated in the affidavit by way of evidence filed by PW.1 at para-27. It is further stated in the affidavit that as per the order dated 20.08.2018, accused-Sri Palanethraiah in Crime No.0073/2018 had pleaded guilty and was convicted and directed to pay a sum of Rs.1,000/- as fine and has produced Certified Copy of P.F.No.31/2018 along with other documents.
14 can be construed to be Medi Asisst bond which is a contextual interpretation keeping in mind the facts and circumstances 66
76. It was specifically averred in the affidavit that Sri Palanethraiah was the Counting Agent of respondent No.1 and the other three accused were JD(S) Party workers and agents of respondent No.1.
77. It must be noted that insofar as the proceedings in Crime No.0073/2018, P.F.No.31/2018 which reflected the list of seized items was marked as Ex.P26, which indicates the seizure of the following:--
a) Scorpio vehicle bearing registration No.KA-06-N-2725;
b) xxxx
c) JD(S) student Indemnity Letter;
d) xxxx
e) Eight pages containing details of Booth
Level workers with telephone numbers;
f) Currency Notes of Rs.500/- denomination of 100 notes totaling to an amount of Rs.50,000/-;
g) Cheque Book consisting of 12 empty cheque leaves of Canara Bank belonging to Palanethraiah.G S/o Gangappa;
h) Pass Book relating to A/c
No.0474101036881 belonging to
Palanethraiah.G S/o Gangappa;
67
78. After investigation, charge sheet came to be filed in Crime No.0073/2018 for the offence under Section 171E of IPC. The said charge sheet was marked as Ex.P27 by PW.1. After taking cognizance under Section 190(1)(b) of Cr.P.C. for the offence under Section 171E of IPC, summons was issued to the accused. The charges were framed by the Court as regards to the alleged offence made out from the material on record, which was read out and the accused Palanethraiah and accused Nos.2, 3 and 4 pleaded guilty.
The charges framed and proceedings relating to pleading guilty is extracted as below:-
"DgÉÆæUÀ¼ÁzÀ ¤ÃªÀÅ ¢£ÁAPÀ: 11-05-2018gÀAzÀÄ ¸ÀĪÀiÁgÀÄ 9-00UÀAmÉ ¸ÀªÀÄAiÀÄzÀ°è dAiÀÄ£ÀUg À À ¥Éưøï oÁuÁ ¸Àgº À ¢ À ÝUÉ ¸ÉÃjzÀ ¥Á®¸ÀAzÀæ UÁæªÀÄzÀ°è F PÉù£À ¸ÁQë-1 jAzÀ 3 gÀªg À ÀÄ 133 vÀĪÀÄPÀÆgÀÄ «zsÁ£À¸¨ À sÁ PÉëÃvÀæ J¥sï.J¸ï.n-2 £Éà vÀAqÀPÉÌ £ÉêÀÄPÀUÉÆArzÀÄÝ ¸Àzj À AiÀĪÀgÀÄ ZÀÄ£ÁªÀuÁ ¤Ãw ¸ÀA»vÉ eÁj ªÀÄvÀÄÛ ªÉZÀÑ ªÀiÁ¤lgï ªÀiÁqÀ®Ä UÀ¸ÀÄÛ ªÀiÁqÀÄwÛzÁÝUÀ DgÉÆæUÀ¼ÁzÀ ¤ÃªÀÅUÀ¼ÀÄ ZÀÄ£ÁªÀuÁ ¤Ãw ¸ÀA»vÉ eÁjAiÀÄ°ègÀĪÀ ¸ÀªÀÄAiÀÄzÀ°è eÉ.r.J¸ï ¥ÀPÀëzÀ ªÀw¬ÄAzÀ ªÀÄvÀzÁgÀjUÉ ºÀtªÀ£ÀÄß ºÀAZÀ®Ä PÉ.J-06-J£ï-2725£Éà ¸Á̦ðAiÉÆà ªÁºÀ£z À ° À è ºÀtªÀ£ÀÄß ¸ÁUÁl ªÀiÁqÀÄwÛzÀÄÝ ¤°è¸ÀĪÀAvÉ ºÉýzÁUÀ PÉ.¥Á®¸ÀAzÀæ UÁæªÀÄzÀ°è gÀ¸ÉÛAiÀÄ §¢AiÀÄ°è 68 ªÁºÀ£ª À £ À ÀÄß ¤°è¹ ¥ÀgÁjAiÀiÁVzÀÄÝ ¸Àzj À ªÁºÀ£z À ° À è eÉ.r.J¸ï.JAzÀÄ §gÉ¢zÀÝ £ÉÆÃmï ¥ÀĸÀÛP,À eÉ.r.J¸ï «zÁåy𠫪ÉÄ ¥Àv,Àæ MAzÀÄ eÉÆvÉ ZÀ¥Àà°, §Ævï ¯Éª¯ À ï PÁAiÀÄðPÀvð À gÀ ºÉ¸g À ÀÄ, zÀÆgÀªÁt ¸ÀASÉå EgÀĪÀ ¸ÀĪÀiÁgÀÄ 5 ¥ÀÄlzÀ PÁUÀzÀ gÀÆ.500 ªÀÄÄR¨É¯A É iÀÄ gÀÆ.50,000 £ÀUz À ÀÄ, MAzÀÄ ZÉPï ¥ÀĸÀÛP,À MAzÀÄ PÉ£g À Á ¨ÁåAPï ¥Á¸ï ¥ÀĸÀÛP,À ªÀÄzÀÄªÉ ªÀÄwÛgÀ ±ÀĨsÀ ¸ÀªÀiÁgÀA¨sU À ¼ À À DªÀÄAvÀæt ¥ÀwPæ É zÉÆgÉwzÀÄÝ ZÀÄ£ÁªÀuÁ ¤Ãw ¸ÀA»vÉ eÁjAiÀÄ°ègÀĪÀ ¸ÀªÀÄAiÀÄzÀ°è ªÁºÀ£z À ° À è ªÀÄvÀzÁgÀjUÉ ºÀtªÀ£ÀÄß ºÀAZÀ®Ä, ºÀtªÀ£ÀÄß ¸ÁUÁl ªÀiÁqÀÄwÛzÀÝ PÁgÀt DgÉÆæUÀ¼ÁzÀ ¤ªÀÄä «gÀÄzÀÞ £À£Àß ¸ÀAeÁÕ£z À ° À è §gÀĪÀ PÀ®A171(E) L.¦.¹ jÃvÁå ²PÁëºð À C¥ÀgÁzsª À £ À ÀÄß ªÀiÁrgÀÄwÛÃj.
DgÉÆæ ºÉýPÉ
1. ¥À± æ Éß: FUÀ N¢ ºÉýzÀ C¥ÁzÀ£Á ¸ÁgÁA±À ¤ªÀÄUÉ w½¬ÄvÉÃ? GvÀÛg:À YES
2. ¥À± æ Éß: FUÀ N¢ ºÉðzÀ D¥ÁzÀ£A É iÀÄ£ÀÄß M¥ÀÄàwÛÃgÁ? CxÀªÁ ¥Àw æ gÀPÉë §AiÀĸÀÄwÛÃgÁ?
GvÀÛg:À PLEADED GUILTY (F D¥ÁzÀ£A É iÀÄ£ÀÄß DgÉÆæUÉ w½zÀ ¨sÁµÉAiÀÄ°è N¢ ºÉý, «ªÀj¹ CªÀjAzÀ GvÀÛgÀ ¥Àqz É ÀÄ zÁR°¹zÉÝãÉ)."
79. It is clear from the charges framed which are specific that while the Flying Squad was on rounds, they intercepted a Scorpio vehicle bearing registration No. KA-06-N-2725 and that money was being ferried in the 69 vehicle in order to distribute the same to the voters on behalf of JD(S) Party during the time the Code of Conduct was notified by the Election Commission which was in force and that the accused abandoned the vehicle and ran away and upon inspection, the material stated in P.F.No.31/2018 referred to above was seized and accordingly, accused had committed an offence under Section 171E of IPC.
80. As regards such charge, the accused having pleaded guilty leads to the conclusion that the charges are proved. Upon conviction for the offence under Section 171E of IPC, the proceedings in the said case came to be concluded and records would indicate that Sri Palanethraiah
- accused No.1 had obtained an order for release of his Scorpio vehicle15 by filing an application under Section 451 r/w 457 of Cr.P.C.
81. The legal consequence that emanates from the judgment of the trial Court16 in which the accused has pleaded guilty, when such judgment comes up for 15 bearing registration No.KA-06-N-2725 16 C.C.No.3079/2018 70 consideration in other proceedings would be that the accused has admitted the contents of the charge made out. The validity of such judgment cannot be sought to be reopened in collateral proceedings.
82. The submission that the order passed sentencing the accused on the basis of his pleading guilty has been challenged in Criminal Appeal No.15/2023 after a delay of about five years and only during the pendency of the present proceedings, would not take away the effect of the judgment as it stands today, in the absence of any stay of the judgment and order of sentence passed in C.C.No.3079/2018.
83. Insofar as the defence relating to the allegation made against Sri Palanethraiah as being a Counting Agent of respondent No.1, it is asserted that the Conduct of Elections Rules, 1961 prescribes the procedure of appointment of Counting Agents and Form-18 is the prescribed format, which has not been produced. 71
84. It must be noted that PW.1 has produced and marked Ex.P32 (Pages 784 to 791 are collectively marked as Ex.P32) which is an Endorsement certifying the Counting Agents for Tumkur Rural Assembly Constituency for the elections of 2018. The said Endorsement reads as follows:- 72 73 74
75 PART - C 76
85. The endorsement dated 27.11.2019 is enclosed alongwith the list of Counting Agents and contains the name of Sri Palanethraiah. G. The said document is signed on behalf of Tahsildar and the covering sheet to the list is the endorsement furnishing the information of Counting Agents as has been sought for, under Right to Information Act, 2005.
86. The further contention raised at the time of argument is that Rule 52 of the Conduct of Elections Rules, 1961 deals with the appointment of Counting Agents and stipulates that appointment can be made in accordance with Form-18 and accordingly, the petitioner ought to have produced Form-18.
87. It must be noted that the RTI response issued by the Tahsildar is clear as regards furnishing of information consisting of the list of Counting Agents for Tumkur Rural Assembly Constituency as regards the elections in the year 2018. The covering letter furnishing information is signed 77 by the Tahsildar, the list enclosed also bears the signature of Tahsildar. The presumption under Section 114 of the Indian Evidence Act, 1872 would apply as regards such documents issued by Public Authority. Illustration (e) to Section 114 enables raising a presumption that official acts have been regularly performed. Insofar as the candidate Sri D.C.Gowrishankar amongst others whose names are enumerated as Counting Agents, the name of Sri Palanethraiah. G is found. If Ex.P32 is taken note of which is clear, it would indicate that Sri Palanethraiah. G was a Counting Agent of respondent No.1.
88. The mere say that it is a fabricated document is not sufficient to disbelieve the said document. No doubt, there may be records that are required to be maintained in Form-18 containing the list of Counting Agents, but the non-furnishing of the said Form-18 by itself would be no ground to disbelieve the response of RTI, produced and marked at Ex.P32.
78
89. Once the document bearing the signature of Tahsildar who is a public official is issued containing the list of Counting Agents, which list is also signed on behalf of Tahsildar and bears his seal, there is no reason to doubt the genuineness of such document, more so, in light of presumption under Section 114 of the Indian Evidence Act, 1872.
90. Once the petitioner has produced and marked Ex P.32 which has been appreciated above, the petitioner has discharged his burden and the onus then shifts on respondent No.1, who was in a position to establish that Palanethraiah was not his Counting Agent by taking steps to produce Form-18 from proper custody and prove his assertion. In fact, the Apex Court has also noticed the role of a person contending that no corrupt practice was made out and steps to be taken, in M. Narayana Rao v. G. Venkata Reddy17 wherein, it has been observed that the person cannot keep silent and the relevant extract is as follows:
17
(1977) 1 SCC 771 79 "19. xxx (1) That the charge of commission of corrupt practice has to be proved and established beyond doubt like a criminal charge or a quasi-criminal charge but not exactly in the manner of establishment of the guilt in a criminal prosecution giving the liberty to the accused to keep mum. The charge has to be proved on appraisal of the evidence adduced by both sides especially by the election petitioner."
DISTRIBUTION OF MEDI ASSIST CARDS
91. The stand of the petitioner is that the Medi Assist cards were distributed to induce the voters to vote for respondent No.1 and had resulted in respondent No.1 securing large number of votes eventually leading to his victory and the details of distribution between 25.04.2018 to 11.05.2018 along with the persons involved in such distribution is detailed in the petition. It is further asserted that the factum of cancellation of Medi Assist Policies was 80 never intimated to the public, by which time the inducement was complete18.
92. It is further asserted that though the Medi Assist Policy was cancelled, a Press Meet was held by Sri Mahesh, President Of JD(S) Yuva Morcha on 11.05.2018, who is stated to have admitted that 17,000 students had been insured and the said Press Meet was covered by the Media in 'Prajavani' as well as 'Tumkur Varthe'.
93. The respondent No.1 in his written statement while disowning the connection with KMSS has specifically taken a stand as reflected in para-24 of the written statement regarding the distribution of Medi Assist cards as follows:-
18
The relevant portion of paras-33 and 34 of the petition are extracted hereinbelow:-
"33. ...The action of first respondent in distributing the Medi Assist ID cards to each house in which the students were residing was clearly an act to induce the voters in that particular house to vote for first respondent. Petitioner believes that the inducement effected by the first respondent worked out to large extent and large number of voters residing in various villages did vote for first respondent because of the inducement and that resulted in the first respondent securing large number of votes leading to his victory in the election. The distribution of Medi Assist ID cards were effected between 25.4.2018 to 11.5.2018 at different times by the following JDS workers...
34. It is submitted that the factum of cancellation of the policies was never intimated to the public at large and the damage that was sought to be done with the aid of insurance policies and large scale distribution of Medi assist Cards have already been distributed by the respondent and his agents who were canvassing for him and luring the public for vote in the elections in favour of 1st respondent, since their children will be benefited upto Rs.10,000 /- for medical treatment."81
"24. ... The NGO named as One Rupee Charity Foundation after obtaining data from the Kammagondanahalli Sri Maruti Seva Trust had issued Medi Assist Card covering health benefit upto Rs. l0,000/- to the poor students from the period 26.02.2018 to 25.02.2019... Instead, they had discovered the Medi Assist card in the house of Gopalaiah in respect of Kum.Nirmala and in the house of Sri Shivashankar in respect of his daughter Kum.Likitha after the same was being distributed by the NGO One Rupee Charity Foundation and accordingly false allegations were alleged against the Respondent No.1. Even the documents produced as Annexure-L and M are not legal and valid documents and the same do not have any evidential value under the eye of Law."
94. The above statement in the written statement is a clear admission as regards the distribution of Medi Assist cards, though it is the stand that the distribution was done by ORCF. The last sentence regarding Annexures-'L' and 'M' (Medi Assist cards) not being legal and valid document and not having evidentiary value does not have the effect of watering down the unambiguous admission in the pleading itself regarding distribution. The said contention regarding 82 the validity of Medi Assist cards has been considered infra at paras-103 to 105.
95. Sri Kishore Varadhachari, the Trustee of ORCF has been examined as RW2, who admits the downloading of 150 Medi Assist cards from the C.D. and he has deposed as hereunder in the cross-examination:-
"I have received copies of the Medi-Assist Policies by way of C.D. from Medi-Assist TPA Services. About 150 cards were downloaded from the C.D and I could not download any more as there was an error. I was unable to download other cards from the C.D., as at the time of downloading an error appeared."
The further stand in the deposition which may have a bearing on the aspect of distribution is as follows:-
"Out of 150 cards that were downloaded, about 10 cards relating to Tumakuru were retained by me and the remaining cards were given to Sri Narasimhamurthy and Sri Ananthu and I had told them to keep the said cards with them which could be distributed after all other cards are received."83
96. It is to be noticed that (a) Sri Lakshminarayana examined as PW3 has taken the stand that Ex.P52 is the Medi Assist card issued in the name of his son was given by Sri Arehalli Manjunath who is a JD(S) Party worker; (b) Sri Mahadevaiah examined as PW5 has stated that Sri Krishnegowda and Smt.Renukamma, who were JD(S) Party workers had come to his house in the month of April 2018 and gathered information regarding his daughter and subsequently three days prior to the election, Sri Krishnegowda and Smt.Renukamma had handed over the bonds and the copy of said Medi Assist Policy was marked as Ex.P63; (c) Sri D.R. Ramesh examined as PW6, who was a resident of Doddasarangipalya has produced the Medi Assist card and stated to have been given by Sri Krishnegowda and Smt.Renukamma, both belonging to JD(S) Party and the said document is marked as Ex.P68;
(d) Smt.Ramamani examined as PW.8, has produced the Medi Assist Policy stated to have been given by Sri Arehalli Manjunath and Smt.Sunandamma, both belonging to JD(S) Party and the document is marked as Ex.P76. 84
97. Each of these witnesses have produced corroborative material to demonstrate that the School in which the child was studying and other documents to demonstrate the correctness of description of the child in the Medi Assist cards by relying on the other documents. The following Table would indicate such of the details referred to above:
NAME OF WITNESS WITNESS EXHIBITS MARKED EXAMINED AS Lakshminarayana V.N PW - 3 Ex.P49 and Ex.P50 - Voters List for the year 2018, 2021 Ex.P51 - Son's Study Certificate Ex.P52 - Medi Assist Card Ex.P53 - Aadhar Card Ex.P54 - Son's Aadhar Card Mahadevaiah PW - 5 Ex.P60 and Ex.P61 - Voters List for the year 2018, 2021 Ex.P62 - Daughter's Study Certificate Ex.P63 - Medi Assist Card Ex.P64 - Aadhar Card Ex.P65 - Daughter's Aadhar Card D.R. Ramesh PW - 6 Ex.P66 - Voter ID Ex.P67 - Son's Study Certificate Ex.P68 - Medi Assist Card Ex.P69 - Aadhar Card Ex.P70 - Son's Aadhar Card 85 Ramamani PW - 8 Ex.P73 and Ex.P74 - Voters List Ex.P75 - Daughter's Study Certificate Ex.P76 - Medi Assist Card Ex.P77 - Aadhar Card Ex.P78 - Daughter's Aadhar Card
98. Though it is contended that these witnesses are interested witnesses and are brought at the instance of petitioner, the conclusive finding relating to the distribution of Medi Assist cards is arrived at after appreciation of entirety of the evidence and noticing that PW3, PW5, PW6 and PW8 have withstood the cross-examination.
99. The fact of distribution of policies is admitted in terms of para-24 of the written statement averment of respondent No.1. This admission if read in conjunction with evidence of RW2, whose admission is to the extent that about 150 Medi Assist cards were downloaded from the CDs and printed and handed over to Sri Narasimha Murthy and Sri Anantha and the production of the Medi Assist cards by PW3, PW5, PW6 and PW8 and the names of their children and the Schools in which they are studying indicating the 86 correctness of description in the Medi Assist cards, the withstanding of cross-examination by all the above mentioned witnesses, the above evidence when evaluated in its entirety, it could be concluded that the Medi Assist Policies have been distributed in the villages falling within Tumkur Rural Constituency. The denials made do not outweigh the entirety of evidence produced by the petitioner nor does it lead to any doubt in the version of petitioner.
100. Curiously RW3 - Sri Rangaswamy has deposed on behalf of respondent No.1 taking a specific stand that Sri Narashima Murthy, husband of BJP Zilla Panchayat Member, had visited his house in the month of March 2018 along with persons from ORCF and BJP leaders and distributed the Medi Assist cards including to his two children and the said documents were marked as Ex.R21 and Ex.R22. This stand would also indicate unequivocally relating to the distribution of Medi Assist Policies.
87
101. Though it is the contention that Sri Narashima Murthy was a BJP Party worker who had distributed the Medi Assist Policy, the said assertion has not been raised in the pleadings. This evidence of RW3 appears to be an afterthought so as to improve the case of respondent No.1 after having seen the stand and the evidence of petitioner and accordingly, it cannot be given due credence and is to be disbelieved. No doubt, RW3 has contended that distribution is in March 2018, prior to the date of nomination. However, while appreciating the acts of distribution of Medi Assist Policies subsequent to the date of nomination, the act of issuance of Medi Assist Policies on 26.02.2018, and distribution thereafter, i.e. just before polling date by Noticees as asserted by PW3, PW5, PW6 and PW8 form an important and inseparable chain of events and if all these acts referred to are appreciated in its entirety, the pattern of taking out the policy and its distribution form a chain of circumstances establishing the commission of corrupt practice.
88
102. The aspect as to the role of agents/Party workers/any other person having obtained and distributed the Medi Assist cards with the consent of the respondent No.1 has been dealt with in the discussion infra. In light of the above, the material on record requires to be looked into.
MEDI ASSIST CARDS AND ENTICEMENT
103. The Medi Assist cards were stated to have been issued pursuant to issuance of Medi Assist Policy and the TPA is stated to have given a C.D. containing e-cards and from the C.D., about "150 files" are stated to have been downloaded as per the deposition of RW.2-Kishore Vardhachari. It is stated that about 150 e-cards were jointly given to Sri Ananthu and Sri Narasimha Murthy. The reference to distribution must be construed as distribution of Medi Assist cards. PW3, PW5, PW6 and PW8 have also produced the Medi Assist cards and stated to have been distributed to them.
89
104. Though the validity of said Medi Assist cards has been assailed and Sri Devendra Prasad. A (PW.11), Divisional Manager of M/s.New India Assurance Co. Ltd., refuses to vouch with respect to the authenticity of said Medi Assist cards, what is required to be noted is that the fact of issuance of Medi Assist Policy is not in doubt. The Medi Assist Policy contains the details of TPA (Third Party Administrator). In the policy marked as Ex.P80, the details of TPA point out that 'Medi Assist Insurance TPA Private Limited' would service the policy, the details of the same TPA is found in the Medi Assist cards marked as Ex.P23 series as well as Ex.R15 series.
105. The Medi Assist cards by itself being a document purporting to reflect the details of Medi Assist Policy which have been held out by those who have distributed these e-cards to be a document which would enable enforcement of the Medi Assist Policy, even if it is not proved that the Medi Assist cards were issued by the TPA, the document having the capability of enticing cannot be denied. The 90 e-cards (Medi Assist cards) being traced back to the Medi Assist Policy would be sufficient to attribute to it the objective of enticing the voters and there is no other utility of the e-cards beyond this.
CONSENT OF RETURNED CANDIDATE/RESPONDENT NO.1:-
106. The consent of returned candidate for the acts done by persons other than the candidate and other than the election agent is a prerequisite to hold a returned candidate liable for corrupt practice.
107. Sections 100 and 123 of the R.P. Act are of relevance and are extracted hereunder:-
"100. Grounds for declaring election to be void.--
(1) Subject to the provisions of sub-section (2) if the High Court is of opinion--
(a) xxx
(b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or
(c) xxx 91
(d) that the result of the election, in so far as it concerns a returned candidate, as been materially affected --
(i) xxx
(ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent, or
(iii) xxx
(iv) xxx the High Court shall declare the election of the returned candidate to be void.
(2) If in the opinion of the High Court, a returned candidate has been guilty by an agent, other than his election agent, of any corrupt practice but the High Court is satisfied--
(a) that no such corrupt practice was committed at the election by the candidate or his election agent, and every such corrupt practice was committed contrary to the orders, and without the consent, of the candidate or his election agent;
(c) that the candidate and his election agent took all reasonable means for preventing the commission of corrupt practices at the election; and
(d) that in all other respects the election was free from any corrupt practice on the part of the candidate or any of his agents, 92 then the High Court may decide that the election of the returned candidate is not void.
123. Corrupt practices.--The following shall be deemed to be corrupt practices for the purposes of this Act:--
(1) "Bribery", that is to say--
(A) any gift, offer or promise by a candidate or his agent or by any other person with the consent of a candidate or his election agent of any gratification, to any person whomsoever, with the object, directly or indirectly of inducing--
(a) xxx
(b) an elector to vote or refrain from voting at an election, or as a reward to--
(i) xxx
(ii) an elector for having voted or refrained from voting;
(B) the receipt of, or agreement to receive, any gratification, whether as a motive or a reward--
(a) xxx
(b) by any person whomsoever for himself or any other person for voting or refraining from voting, or inducing or attempting to induce any elector to vote or refrain from voting, or any candidate to withdraw or not to withdraw his candidature.93
Explanation.--For the purposes of this clause the term "gratification" is not restricted to pecuniary gratifications or gratifications estimable in money and it includes all forms of entertainment and all forms of employment for reward but it does not include the payment of any expenses bona fide incurred at, or for the purpose of, any election and duly entered in the account of election expenses referred to in section 78.
(2) Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of any other person [with the consent of the candidate or his election agent], with the free exercise of any electoral right...."
108. The definition of 'consent' as contained in the Black's Law Dictionary is as follows:-
"A concurrence of wills. Express consent is that directly given, either lira voce or in writing. Implied consent is that manifested by signs, actions, or facts, or by inaction or silence, which raise a presumption that the consent has been given. Cowen v. Paddock, 62 Hun, 022, 17 N. Y. Supp. 3SS. Consent in an act of reason, accompanied with deliberation, the mind 94 weighing as in a balance the good or evil on each side. 1 Story, Eq. Jur."
109. Thus it is clear that 'consent' can be express or implied and in essence is an "act of reason accompanied by deliberation". The 'consent' could be implied by existence of circumstances indicating approval for action of others, non- taking of positive action to prohibit commission of acts could also be one of the circumstances and if the same is taken note of along with other circumstances, 'consent' could be inferred.
110. The finding relating to commission of corrupt practice as made out under Sections 100 and 123 of R.P. Act by persons on behalf of respondent No.1 requires that the corrupt practice was committed with his consent.
111. The evidence could be direct or through circumstantial. The only element of caution that is required to be exercised while relying on circumstantial evidence is that the chain of circumstances must not be interrupted. 95
112. The five golden principles (Panchsheel) that is to be followed while appreciating the burden of proof while dealing with the circumstantial evidence is laid down by the Apex Court in Sharad Birdhichand Sarda v. State of Maharashtra.19 The observations made are as follows:-
"153. ...
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. ...
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."19
(1984) 4 SCC 116 96
113. In the present case, the aspect of consent of respondent No.1 and the corrupt practice of bribery by Sri Arehalli Manjunath, Sri Krishnegowda, Smt.Renukamma and Smt.Sunanda is taken to be proved by circumstantial evidence and the circumstances are as follows:-
(i) The stand of respondent No.1 is that there was MoU between ORCF and KMSS whereby KMSS was required to furnish data of the poor students residing in its jurisdiction20. Though the MoU is stated to have been seen by respondent No.1, the same is not produced. The relevant deposition is as follows:-
"Question:-
Have you seen the Memorandum of
Understanding?
Answer:-
They have shown a letter.
It is false to state that I have not seen the Memorandum of Understanding. I have seen the same."20
see ¶ 7 of RW1 affidavit and ¶ 4 of written statement filed by respondent No.1. 97
(ii) Kishore Vardachari - RW2 the Trustee of ORCF in his deposition recorded on 04.04.2022 has admitted that there was an understanding between ORCF and KMSS in the nature of written understanding. It is stated that ORCF had approached KMSS for the purpose of assistance and in that regard, they had approached Sri C. Chennigappa, father of respondent No.1 to whom the proposal was given.
RW.2 had stated that the said document was handed over to the Police Authorities. No steps were taken to summon the said MoU from proper custody either by respondent No.1, KMSS or by RW.2. The said aspect has been discussed supra at para - 45.
(iii) It is the specific stand of respondent No.1 that MoU was limited only to the sharing of data. In the absence of said MoU being produced and Medi Assist Policy being issued in the name of KMSS as per Ex.P80, the plain understanding and best evidence is to the effect that Medi Assist Policy was taken out in the name of KMSS. 98
The non-production of MoU between KMSS and ORCF leads to drawing of adverse inference and has the effect of disbelieving the assertion of respondent No.1 that MoU was only limited to the sharing of data of students.
(iv) The refund of premium upon cancellation has been made to KMSS as is evidenced from the refund voucher at Ex.P90.
(v) KMSS is a family controlled Society as is evidenced from the Byelaws of KMSS marked as Ex.P5 and the list containing the Members of the Executive Committee as per Ex.P6 Sri C. Chennigappa, who was the president of KMSS at the relevant point of time was also the District President of JD(S) Party.
(vi) The Medi Assist cards were seized as per P.F.No.31/2018 in Crime No.0073/2018. The articles were found in the vehicle belonging to Sri.Palanethraiah with the materials indicating link with the JD(S) Party. 99
The F.I.R was lodged at the instance of Sri C. Rangadhamappa, Officer of the Flying Squad with the charge framed, which is extracted supra at para-78. Sri Palanethraiah who was accused No.1 and other accused have pleaded guilty for the offence punishable under Section 171E of IPC.
(vii) RW2 - Kishore Varadachari, Trustee of ORCF admits that he downloaded 150 Medi Assist cards from the C.D.
(viii) RW3 - Sri Rangaswamy admits that Medi Assist Policies were distributed by Sri Narasimha Murthy and though it is alleged that Sri Narasimha Murthy belongs to BJP Party, the fact remains that there is an admission relating to the distribution of Medi Assist Policies and such admission coming from RW.3 could be taken note of.
(ix) The newspaper report at Ex.P10(a) on 09.05.2018, published in 'Prajavani' newspaper contains the details regarding the complaint by PW2 relating to malpractice by issuance of Medi Assist Policy. 100
(x) On 11.05.2018, Sri Mahesh, President of JD(S) Yuva Morcha, had specifically denied that the said Medi Assist cards were concocted and the said stand has been reflected in the report in 'Prajavani' newspaper marked as Ex.P.11(a). On the same day, another report, Ex.P12 was published on 12.05.2018 indicating the stand of said Sri Mahesh that action would be taken for publishing false information published in 'Tumkur Varthe'.
All the above media reports at Ex.P10(a), Ex.P.11(a) and Ex.P.12 could not have missed the attention of respondent No.1, as the dates of publication of Media reports were a few days preceding the date of polling on 12.05.2018 and that forms an inference is the natural course of human conduct.
(xi) The distribution of Medi Assist Policies has also been corroborated by the parents of students who were examined as PW.3, PW.5, PW.6 and PW.8. The said witnesses have asserted that there has been distribution by 101 Sri Arehalli Manjunath, Smt.Renukamma, Smt.Sunanda and Sri Krishnegowda. The said witnesses have withstood the cross-examination and also produced the identity cards such as detailed in the table supra at para-97, which corroborates the correctness of entry of names of students in the Medi Assist cards marked as Exhibit P23 series, Exhibits.P52, P63, P68, and P76.
(xii) The handing over of Medi Assist Policies to the parents of the children who were voters was an inducement to ensure that they would vote for the respondent No.1.
114. Accordingly issue No.(iii) is answered in the affirmative.
PART - D
115. Issue No.(iv) is taken up for consideration and the issue framed is as follows:-
(iv) WHETHER ALL ALLEGATIONS REGARDING CORRUPT PRACTICE RELATE TO A PERIOD SUBSEQUENT TO THE NOMINATION? IF NOT, WHETHER THE OTHER ALLEGATIONS CAN BE TAKEN NOTE OF ?102
116. Insofar as the allegation of corrupt practice relating to donations made to Shanidevaru Temple at Dasarahalli through Sri Maruthi Seva Samithi and the allegation regarding respondent No.1 by himself or through persons associated with him having promised to distribute free seats in Engineering College, a detailed consideration has been made while discussing Issue Nos. - ii(a) and ii(b), while concluding that the said allegations regarding corrupt practice are prior to the nomination. The discussion at Issue Nos. ii(a) and ii(b) are to be referred.
117. Insofar as the allegation relating to insurance policies being taken out by KMSS on the wards of voters and distributed at the instance and on behalf of respondent No.1 and thereby committing corrupt practice, a detailed analysis is made while answering Issue No.ii(c), which would throw light on the present issue framed. This by itself was prior to the date of nomination. 103
118. In the discussion supra, it has been pointed out that Ex.P.80 is the Medi Assist Policy taken out prior to the cut-off date. The distribution of Medi Assist cards was resorted to after the relevant date by persons on behalf of respondent No.1 with consent and with enticement to vote for him are stand alone corrupt practice committed after the relevant date. Meanwhile, a day before the polling date, i.e. on 11.05.2015, the vehicle belonging to Sri Palanethraiah was intercepted and cash and Medi Assist cards were seized amongst other things. Crime No.0073/2018 came to be filed and Palanethraiah pleaded guilty for the offence under Section 171E of IPC.
119. The taking out of the Medi Assist Policy at Ex.P80 prior to the nomination coupled with the incidents of distribution form a chain of events demonstrating a pattern of distribution. Except for the above allegations referred to, there are no other allegations that can be taken note of. 104
120. According to the discussion made above, some of the incidents are prior and the remaining incidents of corrupt practice are subsequent to the date of nomination in terms of the above discussion.
PART - E
121. Issue No.(vii) is taken up for consideration and the issue framed is as follows:-
"(vii) WHETHER THE PETITIONER IS ENTITLED TO BE DECLARED AS ELECTED IN PLACE OF THE FIRST RESPONDENT IN TERMS OF SECTION101 OF R.P. ACT AS A CONSEQUENTIAL RELIEF IF THE ELECTION OF THE RETURNED CANDIDATE IS SET ASIDE ?
122. It must be noted that the number of candidates who contested were 12 candidates. The details of candidates and the votes obtained are contained in Form-21E marked as Ex.P3 and the details are as hereunder:-
105
Form-21E Return of Election Election to the Legislative Assembly from the 133 Tumkur Rural Constitutency Return of Election Sl. Name of Candidate Party affiliation Number of No. Votes polled 1 D.C.Gowrishankar Janata Dala 82740 (Secular) 2 Rayasandra Ravikumar Indian National 7633 Congress 3 B.Suresh Gowda Bharatiya Janata 77100 Party 4 Tajuddin Shariff Welfare Party of 718 India 5 Sunil Yadav. S All India Mahila 351 empowerment Party 6 Anwar Independent 220 7 Arun Gowda Independent 150 8 Guluru Rangaiah Nagaraju Independent 97 9 Yoganarasimhamurthy Independent 140 T.H. 10 Shabbir Ahmed Independent 239 11 K.V.Srinivas kalkere Independent 508 12 Siddarame Gowda T.B. Independent 906
123. The question is as to whether on setting aside the election of respondent No.1 on the ground of having committed a corrupt practice, whether the petitioner who had secured next highest number of votes is to be declared elected?
106
124. The legal position is detailed by the Constitution Bench of the Apex Court in Vishwanatha Reddy v. Konappa Rudrappa Nadgouda and Another21 at para- 12, which is extracted hereinbelow:-
"12. ...When there are only two contesting candidates, and one of them is under statutory disqualification, votes cast in favour of the disqualified candidate may be regarded as thrown away, irrespective of whether the voters who voted for him were aware of the disqualification. This is not to say that where there are more than two candidates in the field for a single seat, and one alone is disqualified, on proof of disqualification all the votes cast in his favour will be discarded and the candidate securing the next highest number of votes will be declared elected. In such a case, a question of notice to the voters may assume significance, for the voters may not, if aware of disqualification have voted for the disqualified candidate."
125. The same view has been reiterated in Prakash Khandre v. Dr.Vijaykumar Khandre and Others22 at para-14, which is extracted hereinbelow:- 21
AIR 1969 SC 604 22 (2002) 5 SCC 568 107 "14. However, in an election where the elected candidate is declared to be disqualified to contest election and there are more than two candidates contesting election, there is no specific provision under the Act under which the person who has secured the next highest number of votes could be declared as elected. The Act is silent on this point. Further, it cannot be presumed that the votes secured by the disqualified elected candidates would have been wasted or would have been secured by the next candidate who has secured more votes. If disqualified candidate was not permitted to contest the election then how the voters would have voted in favour of the candidate who has secured more votes than the other remaining candidates would be a question in the realm of speculation and unpredictability. In such a situation, declaring the election of the returned candidate on the ground of his initial disqualification to contest the election by itself would not entitle the election petitioner or any other candidate to be declared elected."
126. It is clear that it cannot be demonstrated that voters have voted for disqualified candidate knowing he was disqualified, in which event, the votes of the returned candidate whose election is set aside would be treated to be thrown away votes. Further, in the event there were 108 candidates other than the returned candidate in the fray, it cannot be second guessed that votes of returned candidate would have gone only to the candidate having obtained the second highest votes. Accordingly, in light of the law laid down by the Apex Court, the question of declaring the petitioner as returned candidate when there were multiple contestants does not arise.
127. Accordingly, the Issue No.(vii) is answered in the negative.
PART - F
128. Issue No.(i) is taken up for consideration. Issue No.(i) which is framed is as follows:-
(i) WHETHER THE PETITIONER HAS COMPLIED WITH ALL THE REQUIREMENTS OF SECTION 83 OF THE REPRESENTATION OF PEOPLE ACT, 1950 (R.P.ACT FOR BREVITY)?
129. Section 83 of the R.P. Act, reads as follows:-
"83. Contents of petition.--(1) An election petition--109
(a) shall contain a concise statement of the material facts on which the petitioner relies;
(b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof.
(2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition."
130. The contention that has been raised is that the petition is not in compliance with the requirements of Section 83 of the R.P. Act insofar as -
110
(i) full particulars of corrupt practice are not enumerated as per Section 83(1)(b) of R.P. Act;
(ii) Verification is not in accordance with requirement of Section 83(1)(c) of R.P. Act, insofar as.-
(a) verification is to be as laid down in CPC for verification of pleadings as per Section 83(1)(c) of R.P. Act;
(b) where there is an allegation of corrupt practice, petition is required to be accompanied by affidavit in prescribed form in support of the allegation of such corrupt practice;
(iii) Schedule or Annexure to the petition shall be signed by the petitioner and verified in the same manner;
131. At the outset, it must be mentioned that the respondent No.1 had filed -
111
(i) I.A.No.1/2018 under Sections 81, 83 and 86 of the R.P. Act read with Order VII Rule 11 to dismiss the Election Petition;
(ii) I.A.No.2/2018 filed under Sections 81, 83, 86 and 87 of the R.P. Act read with Order VI Rule 16 seeking for an order to strike out all the sentences of paragraph Nos.3 to 6, 7, 8, 11 to 24, 26 to 30, 32 to 42 and the prayer at Sl.No.2 of the Election Petition.
(iii) I.A.No.1/2019 has been filed under Section 151 of C.P.C. by the petitioner to permit him to submit/furnish fresh affidavit in Form No.25 in compliance with Section 83(1) and Rule 94-A of the Representation of People Act, 1951 and furnish affidavit as contemplated under the Code of Civil Procedure.
132. The said interlocutory applications came to be disposed off by a detailed order dated 06.12.2019, whereby the applications I.A.Nos.1/2018 and 2/2018 came to be rejected and the same was taken up before the Apex Court 112 in SLP (Civil) No.409/2020, came to be withdrawn and thereby the order dated 06.12.2019 has attained finality.
133. The order on the interlocutory applications referred to above has dealt with the requirement of full particulars of corrupt practice, verification of the petition as also the requirements of verification of Annexures to the petition.
The order dated 06.12.2019 is extracted hereinbelow:-
"ORDER ON I.A.Nos.1/2018, 2/2018 & 1/2019 The petitioner is seeking for an appropriate order to set aside the election of first respondent to the 15th Karnataka Legislative Assembly from Tumkur Rural Assembly Constituency and has sought for a consequential declaration that he be declared elected to fill the seat in the aforesaid Constituency.
2. The pleadings are complete and the following interlocutory applications have been filed:-
(i) I.A.No.1/2018 has been filed by respondent No.1 under Sections 81, 83 and 86 of the Representation of People Act, 1951 ('the R.P.Act' for brevity) read with Order VII Rule 11 of C.P.C. to dismiss the election petition.
(ii) I.A.No.2/2018 has been filed by respondent No.1 under Sections 81, 83, 86, and 87 of the Representation of People Act, 1951 read with Order VI Rule 16 of C.P.C. and is seeking for an order to strike out all the sentences of paragraph Nos.3 to 6, 7, 8, 11 to 24, 26 to 30, 32 to 42 and the prayer at Sl.No.(ii) of the election petition.113
(iii) I.A.No.1/2019 has been filed under Section 151 of C.P.C. by the petitioner to permit him to submit/furnish fresh affidavit in Form No.25 in compliance with Section 83(1) and Rule 94-A of the Representation of People Act, 1951 and furnish affidavit as contemplated under the Code of Civil Procedure.
3. In re.I.A.No.1/2018.-
The respondent No.1 in the application, I.A.No.1/2018 has stated that the petitioner has failed to furnish material facts and particulars as required under Section 83 of the R.P. Act. and the assertions being vague, he is not in a position to take an appropriate defence. Further, it is contended that the allegations regarding corrupt practices stated to have been resorted to in terms of Sections 123(1) and 123(2) of the R.P. Act do not have any factual basis and is bereft of necessary particulars and supporting materials, that the documents produced as Annexures cannot be looked into due to non-compliance with Section 65B of the Indian Evidence Act, 1872, that the acts complained of are attributable to third persons who are not authorized agents of the respondent, many of the allegations regarding corrupt practices, including issue of Medi Assist cards relate to a period prior to the election notification issued by the Election Commission of India.
It is also contended at the time of arguments on the applications that the affidavit that has been filed is not in conformity with Form No.25 of Conduct of Election Rules, 1961 and that the Annexures are not attested in the requisite manner.
4. Petitioner's objections to I.A.No.1/2018:-
The petitioner has filed objections to the said application.
The petitioner contends that the application does not specifically plead as to which part of Order VII Rule 11 of C.P.C. is sought to be invoked. All material facts and particulars required under Sections 83(1)(a) and (b) of the Act which disclose cause of action have been enumerated and allegations of corruption are substantiated with necessary supporting documents. Once cause of action has been made out, the strength and weakness of the case is a 114 matter to be proved during trial, and it is contended that the application has been filed only to protract the proceedings.
5. In re. I.A.No.2/2018.-
The respondent No.1 has contended that the averments made in various paragraphs of the petition as detailed in the application are liable to be struck off, as such of the allegations are vague, irrelevant, are unrelated and do not give rise to any cause of action for filing of the present petition. It is further contended that the pleadings sought to be struck off are scandalous, vexatious, frivolous, unnecessary and not supported by documents nor substantiated by evidence. It is further contended that the allegations made relating to corrupt practices cannot be treated as material facts in the eye of law and that the imputations made against Sri Anantha and Smt.Gowramma and other third parties, are not the respondent No.1's authorized agents and hence such of the pleadings are liable to be struck off, as it is abuse of process of court and also prejudices fair trial.
It is further contended that some of the assertions contained in the petition, including para-30 relate to incidents prior to the election notification issued by the Election Commission of India and hence being irrelevant are liable to be struck off.
Accordingly, the paragraphs referred to in the application are liable to be struck off as lacking in material facts and particulars as required under Section 83 of the R.P. Act.
6. Petitioner's objections to I.A.No.2/2018 The petitioner has filed objections to the said application.
It is contended that the application is bald and does not identify the paragraphs in the petition which are frivolous or vexatious, that the petition does contain statement of material facts as required under Section 83 of the R.P. Act and the documents and grounds relating to Section 123 of the R.P. Act has been enumerated in detail. That the respondent No.1 by seeking for striking out 35 paragraphs out of 45 paragraphs contained in the election 115 petition is seriously prejudicing right of the petitioner to conduct proceedings in a fair manner. That prayer (ii) is maintainable under Section 101 of the R.P. Act, where the court after declaring the election of returned candidate as void can further declare that the petitioner is duly elected after looking into the number of votes received by the petitioner. The requirement of pleadings as per Section 83 of the R.P. Act is complied with and necessary details and particulars regarding each of the allegations are specified.
7. In re. I.A.No.1/2019.-
The petitioner seeks permission to furnish fresh affidavit in Form No.25 in compliance with Section 83(1) of R.P. Act and Rule 94-A of The Conduct of Elections Rules, 1961 and an affidavit as contemplated under the Code of Civil Procedure.
It is contended by the petitioner that an affidavit has been filed verifying the election petition and that the said affidavit is in order. However, in light of respondent filing I.A.No.1/2018 seeking dismissal of the election petition on various grounds, including defective verification and in specific, asserting verification is not in consonance with Form-25 as a matter of abundant caution, present application has been filed.
It is submitted that if there is a defect in the affidavit, the same is curable and cannot be construed to be fatal. Hence, it is submitted that the petitioner may be permitted to submit fresh affidavit verifying the election petition as well as fresh Form No.25 affidavit, if the Court were to hold that the verification and affidavits filed are not in order.
8. First Respondent's objections to I.A.No.1/2019:-
The respondent No.1 has filed objections to the said application.
It is contended that I.A.No.1/2019 has been filed belatedly after I.A.Nos.1/2018 and 2/2018 were deliberated upon and after arguments were concluded. Even otherwise, the affidavits have been filed after the period of limitation prescribed under Section 81 of the R.P. Act and 116 the same is impermissible. It is contended that there are substantial defects in the affidavits already filed and it is impermissible to file additional affidavit. It is also contended that there has been no compliance with the requirement of Order VI Rule 15 of Code of Civil Procedure or with the requirement with Form-25 affidavit, and that the defects noticed are not merely formal, but substantial. Hence, it is contended that fresh affidavits cannot be filed without withdrawing earlier affidavit.
9. (A) IN RE. AFFIDAVIT FILED IN FORM NO.25 AS PER RULES AND VERIFICATION BY AFFIDAVIT AS REQUIRED UNDER THE CODE OF CIVIL PROCEDURE
(a) Source of information:-
The respondents have raised contentions in the written statement relating to faulty affidavits filed in Form No.25 as well as affidavit filed as required by the Code of Civil Procedure (i.e., both affidavits as contemplated under Section 83 of the Act).
It is the contention of learned counsel for the respondents that the affidavit is bad in law as the source of information is not provided.
It must be noted that the Form No.25 affidavit is required to be filed only where the petitioner alleges corrupt practice. The affidavit in Form No.25 that is filed in the present case stipulates that -
(a) Statements in paragraphs 7, 12, 20 & 42 relate to commission of corrupt practice and are true to his knowledge;
(b) Particulars of corrupt practice in paragraphs 15, 16, 18, 19, 21 to 24, 26 to 33, 35, 36, 38 to 41 are true to his information.
The assertion at paras-7 and 12 of the petition are general in nature. The specific allegation at para-20 relates to donations and statements made by respondent No.1 and his father and constitute part of the allegations made in the other paragraphs relating to donations and statements made to entice the voters. The source of such information is also revealed in the other paragraphs where it is 117 stipulated regarding posts in the facebook account of the respondent No.1:
https://www.facebook.com/dc.gowrishankar.exmla/ and https://www.facebook.com/dc.gowrishankar.exmla/ videos/1594041073978583.
The assertion at para-42 relates to taking of insurance policy by Sri Maruthi Seva Samithi, a Trust stated to be managed by the father of respondent No.1, as regards students. While, the other allegation relates to poll related expenditure. All the above assertions are said to be as per knowledge and have been verified to be so. The affidavit containing affirmation is in accordance with the affidavit in Form No.25.
As regards the affirmation in Form No.25 with respect to particulars of corrupt practice made in the paragraphs referred to in the affidavit, are stated to be on the basis of information. Perusal of the assertions in the said paragraphs also reveal the source of information as noticed hereinbelow:-
Sl. Paragraph Particulars Source
No. Nos.
1. 13 to 16 Constitution of the Sri Returns filed before
Maruthi Seva Samithi, which the Registrar of
is stated to be involved in Societies.
activities which constitute
enticement of the voters.
2. 18 Regarding temple donations Facebook posts
3. 19 Offer of free seats in Interview in TV
engineering college to channel.
students run by Society
4. 21 to 24 Distribution of Medi-Assist (a) Information by
Cards. BJP workers, who
have been named.
(b) Recovery of
material by Deputy
Commissioner and
Tahsildar.
5. Paras 26 & Regarding issue of Medi e-mail to Insurance
27 Assist cards. Regulatory and
Development
Authority of India
(IRDA).
6. 39 Regarding seizure of amount FIR, mahazar and
and other material . other proceedings
118
7. 41 Allegation of previous Earlier proceedings
misconduct. before the criminal
courts.
Accordingly, it is evident that the allegations made on information with sources are specified in the petition.
It must be noted that on a plain reading of the affidavit in Form No.25, there is no requirement to mention the source of information. The requirement of affidavit to be filed in Form No.25 is only where there is an allegation regarding corrupt practice and no other requirement needs to be read into the affidavit. The Apex Court in the case of F.A.Sapa and others v. Singora and others reported in (1991) 3 SCC 375 has gone a step further while considering the validity of the verifying affidavit as follows:
"28. From the text of the relevant provisions of the R.P. Act, Rule 94-A and Form 25 as well as Order 6 Rule 15 and Order 19 Rule 3 of the Code and the resume of the case law discussed above it clearly emerges - (i) a defect in the verification, if any, can be cured (ii) it is not essential that the verification clause at the foot of the petition or the affidavit accompanying the same should disclose the grounds or sources of information in regard to the averments or allegations which are based on information believed to be true (iii) if the respondent desires better particulars in regard to such averments or allegations, he may call for the same in which case the petitioner may be required to supply the same.......".
It is no doubt clear as per the discussion made above with particular reference to the observations made by the Apex Court in the case of F.A. Sapa (supra) that non- mentioning of the source of information would not be fatal to the election petition, while construing the requirement of an affidavit in Form No.25.
The respondent while contending that the source of information ought to have been mentioned in the affidavit and has relied on various judgments, which are considered as below:-
(a) V.Narayanaswamy v. C.P.Thirunavukkarasu reported in (2000) 2 SCC 294 - While referring to the requirement of mentioning the source of information the Court at para-23 has observed as follows:-119
"23. ...He must state which of the allegations are true to his knowledge and which to his belief on information received and believed by him to be true...."
Hence, the requirement is only to mention which of the allegations are based 'on knowledge' and which 'on information' and nothing more.
(b) R.P.Moidutty v. P.T.Kunju Mohammed and Another reported in AIR 2000 SC 388.
The affidavit that was filed was verified as being true to the best of "my knowledge and information". It is in that context, the Apex Court while upholding the dismissal of the election petition at para-33 has observed that the verification was -
"33. .....without specifying which of the allegations were true to the personal knowledge of the petitioner and which of the allegations were based on the information of the petitioner believed by him to be true. Neither the verification in the petition nor the affidavit gives any indication of the source of information of the petitioner as to such facts as were not in his own knowledge."
Once again source is referred to only as regards mentioning as to whether the averments are true to knowledge or information. Further, the court notices that even the petition did not give any indication as to source of information as referred to above.
(c) L.R.Shivaramegowda v. T.M. Chandrashekar reported in (1999) 1 SCC 666.
The Apex Court has held as under:-
"....that the statement made in paras 1 to 42 of the said petition are true to the best of my knowledge and belief and information and Annexures A to B are true copy of the original".
The Apex Court while upholding the contention of defective verification has held at para 16A that the affidavit
-
"....does not disclose the source of information nor does it set out which part of the election petition was 120 personally known to the petitioner and which part came to be known by him on information".
Accordingly, the emphasis in all the judgments is on the requirement that the verification ought to mention which of the paragraphs of the petition are based 'on knowledge and which 'on information.' The reference hence to non- mentioning of source of information is only in this context and nothing more.
It is also to be noted that the affidavit filed on 26.06.2018 titled as "affidavit verifying the election petition" at paragraph 4 states -
"Annexures A, H, J, K, R, S, T, V, W, X, Z and AA are electronic documents printed from various websites and e- mail communications for which a certificate under Section 65B of the Evidence Act is separately filed".
Such, an averment could also be construed to be a declaration of source of information.
However, in the present case, it is clear that the verification filed in Form 25 does mention as to which of the paragraphs are based 'on knowledge' and which of the other paragraphs are based 'on information.' On a closer examination of the averments of the petition as regards to averments made on the basis of information, it is clear that source of information is enumerated as demonstrated by Table referred to above.
This Court in E.P.No.1/2016 (Sri Doddabasavaraju v. Sri M. Narayanaswamy and others, dated 24.04.2018) while considering I.A.Nos.3/2016 and 4/2016 relating to a similar contention as regards source of information not being mentioned in the verifying affidavit after a detailed analysis of the relevant case law has observed at para- 33 as follows:-
"33.........The source of information is also discernable upon a reading of the election petition, which is from different sources as narrated in the pleadings in various paragraphs of the election petition."
By concluding so, the Co-ordinate Bench has refused to accept the contention that the affidavit filed was bad for 121 not having mentioned the source of information. It is to be noted that the said order of the Co-ordinate Bench was challenged by the way of Special Leave to Appeal (C) Nos.11343-11344/2018, which has however been dismissed by order dated 04.07.2018, thereby confirming the order of the learned Single Judge.
Accordingly, the contention of the respondents as regards the affidavit being defective for non-mentioning of source of information is rejected.
(b) Verification of documents:-
Insofar as the assertion of the petitioner regarding verification of the documents are concerned, it is asserted by the learned counsel for the respondents that the documents have not been verified in terms of Section 83(2) of the R.P. Act. It must be noted that the Apex Court in the case of F.A. Sapa (supra) has observed in para-28 as follows:-
"28. ..... similarly the court would have to decide each individual case whether the schedule or annexure referred to in Section 83(2) constitutes an integral part of the election petition or not; different considerations will follow in the case of the former as compared to those in the case of the latter".
In this regard, an important distinction is to be borne in mind while construing whether a given annexure or schedule is an integral part of the election petition or not. There is a difference between documents that substantiate a material fact and documents that serve as evidentiary value to support the material particulars furnished in the petition, and it is in the case of the former that documents constitute an integral part of the election petition.
The Table referred supra reveals that the documents that have been marked as Annexures are only material in the form of evidence to substantiate the pleading. In fact, every assertion of an allegation as found in the second column of the Table by itself forms ground of corrupt practice and the proof of the said assertion is by reliance on documents marked as annexure. If that were to be so, it cannot be stated that the documents marked as Annexures are an integral part of the petition and accordingly, the 122 requirement of verification as regards the petition is not applicable as regards such of the documents and hence, verification that is found would be in compliance with the legal requirement.
(B) REJECTION OF PETITION:-
It is to be noticed that while considering the application under Order 7 Rule 11, CPC in the specific context of the assertion that affidavits are faulty, the Apex Court in the case of G.M. Siddeshwar v. Prasanna Kumar reported in (2013) 4 SCC 776 while referring to F.A. Sapa's case (supra) has held that a defective affidavit may not be fatal to the maintainability of an election petition. It is also to be noted that Section 86 of the R.P. Act provides that an election petition will be dismissed if it does not comply with Sections 81, 82 and 117 of the R.P. Act whereas, the requirement relating to verification as provided under Section 83 of the R.P.Act does not come under the purview of Section 86 of the R.P.Act and hence, the petition cannot be said to be hit by the mandatory requirement of Section 86 of R.P. Act.
Further, it has been held that the High Court should ensure compliance before parties go to the trial so that the returned candidate can meet the allegations and is not taken by surprise during trial. In light of the same, even if it were to be held that affidavits are defective, that by itself would be no ground for rejection of plaint.
It is also to be noted that while construing as to whether the defect in affidavit would be fatal to the election petition, the Court needs to strike a fine balance between the statutory requirements to be complied with vis-à-vis petitions filed to maintain purity of election process. Too hyper-technical an approach should not result in defeating a genuine attempt made by a litigant to maintain purity of election process.
The dismissal of an application under Order 7 Rule 11 of C.P.C. would have the effect of merely holding that there is a triable issue and that the case is fit for trial. The Court while deciding an application under Order 7 Rule 11 of C.P.C. needs to look at the application by accepting what the petitioner states to be true and then embark upon finding out if the case for rejection of the plaint has been 123 made out. The endeavour of the court is not to find out whether the petition will eventually succeed on its merits, for that is a matter for trial. At the stage of considering the application, the court needs to see if the bare minimum requirements which could be stated to be pre-conditions for invoking the jurisdiction are present.
(i) Re.: Faulty Affidavit:
In so far as the contention that in light of affidavit being faulty, the petititon is liable to be rejected is to answered in the negative in light of the finding that the verifying affidavit in Form No.25 as regards the averments and documents are in compliance with the legal requirements of verification.
In the present case, having dealt with the contention regarding the faulty affidavit, it is to be seen as to whether the petition is liable to be rejected under Order 7 Rule 11 of C.P.C. as being in violation of Sections 83 and 86 of R.P. Act.
In so far as the contention regarding petition being bad for faulty affidavit, even if it were to be accepted that the affidavit was faulty which is not the case herein, it is definitely not in violation of Section 86 of R.P. Act in light of the discussion supra. Further, the observation of the Apex Court in the case of Ponnala Lakshmaiah v. Kommuri Pratap Reddy and Others reported in (2012) 7 SCC 788 provides an answer as follows:
"9. We may also gainfully refer to the decision of this Court in H.D. Revanna v. G. Puttaswamy Gowda [(1999) 2 SCC 217] where this Court held that an election petition can be dismissed for non-compliance with Sections 81, 82 and 117 of the Representation of the People Act, 1951 but it may also be dismissed if the matter falls within the scope of Order 6 Rule 16 or Order 7 Rule 11 CPC. A defect in the verification of the election petition or the affidavit accompanying the election petition was held to be curable, hence, not sufficient to justify dismissal of the election petition under Order 7 Rule 11 or Order 6 Rule 16 CPC. The following passage in this regard is instructive: (SCCp.233, para 14) 124 "14. ... the relevant provisions in the Act are very specific. Section 86 provides for dismissal of an election petition in limine for non-compliance with Sections 81, 82 and 117. Section 81 relates to the presentation of an election petition. It is not the case of the appellant before us that the requirements of Section 81 were not complied with.... Sections 82 and 117 are not relevant in this case. Significantly, Section 86 does not refer to Section 83 and non-compliance with Section 83 does not lead to dismissal under Section 86. This Court has laid down that non- compliance with Section 83 may lead to dismissal of the petition if the matter falls within the scope of Order 6 Rule 16 or Order 7 Rule 11 CPC. Defect in verification of the election petition or the affidavit accompanying the election petition has been held to be curable and not fatal."
The Constitution Bench of the Apex Court in the case of Murarka Radhey Sham Ram Kumar v. Roop Singh Rathore and Others (as per B.P.Singh C.J.I., S.K.Das J., Raghubar Dayal J., N.Rajagopala Ayyangar J., and J.R.Mudholkar J.) has held that a defect in the verification would not be fatal and such lapse could be rectified later. Hence, mere fact that the affidavit is faulty would be no ground for rejection of the petition.
(ii) Re. Material facts and material particulars:
"Whether the election petition is liable to be rejected as pleaded in I.A.No.1/2018, due to lack of material facts and material particulars of corrupt practice enumerated in the petition as envisaged under Section 83 of the Act?"
The absence of mentioning of material facts and full particulars of corrupt practice would result in dismissal of the petition is not in dispute. However, the true meaning and purport of the term 'material facts' and 'material particulars' ought to be looked at keeping in mind the observations of the Apex Court as made in Harkirat Singh v. Amrinder Singh reported in (2005) 13 SCC 511 at paras-48, 51 and 52, which are as follows:
"48. The expression "material facts" has neither been defined in the Act nor in the Code. According to the dictionary meaning, "material" means "fundamental", "vital", "basic", "cardinal", central', 'crucial', 'decisive', "essential", "pivotal", "indispensable", "elementary" or 125 "primary". [Burton's Legal Thesaurus, (3rd Edn..) p.349]. The phrase "material facts", therefore, may be said to be those facts upon which a party relies for his claim or defence. In other words, "material facts" are facts upon which the plaintiffs cause of action or the defendant's defence depends. What particulars could be said to be "material facts" would depend upon the facts of each case and no rule of universal application can be laid down. It is, however, absolutely essential that all basic and primary facts which must be proved at the trial by the party to establish the existence of a cause of action or defence are material facts and must be stated in the pleading by the party.
51. A distinction between "material facts" and "particular"', however, must not be overlooked. "Material facts" are primary or basic facts which must be pleaded by the plaintiff or by the defendant in support of the case set up by him either to prove his cause of action or defence. "Particulars", on the other hand, are details in support of material facts pleaded by the party. They amplify, refine and embellish material facts by giving distinctive touch to the basic contours of a picture already drawn so as to make it full, more clear and more informative. "Particulars" thus ensure conduct of fair trial and would not take the opposite party by surprise.
52. All "material facts" must be pleaded by the party in support of the case set up by him. Since the object and purpose is to enable the opposite party to know the case he has to meet with, in the absence of pleading, a party cannot be allowed to lead evidence. Failure to state even a single material fact, hence, will entail dismissal of the suit or petition. Particulars, on the other hand, are the details of the case which is in the nature of evidence a party would be leading at the time of trial."
It would be useful to refer to Halsbury's Laws of England, (Fourth Edition); Vol.36; para 38, which is as follows:
"38. The function of particulars is to carry into operation the overriding principle that the litigation between the parties, and particularly the trial, should be conducted fairly, openly and without surprises, and incidentally to reduce costs. This function has been variously stated, namely either to limit the generality of the 126 allegations in the pleadings, or to define the issues which have to be tried and for which discovery is required. Each party is entitled to know the case that is intended to be made against him at the trial, and to have such particulars of his opponent's case as will prevent him from being taken by surprise. Particulars enable the other party to decide what evidence he ought to be prepared with and to prepare for the trial. A party is bound by the facts included in the particulars, and he may not rely on any other facts at the trial without obtaining the leave of the court...."
In light of the above observations, the contents of the pleadings in the election petition needs to be subjected to close scrutiny in light of the assertions of non- compliance. On a perusal of the Table formulated above, what would come out is the mentioning of the allegation of corrupt practice and also evidence and material referred to, to substantiate the said allegation of corrupt practice.
The specific assertions are enumerated below:-
(a) Insofar as the allegation relating to donations made to entice the ward 'voters', a perusal of para-18 would indicate the specific allegation is that on 25.03.2018 respondent No.1 notified the public at large that through the Society that a sum of Rs.5.00 lakhs was paid for renovation of Shanidevaru Temple at Dasarahalli, which is a material fact. The particulars relate to statements made through the facebook account and screen shots of the photographs produced on the facebook page.
(b) The next assertion is regarding taking of insurance policy by Maruti Seva Samithi managed by father of respondent No.1, and the assured being the students studying, whose wards reside in the said constituency. In substance, the allegation was that the said Samithi had taken out Medi Assist Policy on the students so as to entice the guardians of the said students to vote in favour of the candidate. Such of those assertions are material facts while, the material particulars that are enumerated relate to the available evidence and the manner of proof which includes recovery of 56 number of Medi Assist identification cards by an official of flying squad of M/s.New India Assurance Company Limited (para-22 of the petition), recovery of 56 number of pamphlets alleged to be issued by JDS party workers (para-22 of the petition), reference to 127 mahazar, videography of the operation, FIR in Crime No.0097/2018 in the Court of 1st Additional Civil Judge (Jr.Dn.) & JMFC, Tumkur, charge sheet filed in the criminal case, reference to the e-mail communication by the official of Vigilance of IRDAI (para-27), details in para-33 as regards distribution of Medi Assist I.D. cards and seizure of insurance policies as referred to in para-39 on 11.05.2018 by the named official of the flying squad. All of which are the material particulars that have been enumerated.
(c) As regards the allegation of use of money to entice voters, the material facts and particulars are contained in para-39 while, material fact is enumerated to the effect that the party workers were distributing money in connection with election, whereas the material particulars relate to the enumeration of seizure of the said amount by officials of the squad which is mentioned in para-39.
Thus it becomes clear that material facts as well as particulars regarding the allegation of corrupt practice has been mentioned.
It is to be noted that while deciding the question as to whether material facts and particulars have been mentioned so as to fulfill the requirements under Section 83 of R.P. Act, what needs to be seen is as to whether there has been requisite enumeration of the facts and particulars in the pleading. It is not the task of the court to complete a full enquiry and arrive at the conclusion at this stage itself as to whether the allegations made would be proved and were strong enough to allow the petition. While looking into the contentions advanced to reject the petition, the court would not be required to dwell into the strength of the allegation and probability of it being proved. In the case of Madiraju Venkata Ramana Raju v. Peddireddigari Ramachandra Reddy and others reported in AIR 2018 SC 3012, the Apex Court has aptly observed at para-29 as follows:-
"29. Whether the material facts as asserted by the appellant can stand the test of trial and whether the appellant would be able to bring home the grounds for declaring the election of respondent No.1 to be void, is not a matter to be debated at this stage. Suffice it to observe that the averments in the concerned paragraphs of the election petition, by no standard can be said to be frivolous and vexatious as such. The High Court committed manifest 128 error in entering into the tenability of the facts and grounds urged in support thereof by the appellant on merit, as is evident from the cogitation in paragraphs 16 to 22 of the impugned judgment."
It is also to be noted that if the court were to come to a finding that material facts and particulars of even one allegation of corrupt practice has been enumerated in the election petition, that would suffice for the purpose of holding that the petition would be maintainable.
The court also needs to keep in mind the observation at para-17 of Ponnala Lakshmaiah (supra), which runs as follows:
"17. While a successful candidate is entitled to defend his election and seek dismissal of the petition on ground legally available to him, the prolongation of proceedings by prevarication is not conducive to the ends of justice that can be served only by an early and speedy disposal of the proceedings. The courts have, therefore, to guard against such attempts made by parties who often succeed in dragging the proceedings beyond the term for which they have been elected. The courts need to be cautious in dealing with requests for dismissal of petitions at the threshold and exercise their powers of dismissal only in cases where even on a plain reading of the petition no cause of action is disclosed."
It is also to be noted that the statements made in the election petition must be read in totality and cannot be taken out and read in isolation. The observations in Ponnala Lakshmaiah's case (supra) at para-5 requires to be noticed:
"5. It is equally well settled that while examining whether a plaint or an election petition discloses a cause of action, the court has a full and comprehensive view of the pleading. The averments made in the plaint or petition cannot be read out of context or in isolation. They must be taken in totality for a true and proper understanding of the case set up by the plaintiff."
(C) RE. STRIKING OFF THE PLEADINGS:-
129
(i) Pleadings related to 'corrupt practices' prior to the date of nomination It is the contention of the respondents that the allegations relating to 'corrupt practices' found at para-
18 (donation for renovating Shanidevaru Temple), para-19 (promise to give 1000 free seats in the Engineering College run by Society) and para-21 (issuance of Medi Assist identity cards), relate to a period prior to filing of the nomination and hence, are liable to be struck off.
Learned counsel for the petitioner relies on the judgment of the Apex Court in Subhash Desai v. Sharad J. Rao and Others reported in AIR 1994 SC 2277 (specifically, para-8) and Chandrakanta Goyal v. Sohan Singh Jodh Singh Kohli reported in (1996) 1 SCC 378 (specifically, para-3) which would indicate that matters prior to filing of nomination papers cannot be looked into while passing of a judgment.
It is however to be noted that the observations of the Apex Court was made in the context of disposal of the Election Petition after trial. No doubt 'corrupt practice' anterior to a person being 'duly nominated as a candidate' cannot be taken note of, however, as the question of striking of pleadings is being considered at the initial stage, before trial, such request could be allowed only if such a conclusion can be arrived at without any admission of doubt.
The Supreme Court in Raj Narain v. Smt. Indira Nehru Gandhi and another reported in [(1972) 3 SCC 850] has held that just because a corrupt practice has to be strictly proved would not mean that a pleading in an election petition must be strictly construed. The Court held that it cannot refuse to enquire into allegations made by the election petitioner merely because the election petitioner or someone who prepared his brief did not know the language of law.
Noting that the striking of pleadings before trial has commenced, such plea ought to be cautiously considered. Further it is to be noted that the allegations made in the present case are not standalone allegations, but are also continuing in nature.
130
As regards the allegations relating to issuance of Medi Assist cards, there are specific assertions at paragraph 33 of the petition that the cards were distributed after 25.4.2018 and between 25.4.2018 and 11.5.2018. It comes out from Annexure-AA that the policies were cancelled only on 8.5.2018 (i.e. after the date for filing nomination was fixed on 25.4.2018). In view of the above, the question of striking off the pleadings relating to issuance of Medi Assist cards, accepting the contention of the respondent at this stage would not arise.
In so far as the contention regarding the promise to distribute free seats in the Engineering College, though there is a reference to the television interview on 30.03.2018, the facebook post containing the said interview has been uploaded on 30.03.2018. The facebook post continuing to be on the online platform, with it being accessible to viewers in the election period would prima facie indicate that the possibility of facebook post serving as an enticement cannot be summarily ruled out at this pre-trial stage. Accordingly, the contention of the respondent is liable to be rejected.
Similarly, the contention of the respondent regarding the announcement of a donation made for the temple through a facebook post dated 25.03.2018 cannot be construed to be an allegation made in isolation, in light of the assertions made in paras-12 and 39 of the petition.
As regards the relief sought to strike off the pleadings relating to other paragraphs mentioned in the application, the same is dealt hereinafter.
The averments in paragraph Nos.3 to 6 of the petition relate to the background of the petitioner while, the averments in paragraph Nos.7 and 8 relate to general assertion of facts. The averments at paragraph No.11 relates to the number of votes polled and issuance of Form- 21C while, the averments in paragraph Nos.13 to 17 relate to constitution and management of Sri Maruthi Seva Samithi. No grounds are made out to strike off such pleadings as it cannot be said that the pleadings are, in terms of Order VI Rule 16 or under the provisions of the Representation of People Act, 1951 demonstrably such as being liable to be struck off.
131
As regards the pleadings in paragraph Nos.21 to 24 and 26 to 30, the same primarily relate to the allegations of corrupt practice by issuance of Medi Assist cards and contention to strike off pleadings relating to such allegation has already been dealt supra. Hence, no ground is made out to allow the application and the same is liable to be rejected.
10. In light of the above discussion, the applications, viz., I.A. Nos.1/2018 and 2/2018 are dismissed.
11. In view of the above, I.A. No.1/2019 seeking for permission to furnish fresh affidavit does not call for any orders and the said application is disposed off as not requiring to be adjudicated upon."
134. The requirements under Section 83 of the R.P. Act in the present petition has been considered while passing orders on the interlocutory applications, viz., I.A.Nos.1/2018 and 2/2018 in detail and accordingly, Issue No.(i) is answered in the affirmative in terms of the order passed dated 06.12.2019 disposing off the interlocutory applications.
135. Accordingly, to avoid repetition, the order on the above said interlocutory applications in its entirety is to be read as an answer to the present issue raised. An attempt to summarize the said order and pass fresh order would be wholly unnecessary. Any attempt to summarize would also 132 be inadequate insofar as some of the points contained in the order may be left out and accordingly, the said attempt is not being made.
IV ANALYSIS OF PROCEEDINGS UNDER SECTION 99 OF R.P ACT
136. The relevant extract of Section 99 of the R.P. Act is as follows:-
"99. Other orders to be made by the High Court.-- (1) At the time of making an order under section 98 the High Court shall also make an order--
(a) where any charge is made in the petition of any corrupt practice having been committed at the election, recording--
(i) xxx
(ii) the names of all persons, if any, who have been proved at the trial to have been guilty of any corrupt practice and the nature of that practice; and
(b) xxx Provided that a person who is not a party to the petition shall not be named in the order under sub-
clause (ii) of clause (a) unless--
(a) he has been given notice to appear before the High Court and to show cause why he should not be so named; and 133
(b) if he appears in pursuance of the notice, he has been given an opportunity of cross-examining any witness who has already been examined by the High Court and has given evidence against him, of calling evidence in his defence and of being heard.
(2) In this section and in section 100, the expression "agent" has the same meaning as in section 123."
137. Insofar as the mandate of Section 99 of the R.P. Act which prohibits the naming of a person who has been proved at the trial to have been guilty of corrupt practice, the requirement under law is that a person who is not a party to the petition shall not be named unless he has been given notice to appear and show cause why he should be so named.
138. In light of such mandate and noticing the settled position that proceedings under Sections 98 and 99 of R.P. Act have to be considered simultaneously, the notices were issued to the following persons:- Sri Palanethraiah, Sri 134 Arehalli Manjunath, Smt.Renukamma, Smt.Sunandamma, Sri Krishnegowda and the President of KMSS.
139. Alongwith the notices, the Noticees were furnished with relevant pleadings and documents so as to enable them to make out an effective reply. All of the said Noticees have filed their statement of defence and also led their own evidence and have been granted opportunity to cross-examine witnesses and also examined the witnesses who have already adduced the evidence.
140. In the course of the proceedings under Section 99 of the R.P. Act, a finding is to be recorded as to whether the Noticees could be named as being guilty of corrupt practice.
141. Before adverting to the particular facts and contentions of each of the Noticees, there are certain legal and factual aspects which are common as regards all of the Noticees.
135
142. It must be noted that in the pleadings specifically at para-33 of Election Petition, it is averred that the respondent No.1 distributing Medi Assist cards was an act to induce the voters to vote in favour of respondent No.1 and it is asserted that the distribution of Medi Assist cards were effected between 25.04.2018 to 11.05.2018 at different times by the JD(S) Party workers who are mentioned in the table extracted at para-33 of the Election Petition. The names of the Noticees are found in the table at Sl.No.20 (Smt.Renukamma and Sri Krishnegowda) and Sl.No.24 (Sri Arehalli Manjunath).
143. Insofar as the incident of seizure of insurance policies subsequent to interception of the Scorpio vehicle belonging to Sri Palanethraiah by the FST-II Squad on 11.05.2018, the relevant pleadings are found in para-39, though name of Sri Palanethraiah is not forthcoming. After Crime No.0073/2018 was registered regarding the incident of 11.05.2018, investigation was conducted and in the report subsequently filed during the pendency of the 136 proceedings, name of Sri Palanethraiah being mentioned, the same is brought to the notice of the Court at the stage of evidence.
144. Insofar as the common contention relating to handing over of Medi Assist cards by the Noticees as is alleged by the witnesses, it is specifically asserted that while handing over Medi Assist cards, there was request to the recipients of the bonds to vote for respondent No.1. The very act of handing over the Medi Assist cards which could be invoked to claim reimbursement of medical expenses and could be construed to be a gift/offer with the object of directly or indirectly inducing the elector to vote; or could be construed to be a gratification to induce the elector to vote. Accordingly, the same would constitute 'bribery' in terms of Section 123 of the R.P. Act.
145. Though it is contended that PW.3, PW.5, PW.6 and PW.8 are interested witnesses and are brought at the instance of the petitioner, however, the evidence of such of the witnesses deserve acceptance when looked into in 137 conjunction with the circumstances relating to the distribution of policies, which include averment of respondent No.1 in para-24 of the written statement and the documents marked by PW.3, PW.5, PW.6 and PW.8 extracted at the table at para-97. The said documents corroborate the Medi Assist cards produced by the recipients as regards Schools in which the children are studying, which details are found in the Medi Assist cards. It is also to be noted that all the Noticees have adopted the cross- examination of the witnesses of the respondent No.1, indicating that both the respondent No.1 and the Noticees were sharing a similar stand.
146. It is in this background that the allegations made out against the Noticees is to be looked into.
147. Noticee - Sri Palanethraiah
(i) The allegations made out in the notice as regards Sri Palanethraiah are as follows:-
"Allegations made against Palanethraiah:
It is alleged that on 11.05.2018, a day prior to election, the officer-in-charge of the FST-11 squad while 138 proceeding in K.Palasandra village noticed a Scorpio vehicle bearing registration No. KA 06 N 2725 and tried to stop the vehicle but the vehicle sped away. The vehicle was chased down and pulled over and four persons ran away from the vehicle out of which one person took a bag along with him. After inspection the officer in-charge seized one note-book in which JDS was written, JDS student insurance policy, 5 pages containing names of booth level workers and their telephone numbers, a bundle of Rs.500 notes amounting to Rs. 50,000/-, one cheque book, one Canara Bank pass book, pair of chappals and wedding invetition card. After seizure mahazar was drawn and FIR was registered and Crime No.0073/2018 dated 11.05.2018 was registered against four unknown persons. In the case, Palanethraiah appeared before the trial court and pleaded guilty under section 171(E) of IPC.
It is further alleged that the said Palanethraiah is the counting agent of Respondent No.1. Therefore, it is stated that the corrupt practice carried out by Palanethraiah is stated to have been proved by the fact that he pleaded guilty in Crime No.0073/2018,making RespondentNo.1 liable for corrupt practices under section 123 of RP Act."
(ii) Responding to the show cause as to why he should not be named, the defence statement came to be filed asserting as follows:-
(a) That there is no pleading in the Election Petition that the Noticee is an agent or person with the consent of the candidate.
(b) The pleadings do not indicate that the Noticee is an occupant or agent who has indulged in bribery.139
(c) That insofar as the proceedings initiated pursuant to Crime No.0073/2018 as per the Police Report filed after investigation, there is no identification of persons who were occupants of the vehicle. The Police Report further includes the name of the Noticee only, as he is the registered owner of the vehicle.
(d) Pleading guilty by the Noticee for the offence under Section 171E of IPC was only in order to get over the "false petty offence to avoid the long drawn legal battle does not enure to the benefit of any person to draw the presumption."
(e) The Noticee is not the Counting Agent of respondent No.1 and Ex.P32 produced by the petitioner cannot be relied upon.
(iii) The evidence by way of affidavit has been filed by Sri Palanethraiah. Insofar as his request to lead evidence touching the aspect of his pleading guilty in the proceedings 140 in Crime No.0073/2018, this Court has observed at paras-22 and 23 of the order dated 22.11.2022 that the question of leading evidence contrary to the judgment passed in criminal proceedings does not arise. Further, the legal consequence of conviction under Section 171E of IPC is as envisaged under Section 11A of the R.P. Act and that cannot be lost sight of. Relevant observations made at para-23 of the order referred to above is as follows:-
"23. ... The question of leading evidence insofar as judgment of conviction is concerned, would not arise in light of the legal consequence flowing from the judgment of conviction which remains unchallenged. Accordingly, the Noticee is entitled to lead evidence only insofar as the aspect of him allegedly being a counting agent of the respondent."
The said order came to be challenged before the Apex Court in SLP Diary No.40495/2022 filed by Sri Palanethraiah and though leave was granted and matter was heard, the appeal came to be dismissed holding that the order 141 impugned did not call for interference as per the order dated 16.12.2022, which reads as hereunder: -
"1. The application for permission to file the Special Leave Petition is allowed.
2. We have heard learned counsel for the petitioner at a considerable length and also perused the statutory provisions as well as the deposition of P.W.12.
3. In our considered view, the impugned interim order dated 02.12.2022, passed by the High Court of Karnataka at Bengaluru, does not call for any interference by this Court.
4. The Special Leave Petition is, accordingly, dismissed.
5. As a result, pending interlocutory application also stands disposed of."
(iv) Accordingly, the evidence led in was limited only insofar as the assertion that the Noticee was the Counting Agent of respondent No.1.
(v) It must be noted that on 11.05.2018, a day prior to the polling day, the FST-II Squad visited Gulur, Hebbur Hobli and when it was approaching K.Phalasandra Village, a Scorpio Vehicle bearing registration No.KA-06-N-2725 142 was intercepted. The said vehicle was abandoned immediately and the Squad has seized the following:-
a) Scorpio vehicle bearing registration No.KA-06-N-2725;
b) xxxx
c) JD(S) student Indemnity Letter;
d) xxxx
e) Eight pages containing details of Booth
Level workers with telephone numbers;
f) Currency Notes of Rs.500/- denomination of 100 notes totaling to an amount of Rs.50,000/-;
g) Cheque Book consisting of 12 empty cheque leaves of Canara Bank belonging to Palanethraiah.G S/o Gangappa;
h) Pass Book relating to A/c
No.0474101036881 belonging to
Palanethraiah.G S/o Gangappa;
(vi) The FIR was registered as per Crime
No.0073/2018 initially against the unknown persons and after investigation, the charge sheet came to be filed in Crime No.0073/2018 for the offence under Section 171E of IPC and charges were framed and the Noticee Sri Palanethraiah has pleaded guilty. An extract of the proceedings is as follows:-143
"DgÉÆæUÀ¼ÁzÀ ¤ÃªÀÅ ¢£ÁAPÀ: 11-05-2018gÀAzÀÄ ¸ÀĪÀiÁgÀÄ 9-00UÀAmÉ ¸ÀªÀÄAiÀÄzÀ°è dAiÀÄ£ÀUg À À ¥Éưøï oÁuÁ ¸Àgº À ¢ À ÝUÉ ¸ÉÃjzÀ ¥Á®¸ÀAzÀæ UÁæªÀÄzÀ°è F PÉù£À ¸ÁQë-1 jAzÀ 3 gÀªg À ÀÄ 133 vÀĪÀÄPÀÆgÀÄ «zsÁ£À¸¨ À sÁ PÉëÃvÀæ J¥sï.J¸ï.n-2 £Éà vÀAqÀPÉÌ £ÉêÀÄPÀUÉÆArzÀÄÝ ¸Àzj À AiÀĪÀgÀÄ ZÀÄ£ÁªÀuÁ ¤Ãw ¸ÀA»vÉ eÁj ªÀÄvÀÄÛ ªÉZÀÑ ªÀiÁ¤lgï ªÀiÁqÀ®Ä UÀ¸ÀÄÛ ªÀiÁqÀÄwÛzÁÝUÀ DgÉÆæUÀ¼ÁzÀ ¤ÃªÀÅUÀ¼ÀÄ ZÀÄ£ÁªÀuÁ ¤Ãw ¸ÀA»vÉ eÁjAiÀÄ°ègÀĪÀ ¸ÀªÀÄAiÀÄzÀ°è eÉ.r.J¸ï ¥ÀPÀëzÀ ªÀw¬ÄAzÀ ªÀÄvÀzÁgÀjUÉ ºÀtªÀ£ÀÄß ºÀAZÀ®Ä PÉ.J-06-J£ï-2725£Éà ¸Á̦ðAiÉÆà ªÁºÀ£z À ° À è ºÀtªÀ£ÀÄß ¸ÁUÁl ªÀiÁqÀÄwÛzÀÄÝ ¤°è¸ÀĪÀAvÉ ºÉýzÁUÀ PÉ.¥Á®¸ÀAzÀæ UÁæªÀÄzÀ°è gÀ¸ÉÛAiÀÄ §¢AiÀÄ°è ªÁºÀ£ª À £ À ÀÄß ¤°è¹ ¥ÀgÁjAiÀiÁVzÀÄÝ ¸Àzj À ªÁºÀ£z À ° À è eÉ.r.J¸ï.JAzÀÄ §gÉ¢zÀÝ £ÉÆÃmï ¥ÀĸÀÛP,À eÉ.r.J¸ï «zÁåy𠫪ÉÄ ¥Àv,Àæ MAzÀÄ eÉÆvÉ ZÀ¥Àà°, §Ævï ¯Éª¯ À ï PÁAiÀÄðPÀvð À gÀ ºÉ¸g À ÀÄ, zÀÆgÀªÁt ¸ÀASÉå EgÀĪÀ ¸ÀĪÀiÁgÀÄ 5 ¥ÀÄlzÀ PÁUÀzÀ gÀÆ.500 ªÀÄÄR¨É¯A É iÀÄ gÀÆ.50,000 £ÀUz À ÀÄ, MAzÀÄ ZÉPï ¥ÀĸÀÛP,À MAzÀÄ PÉ£g À Á ¨ÁåAPï ¥Á¸ï ¥ÀĸÀÛP,À ªÀÄzÀÄªÉ ªÀÄwÛgÀ ±ÀĨsÀ ¸ÀªÀiÁgÀA¨sU À ¼ À À DªÀÄAvÀt æ ¥ÀwPæ É zÉÆgÉwzÀÄÝ ZÀÄ£ÁªÀuÁ ¤Ãw ¸ÀA»vÉ eÁjAiÀÄ°ègÀĪÀ ¸ÀªÀÄAiÀÄzÀ°è ªÁºÀ£z À ° À è ªÀÄvÀzÁgÀjUÉ ºÀtªÀ£ÀÄß ºÀAZÀ®Ä, ºÀtªÀ£ÀÄß ¸ÁUÁl ªÀiÁqÀÄwÛzÀÝ PÁgÀt DgÉÆæUÀ¼ÁzÀ ¤ªÀÄä «gÀÄzÀÞ £À£Àß ¸ÀAeÁÕ£z À ° À è §gÀĪÀ PÀ®A171(E) L.¦.¹ jÃvÁå ²PÁëºð À C¥ÀgÁzsª À £ À ÀÄß ªÀiÁrgÀÄwÛÃj.
DgÉÆæ ºÉýPÉ
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GvÀÛg:À YES 144
4. ¥À± æ Éß: FUÀ N¢ ºÉðzÀ D¥ÁzÀ£A É iÀÄ£ÀÄß M¥ÀÄàwÛÃgÁ? CxÀªÁ ¥Àw æ gÀPÉë §AiÀĸÀÄwÛÃgÁ?
GvÀÛg:À PLEADED GUILTY (F D¥ÁzÀ£A É iÀÄ£ÀÄß DgÉÆæUÉ w½zÀ ¨sÁµÉAiÀÄ°è N¢ ºÉý, «ªÀj¹ CªÀjAzÀ GvÀÛgÀ ¥Àqz É ÀÄ zÁR°¹zÉÝãÉ)"
(vii) It is clear from the charges framed that the charge made out a case that money was being ferried in the vehicle in order to distribute the same to the voters on behalf of JD(S) Party during the time the Code of Conduct was notified and was in force and that the accused had abandoned the vehicle and upon inspection, the material referred to above was seized and accused had committed an offence under Section 171E of IPC. By virtue of pleading guilty, it could be stated that the charges have been held to be proved and the legal consequence would be that the said Noticee Sri Palanethraiah can be stated to have been guilty of the corrupt practice. In terms of Section 123 of the R.P. Act, 'corrupt practice' includes 'bribery' and Section 171E provides punishment for 'bribery'. Section 171B defines 'bribery' and Section 171B(2) provides that a person who 145 offers or agrees to give a gratification shall be deemed to give a gratification.
(viii) By virtue of pleading guilty, the offence under Section 171E is established and would constitute 'bribery' in terms of Section 123.
(ix) Though it is submitted that the judgment in C.C.No.3079/2018 has been challenged by filing Criminal Appeal No.15/2023 after a delay of about five years and during the pendency of the present proceedings, it would not have the effect of taking away the conviction and sentence in the absence of stay of the judgment and order of sentence passed in C.C.No.3079/2018.
(x) Accordingly, it can be stated that the Noticee Sri Palanethraiah is guilty of corrupt practice in terms of the offence for which punishment is imposed under Section 171E of IPC.
(xi) Insofar as the defence relating to the allegation made against Sri Palanethraiah as being a Counting Agent 146 of the respondent No.1, it is asserted that the Conduct of Election Rules, 1961 prescribes a procedure of appointment of Counting Agent and Form-18 is the prescribed format, which has not been produced by the petitioner.
(xii) The endorsement dated 27.11.2019 is enclosed alongwith the list of Counting Agents and contains the name of Sri Palanethraiah. G. The said document is signed on behalf of Tahsildar and the covering sheet to the list is the endorsement furnishing the information of Counting Agents as has been sought for. Therefore, in light of the discussion made supra at para-87, there is a presumption under Section 114 of the Indian Evidence Act as regards the documents issued by the public authority.
(xiii) The Noticee Sri Palanethraiah had asserted that the said document is a fabricated document and submits that the said document does not have his signature.
(xiv) Once the Noticee, Sri Palanethraiah seeks to assert that he is not the person referred to as 147 Palanethraiah.G in Ex.P32 and that Ex.P32 is a fabricated document, the burden is cast on Sri Palanethraiah himself to prove the same. The same has not been discharged by Sri Palanethraiah who was afforded an opportunity to lead evidence through Section 99 proceedings wherein such stand as noticed above was taken. It was upto Sri Palanethraiah, the Noticee to disprove Ex.P32 or to have taken such other steps to discharge the burden of proving the assertion that he was not a Counting Agent of respondent No.1 and that Ex.P32 does not relate to him.
(xv) Accordingly, it can be held that the Noticee Sri Palanethraiah has committed the corrupt practice of bribery in terms of 'bribery'.
148. Noticee - Sri Arehalli Manjunath:-
(i) Insofar as the Noticee Sri Arehalli Manjunath, the allegations made out under Section 99 of R.P. Act are as detailed in the notice and extracted hereinbelow:-
"The nature of allegations made against you and the evidence in that regard are briefly mentioned as herein below:148
It is the case of the petitioner that you have colluded with Respondent no.1 and have committed corrupt practice of distributing Medi Assist Insurance Policies by carrying out door to door campaign during the election for the period between 25.04.2018 to 11.05.2018. It is the allegation made that though the policy was taken prior to the nomination of the candidate, the distribution was carried out in favour of Respondent No.1 after the nomination of the candidate was filed.
The Petitioner has led evidence by examining Laksminarayan V.N. [PW-3] and Ramamani [PW-8] - It is stated in the evidence affidavit of PW-3 that PW-3 is the resident of Virupasandra, Guluru Hobli, Tumkur and that Arehalli Manjunath is a former member of Taluk Panchayat and JDS Party Worker. It is further stated that during 2018 General Election, few days prior to polling day, Arehalli Manjunath and his followers conducted door-to-door campaign and carried out distribution of Medi Assist Policy Cards and lured the residents to cast their vote in favour of Respondent No.1. It is particularly stated that Arehalli Manjunath came to the house of PW-3 and handed over Medi Assist Policy Bond bearing the name of the son of PW-3, Yashwanth Gowda VL. (Exhibit P.52) and informed PW-3 that the amount towards insurance bond was paid by Respondent No.1 and that incase if PW-3 or his son Yashwanth Gowda V.L meets with an accident or suffers any health issues the insurance bond covers upto Rupees Ten Thousand and that they can get treatment from any hospital without making payment. It is further stated that the bond was handed over in a cover containing cover images of Respondent No.1 and his father D.C Chennigappa, the then President of JDS Tumkur District, Sri. Kumaraswamy, former Chief Minister, Sri. Deve Gowda, former Prime Minister and the Symbol of JDS Party along with manifesto of JDS Party.
PW-8 through her evidence affidavit has made out similar allegations.149
(ii) In response to the said notice, the defence statement has been filed to the show cause notice. The primary stand taken by the Noticee is that the petitioner has relied upon PW.3 and PW.8, who were parents of the wards, who are the beneficiaries of the Medi Assist Policy distributed to them and evidence of such of the witnesses were not reliable as they were deposing at the instance of the petitioners.
(iii) PW.3 Sri Lakshminarayana has stated in his evidence affidavit that in the 2018 Assembly Elections, few days before the polling date, the noticee Sri Arehalli Manjunath and his supporters had come to his house and handed over a bond of the M/s.New India Assurance Co.
Ltd., in the name of his son Yashwanth Gowda. It is further narrated at para-5 of the affidavit that he was told while handing over of the bond that the insurance premia was paid by Sri D.C.Gowrishankar and in the event of any illness, they could take benefit of the 150 insurance bond as regards expenses upto Rs.10,000/-. It is further asserted that the elections were to be held for Tumkur Rural Constituency within a few days and he and his family members were to vote in favour of Sri D.C.Gowrishankar.
(iv) The witness PW.3 was cross-examined and has withstood the cross-examination. It is also relevant to notice that during cross-examination PW.3 has specifically stated that the noticee has come to his house on two occasions and the bond was given on one such occasion.
(v) It is relevant to note that the learned counsel for the noticee has sought for adoption of cross- examination of the said witness on an earlier occasion by learned counsel for respondent No.1.
(vi) PW.8 Smt.Ramamani has filed affidavit by way of evidence asserting that Sri Arehalli Manjunath and Smt.Sunandamma are from her village and had come to 151 her house in April 2018. It is submitted that the details of her daughter studying in 5th standard was collected by Smt.Sunandamma and about eight days prior to the polling date. Sri Arehalli Manjunath and Smt.Sunandamma had come to her house and handed her a bond in the name of her daughter issued by M/s.New India Assurance Co. Ltd., while informing them that in case herself or her daughter meets with an accident or suffers any health issue, there would be an insurance coverage upto Rs.10,000/- and treatment could be obtained from any hospital. She has further stated at para-5 of the affidavit that she was lured to cast her vote to Sri D.C.Gowrishankar in the elections to be held.
(vii) The said witness has also withstood cross-examination and in response to the Court question as to how did she know that Sri Arehalli Manjunath and Smt.Sunandamma were JD(S) Party workers, she has 152 stated that she had seen them moving around with Sri D.C.Gowrishankar in all the functions.
(viii) Though an effort was made to raise a doubt regarding the notarization of the affidavit, the said aspect does not have the effect of discarding the affidavit.
(ix) It must be noted that PW.3 Sri Lakshminarayana has got marked the following documents in support of his stand and to corroborate his evidence regarding issuance of Medi Assist cards issued in the name of his child:-
NAME OF WITNESS WITNESS EXHIBITS MARKED EXAMINED AS Lakshminarayana V.N PW - 3 Ex.P49 and Ex.P50 - Voters List for the year 2018, 2021 Ex.P51 - Son's Study Certificate Ex.P52 - Medi Assist Card Ex.P53 - Aadhar Card Ex.P54 - Son's Aadhar Card Similarly, PW.8 Smt.Ramamani has produced the following documents in support of her stand and assertion:-153
NAME OF WITNESS WITNESS EXHIBITS MARKED EXAMINED AS Ramamani PW - 8 Ex.P73 and Ex.P74 - Voters List Ex.P75 - Daughter's Study Certificate Ex.P76 - Medi Assist Card Ex.P77 - Aadhar Card Ex.P78 - Daughter's Aadhar Card
(x) It is clear from the above that the details of the child as regards PW.3 and PW.8 found in the Medi Assist card is supported by the details in the Aadhar Card (Ex.P53 and Ex.P54 produced by PW.3 and Ex.P77 and Ex.P78 produced by PW.8). The Study Certificate issued by the School also tallies with the description of the School in the Medi Assist Policy.
(xi) Accordingly, it can be held that the Noticee Sri Arehalli Manjunath has committed the corrupt practice of bribery in terms of Section 123 of R.P. Act insofar as after the coming into force of the Code of Conduct, Medi Assist cards were distributed to the parents of children in Tumkur Rural Constituency (PW.3 and PW.8) with the quid pro quo of the parents voting for Sri D.C.Gowrishankar 154 (respondent No.1) during the election. The Medi Assist Policy could be construed to be either a gift in terms of Section 123(1)(A) with the object of directly or indirectly inducing the electors to vote for the returned candidate, or could be construed to be a gratification from the candidate
- respondent No.1. As the Noticee has distributed inducing the elector to vote for the candidate in terms of Section 123(1)(B). The said distribution of gift/gratification as per the evidence made out was on behalf of the candidate as is made out from the oral evidence of PW.3 and PW.8.
149. Noticee Smt Renukamma
(i) As regards Noticee Smt.Renukamma, the notice was issued and the allegations contained are extracted as herein below:-
"The nature of allegations made against you and the evidence in that regard are briefly mentioned as herein below:
It is the case of the petitioner that you have colluded with Respondent no.1 and have committed corrupt practice of distributing Medi Assist Insurance Policies by carrying out door to door campaign during the election for the period between 25.04.2018 to 11.05.2018. It is the allegation made that though the policy was taken prior to the 155 nomination of the candidate, the distribution was carried out in favour of Respondent No.1 after the nomination of the candidate was filed.
The Petitioner has led evidence by examining Mahadevaiah [PW-5] and D.R. Ramesh [PW-6] - It is stated in the evidence affidavit of PW-5 that PW-5 is a resident of Doddasarigipalya, Gulur, Tumkur and that Krishnegowda and Renukamma who are from the same village are the party workers of JDS Party and supporters of Respondent No.1. It is further stated that during 2018 General election, in the month of April, Krishnegowda and Renukamma visited the house of PW-5 and informed him that they are the agents of Respondent No.1and that Respondent No.1 is doing free health insurance policies to one child of each electorate families of Tumkur Rural Assembly Constituency and that they should cast their vote in favour of respondent No.1 and also collected the details of daughter of PW-5. It is further stated that two days prior to date of pooling Krishnegowda and Renukamma conducted door-to-door campaign and carried out distribution of Medi Assist Policy Cards and lured the residents to cast their vote in favour of Respondent No.1. It is particularly stated that Krishnegowda and Renukamma came to the house of PW-5 and handed over Medi Assist Policy Bond bearing the name of the daughter of PW-5, Kum. Sinchana DM (Exhibit P.63) and informed PW-5 that the amount towards insurance bond was paid by Respondent No.1 and that incase if PW-5 or his daughter Kum. Sinchana DM meets with an accident or suffers any health issues the insurance bond covers upto Rupees One to Two Lahks and that they can get treatment from any hospital without making payment. It is further stated that the bond was handed over in a cover containing cover images of Respondent No.1 and his father D.C Chennigappa, the then President of JDS Tumkur District, Sri. Kumaraswamy, former Chief Minister, Sri. Deve Gowda, former Prime Minister and the Symbol of JDS Party along with manifesto of JDS Party.
PW-6 through his evidence affidavit has made out similar allegations against Krishnegowda and Renukamma."156
(ii) In response to the said notice statement of defense was filed. It was asserted that there was no sufficient pleadings nor evidence to show that the Noticee had visited the house of PW.5 and PW.6 in the company of Sri Krishnegowda and had indulged in alleged corrupt activities.
(iii) It is asserted that except for the oral testimony of PW.5 and PW.6, there is nothing on record to indicate that the proposed respondent had visited the residence of the said witnesses.
(iv) At the outset, it must be noted that the petitioner has specifically averred at para-33 of the election petition that Medi Assist cards bearing the name of the students has been distributed between 25.04.2018 to 11.05.2018 by the JD(S) Party workers detailed in the table and the name of Smt.Renukamma is found along side that of Sri Krishnegowda and Sri Naveen as regards the village of Guluru is concerned. The tone and tenor of the pleading at para-33 is to the effect that the 157 distribution was on behalf of respondent No.1. The averment at para-12 is to the effect that the corrupt practices have been carried out with the consent and connivance of respondent No.1 by his agents and his family members and when read in conjunction with the averment in para-33 it becomes clear that the allegation of distribution of Medi Assist Policies with the consent of respondent No.1, has been made in the pleadings.
(v) PW.5 Sri Mahadevaiah has specifically asserted in the affidavit filed that his daughter was studying in 5th Standard in the Government School at Doddasarangipalya and his other child Vidhyashree was studying in 3rd Standard in the same school. It is asserted that he was acquainted with Sri Krishnegowda and Smt.Renukamma who are JD(S) Party workers from his village and that they had come to his house in April 2018 and were told that Sri D.C. Gowrishankar was getting health insurance policies in the name of the children and that they were required to vote in his 158 favour. It is submitted that the details of his daughter Sinchana and name of the school in which she was studying was collected.
(vi) It was submitted that two days prior to the polling day, Sri Krishnegowda and Smt.Renukamma had come to his house and handed a bond bearing the name of his daughter in the name of M/s New India Assurance Co. Ltd., whereby, they had informed him that premium was paid by the JD(S) MLA, whereby there was insurance coverage which would take care of medical expenses. While handing over the bonds it was specifically averred that they were required to vote for Sri D.C Gowrishankar.
(vii) PW.5 had produced and got marked Medi Assist Policy at Ex.P63 and had produced other documents to support the details mentioned in the Medi Assist card which are as follows:-
159
NAME OF WITNESS WITNESS EXHIBITS MARKED EXAMINED AS Mahadevaiah PW - 5 Ex.P60 and Ex.P61 - Voters List for the year 2018, 2021 Ex.P62 - Daughter's Study Certificate Ex.P63 - Medi Assist Card Ex.P64 - Aadhar Card Ex.P65 - Daughter's Aadhar Card
(viii) Though much is made of the differences in the name of the school as the Study Certificate at Ex.P62 mentions GLPS (Government Lower Primary School) Doddasarangipalya, whereas in the Medi Assist cards at Ex.P63, the name of the school it is mentioned as GHPS (Government Higher Primary School) Doddasarangipalya.
However, the said difference in name of the School is not material enough so as to disbelieve the Medi Assist card. So also the spelling error in the name in the Medi Assist is also not material and is clearly a typographical error.
(ix) The possession of the original Medi Assist card which is produced and marked by itself has to be given 160 due weightage as that pertaining to the daughter of Sri Mahadevaiah.
(x) PW.6 Sri D.R. Ramesh has filed his affidavit on same identical lines as that of Sri Mahadevaiah and submits that his son Rahul was studying in SLN Vidyamandira in 1st Standard and Sri.Krishnegowda and Smt.Renukamma had collected the details. The same promise was held out while handing over the bond as was made out to Sri Mahadevaiah. It was submitted that the bond was handed over about two days prior to the polling date inside a cover and such cover had the photograph of Sri D.C. Gowrishankar, his father Sri C. Chennigappa, Sri Kumaraswamy, former Chief Minister and Sri H.D. Deve Gowda, former Prime Minister. It also contained a copy of election manifesto.
(xi) In support of his assertion regarding grant of Medi Claim Policy to his son, PW.6 has submitted the following documents :-
161
NAME OF WITNESS WITNESS EXHIBITS MARKED EXAMINED AS D.R. Ramesh PW - 6 Ex.P66 - Voter ID Ex.P67 - Son's Study Certificate Ex.P68 - Medi Assist Card Ex.P69 - Aadhar Card Ex.P70 - Son's Aadhar Card
(xii) Despite minor contradictions, the witness has withstood the cross-examination.
(xiii) Accordingly, taking note of the evidence of PW5 and PW6 and also noticing the circumstantial evidence relating to distribution of Medi Assist cards including the seizure of Medi Assist cards pursuant to investigation, it can be stated that evidence is made out regarding distribution of Medi Assist cards by Smt. Renukamma. It is clear that the timing of the distribution of Medi Assist cards few days prior to the polling date was made with the enticement to vote in favour of respondent No.1. The said fact of enticement has been stated in the affidavit and is also a matter that 162 could be inferred from the circumstance of distribution during election as reasoned in the detailed discussion made supra. It can be stated that corrupt practice in terms of Section 123 of R.P. Act has been committed.
150. Noticee Smt. Sunanda
(i) As regards Smt.Sunanda23 notice was issued and the allegations contained are extracted as herein below:-
"The nature of allegations made against you and the evidence in that regard are briefly mentioned as herein below:-
It is the case of the petitioner that you have colluded with Respondent no.1 and have committed corrupt practice of distributing Medi Assist Insurance Policies by carrying out door to door campaign during the election for the period between 25.04.2018 to 11.05.2018. It is the allegation made that though the policy was taken prior to the nomination of the candidate, the distribution was carried out in favour of Respondent No.1 after the nomination of the candidate was filed.23
referred to as Smt.Sunandamma in the deposition by the parties/witnesses 163 The petitioner has led evidence by examining Ramamani [PW-8] - It is stated in the evidence affidavit of PW-8 that PW-8 is a resident of Honnudike, Gulur, Tumkur and that Arehalli Manjunath and Sunandamma who are from the same village are the party workers of JDS Party and supporters of Respondent No.1. It is further stated that during 2018 General election, in the month of April, Arehalli Manjunath and Sunandamma visited the house of PW-8 and informed her that they are the agents of Respondent No.1and that respondent No.1 is doing free health insurance policies to one child of each electorate families of Tumkur Rural Assembly Constituency and that they should cast their vote in favour of Respondent No.1. It is also stated that Arehalli Manjunath and Sunandamma collected the details of daughter of PW-8. It is further stated that two days prior to date of pooling Arehalli Manjunath and Sunandamma conducted door-to-door campaign and carried out distribution of Medi Assist Policy Cards and lured the residents to cast their vote in favour of Respondent No.1. It is particularly stated that Arehalli Manjunath and Sunandamma came to the house of PW8 and handed over Medi Assist Policy Bond bearing the name of the daughter of PW-8, Poornima (Exhibit P.76) and informed PW-8 that 164 the amount towards insurance bond was paid by Respondent No.1 and that incase if PW-8 or her daughter Kum. Sinchana DM meets with an accident or suffers any health issues the insurance bond covers upto Rupees Ten Thousand and that they can get treatment from any hospital without making payment. It is further stated that the bond was handed over in a cover containing cover images of Respondent No.1 and his father D.C Chennigappa, the then President of JDS Tumkur District, Sri. Kumaraswamy, former Chief Minister, Sri. Deve Gowda, former Prime Minister and the Symbol of JDS Party along with manifesto of JDS Party."
(ii) In response to notice issued under Section 99 of the R.P. Act, defence statement came to be filed asserting that there was no sufficient pleading, that the only evidence of Smt.Ramamani (PW8) is not sufficient, that witness was a tutored witness, that the witness has failed to establish that Smt.Sunandamma was JD(S) Party worker.
165
(iii) Smt.Ramamani (PW8) has filed her evidence by way of affidavit and is stated to be working as a cook in a School. It is stated that she has a daughter by name Poornima, studying in 9th Standard at Swarnamba School. It is stated that Sri Arehalli Manjunath and Smt.Sunandamma are from her village and belong to the JD(S) Party. It is stated that they had come to her house in the month of April 2018 and had stated that Sri D.C.Gowrishankar was taking out free health insurance for the benefit of the children and Smt.Sunandamma had collected details of her daughter.
(iv) It is further stated that Sri Arehalli Manjunath and Smt.Sunandamma had come to her house about eight days prior to polling day and handed a bond bearing the name of her daughter Poornima issued by M/s New India Assurance Co. Ltd. It was requested to vote for Sri D.C. Gowrishankar in the elections.
(v) The said witness has produced the following documents:-
166
NAME OF WITNESS EXHIBITS MARKED WITNESS EXAMINED AS Ramamani PW - 8 Ex.P73 and Ex.P74 - Voters List
Ex.P75 - Daughter's Study Certificate Ex.P76 - Medi Assist Card Ex.P77 - Aadhar Card Ex.P78 - Daughter's Aadhar Card
(vi) The documents assume a corroborative value and would indicate as regards the details of the child mentioned in the Medi Assist card to be correct.
(vii) It is specifically asserted during cross- examination that Sri Arehalli Manjunath and Smt. Sunandamma had distributed the policy. Despite minor contradictions, no case is made out to discard the evidence of PW8, though witness admits that there is mistake regarding year of study furnished by the Head Master. However, that by itself would not have the effect of disbelieving the case put forward by PW8. Though it is stated that witness has come to know that the bond was fake, such discovery has been made only after the elections.
167
(viii) The evidence of PW8 when read with the evidence of other witnesses and in light of admissions made regarding distribution of policy it can be stated that Smt.Sunanda has committed a corrupt practice under Section 123 of the R.P. Act. The giving of Medi Assist card to the parent of the child during election time with the express request for voting in favour of respondent No.1 would fall within the definition of 'bribery' under Section 123 of R.P. Act.
(ix) The contra evidence of the Noticee does not have the effect of displacing the evidence led in by PW8 and accordingly, the Noticee Smt.Sunanda is also named to have committed the corrupt practice.
151. Noticee Sri Krishnegowda
(i) As regards Sri. Krishnegowda notice was issued and the allegations contained are extracted as herein below:-
168
"The nature of allegations made against you and the evidence in that regard are briefly mentioned as herein below:
It is the case of the petitioner that you have colluded with Respondent no.1 and have committed corrupt practice of distributing Medi Assist Insurance Policies by carrying out door to door campaign during the election for the period between 25.04.2018 to 11.05.2018. It is the allegation made that though the policy was taken prior to the nomination of the candidate, the distribution was carried out in favour of Respondent No.1 after the nomination of the candidate was filed.
The Petitioner has led evidence by examining Mahadevaiah [PW-5] and D.R. Ramesh [PW-6] - It is stated in the evidence affidavit of PW-5 that PW-5 is a resident of Doddasarigipalya, Gulur, Tumkur and that Krishnegowda and Renukamma who are from the same village are the party workers of JDS Party and supporters of Respondent No.1. It is further stated that during 2018 General election, in the month of April, Krishnegowda and Renukamma visited the house of PW-5 and informed him that they are the agents of Respondent No.1and that Respondent No.1 is doing free health insurance policies to one child of each electorate families of Tumkur Rural Assembly Constituency and that they should cast their vote in favour of respondent No.1 and also collected the details of daughter of PW-5. It is further stated that two days prior to date of pooling Krishnegowda and Renukamma conducted door-to-door campaign and carried out distribution of Medi Assist Policy Cards and lured the residents to cast their vote in favour of Respondent No.1. It is particularly stated that Krishnegowda and Renukamma came to the house of PW-5 and handed over Medi Assist Policy Bond bearing the name of the daughter of PW-5, Kum. Sinchana DM (Exhibit P.63) and informed PW-5 that the amount towards insurance bond was paid by Respondent No.1 and that incase if PW-5 or his daughter Kum. Sinchana DM meets with an accident or suffers any health issues the insurance bond covers upto Rupees One to Two Lahks and that they can get treatment from any hospital without making payment.It is further stated that the bond was handed over in a cover containing cover images of Respondent No.1 and his father D.C Chennigappa, the then President of JDS Tumkur District, Sri. Kumaraswamy, former Chief Minister, 169 Sri. Deve Gowda, former Prime Minister and the Symbol of JDS Party along with manifesto of JDS Party.
PW-6 through his evidence affidavit has made out similar allegations against Krishnegowda and Renukamma."
(ii) In response to the notice under Section 99 of R.P. Act, the statement of objection has been filed by Sri Krishnegowda. It is asserted that pleadings are not sufficient, that the evidence of PW5 Mahadevaiah and PW6 Sri D.R.Ramesh of Doddasarangipalya are parrot like stories and affidavits are identical.
(iii) It is submitted that the witness is tutored witness and that PW5 and PW6 were falsely deposing at the instance of the petitioner.
(iv) It must be noted that the pleading at para-33 of election petition does indicate that there was distribution by Sri Krishnegowda and if read in conjunction with pleading at para -12, the assertion of distribution with consent has been made out.
170
(v) The documents have been marked by PW.5 and PW.6 to corroborate the issuance of Medi Assist cards which are detailed as below:-
NAME OF WITNESS WITNESS EXHIBITS MARKED EXAMINED AS Mahadevaiah PW - 5 Ex.P60 and Ex.P61 - Voters List for the year 2018, 2021 Ex.P62 - Daughter's Study Certificate Ex.P63 - Medi Assist Card Ex.P64 - Aadhar Card Ex.P65 - Daughter's Aadhar Card D.R. Ramesh PW - 6 Ex.P66 - Voter ID Ex.P67 - Son's Study Certificate Ex.P68 - Medi Assist Card Ex.P69 - Aadhar Card Ex.P70 - Son's Aadhar Card
(vi) These documents would demonstrate that the details of the children of PW.5 and PW.6 tallies with the description in the Medi Assist Policy.
(vii) The said witnesses have withstood testimony and accordingly it can be stated that case is made out for holding that the distribution of Medi Assist cards during the election period was done with intention of enticement.171
(viii) Accordingly, it is held that Sri. Krishnegowda is guilt of corrupt practice under Section 123 of R.P. Act.
152. Noticee President, KMSS
(i) Insofar as the President, KMSS, the notice under Section 99 of R.P. Act came to be issued calling upon the Noticee, President of KMSS to reply to the show cause notice as regards such of the allegations.
The nature of allegations made against you and the evidence in that regard are briefly mentioned as herein below:
The prime allegations made against a Society by the name 'Kammagondanahalli Sri Maruthi Seva Samithi' (KMSS) is that the Society formed by the father of Respondent No.1, Sri. Chennigappa who was also the then President of Tumkur JDS Party and that the said society is essentially controlled and managed by the family members of Respondent No.1, has approached an insurance company by the name 'New India Assurance Company Ltd' for group insurance policies covering health risk of the students studying in various institutions within the Assembly Constituency from where Respondent No.1 was nominated and that the Society has paid a sum of Rs.6,00,000/- towards the premium. It is further alleged in the petition that the said transaction was serviced by Medi Assist Insurance TPA Pvt. Ltd., and the policy bearing No.6710034170500000258 having its validity for the period of 26.02.2018 to 25.02.2019 (see para 26 of the petition) 172 It is further alleged that KMSS having its registered office at Bangalore North Taluk, Bangalore and its administrative office situated at Nelamangala Taluk, Bengaluru Rural District, the engineering college which is managed and run by KMSS is situated in Byranayakanahalli, TyamagondluHobli, Nelamangala Taluk, also the school which it is running is at Yelahanka, hence the area of operation and the activities of KMSS is in Bangalore Rural District. Whereas KMSS is not running any school in Tumkur Rural Taluk, KMSS has not taken any such insurance policy to cover the students either of Nelamangala Taluk or of Yelahanka and the fact that KMSS has chosen to cover 16000 students in 133-Tumkur Rural Constituency is for the only reason to entice the parents of insured children who are all voters in 133- Tumkur Rural Constituency to vote for Respondent No.1.
It is because the son of the President of KMSS is contesting the election to the Karnataka Legislative Assembly as a JDS candidate and that the society is a family run society (the President's wife, the first respondent's mother is the treasurer, the President's another son who is the brother of the first respondent is the Vice-President, the secretary is the son-in-law of the President of KMSS and the brother-in-law of Respondent No.1) and every one of them were interested in furthering the cause of the Respondent No.1 (see para 42 of the petition). It is further asserted that in order to bribe the voters in the said constituency and entice them to vote in favour of the respondent no.1 they have applied to National Insurance Company Ltd., for a Group Insurance (see para 43 of the petition).
The above stated allegations are supported by the Evidence affidavit of the Petitioner and Ramesh Bettaiah (PW2).
Subsequently the brother of Petitioner got the policies cancelled and upon such cancellation the refund of premium amount was made to the bank 173 account of KMSS as per Ex. P.88 and P.90 series. Reliance is placed on the email conversations between Devendra Prasad.A (PW-11).Kittuswamy A. (PW-10) who is the Regional Manager New India Assurance Co. Ltd. has stated in his evidence that the Flexi Group Mediclaim policy is insured in the name of KMSS and that the premium was paid by cheque. The adjustment voucher which records payment of advance premium is marked as Ex.P.81.It is further stated that a letter dated 07.05.2018 (Ex.P.86) is an intimation sent to KMSS regarding cancellation of Medi Assist Policies. Ex.P.90 series is identified by PW-10 as payment vouchers which reflect refund of premium consequent to the cancellation of policy and the refund is made to KMSS.
Therefore, it is alleged that KMSS society carried out corrupt practices by making payment for the insurance policies in favour of children studying within the constituency from which Respondent No.2 was nominated in order to entice the voters of the constituency.
(ii) Essentially, the notice was issued in the context of allegations made against KMSS, while noticing that during the relevant period Sri C. Chennigappa, the father of respondent No.1 was the President of KMSS. In the reply to the said notice, Sri D.C.Venugopal has asserted that till Sri D.C. Venugopal was appointed as the President Sri C. Chennigappa, father of the respondent No.1 was the decision making person. It was asserted that Sri Chennigappa had informed Sri D.C.Venugopal that the 174 KMSS did not make any transaction or payment to M/s.New India Assurance Co. Ltd., and that it was ORCF which had made a request to provide data regarding the poor students.
(iii) It is specifically brought out in the cross-
examination regarding Sri C. Chennigappa being Chairman of KMSS since 1992 to October 2018. The relevant deposition of Sri D.C. Venugopal is as follows:-
"My father was Chairman of KMSS Trust since 1992 to October 2018.... Before I became Chairman of KMSS, my father was looking after day-to-day affairs. My father was the Authorized Signatory for the Bank Account between 2017 and 2018."
Thus, it becomes clear that Sri C. Chennigappa was incharge of day-to-day affairs till 2018.
(iv) Insofar as the role of KMSS, the specific defence is taken that respondent No.1 is not an office bearer.
(v) It is asserted that KMSS and M/s. New India Assurance Co. Ltd., have no transactions amongst them. it 175 is averred that premium was paid by Sri T.L.Krishnamurthy, Founding Trustee of ORCF and accordingly, there was no involvement of KMSS. It is submitted that even on cancellation, the KMSS has not received the refund which was in fact received by another entity named KMSS.
(vi) It must be noted that Ex.P80 is on record and the policy has been taken out in the name of KMSS. Irrespective of who has paid the premium, the policy at Ex.P80 would stand.
(vii) It must be noted that insofar as the distribution of Medi Assist cards, despite Media reports regarding the same as per Ex.P10(a) and Ex.P11(a), there was no effort made by KMSS to distance itself from alleged action of distribution of Medi Assist cards.
(viii) It is stated during cross-examination that except Sri B.H. Munisiddappa, all persons mentioned in Ex.P6, list of Executive Members are family members. Ex.P6 is the list of Executive Committee Members and when Sri D.C. 176 Venugopal, who is the brother of respondent No.1 and present President of KMSS was subjected to cross- examination subsequent to notice issued under Section 99 of R.P. Act, insofar as the office bearers of KMSS are concerned, he has deposed as follows:-
"Ex.P6 is the list of office bearers of KMSS for the year 2017-18. All the persons mentioned in Ex.P6 are family members except B.H.Munisiddappa at Sl.No.6 ... Apart from the list of office bearers in Ex.P6, there are no other office bearers."
It is clear from the above that except Sri B.H.Munisiddappa, all the members of Executive Committee of KMSS are related. Therefore, all others are admittedly the family members as per the say of Sri D.C.Venugopal who being the present President of KMSS and there is no reason to disbelieve such statement.
(ix) The proof of distribution of Medi Assist cards pursuant to the policy at Ex.P80 and the timing of taking of the policy and distribution of Medi Assist cards by other persons as discussed supra would all point to action being 177 taken by KMSS to help respondent No.1 who was a family member in the elections, which would be a presumption to be drawn relating to the conduct of KMSS in accordance with the natural human conduct in terms of Section 114 of the Indian Evidence Act.
(x) The distribution by persons on behalf of respondent No.1 by his consent has been proved through circumstantial evidence as per the discussion at para- 113.
(xi) Accordingly, it could be concluded that evidence would point out to the role of KMSS in the commission of corrupt practice by facilitating the distribution of Medi Assist cards and not taking any steps to distance itself from such distribution. It cannot be lost sight of that the question of distribution of Medi Assist cards arose only consequent to the taking out of Medi Assist Policy as per Ex.P80 in the name of KMSS. The circumstances read in its entirety would indicate that the distribution of Medi Assist cards was with the consent of KMSS. Though respondent No.1 and RW2 have taken the specific stand that there was MoU 178 between KMSS and ORCF, the same has not been produced and the Noticee Sri D.C.Venugopal merely denies existence of such MoU and cannot be believed in light of the specific stand by respondent No.1 and RW2, which evidence outweighs that of Sri D.C. Venugopal. The fact that the Noticee admits that resolution was passed by KMSS for collection of information and giving information to ORCF would indicate that there was a relationship between the two, but the burden was upon KMSS to establish that beyond providing for information, there was no other understanding between KMSS and ORCF. That burden has not been discharged. No steps are taken to summon the MoU stated to be in possession of Police Authorities as is revealed by RW2 and in the absence of taking steps to summon the said MoU from custody of the Authorities, an adverse inference could be drawn under Section 114 of Indian Evidence Act that steps were not taken to obtain such MoU, as it would go against the Noticee. 179
(xii) The evidence and material on record would indicate that KMSS has stood by and did not distance itself from the distribution of Medi Assist cards which was in the name of KMSS. It can be stated that KMSS has been an accessory and played a part in the entirety of the design of commission of corrupt practice.
(xiii) However, as the KMSS is represented by Sri D.C. Venugopal as its President, who has specifically stated that Sri C. Chennigappa was incharge of all affairs till October 2018 noticing that all acts attributable to KMSS have been conducted prior to October 2018, in light of death of Sri C. Chennigappa, it would be impermissible to name Sri D.C. Venugopal in terms of Section 99 of the R.P. Act so as to inflict harsh penalties that may flow from naming Sri D.C. Venugopal.
(xiv) It is clarified that the effect of not naming the President only due to the technical reasons as stated above, that would not water down the finding made in the main proceedings against KMSS. Section 99 proceedings are 180 limited to the naming of the person. In the case of KMSS, as it is a separate entity, the question of naming would be of the person incharge at the relevant period of time. Though the role of KMSS has been affirmed as an accessory in the commission of corrupt practice, however, there is no sufficient material to name Sri D.C. Venugopal, as material reveals that it was Sri C. Chennigappa was incharge of the proceedings at the relevant point of time.
(xv) The sending of notice under Section 99 of R.P. Act was specifically with respect to the President of KMSS and in light of facts made out, no case is made out as regards naming of present President Sri D.C. Venugopal.
153. After having recorded the findings on the issues, it is clear that case is made out for declaring the election of respondent No.1 as void in terms of Section 100(1)(b) of R.P.Act. No grounds are however made out for declaring the petitioner to be elected. Further, as discussed, no grounds have been made out in terms of Section 100(2) of the R.P. Act so as to refrain from declaring the election 181 void, despite respondent No.1 being guilty of commission of corrupt practice by virtue of acts done, found to be done with his consent.
154. In light of the above discussion and findings on the issues the following:-
Order
(a) The election of the returned candidate Sri D.C. Gowrishankaraswamy, Member of Legislative Assembly, No.133 - Tumkur Rural Assembly Constituency having been declared elected as per Form-21C dated 15.05.2018 is hereby declared to be void.
(b) The following persons are named in terms of Section 99(1)(a)(ii) of the R.P. Act for having committed corrupt practice at the election, viz., Sri Palanethraiah. G, Sri Arehalli Manjunath, Sri Krishnegowda, Smt.Renukamma and Smt.Sunanda (Noticees);182
(c) The Registrar to comply with the mandate under Rule 19 of the Election Petitions Procedure Rules, Karnataka.
Accordingly, the Election Petition is allowed in part.
Sd/-
JUDGE NP/VGR 183 ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PETITIONER PW-1 : B. Suresh Gowda PW-2 : Ramesh Bettaiah PW-3 : Lakshminarayana V.N. PW-4 : Gopalaiah PW-5 : Mahadevaiah PW-6 : D.R. Ramesh PW-7 : Narasimha Murthy PW-8 : Ramamani PW-9 : R. Rangaswamy PW-10 : Kittuswamy. A PW-11 : Devendra Prasad. A PW-12 : Rangadamappa. C LIST OF EXHIBITS MARKED ON BEHALF OF PETITIONER Ex. P1 : Copy of the News item declaring Respondent No.1 as JDS candidate to contest from Tumkur Rural Constituency No.133 Ex. P2: Certified copy of the declaration of result in Form No. 21C Ex. P3: Certified copy of Form No.12E Ex. P4: Certified copy of Affidavit of the petitioner filed before the election authority Ex. P5: Certified copy of the bye laws of the Kammagondanahalli Sri Maruthi Seva Samithi Ex. P6: Certified copy of the names of the Executive Committee Kammagondanahalli Sri Maruthi Seva Samithi Ex. P7: Screenshot of the Facebook account of Respondent No.1 184 Ex. P8: Screenshot of photograph posted by Respondent No.1 in his Facebook page.
Ex. P9: Screenshot of photograph on the statement of Sri. Chennigappa about providing 1000 free seats in the engineering college run by the Kammagondanahalli Sri. Maruthi Seva Samithi Ex. P10: Prajavani newspaper dated 09.05.2018. Ex.P.10(a): Copy of news item published in Prajavani newspaper on 09.05.2018 Ex. P.11 :Prajavani newspaper dated 11.05.2018 Ex.P.11(a): Copy of news item published Prajavani newspaper on 11.05.2018 Ex. P.12: Tumakur Varthe newspaper dated 12.05.2018 Ex.P.12(a): Copy of newspaper Tumakur Varthe, dated 12.05.2018 Ex. P13: Certified copy of Order sheet in C.C No.2797/2013 Ex. P13(a): Certified copy of FIR in C.C.No.2797/2013 Ex. P13(b): Certified copy of Complaint dated 07.04.2013 in C.C No.2797/2013.
Ex. P13(c): Copy of the PF No. 15-2013 Ex. P13(d): Copy of the Amanath Panchanama Ex. P13(e): Copy of the Chargesheet along with statement of witness in C.C 2797/2013 Ex. P13(f): Copy of the Indemnity Bond Ex. P14: Copy of the Notification of Election Commission of India along with Calendar of events Ex. P15: Certified copy of the Voter's List 2013 Ex. P15(a): relevant portion of the Voters List bearing Serial Nos. 491-510 Ex. P16: Copy of the RTI application endorsement dated 12.03.2021 185 Ex. P17: Copy of the order sheet in C.C. No.2493/2018 Ex. P18: Copy of the Application filed in C.C No.2493/2018 Ex. P19: Copy of the FIR in Crime No.97/2018(C.C.No.2493/2018) Ex. P20: Copy of requisition by the I.O dated 03.04.2018 Ex. P21: Copy of P.F No. 25/2018 Ex. P22: Copy of the Seizer Panchanama Ex. P23: Copy of the chargesheet in C.C No.2493/2018 Ex. P23(a) to Ex. P23(BD): Copy of the Medi Assist cards issued by M/s.New India Assurance Co. Ltd.
Ex. P24: Copy of Pen drive containing video recording facebook page of respondent relating to the contents in Ex.P9 Ex. P25: Copy of Pen drive containing video footage uploaded on respondents facebook page on 27.04.2018 Ex. P26: Copy of the PF No 31/2018 Ex. P27: Copy of the chargesheet dated 06.07.2018 bearing No.47/2018 Ex. P28: Copy of the order sheet in C.C. No.3079/2018 Ex. P29: Copy of the vehicle release application in C.C No.3079/2018 Ex. P30: Copy of the charge and accused statement in C.C No. 3079/2018 Ex. P31: Copy of application filed in Crime No.0073/2018 Ex. P32: RTI endorsement relating to furnishing list of election agents Ex. P32(a): Copy of counting agents Ex. P33: Copy of the Email Sent by PW 2 on 07.04.2018 to Smt. Jyothi K.S Incharge of Customer Care and Vigilance of IRDAI. 186 Ex. P34: Copy of the Email Sent to PW 2 by Radhika M.A., Officer of M/s.New India Insurance Company Ltd. And Copies marked to various officers of M/s. New India Insurance Company Ltd. Ex. P35: Copy of the Email addressed by Jyothi K.S to Shanmugam N, Preetha. S and Radhika M.A. Ex. P36: Copy of the Email dated 20.04.2018 by P.W.2 to Devendra Prasad, and copies to Preetha. S and Jyothi K.S. seeking vigilance team Report.
Ex. P37: Copy of follow up Email sent by P.W. 2 on 28.04.2018 to Devendra Prasad A, Radhika M.A. and other officers. Ex. P38: Copy of Email sent by P.W.2 on 01.05.2018 to officers of New India Assurance Company Ltd. And officers of Election Commission of Karnataka.
Ex. P39: Copy of Email forwarded by Nagaraj N.R. to other officers of Election Commission related to email sent on 01.05.2018. Ex. P40: Copy of follow up Email sent by P.W.2 dated 03.05.2018 addressed to Election Commission of Karnataka and officer of M/s.New India Assurance Co. Ltd., Ex. P41: Copy of the Email sent by P.W.2 on 08.05.2018 to Preetha .S, Devendra Prasad .A and other officer of New India Assurance Co. Ltd., Ex. P42: Copy of Email received by P.W.2 from Preetha S on 08.05.2018 Ex. P43: Grievance Complaint raised by P.W.2 under Ministry of Finance. Ex. P44: Grievance registered under with PMO 1193 bearing No. PMOPG/E/2018/0320062 on 01.07.2018 Ex. P44(a): The attached copy of Ex. P44 produced by P.W.2 Ex. P45: Copy of the Complaint made by P.W.2 bearing No. PMOPG/D/2018/0283030.
Ex. P46: Letter dated 01.09.2018 addressed by the Additional Chief Secretary to the Government which is addressed to the CBI transferring the P.W.2's Grievance Petition. 187 Ex. P47: Letter received by P.W.2 on 23.01.2019 from Shivakumar .R. Chief Vigilance Officer of M/s New India Assurance Co. Ltd. Mumbai Ex. P48: Endorsement by Circle Inspector Tumkur Rural Circle, Tumakuru on 01.12.2018 on P.W.2's complaint. Ex P49: Certified copy of Voter's List for the year 2018 denoting name of Mr. Lakshminarayana, SI No.145 of the said list. Ex P50: Certified copy of Voters List for the year 2021, denoting name of Mr. Lakshminarayana, SI No.174 of the said list. Ex P51: Certified copy of Study Certificate of Sri. Yashwanth Gowda V. L Ex P52: Certified copy of Medi Assist Card containing the name of Yashwanth Gowda V.L Ex P53: Certified copy of Aadhar of Lakshminarayana V.S. Ex P54: Certified copy of Aadhar of Yashwanth Gowda V.L Ex P55: Certified copy of Voter ID of Gopalaiah. Ex P56: Certified copy of Study Certificate of Nirmala G. Ex P57: Certified copy of Medi Assist Card Containing the name of Nirmala G. Ex P58: Certified copy of Aadhar of Gopalaiah Ex P59: Certified copy of Aadhar of Nirmala G. Ex P60: Certified copy of Voter's list, 2018. Ex P61: Certified copy of the Voter's list, 2021 denoting the name of Sri. Mahadevaiah.
Ex P62: Certified copy of Study Certificate of Sinchana DM. Ex P63: Certified copy of Medi Assist Card containing name of Sinchana DM.
Ex P64: Certified copy of Aadhar of Mahadevaiah 188 Ex P65: Certified copy of Aadhar of Sinchana DM. Ex P66: Certified copy of Voter ID Card of Sri. D.R Ramesh Ex P67: Certified copy of Study Certificate of Rahul R. Ex P68: Certified copy of Medi Assist Card containing name of Rahul R. Ex P69: Certified copy of Aadhar of D.R Ramesh Ex P70: Certified copy of Aadhar of Rahul R. ExP71:Certified of copy of Voter I.D. of Narasimha Murthy. Ex P72: Certified copy of Aadhar of Narasimha Murthy. Ex P73: Certified copy of the Voter's list, 2018, denoting the name of Ramamani.
Ex P74: Certified copy of Voter's list, 2021 denoting name of Ramamani Ex P75: Certified copy of the Study Certificate of Poornima. Ex P76: Certified copy of Medi Assist Card containing name of Poornima. Ex P77: Certified copy of Aadhar of Ramamani Ex P78: Certified copy of Aadhar of Poornima. Ex P79: Certified copy of complaint made by R.Rangaswamy to Police Sub-Inspector Tumakur Rural Police Station. Ex P80: Certified copy of Medi Assist Policy denoting the name of insured as Kammagondanahalli Sri Maruthi Seva Samithi. Ex P81: Certified copy of Adjustment Voucher Ex P82: Certified copy Advance Premium Deposit Receipts Ex P83: Certified copy of Advance Premium Deposit Receipt Ex P84: Certified copy of Advance Premium Deposit Receipt Ex P85: Certified copy of Advance Premium Deposit Receipt 189 Ex P86: Certified copy of Intimation of cancellation of Medi Assist Policy sent to KMSS Ex P87: Certified copy of Policy cancellation documents. Ex P88: Certified copy of refund endorsement Ex P89: Certified copy of Nil endorsement Ex P90: Certified copy of Refund Payments Voucher Ex P90(a): Certified copy of refund excess Voucher. Ex P90(b): Certified copy of Email dated 21.06.2018 denoting refund after policy cancellation.
Ex P90(c): Certified copy of letter dated 26.06.2018 denoting refund of policy cancellation.
Ex P90(d): Certified copy of table denoting names of account holder to whom the premium was refunded.
Ex P90(e): Certified copy which contains details of amount and beneficiary name and the payment overview.
Ex P90(f): Certified copy of the policy cancellation documents dated 08.05.2018.
Ex P91: Certified copy of Email dated 05.03.2018 handed over by Devendra Prasad.A. Ex P92: Certified copy of Email sent by Preetha S to Devendra Prasad. Ex P93: Certified copy of Bank Statement of New India Assurance Co.Ltd., Ex P94: Certified copy of complaint Ex P95: Signature on Panchanama at Serial No.1 Ex. P96: Certified copy of the Crl.P. No.3821/2020 Ex. P97: Certified copy of order dated 10/11/2020 in Crl.P.No.3821/2020 Ex. P98: Certified copy of FIR in Crime No.No.128/2020 190 Ex. P99: Certified copy of SLP (Crl.)No.6515/2020 Ex. P100:Certified copy of Apex Court order dated 22/01/2021 passed SLP (Crl.) No.6515/2020.
Ex. P101: Certified copy of the sale deed dated 03/02/2020 Ex. P102: Certified copy of Pamphlet Ex. P103: C.D. containing the video clip Ex. P104: Certified Copy of Index of Charge sheet in Crime No.128/2020 Ex. P105: Certified copy Gazette notification dated 02/05/2018 Ex. P105 (a): Certified copy Page of No.262 of Gazette notification dated 02/05/2018 showing list of contesting candidates in 133- Tumkur Rural Constituency, 2018 Ex.P106: Certified copy of Medi Assist Policy along with policies relating to 500 students Ex.P107: Voluntary Statement of Kishore Varadachar in Cr.No.128/2020 Ex.P108: Further voluntary statement of Kishore Varadachar in Crime No.128/2020 Ex.P109: Certified copy of statement of accounts of Krishnamurthy T.L. Ex.P110: Certified copy of vakalathnamma by Kishore Varadachar, Gowramma & Ananthu in Spl.CC. No.1407/2021 Ex.P111: Certified copy of Order sheet in NCR No.104/2020 Ex.P112: Certified copy of charge sheet in Crime No.13/2014 Ex.P113: Certified copy of FIR in Crime No.106/2020 Ex.P113(a): Certified copy of charge sheet in Crime No.106/2020 Ex.P114: Certified copy of screen shot of photo recognizing Gowramma along with certified copy of Section 65-B certificate 191 LIST OF WITNESSES EXAMINED ON BEHALF OF RESPONDENTS RW-1 : Gowrishankara Swamy D.C. RW-2 : Kishore Varadachari RW-3 : Rangaswamy LIST OF EXHIBITS MARKED ON BEHALF OF RESPONDENTS Ex.R1: Certified copy of list of contesting candidates to Karnataka Legislative Assembly 133 Tumkur Rural Constituency Ex.R2: Certified copy of Statement of Accounts for the period from 28/02/2018 to 25/03/2018 of Krishnamurthy T.L. Ex.R3: Certified copy of Email sent by Devendra Prasad A to Ramesh Bettaiah dated 20 April 2018 281. Ex.R4: Certified copy of order dated 17.09.2019 in Crl.P. No.6604/2019 Ex.R5: Certified Copy of report dated 10/12/2018, submitted by Tumkur Rural Police to Superintendent of police, Tumkur District, Tumkur Ex.R6: Certified copy of statement of Devendra Prasad. A Ex.R7: Certified copy of statement of Kishore Varadachari. Ex.R8: True copy of Email sent by Krishna of One Rupee charity foundation to Devendra Prasad dated 07/02/2018 Ex.R9, 9(a), 9(b), 9(c): Certified copy of the Release Deed dated 19/05/2007 Ex.R10: Certified copy of order dated 21.09.2021 in Crl.P.No.86/2020 Ex.R11: Certified copy of voters list of 181-Nelmangala Ex.R12: Certified copy of voters list of Tumkur Rural Legislative Assembly Ex.R13, (a), (b), (c), (d), (e), (f): Certified Copy of Trust Deed of One Rupee Charity Foundation dated 01 July 2013 Ex.R14: Tailor Made Group Mediclaim Policy 192 Ex.R14(a): Tailor Made Group Mediclaim Policy Ex.R14(b): Tailor Made Group Mediclaim Policy Ex.R14(c): Tailor Made Group Mediclaim Policy Ex.R14(d): Tailor Made Group Mediclaim Policy Ex.R15: Medi Assist Policy issued to KMSS Ex.R15(a): Medi Assist Policy issued to KMSS Ex.R16 & R16(a): Cardless claim dated 14.04.2018 made by student Ex.R17: School Record Certificate dated 17/03/2022 Ex.R18: School Record Certificate dated 17/03/2022 Ex.R19: Aadhaar card of Rangaswamy Ex.R20: Voters' list of Mallasandra Door no.1 to 414 Ex.R21: Medi Assist Policy issued to KMSS Ex.R22: Medi Assist Policy issued to KMSS LIST OF NOTICEES
1. Arehalli Manjunath
2. Renukamma
3. Sunanda
4. Palanethraiah
5. Krishnegowda
6. President, KMSS 193 LIST OF EXHIBITS MARKED ON BEHALF OF NOTICEES EXHIBITS MARKED BY PALANETHRAIAH Ex. S1, 2, 3 and 4: Photographs along with 65B Certificate Ex. S5: Voters List, 2016 of Bhyrasandra Village Ex. S5(a): Entry at No. 773 of the voters List at Ex. S5. Ex. S6: Voters List, 2-18 of Bhyrasandra Village Ex. S6(a): Entry at No. 746 of the Voters' List at Ex. S6 Ex. S7: Voters List, 2023 of Bhyrasandra Village Ex. S7(a): Entry at No. 792 of the Voters' List at Ex.S7 Ex. S.8: FIR in Crime No.0149/2017 along with Complaint. Ex. S.9: FIR in Crime No.0147/2017 along with Complaint. Ex. S10: FIR in Crime No.0165/2022 along with Complaint. Ex. S11 - Screenshot of Facebook Post EXHIBITS MARKED BY SUNANDA Ex. S12: Voters List, 2018 of Honnudike Village Ex. S13: Entry at No. 790 in Voters List, 2023 of Honnudike Village EXHIBITS MARKED BY KRISHNEGOWDA Ex. S14: Signature of Krishnegowda on affidavit dated 14.12.2022. Ex. S15: FIR in crime No.0298 dated 24.09.2008 along with Complaint EXHIBITS MARKED BY RENUKAMMA Ex. S16:Signature of Renukamma on Evidence Affidavit dated 18.01.2023. Ex. S17: Voters list, 2023 of Gulaharive Village 194 Ex. S18: Entry at No. 295 at Ex. S.17.
Ex.S19: Cover containing photographs of respondent No.1 and others. EXHIBITS MARKED BY AREHALLI MANJUNATH Ex. S20: Signature of Arehalli Manjunath in Evidence Affidavit dated 18.01.2023 EXHIBITS MARKED BY PRESIDENT, KMSS Ex. S21: Signature of D.C. Venugopal on evidence affidavit dated 23.01.2023 Ex. S22: Statement of Accounts of KMSS from 01.04.2017 to 31.03.2018, obtained from Axis Bank Ex. S23: Statement of Accounts of KMSS from 442-44 01.04.2018 to 31.03.2019, obtained from Axis Bank Ex. S24: Audit report of KMSS for the year ending 31.03.2018. Ex. S24(a): The Income & Expenditure Account for the year ending 31.03.2018 at page 21.
Ex. S24(b): Relevant Receipts & Payments Account for the year ending 31.03.2018 at page 25.
Ex. S25: Audit report of KMSS for the year ending 31.03.2019. Ex. S25(a): Total amount in Balance sheet for the year ending 31.03.2019 at page 31.
Ex. S25(b): Total amount in Balance sheet for the year ending 31.03.2019 at page 40.
Ex. S25(c): Income & Expenditure Account for the ear ending 31.03.2019 at page 32.
Ex. S25(d): Income & Expenditure Account for the year ending 31.03.2019 at page 41.
Ex. S25(e): Receipts & Payments Account for the year ending 31.03.2019 at page 30.
195Ex. S25(f): Receipts & Payments Account for the year ending 31.03.2019 at page 39.
Ex. S26: Certified copy of Account Statement in Form 10(B) for the year ending 31.03.2018 obtained from the Office of the District Registrar of Societies Ex. S26(a): Income & Expenditure Account for the year ending 31.03.2018 at page 10.
Ex. S26(b) :Relevant pages of Receipts & Payments Account for the year ending 31.03.2018 at page -9 Ex. S27: Certified Copy of audit report of KMSS for the year ending 31.03.2019 as filed before the Registrar of Societies. Ex. S27(a): Entry relating to Total Amount of Ex. S27 at page 27. Ex. S27(b): Income & Expenditure Account for the year ending 31.03.2019 at page 28.
Ex. S27(c): Witness's signature in the Receipts & Payments Account for the year ending 31.03.2019.
Ex. S28: Statement of Mr. D. C. Venugopal before Tumkur Rural Police dated 03.03.2021.
Ex. S29: List of office bearers of KMSS for the years 2018-2019, 2019- 2020, 2020-2021, 2021-2022.
Ex. S30: Form No.6 filed by D C Venugopal for transferring voters list.
Sd/-
JUDGE NP/VGR