Madras High Court
Saidai.Sa.Duraisamy vs Stalin. M.K on 1 June, 2017
Author: M.Venugopal
Bench: M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Orders Reserved on : 19.04.2017
Orders Pronounced on : 01.06.2017
C O R A M
THE HONOURABLE Mr. JUSTICE M.VENUGOPAL
Election Petition No.1 of 2011
***
Saidai.Sa.Duraisamy ... Petitioner
Vs
1.Stalin. M.K.
2.Armstrong. K.
3.Ashok Kumar. S.
4.Atick Yezdon. A.S.
5.Sivakumar. M.
6.Azhagesan. S.
7.Ramesh. D.
8.Ravi Kumar. T.
9.Ganesan.P.
10.Kandasamy. S.
11.Kalai Arasan. M.
12.Gopi. K.S.
13.Shankar. K.P.M.
14.Charavanan. M.P.
15.Saravanan. S.P.
16.Sivasubramani. S.
17.Suresh. D.
18.Suriya Narayanan. D.
19.Narayanarao. V.S.
20.Padmarajan. K.
21.Murali Vinodh. M.
22.Raghu.V.M.
23.Venkataramani. K.
24.Venugopal. M.
25.Jayaseelan. A.
26.Jayaramaraj. T.
27.The Returning Officer,
No.13, Kolathur Assembly
Constituency, (and)
Zonal Officer, Zone-IV,
Corporation of Chennai,
Chennai 600 023.
(R 27 has been struck off from the
array of respondents as per order
dated 12.12.2012 in O.A.No.1038 of
2012 in ELP.No.1 of 2011) ... Respondents
Prayer: Petition filed under Sections 81, 77, Sec. 100 (1)(b), 100(1)(d)(ii), 100(i)(d)(iv), 123(1)(A)(B), 123(4), 123(6) Sec. 123(7)(f), Sect.129(2)(C) of the Representation of the People Act, 1951 r/w. R.2 of Rules of the Madras High Court Election Petitions, 1967 praying to declare, declaring the election of the 1st respondent as Returned Candidate on 13.5.2011 from No.13, Kolathur Assembly Constituency as null and void and to award the costs.
For Petitioner : Mr.T.V.Ramanujam
Senior Counsel
For Mr.S.Thiruvenkataswamy
For 1st Respondent : Mr.P.R.Raman (During Trial)
Mr.R.Shanmugasundaram
Senior Counsel
For Mr.C.Seethapathy
For RR 8, 14, 15 : Mr.V.Arun
(Vakalat filed Not contested)
For RR 2 to 7, 13,
16 to 26 : Served
(Not contested)
O R D E R
The Petitioner has filed the present Election Petition before this Court praying for a Declaration that the Election of the 1st Respondent as Returned Candidate on 13.05.2011 from No.13, Kolathur Assembly Constituency as null and void.
2.Summation of Long Germane Factual Matrix of the Election Petition:
2.1. The Petitioner filed his nomination on 24.03.2011 as an official candidate of All India Anna Dravidar Munnetra Kazhagam (AIADMK) in No.13, Kolathur Constituency by contesting the Election in his party symbol Two Leaves. As a matter of fact, the 1st Respondent contested the Election and filed his nomination as an official candidate of the Dravidar Munnetra Kazhagam Party (DMK) in his party symbol Rising Sun. Further, the Respondents 2 to 26 also filed their nominations and contested the Election from Kolathur Constituency in their respective symbols allotted to them.
2.2. When the Election Commission of India announced the Election Schedule, the 1st Respondent was the Deputy Chief Minister of Tamil Nadu. Moreover, he was powerful as Treasurer of DMK party and was the Leader of Youth Wing. He used his official, his party men and money powers in Kolathur Constituency during the time of Election campaign after filing the nomination. Further, the People of Tamil Nadu is fully aware of the 1st Respondent's party way of bribing the voters through various innovative ways in Thirumangalam by-election and during the Parliament Elections held in the year 2009.
2.3. The 1st Respondent's party, by means of 'Thirumangalam Formula', provided money to the voters in a novel way of 'Community Feedings', Courier Service, Currency in News Paper, Arathi Plate Contributions and slips to the voters to purchase consumer items etc. 2.4. The 1st Respondent/DMK party continued to follow the same method of money for voters, as a policy in Kolathur Constituency with its ill gotten money. The misuse of official and money power at the instance of the 1st Respondent played a dominant role in Kolathur Constituency during the time of entire Election.
2.5. For the 1st Respondent, in Kolathur Constituency, the main Election Manager was the Mayor of Chennai City Municial Corporation (Ma.Subramaniam). Considering the presence of Mayor of Chennai, Chennai Corporation Officials were deployed for Election duty of the 1st Respondent in Kolathur Constituency so as to commit all the illegal acts to ensure his success. Because of the 1st Respondent's position as Deputy Chief Minister, his political power, association with the Mayor of Chennai and the Corporation employees supporters of DMK party literally prevented the Election Commission of India's directives being implemented at the ground level of Kolathur Constituency many misleads and acts committed by them were not taken as a result of by the police even as and when illegal action of the 1st Respondent and his party workers brought to their knowledge. The 1st Respondent's men and the money power were utilised in such a way that the directives of the Election Commission of India could not be implemented at the ground level due to lack of co-operation at all levels, in order to ensure his success.
2.6. The Petitioner perceived a sense of inaction among the polling duty officials deployed from Chennai Corporation including the police force, who failed to take at all times any stringent and strict actions against all kinds of malpractices committed by the 1st Respondent, its election agent and other DMK workers of Kolathur Constituency. Indeed, the 1st Respondent used all his official power and money power through his party functionaries and workers in Kolathur Constituency during the time of election campaign, after filing the nomination. The polling officials including the police force, because of 1st Respondent's political background and official power, never took serious actions against his party functionaries or workers as and when the Petitioner and his party workers pointed out the numerous illegal acts during the time of Election process. The ground level polling staffs deployed on Election duty including the Returning Officer and subordinates worked only for the furtherance and the success of the 1st Respondent. Along with the Election Petition, the Petitioner had submitted reports appeared in various Tamil News Dailies and published reports in regard to the illegal distribution of money to the voters at various parts of Kolathur Constituency.
2.7. Furthermore, the 1st Respondent, his Election Agent V.S.Ravi, District Secretary V.S.Balu and other DMK party functionaries with the consent and knowledge indulged in the illegal acts of distributing money ranging from Rs.500, Rs.1000, Rs.5000 and Rs.10000 liberally to the residents of Ward Nos.50, 51, 52, 53, 54 and 62 from the date when the 1st Respondent nomination was accepted on 30.03.2011 till he date of poll on 13.04.2011 in almost one or other part of the streets forming part of the aforestated wards, in order to secure his success. In fact, the 1st Respondent and his party workers with his consent and knowledge, behaved and conducted themselves while making payments to voters, as if the valuable votes of the residents of Kolathur Constituency can be procured like buying Chattels from Shandy.
2.8. The act of distributing money at the instance of the 1st Respondent also became possible for the DMK party in Kolathur Constituency due to the active help of the police officials, lethargic attitude of the Returning Officer [27th Respondent struck off from the array of Respondents as per order dated 12.12.2012 in O.A.No.1038 of 2012], the Corporation Officials functioned under him and absolute inaction on the part of the flying squad in not taking action against the DMK party functionaries and workers at the appropriate time, who freely distributed money in Kolathur Constituency after the nomination of the 1st Respondent was accepted.
2.9. Even during the time of counting on 13.05.2011, the Returning Officer and counting officials calculatedly deployed from the Corporation of Chennai at the instance of the 1st Respondent and his main Election Campaigner, Mayor of Chennai Ma.Subramaniam helped and committed irregularities violating all the orders and instructions issued by the Election Commission of India for his success. The 1st Respondent was declared as successful Returned Candidate on 13.05.2011 from No.13, Kolathur Constituency by a margin of 2739 votes.
2.10. The Petitioner's objection given to the Returning Officer on 13.05.2011 to stop the process of counting and request to order re-poll in respect of those wards, wherein the EVM showed display as Invalid was not considered and disposed of by the Returning Officer in accordance with the Election Rules and the instructions issued by the Election Commission of India.
2.11. The Returning Officer and the Counting Officials even conducted a supplementary counting surreptitiously in respect of 5 EVMs, after completion of 19th round without the permission of the Election Commission of India and in the absence of the Petitioner and his authorised agent, contrary to the Instructions issued in this regard. That apart, the Tamil Dailies like, Dinamalar, Dinamani carried out a News report on 14.05.2011 which amply demonstrate that the Returning Officer had not conducted the counting in a fair manner and in accordance with the Instructions of the Election Commission of India. The DMK party cadre at all levels including the 1st Respondent committed various acts in gross violation of Model Code of Conduct in Kolathur Constituency.
2.12. The 1st Respondent with the aid of his party functionaries, from the initial stages of election campaign after the announcement of election on 13.04.2011, distributed cash of Rs.500/- per vote to the voters in Kolathur Constituency. The payment of Rs.500/- was increased to Rs.1000/- on 10.04.2011 and Rs.5,000/- on 11.04.2011 per vote. In fact, the money flow at the instance of the 1st Respondent was so liberal that the 1st Respondent with his consent, knowledge through his party men even paid a sum of Rs.10,000/- per vote on the date of polling.
2.13. A Goods Carrier G4S bearing Registration No.TN22-AJ2621 on 12.04.2011 at 3.00 p.m. was found to be transporting cash in Kolathur area to the tune of Rs.1,18,00,000/- through 10th Street, G.K.M. Colony, Chennai 82 accompanied by a driver and 3 others. The said vehicle was chased and stopped based on the intimation given to the election authorities and that the said vehicle was brought to the K-5 Police Station together with the occupants. When the doors of the aforestated goods vehicle was opened, huge cash amounting to Rs.1,18,00,000/- was found inside the boxes bearing a rubber stamp as RBS.
2.14. The Petitioner who was then present insisted upon the Election officials and the Police to ascertain the source of money from the party, who appeared before the Police, who made different and false versions in regard to the huge cash transported in the said vehicle. The Election Commission of India's Instructions issued relating to the movement of cash in vehicles were violated blatantly at the instance of the 1st Respondent. When the Police tried to open the door of the vehicle, local DMK men viz., A.Nagarajan, MC-54th Division, DMK Secretary V.J.Srinivasan and other DMK party workers prevented the opening of the door and attempted to remove the vehicle by force. However, such an attempt was prevented with the help of Police and consequently a police complaint was also lodged by the Petitioner which was taken as Election C.S.R. No.K5/2011 dated 12.04.2011.
2.15. The 1st Respondent is solely responsible for transportation of such a huge amount on the eve of the polling dates more particularly after the closing date of canvassing. It is evident from the conduct of DMK workers mentioned in the complaint dated 12.04.2011 that the money transported in the aforesaid vehicle meant for distribution on 12.04.2011 night to the voters of Kolathur Constituency, in order to secure the success of the 1st Respondent. A copy of the said complaint was marked to the Returning Officer and other electoral officials, but no action was taken in this regard.
2.16. As a matter of fact, the money seized by the Police at his instance on 12.04.2011 belong to the 1st Respondent and his party, meant for distribution to the voters before the election date and on the polling date. But no action was taken in respect of the amount seized on 12.04.2011. Therefore, the act of the 1st Respondent and his party functionaries transporting money meant for bribing the voters is contrary to the Election Commission Directive and order and the Election of the Petitioner was materially affected.
2.17. The Kolathur Constituency consists of 5 wards viz., Ward Nos.50, 51, 52, 53 and 62 comprising more than 1000 streets. The 1st Respondent with the help of his party functionaries, Corporation officials one Kannaiah, President of the Railways Employees Cooperative Credit Society Limited, its employees involved in the distribution of money for votes after the nomination of the 1st Respondent was filed on behalf of the DMK party. The Police officials like (i) Subba Rao, Assistant Commissioner of Police, Sembiyam, (ii) Selvakumar, Inspector of Police V-4, Rajamangalam, (iii) Radhakrishnan, Inspector of Police, Sembiyam, rendered their assistance to the 1st Respondent to make the payments freely to the voters without taking proper action, inspite of such misdeeds brought to their knowledge. Apart from that, the 1st Respondent and his party men used the premises of Railway situated in Siruvallur Road and the premises belonging to the party functionaries, distributed money to the tune of Rs.60 Crores to the voters of Kolathur Constituency, in order to secure the success of the 1st Respondent.
2.18. The aforesaid Police Officials not only helped the 1st Respondent and his party workers in the process of bribing the voters in Kolathur Constituency, but failed to take action as and when the complaints were made against the 1st Respondent's party men. Also that, the loyal Police force, Government officials and the subordinates of the Returning Officer even leaked the information about flying squad visit in advance, who always came belatedly and never took any action against those offenders, who distributed money to the voters in Kolathur Constituency.
2.19. The Police flying squad and other officials showed their inaction and lethargic attitude on 24.03.2011, 06.04.2011 and 07.04.2011 when the complaints were made pertaining to illegal acts of distributing money to the voters of Kolathur Constituency at the instance of the 1st Respondent. Because of the help given by the Police officials on 24.03.2011, 06.04.2011 and 07.04.2011 by not taking any action against the 1st Respondent party functionaries and workers, the Election of the Petitioner was materially affected.
2.20. The 1st Respondent's wife M/s.Durga Stalin stayed in Kolathur Constituency for more than 10 days between 31.3.2011 to 11.04.2011 at No.78, Vairakannu Flats, Jeeva Nagar of Kolathur and in the premises of 1st Respondent's relative situated in Venus Nagar. Further, the 1st Respondent's wife with the assistance of Mayor of Chennai, supervised the distribution of money and gifts to the voters during her stay at Kolathur. She also conducted a meeting without obtaining Police permission and in violation of Model Code of Conduct over the roof top area of the Canara Bank Branch building situated at G.K.M. Colony Main Road, 33rd Street, Kolathur, Chennai 82, a premises owned by Deva Jawahar (a General Body Member) of DMK party. She also wooed the voters, to vote in favour of the 1st Respondent by providing Cot and other material benefit of medical supply to the voters during her stay in Kolathur Constituency.
2.21. The 1st Respondent's wife in an Article written, published in Fortnight Edition June 1 June 15, 2011, Tamil Magazine Snehidhi, even after polling was over, she had asked her husband (1st Respondent) to provide cot and necessary financial assistance to whom she assured during her campaign made on behalf of the 1st Respondent. She with her husband's (1st Respondent's) consent entered into such pre-poll assurances, to confer benefits to the voters after completion of election process.
2.22. The 1st Respondent had adopted another novel way to influence the voters of Kolathur Constituency by entering into such pre-poll arrangement to corrupt the voters. The President of Railway Employees Cooperative Credit Limited, Chennai one Kannaiah, openly canvassed and worked for the 1st Respondent in Kolathur Constituency by engaging 300 Railway Employees, who happened to be the members of the said Society. These employees from Railways worked in the constituency after reporting duty, as per his instructions. Further, these employees were specially engaged between 07.04.2011 to 12.04.2011 by Kannaiah to distribute money to the voters in Kolathur Constituency more particularly in the areas on the aforesaid dates between 10.00 a.m. to 5.30 p.m. where the Government officials and Railway workmen are living in large numbers.
2.23. The said Kannaiah even helped the 1st Respondent, his party workers and the society members to make use of a place viz., Southern Railway Institute situated in Siruvallur High Road to distribute money to the voters on 07.04.2011 at 6.30 p.m. The Petitioner, during his election campaign at 6.30 p.m. on 07.04.2011, received an information from his party functionary that the DMK party workmen representing the 1st Respondent, who came in Bikes along with certain members of the Railways Employees Cooperative Credit Society Limited were distributing money to the voters on the said area, from the Railway premises situated in Perambur New Hall Compound, Sirvallur Road, for the success of the 1st Respondent.
2.24. On receipt of the aforesaid information, the Petitioner proceeded to the said place with his Division Secretary, Vetrinagar M.Sundar, S.R.Murali, A.Vinodhkumar and other AIADMK party workers and that on reaching the said place around 6.45 p.m. he found that Zonal Chairman Srinivasan of DMK party along with his party workers had come in 12 motorbikes bearing Registration numbers thereto and with the members of the Railway Employee Union distributing money to the voters in the said area. On seeing the Petitioner and his party men, they made an attempt to escape in a hurried manner. Some of the youths present in the nearby playground stopped them and in spite of that, some of the vehicles fled from the scene. Indeed, the Petitioner and his party men saw Rs.500/- currency notes bundled in plastic covers placed in front portion of all the vehicles.
2.25. According to the Petitioner, except the four vehicles bearing Registration Nos. 1)TN 02 AB5481, 2) TN 06 C2293, 3) TN 09 AA8413 and 4) TN 09 AE6797 other vehicles fled from the scene. Also that, the individuals who drove the three vehicles except TN 02 AB5481 (TVS Victor) also ran away with the cash covered in plastic covers. The Petitioner found a sum of Rs.10,000/- in a plastic cover placed in front portion of the vehicle bearing Registration No.TN 02 AB5481 and noted its serial numbers of the currency seized from the vehicle and informed the flying squad team head Shyamsundar who showed his reluctance to take any action against those offenders, with a view to help the 1st Respondent party workers. Therefore, he filed a necessary complaint before K-1, Sembiyam Police Station narrating the events and handed over the bikes, currency notes, visiting card of one N.Sekar for investigation purpose. The complaint of the Petitioner was registered as a First Information Report in Crime No.389 of 2011 under Section 171(H) of the Indian Penal Code and the Police had not taken any action due to the influence of the 1st Respondent. This act committed with the consent of the 1st Respondent, to bribe the voters to that area in Kolathur Constituency on 07.04.2011 at 6.30 p.m. would amount to an act of corrupt practice and because of the said acts, the result of the election concerning the Petitioner was materially affected.
2.26. The Petitioner's worker Vetrinagar K.Sundar and other party workers saw the distribution of money on 24.03.2011 at 3.30 p.m. by the 50th Divisional Secretary (Vatta Seyalalar) one Panneerselvam, DMK party youth wing in charge Mr.V.Muralidharan, District Representative, Mr.Turner Murali, Mr.Giriraja, Mr.Tamilmani from Eswari Hospital premises situated at S.R.P. Colony, 10th Street, Ramana Nagar, Chennai 82 to more than 50 Self Help Group members. The distribution of money to the Self Help Group and its members was made systematically throughout the Kolathur Constituency, to secure the votes in favour of the 1st Respondent.
2.27. Based on the intimation given by his party workmen Mr.Vetrinagar Sundar and Mr.Poompuhar Mahalingam on 24.03.2011, 16 women members of different Self Help Groups were caught red handed by the flying squad and the Tahsildar, and the said event was also video graphed. The lady members were caught red handed, in the Eswari Hospital premises on 24.03.2011 and gave statements to the Police to the effect that they came to receive money from the 1st Respondent party functionaries for the benefits of its members and to distribute the same to the voters of their respective areas, in order to secure the votes polled in favour of the 1st Respondent. The Police had not pursued any action due to the instruction of the 1st Respondent given through superior Police officers.
2.28. When the distribution of money at Eswari Hospital took place in a black and white manner, the DMK party workers involved in the distribution of money on 24.03.2011 called the 1st Respondent and suddenly the Assistant Commissioner of Police one Subba Rao, who came with a Police team literally prevented any further enquiry being conducted and allowed them to go scot-free.
2.29. On receipt of information received from Vetrinagar Sundar and his party workers, the Assistant Commissioner and other Police officials accompanied him had evinced interest to protect the 1st Respondent's party functionaries. However, no further action is taken and the media was also not allowed to enter the said Hospital. The amount distributed to those Self Help Group members was not seized when the same was literally available in their hands.
2.30. In fact, the Petitioner instructed Vetrinagar Sundar to give a complaint with the Chief Election Commissioner of Tamil Nadu narrating all the events that had happened and a representation dated 24.03.2011 was given to the Chief Election Commissioner also. Since there was no immediate action from the office of the Chief Electoral Officer, Chennai, Vetrinagar Sundar also filed W.P.No.8311 of 2011 before this Court wherein he prayed for the relief of Writ of Mandamus directing the Chief Electoral Officer to take action on the basis of his representation dated 24.03.2011.
2.31. Further, Vetrinagar Sundar and Poompuhar Mahalingam and other AIADMK party workers, who worked on behalf of the Petitioner, saw the illegal act of distributing money to the voters, in order to secure their votes in favour of the 1st Respondent. The act of the 1st Respondent's aforesaid party workers bribing the voters and Self Help Group members, would amount to an act of corrupt practice and therefore, the result of the election in so far as it relates to the Petitioner was materially affected.
2.32. The Petitioner's party worker Nirmalkumar, S/o.Ramalingam residing at No.6-B, Chinna Kuzhandai 4th Street, Burma Nagar, Chennai 11 of AIADMK party filed a complaint before K-1 Sembiyam Police Station stating that on 07.04.2011 around 8.30 a.m., DMK people came in a red colour car bearing Registration No.TN 09 AJ 5556 and gave a sum of Rs.500/- and asked him to vote for the Rising Sun. Also, they assured to pay amounts through 2nd and 3rd installments. The flying squad sent them away after recording their faces, however, no action was taken thereafter. Another vehicle bearing Registration No.TN 09 AV6811 came with DMK party workers to distribute the money to the voters of that area, to cast their votes in favour of the 1st Respondent. In fact, the complaint of Nirmalkumar was registered in Crime No.387 of 2011 of K-1 Sembiyam Police Station on 07.04.2011 at about 12.30 p.m. under Section 171(H) I.P.C.
2.33. The party workers of the 1st Respondent with his consent distributed money on 07.04.2011 at 8.30 a.m. at the rate of Rs.500/- for the voters in Ramana Nagar area of Kolathur Constituency to cast their votes in favour of the 1st Respondent. The act of the 1st Respondent to bribe the voters with this consent through party workers would amount to an act of 'corrupt practice'.
2.34. The Petitioner's party Divisional Secretary one Mrs.Lilly Kalpana and his party workers on 07.04.2011 around 3.00 to 3.30 p.m. at Division No.52, saw the distribution of Rs.500/- to the voters to the said division by C.Palani, erstwhile Youth Wing Leader of DMK Party from the premises situated in No.7/11, Jawahar Street, Ramana Nagar, Chennai -11. Added further, the DMK party Chairman of that area Mr.V.S.J.Srinivasan also assisted Mr.Palani to facilitate distribution of money in the said area. The 1st Respondent with his power and position as a Deputy Chief Minister and in connivance of the Police help had allowed those persons to go scot-free. Similarly, on 07.04.2011 itself, the Divisional Secretary Mrs.Lilly Kalpana and the party workers saw the distribution of money by one Mr.Srinivasan (DMK party functionary of Kolathur) to the voters from the premises Brinda Theatre in Kolathur. Although a complaint was made, the flying squad who came to the scene belatedly had not taken any action against the 1st Respondent party worker Mr.Srinivasan and other party functionaries who indulged in the act of distributing money to the voters. These acts committed at the instance of the 1st Respondent had materially affected the election of Kolathur Constituency.
2.35. The Petitioner's party Divisional Secretary Mrs.Lilly Kalpana saw the 1st Respondent's party workers with his consent distributing money to the voters of the residents in Sankara Mutt Street, Perambur on 06.04.2011 around 8.00 p.m. The flying squad, although information given to it, reached the spot belatedly and some of the residents even complained about the distribution of money by the party worker headed by Mr.Jesuraj, DMK party functionary of Kolathur area. Due to the influence of 1st Respondent, the Police failed to take any action and that the Inspector had even asked Mrs.Lilly Kalpana to take money from the DMK party workers. This act of the 1st Respondent party workers with his consent would amount to corrupt practice.
2.36. The Inspector of Police Mr.Selvakumar worked in Rajamangalam V-4 Police Station, Kolathur Constituency also acted and helped the 1st Respondent in an open manner, as he was related to the 1st Respondent's Security Officer. Because of the said connection, the Inspector of Police Mr.Selvakumar helped the 1st Respondent in many ways by not taking action against the DMK workers, who indulged in distributing money to the voters with the consent of the 1st Respondent in the areas falling within the jurisdiction of V-4 Rajamangalam Police Station. The aforesaid Inspector Mr.Selvakumar acted in such a partisan manner, who got his suspension order revoked with the help of the 1st Respondent in spite of his serious act of sending obscene SMS to a lady Police.
2.37. The Petitioner's party worker Vetrinagar M.Sundar gave a complaint dated 25.03.2011 to the Chief Electoral Officer to transfer him out of the said Police Station and no action was taken in this regard. The said Inspector of Police acted for the furtherance of the prospectus of the 1st Respondent's election, by allowing the DMK party workers to influence the voters by bribing them, without taking any action in accordance with Law. In fact, utilising the services of the Inspector of Police Mr.Selvakumar for furtherance and success of the 1st Respondent would amount to an act of 'corrupt practice'.
2.38. The Sembiyam Police Inspector one Mr.Radhakrishnan helped the 1st Respondent and his party workers to distribute money to the voters through Self Help Group members in Kolathur Constituency. The said Inspector acted in a partisan manner by not taking action against the 1st Respondent's party workers, in spite of the Petitioner party functionaries and his workers brought to his knowledge about their illegal acts. Under one pretext or other, he refused to receive the complaint of Petitioner's party workers. Hence, he gave a complaint to the Chief Electoral Officer, Election Commission, Tamil Nadu. He wanted the Election Commission to transfer the Sembiyam Police Inspector Mr.Radhakrishnan, who helped the 1st Respondent and his party men to distribute money within the limits of Sembiyam Police Station Limit houses and areas. Thus, the said Inspector endeavoured for the furtherance of the prospects of the 1st Respondent without taking any action against the DMK party workers, who indulged in the act of the distributing money to the voters freely.
2.39. When the election campaign was at peak, a baseless and frivolous news item against the Petitioner appeared in a Tamil Murasu Newspaper dated 08.04.2011 and other Newspapers Murasoli and Dinakaran supporting the DMK party about a complaint reportedly made by one Kumudha of Kancheepuram District.
2.40. The Petitioner is neither aware of any such person by name Mrs.Kumudha nor he had committed any act of threatening her as alleged in the petition stated to have been filed before this Court. In fact, he had not received any notice from this Court and the said news item published in Tamil Murasu on 08.04.2011 was absolutely false and it is the handwork of the 1st Respondent and his Election agent Mr.V.S.Ravi. The Petitioner does not even own any property at Urappakkam and as such, the allegation of unknown person Mrs.Kumudha was deliberately made to improve the prospect of the 1st Respondent's success. The publication of such false news item impeaching the character of the Petitioner is a handwork of the 1st Respondent and his party workers including his Chief Election Agent Mr.V.S.Ravi knowing them to be false, when the Petitioner had exhibited and projected his best qualities and philanthropic activities to the voters of Kolathur Constituency.
2.41. In order to change the trend pertaining to pre-poll Election Survey conducted (which indicated the prospects of Petitioner's success), the 1st Respondent and his party workers had indulged such character assassination with the assistance of one Kumudha of Kancheepuram, in order to dislodge the reputation and the winning prospects of the Petitioner.
2.42. As a matter of fact, the 1st Respondent, his party workers and Mrs.Kumudha spreading false news about the Petitioner among the votes on the eve of the nearing date of polling, would amount to an act of corrupt practice to influence the voters' mind to get the votes polled in his favour. The Petitioner is neither aware of any complaint purported to have been made by Mrs.Kumudha nor about the order stated to have been passed by this Court in directing the Collector to take appropriate action against him and his supporters. Moreover, he did not receive any notice from this Court in any of the proceedings stated to have been filed by the said Kumudha. As such, the proceedings purported to have been initiated by one Kumudha making false allegations against the Petitioner on the eve of nearing election date, is nothing but an act perpetrated by the 1st Respondent's party workers, just to defame his name among the voters with a view to reduce his prospects of winning the Election from Kolathur Constituency.
2.43. The 1st Respondent and Chief Election Agent Mr.V.S.Ravi who designed the idea of impeaching the character of the Petitioner knowing them to be false, further committed an illegal act of circulating Xerox Copies of such news item appeared in daily dated 08.04.2011 as of bit notices in the name of the said Kumudha in all the wards of Kolathur Constituency area. In fact, the act of circulating such false news item by the 1st Respondent's party workers, is an act of cowardice. The Petitioner issued a statement through Jaya TV network channel refuting the false allegations levelled against him.
2.44. However, number of copies shown as 5000 stated to have been printed in the name of Kumudha. In fact, more than 1 lakh copies of such bit notices were circulated throughout the constituency. The 1st Respondent and his election Agent V.S.Ravi residing at No.55, Thiruvavukkarasu Street, Sembiyam, Chennai 600 011 with his consent through his party workers circulated the said notices which contained false statement and defamatory statement made in relation to the character of the Petitioner, issued reasonably with calculated intention to prejudice the prospects of his election. Hence, this action of the 1st Respondent assassinating the character of the Petitioner in an unethical way would amount to an act of corrupt practice and consequently, the election of the Petitioner is materially affected.
2.45. The 1st Respondent's family owned T.V. Channel Kalaignar T.V. aired the same news item published in Tamil Murusu dated 08.04.2011, on 08.04.2011 night constantly as if this Court directed the Collector of Kancheepuram to consider an alleged complaint of Mrs.Kumudha in the manner of assassinating the character of the Petitioner and to reduce his chances of success of winning the election. Also, the 1st Respondent through Kalaignar T.V. on 11.04.2011 again aired another news item as regards the direction purported to have been given by this Court to register the case against the Petitioner based on the complaint stated to have been given by Mrs.Kumudha.
2.46. The Petitioner is taking steps to know the nature of the proceedings by the 1st Respondent with the assistance of Mrs.Kumudha in order to demonstrate that the 1st Respondent and his party used Mrs.Kumudha as a tool to abuse the judicial process to assassinate the character of the Petitioner with the intention to reduce the prospects of his success in the Election.
2.47. The 1st Respondent with his consent allowed Kalaignar T.V. to telecast a false news item without any verification on 08.04.2011, 11.04.2011 and circulating notices referred to in the news item in Tamil Murasu dated 08.04.2011 would amount to an act of corrupt practice. The 1st Respondent with the help of his party workers indulged in the above acts, so as to create a ripple effect in the minds of voters of Kolathur Constituency and affect the prospects of the Petitioner's Election from the Kolathur Constituency.
2.48. The Petitioner made a complaint dated 11.04.2011 to all the officials including the Returning Officer about the false propaganda made in T.V. Channels and in Tamil Murasu and to take action against them. But, no action was taken against the 1st Respondent or the T.V. Channel concerned. Because of these acts, the election of the Petitioner was materially affected.
2.49. One Mr.M.K.Lenin, the 62nd DMK Division Secretary, Kolathur with the consent of the 1st Respondent sent invitations to Sembiyam, Kolathur, Peravallur and Thiru.Vi.Ka.Nagar Welfare Association Federation, for a meeting scheduled on 10.04.2011 Sunday at 10.00 a.m. in No.5 A, 6th Main Road, Jawahar Nagar, Chennai 82 stating the purpose viz., for canvassing votes in favour of the 1st Respondent. In the said invitation, from each Association five members were required to attend. On 10.04.2011 around 11.00 a.m. the Petitioner's party workers Mr.Ganesan, Mr.T.Saravanan, Mr.Vinodhan, Mr.P.Murari, Mr.V.Karthik and Mr.S.R.Murali saw people coming out of the premises bearing No.5-A, 6th Main Road, Jawahar Nagar, Chennai 82 with bunch of covers bearing the symbol of 1st Respondent's party. On enquiry made with the said persons, they informed that the 1st Respondent party men Mr.M.K.Lenin, Divisional Secretary of 62nd DMK Division, Kolathur gave those covers containing Rs.500/- notes for distributing the same to the voters, who are the members of the respective Welfare Association, in order to cast their votes in favour of the 1st Respondent.
2.50. A complaint dated 10.04.2011 given by the Petitioner's party workers to the Chief Election Commissioner, New Delhi and also to the Chief Electoral Officer of Tamil Nadu. However, no action was taken in this regard. The act of Divisional Secretary of distributing money on 10.04.2011 at 10.00 a.m. in the aforesaid place, by calling a meeting of the Welfare Association would amount to an act of corrupt practice, and amounts were paid to influence the voters and therefore, the result of the Election in so far as it concerns the Petitioner was materially affected. Ever since from the day as and when the 1st Respondent came to Kolathur Constituency for Election campaign, the 1st Respondent and his party workers at all levels flouted all the norms of the Model Code of Conduct including the expenditure limit prescribed under Section 77 of the Representation of the People Act, 1951.
2.51. Apart from distributing money to the voters through its workers, the 1st Respondent, his election agent and party functionaries spent huge amounts to an extent of more than Rs.30 crores in the entire constituency. The recorded CD filed along with the present Election Petition would show that during the time of the 1st Respondent who canvassed in the streets of Kolathur Constituency would show that the value of the crackers fired in each streets itself would be more than Rs.30 lakhs. As and when the 1st Respondent entered a street in Kolathur Constituency, his party workers with his consent fired 10,000 wala crackers at the entrance and another 10,000 wala crackers while leaving the said street. As per the Directive of the Election Commission of India, the expenses relating to firing of crackers would be included in the account of the candidate expenses for the purpose of Section 77 of the Representation of the People Act.
2.52. The Election Commission of India indicated that 1000 wala crackers would be valued at the rate of Rs.350/- for including the same in candidate's expenses. As per the price list issued by the fire works company during October November 2010 Deepavali season, value of 10,000 wala crackers was mentioned as Rs.3,900/-. However, as per the Commission's Directive, the value of the 10,000 wala crackers was Rs.3,500/-. The Kolathur Constituency consists of more than 1025 streets, out of which as per the 1st Respondent's programme announced in party magazine Murasoli, he passed through more than 500 streets comprised in all the divisions of that Constituency. In each street, the 1st Respondent's party workers in his presence fired two numbers of 10,000 wala crackers in each street throughout all the time as and when the 1st Respondent campaigned in the streets through which he passed through. Therefore, the money spent for firing the crackers would itself exceed more than Rs.1 Crore by adopting the value given by the Election Commission of India.
2.53. At the time of 1st Respondent's election campaign, in the streets of Kolathur Constituency as per the schedule announced in the 1st Respondent party newspaper Murasoli, those streets were decorated on both sides with DMK flags and festoons in large numbers, in violation of the norms prescribed in the Model Code of Conduct and the value of the Panimanai structure installed in all the Wards/ Divisions, the value of Ponnadai (Shawls), whose value itself would be more than Rs.35 Lakhs. The Petitioner indicated the violation committed by the 1st Respondent during the time of his campaign by a representation to the Election Commission of India and no action was taken in this regard.
2.54. In the accounts submitted to the Election Commission of India (now available in Website), there is no mention or details about Ponnadais (Shawls) of more than thousand given to the 1st Respondent as and when he passed through the streets of Kolathur Constituency. The 1st Respondent, at the time of his election campaign transported the shawls by using Police vehicle/Bolero bearing Registration No.TN 23 G0824. Similar acts were performed by the Police Personnel who took shawls in their vehicle with great reverence given to the 1st Respondent at the time of his campaign. The act of the 1st Respondent in directing the Police to carry the ponnadais (shawls) given to him during the time of campaign, would certainly amount to an abuse of power as then Deputy Chief Minister of Tamil Nadu. Hence, the election of the Petitioner was materially affected due to misuse of his power during his election campaign.
2.55. During campaign of the 1st Respondent, more than 20 to 30 vehicles bearing DMK party flags were operated as Pilot vehicles with the consent and knowledge of the 1st Respondent violating the Model Code of Conduct.
2.56. The 1st Respondent had filed a false expenditure account without including the actual expenses incurred in respect of the crackers fired and amounts spent for Panimani construction, value of Ponnadai and fuel charges paid to piloting vehicles used during his campaign time. The 1st Respondent and his agent had spent money for his party workers to parade in motorbikes with party flags on all the dates during the time when he campaigned in the Constituency covering the Division Nos.50, 51, 52, 53, 54 and 62 and the streets situated thereof and the same was not shown in the election accounts of the 1st Respondent properly. The 1st Respondent had suppressed various factors while filing the statement of accounts relating to the expenditure incurred at his instance.
2.57. The 1st Respondent had filed a false account showing the expenses incurred in the Election as sum of Rs.3,32,709/- when the actual expenses would be more than Rs.100 Crores apart from the amounts given to the voters, to secure his success. The 1st Respondent had exceeded the expenses limit of Rs.16,00,000/- mentioned in Section 77 of the Representation of the People Act and because of the said violation, the election of the 1st Respondent was materially affected and the same is liable to be set aside.
2.58. The Chief Executive Officer, Tamil Nadu, Election Commission of India issued a statement that Booth Slips to the voters with their photographs would be issued by the Election Commission of India and based on that booth slip, the voters can vote in the Election held on 13.04.2011. It was further clarified that in the event of booth slip being produced by a voter, issued by the Election Commission of India, no other identification proof is required for a voter, to vote on the polling date. Therefore, the Election Commission of India introduced the system of providing booth slips to the voters after discontinuing the earlier practice of booth slips issued by the political parties. The said statement of Chief Electoral Officer was widely published in all dailies including Daily Thanthi dated 23.03.2011.
2.59. The Returning Officer even exhibited a model of the booth slip indented to be used by the Election Commission of India to the voters. The Returning Officer in his interview published in the Daily Dinathanthi dated 23.03.2011 had mentioned that the booth slips would be issued in Kolathur Constituency between 01.04.2011 to 10.04.2011 and further informed that 4000 persons would be deployed for this purpose. However, the 1st Respondent's party workers printed booth slips containing the symbol of 'Rising Sun' and started to distribute to the voters of Kolathur Constituency.
2.60. The Election Commission of India never authorised any political party to print the symbol in the booth slip. However, on the ground level of Kolathur Constituency, the Corporation officials and others engaged by the Returning Officer had not given booth slips as announced by the CEO to the voters of Kolathur Constituency, in order to facilitate the 1st Respondent party to issue booth slips on their own printing their symbol 'Rising Sun' along with the booth slips. The 1st Respondent using his official power even prevented the Petitioner party workers from giving booth slips to the voters in order to see that the polling percentage was increased.
2.61. On 08.04.2011, a Special Sub Inspector of Police V-6, Kolathur Police Station Mr.Albert filed a case against the Petitioner's party worker Mr.Nazir Ahmed alleging distribution of booth slips similar to the one issued by the 1st Respondent is an offence punishable under Section 171(H) I.P.C., Section 123 of the Representation of the People Act, 1951 read with Section 188 I.P.C. Likewise, another complaint was also filed against AIADMK party man by name Mr.Rajesh, Special Sub Inspector of Police, Mr.Moorthy, V-6, Kolathur Police Station making similar allegation.
2.62. The Police officials viz., M.Albert and T.Moorthy never took any action against the 1st Respondent party workers, who distributed the booth slips along with the symbol of 'Rising Sun' to the voters of Kolathur Constituency. The 1st Respondent used his official power through police and foisted a false case against the aforesaid AIADMK party workers, in order to monopolise the act of distributing the booth slips containing the symbol of 'Rising Sun' to the voters, to cast their votes in favour of the 1st Respondent. When the instruction of the Election Commission of India is clear that the District Administration alone should take all possible steps to complete the process of issuing 'Booth Slips', the Returning Officer and the Chennai Corporation officials deliberately had not acted as per the Directive of the Election Commission of India.
2.63. The Returning Officer and the officials of Corporation of Chennai who were stated to have been deployed for Booth Slips Delivery virtually allowed the 1st Respondent to issue DMK party booth slips through their party workers without any hindrance or whatsoever. The CD obtained by the Election Commission of India would show that the Police viz., the flying squad also had not initiated any action against the 1st Respondent party workers, for issuing DMK party booth slips. Further, when the distribution of booth slip by the workers of the 1st Respondent was noticed, Mr.Vetrinagar Sundar, a AIADMK party functionary also made a representation dated 05.4.2011 to the CEO, the Election Commission of India, Tamil Nadu to take appropriate action against the 1st Respondent for issuing DMK party booth slips, violating the Directives of the Election Commission of India. The Returning Officer had not taken any action against the 1st Respondent's party workers. The Petitioner submitted a representation dated 12.04.2011 after receiving complaints that the majority of voters of Kolathur Constituency had not received the official booth slips instructed to be issued by the Election Commission of India.
2.64. As the illegal action of issuing booth slips with party symbol continued and as the Petitioner received complaints about the non receipt of booth slips as announced by the Returning Officer, a complaint dated 12.04.2011 was also made to the CEO, District Collector and the Returning Officer in person. The A.R.O. to the Returning Officer acknowledged the receipt of the letter dated 12.04.2011. However, no details were furnished to the Petitioner.
2.65. The Assistant Returning Officer, while responding to the complaint dated 12.04.2011, gave a false handwritten statement dated 25.05.2011, as if 1,97,961 booth slips were issued on 05.04.2011 and 06.04.2011 itself and only 9925 booth slips remained undelivered. Further, in the same statement, it was mentioned at Column No.5, that 9925 booth slips were not given to the voters. By means of the handwritten statement dated 25.05.2011 of the Assistant Returning Officer, it is clear that the Returning Officer and the officials assigned with the task of issuing booth slips had failed to comply with the Directive of the Election Commission of India, with a view to help and facilitate the 1st Respondent and its party workers to give DMK party booth slips. By not giving 9925 'Booth Slips' as per statement dated 25.05.2011, the Returning Officer had not conducted the Election in a fair manner in accordance with the directions of the Election Commission of India and acted in furtherance of the success of the 1st Respondent. By not issuing official booth slips to the voters of Kolathur Constituency, the voters were prevented from voting on 13.04.2011. In view of the aforesaid illegal acts, the Election of the Petitioner was materially affected.
2.66. The counting of votes relating to Kolathur Constituency took place on 13.05.2011 at Loyala College, Chennai. Since the trend of other Constituencies results was in favour of AIADMK, the counting pertaining to Kolathur Constituency proceeded in a slow manner. Even the T.V. News Channels which aired the polling trends in Tamil Nadu at one point of time mentioned that the 1st Respondent was trailing behind the Petitioner in Kolathur Constituency. Even after the 8th round counting and during the 9th round, EVMs relating to Booth Nos.52(W), 53(W) showed display as Invalid and failed to display the number of votes polled for each candidates. In fact, the Petitioner objected and wanted the Returning Officer to continue the counting of votes after rectifying the mistakes in the EVMs before going to the next round. The Election Commission had issued specific instruction that after completing each round, counting in the next round would be taken. But the Returning Officer and his officials proceeded with the counting process to the next round contrary to the directions and the order issued by the Election Commission of India.
2.67. At the time of counting process, totally 6 EVMs failed to show any display of votes till 16th round, and the Returning Officer and other counting officials proceeded further without attending to the Petitioner's grievance, in a partisan manner in furtherance and success of the 1st Respondent. The Petitioner was shocked to note that the EVM belonging to Booth No.89(AW) had not tallied with Form 17C and the same was brought to the notice of the Returning Officer and the counting officials. Nevertheless the Returning Officer and the counting officials failed to take necessary action in accordance with the instructions and rules.
2.68. The Petitioner made a handwritten objection dated 13.05.2011 to the Returning Officer pointing out the major violations found in the method adopted during the time of counting process and the Returning Officer remained silent and failed to take any action based on the complaint given by the Petitioner, who made a request to stop the counting itself and prayed for re-polling in the aforesaid booths. The Returning Officer bluntly refused to take any action either by himself or by forwarding the same to the Election Commission of India.
2.69. The CD provided by the Election Commission of India relating to the counting process that took place on 13.05.2011 does not reflect a correct recording of the events and appear to be an edited one. In respect of the discrepancy between the EVM and Form 17C, the recording was not properly done. As per statement, supplementary counting took place in respect of 5 EVMs, but the recorded events in the CDs do not contain the supplementary counting in detail. Therefore, the Returning Officer had played fraud on power and acted in an illegal manner to secure the success of the 1st Respondent.
2.70. During the time of 16th round counting, when the Petitioner noted the number discrepancy between EVM which failed to show the display on earlier rounds and the number mentioned in 17C Form, the 1st Respondent party men who were present in large numbers contrary to the directions of the Election Commission of India inside the counting Hall created a war like situation in the counting Hall area. The Police officers present inside the counting Hall insisted the Petitioner and his party workers to leave the counting Hall area, without taking any action against the 1st Respondent party workers.
2.71. The Observer was unable to understand the Petitioner's grievance and his authorised agents due to lack of knowledge in local language and the Returning Officer briefed him by misquoting the facts, in a way to facilitate the success of the 1st Respondent. The Returning Officer, who is bound to consider the Petitioner's objection dated 13.05.2011, had failed to discharge his statutory obligation in terms of the provisions contained under the Representation of the People Act, Election Rules and Instructions issued by the Election Commission of India. The Petitioner's election Agent Mr.Sethuraman also pointed out the irregularities to the Returning Officer, who has not in a mood to listen or consider his legal objections. The Petitioner's party legal wing Chief also came and pointed the manner in which the counting was proceeding on 13.05.2011 after 16th round and the Returning Officer was bent upon to proceed further without giving any attention to the Petitioner's grievance.
2.72. After the Petitioner and his party supporters were driven out of the Hall after 16th round objections, at the end of 19th round, the Returning Officer had conducted a supplementary counting in respect of 5 EVMs which failed to show display without any notice to the Petitioner or to his authorised representative. The action of the Returning Officer in conducting the supplementary counting is illegal, contrary to law and against the Directives of Election Commission of India. The Returning Officer and the counting officials deployed from the Corporation of Chennai acted in an unfair manner and completed the remaining three rounds counting from 16th to 19th and the supplementary counting in the Petitioner's absence. Therefore, the entire counting process after 16th round was vitiated and that the Election of the Petitioner was materially affected on this ground also.
2.73. As per the Newspaper, reported in Dinamalar Daily dated 14.05.2011, the sequence of events happened inside the counting Hall clearly indicate that the Returning Officer and the Corporation of Chennai officials deployed in the counting Hall had played major role in inter-meddling with the process of counting overlooking the Petitioner's objection, to declare the 1st Respondent as a Returned Candidate. The counting for Kolathur Constituency went beyond 9.00 p.m. on 13.05.2011 and even when the counting process was not over, the 1st Respondent along with 100 DMK party men, his son and one Sekar Babu, Ex. M.L.A., entered the counting Hall and after a brief stay walked out with a declaration.
2.74. In regard to the request of the Petitioner dated 26.05.2011 made to the Chief Electoral Officer, Chennai requiring details and documents on 11 counts for which the Chief Electoral Officer had issued a reply dated 01.06.2011 directing him to make a request before the Election Commission of India in respect of serial Nos.2, 3, 5, 6 details. Further, he was directed to approach the District Election Officer, Commissioner of Chennai Corporation in regard to the details sought for in Serial Nos.4, 8 and 11 of his letter dated 26.05.2011. In fact, he sent letters dated 06.06.2011 requiring for the details from the respective authorities as indicated in the letter of Chief Electoral Officer, Tamil Nadu dated 01.06.2011 and he had not received any reply from the officials to whom he addressed letters except a Reply dated 14.06.2011 from the Returning Officer.
2.75. The act of distributing money to the voters of Kolathur Constituency by the 1st Respondent and his party workers was also reported in the dailies/magazines like Dinamalar, Dinamani and Kalki having wide circulation in Tamil Nadu. The 1st Respondent's party workers V.S.Ravi and others attacked the Petitioner's party worker of Kolathur Ganesh violently on 10.04.2011. A cameraman by name Mr.Rajaram, S/o.Subbaiah Asari residing at No.17/14, Nehru Colony, 14th Street, Nanganallur, Chennai 61, who recorded the illegal acts of the 1st Respondent party workers distributing money and violating Model Code of Conduct was also attacked and he gave a complaint to the Police in this regard. Therefore, the Petitioner had sought for a relief of declaring the Election of the 1st Respondent as Returned Candidate on 13.05.2011 from No.13, Kolathur Assembly Constituency as null and void.
3. 1st Respondent's Counter Averments:
3.1. The Petitioner's entire case is based on 'Series of Compact Discs' filed by him together with the Petition. As a matter of fact, in the Election Petition no material facts or particulars or details relating to the said Compact Discs were furnished. The Petitioner's allegations were based on mere assumptions and presumptions. In the Petition, the material details like who recorded the videos, in whose presence it was recorded, the veracity of the same, the time period, when and where it was recorded, who were the officials present during the recording etc., are lacking in the Petition unless material facts relating to each and every allegations made by the Petitioner are set out in detail and substantiated by furnishing all the material particulars, there is no cause of action for adjudication and the Election Petition deserves to be dismissed. There was no cause of action made out by the Election Petitioner in his Election Petition in as much as the contents of the Compact Discs were not substantiated.
3.2 The Petitioner had failed to file a complete set of documents relating to Document No.4 together with the Petition. In fact, Document No.4 is the Petitioner's Nomination Form, which should contain his affidavit incorporating numerous details pertaining to him, as mandatorily set out in the Representation of People's Act 1951. In the absence of said affidavit, the Document No.4 is incomplete and cannot be taken into account and further, the Election Petition deserves to be dismissed in limini.
3.3. In the absence of any acknowledgment for the Document Nos.14, 15, 25, 28, 39, 41, 61, 62 and 65 (Concerning Representations / Complaints), recipient of the said documents cannot be relied upon or taken on file. Likewise, for the Document Nos. 23, 32, 36 and 55 Acknowledgment Cards are lacking and therefore, they cannot be relied upon.
3.4. In so far as Document Nos.1, 6, 7, 8, 11, 12, 13, 16, 17, 24, 28, 29, 30, 31, 33, 34, 38, 42, 43, 44 and 45, Document Nos.53, 54, 59, 73, 75 and 76 being various news items, the contents of which could not be relied upon for the purpose of the present Election Petition. The News Paper Reports are of no evidentiary value and are irrelevant and ought not to be relied upon while deciding the Election Petition.
3.5. The Petitioner's allegation made in Paragraph Nos. 1 to 23, 25 to 28, 30 to 33, 36, 38, 39, 41 to 45, 47 to 52, 54, 55, 57, 58, 59, 62, 63, 65, 67 to 75, 77 to 81, 83 to 85, 87 to 94, 96 to 104, 106 to 110, 112 to 115, 117 and 118 do not contain substantial allegations against the 1st Respondent in support of his case. Further, in the absence of pleadings showing the nexus between the alleged corrupt practices and the 1st Respondent and how any alleged acts by or on behalf of 1st Respondent had materially affected the outcome of the Election.
3.6. The 1st Respondent denied the Petitioner's allegation that for all practical purposes he was treated by the Government Officials and Other Statutory Bodies set out as 'Defacto Chief Minister of the Previous Minority Government'. The 1st Respondent had followed the Model Code of Conduct after coming into force of the same with effect from 01.03.2012. Further, he had not attended the office as Deputy Chief Minister, but he handed over his official vehicles to the Government / Election Commission after coming into force of the Model Code of Conduct on 01.03.2011. The Election Commission from 01.03.2011 took over administration and control of the Tamil Nadu State and therefore, the question of 1st Respondent in any manner influencing the Election in his favour does not arise.
3.7. The 1st Respondent demitted his office on 01.03.2011 and do not use his official vehicles or office for the purpose of campaigning or for any other purpose during the Election. His party never indulged in any kind of unethical or illegal act or any violation of Law during or after the conduct of Elections and the Petitioner is put to strict proof in this regard.
3.8. The 1st Respondent denied that they had followed the 'Method of Money' for votes as a policy in Kolathur Constituency for allegedly ill gotten money. Further, he denied that he had misused official or money power in the said Constituency during the time of the entire of Election Process, or at all, in order to ensure his success by hook or crook or that he or his party men gave the impression that he would be crowned as Chief Minister, if the DMK party won the election. In any case, no material facts and / or particulars and / or details were provided in respect of the said allegations.
3.9. It is denied that Corporation Officials were deployed for Election Duty in Kolathur Constituency or otherwise or at all, the 1st Respondent's party had scrupulously followed the procedures and directives of the Election Commission and the Law of the land.
3.10. It is the 1st Respondent's prerogative to choose the constituency from where he elects to contest. There is no post / designation as 'Main Election Manager' assigned to any one. It is denied that the so called 'Main Election Manager' of the 1st Respondent was the former Mayor of Chennai City, Municipal Corporation, Ma.Subramaniam. Moreover, the Election Commission does not confer the designation 'Main Election Manager' on any one but the contesting candidates can assign 'Chief Election Agent' to help them in the Election. The 1st Respondent had appointed one V.S.Ravi, a Party Functionary as his Chief Election Agent and the former Mayor of Chennai Corporation was not having / possessing any such designation and he had not helped him in the Election Petition.
3.11. The Former Mayor had handed over his official vehicle and office to the Government / Election Commission on coming into force of the Model Code of Conduct on 01.03.2011 and he had also complied with all the procedures and directives of the Election Commission.
3.12. The presumption that the Former Mayor of Chennai deployed employees for election work was totally wrong and it is denied that the 1st Respondent or his agent or his representative committed any illegal act to ensure his success. The said Ma.Subramaniam, was the Mayor of Chennai only till the month of October, 2002. The 1st Respondent had no role or control over the officials of Corporation of Chennai or other officials because of the fact that the Election Commissioner was in total control of the Administration.
3.13. It is denied that the 1st Respondent had misused his position as Deputy Chief Minister and in association with former Mayor or Corporation Employees, prevented the directives of Election Commission from being implemented on the ground level of Kolathur Constituency. Also it is denied that the complaints to the police were not taken seriously, although the purported illegal action were brought to their knowledge.
3.14. The allegation that the Petitioner was able to perceive a sense of inaction among the Officials deployed by the Corporation of Chennai and police force or that the said officials failed to take any stringent or strict action against the alleged malpractices committed by the 1st Respondent, his Election Agents or any DMK workers in Kolathur Constituency is denied. It is also denied that the 1st Respondent used his official powers or money power through the party functionaries and workers in Kolathur Constituency during the time of election campaign or after filing his nomination. In fact, not a single incident was set out in furnishing details of alleged corrupt practice supposed to have been encouraged by the 1st Respondent. The perception of the Petitioner could not constitute corrupt practice under the Representation of Peoples Act, 1951. Not a single incident was shown when the 1st Respondent flouted any directive or order issued by the Election Commission and it was the Petitioner, who had flouted the norms and directives and orders issued by the Election Commission. The Petitioner had not lodged any complaint before the Election Commission against the 1st Respondent misusing his official powers.
3.15. It is denied that because of the 1st Respondent's political ground and official powers, polling officials or police force had not taken serious action against his party functionaries or workers as alleged in reports that might have appeared in Television and News papers have no evidentiary value and therefore, it could not be relied upon. The Petitioner's supporters and representatives were making false complaints and when the Petitioner or his party men lodged any complaint, the police had registered First Information Reports wherever they felt it was warranted.
3.16. It is denied that the 1st Respondent, his Election Agent, V.S.Ravi, District Secretary or any DMK Worker distributed money to the voters from 30.03.2011 till the date of polling on 13.04.2011. The allegations with reference to Paragraph No.19 of the Election Petition do not contain any details like dates, time, place when and where the money was allegedly distributed, in whose presence and to whom the money was given or the identity of the persons, who received the money etc. 3.17. It is denied that the 1st Respondent or his Agent or Representatives of the Party engaged in the acts of distributing money to the voters or he received active help of the police officials or the Returning Officer or the Corporation Officials.
3.18. It is denied by the 1st Respondent that during the time of counting on 13.05.2011, the Returning Officer and Counting Officials at his instance or at the instance of Former Mayor, Corporation of Chennai had committed irregularities violating the orders and instructions issued by the Election Commission of India as alleged therein, or otherwise, or at all. The 1st Respondent secured more votes than the Petitioner and was declared as Returned Candidate on 13.05.2011 from No.13, Kolathur Constituency. The Election Commission took over the control of entire administration and had conducted free and fair Elections as acknowledged by the Petitioner and his Party President and therefore, the question of Former Mayor deploying Corporation Officials to ensure the success of the 1st Respondent does not arise. There was no post of Election Campaign Manager and in any case the Former Mayor had not even campaigned in Kolathur Constituency except on one occasion when he visited the Constituency with the 1st Respondent in his role, as a party functionary.
3.19. The 1st Respondent denied the allegation that the Returning Officer acted in a partial or arbitrary manner along with Corporation Officials during counting duty. Since the Petitioner's objection to the Returning Officer on 13.05.2011 to stop the process of counting and ordered re-poll in certain wards was against the directives and rules of the Election Commission, in view of the free and fair Election conducted by the Election Commission. It was rightly denied by the Returning Officer.
3.20. The Petitioner had dream to become a Minister in AIADMK Government and for this reason he contested from Kolathur Assembly Constituency. He was anxious to win election by hook or crook. But he was unsuccessful in his endeavour. The 1st Respondent attained popularity and goodwill due to good work done by him in the State during the time DMK party was in power.
3.21. The Petitioner realised that he was trailing behind the 1st Respondent in counting and hence he planned to disrupt the counting from 12.00 noon. The Petitioner was present in the counting centre throughout the day and on 13.05.2011 he and his co-workers disturbed the counting frequently by raising disputes over three EVMs polling units. He also created havoc at the end of the counting as he was released to loose the Election. The Petitioner had, in fact, erred and assaulted the Polling Officer and the furniture was broken by his hirelings and thugs in the presence of his agent and Lawyers. The 1st Respondent had lodged complaints against the Petitioner and his hirelings in this regard.
3.22. It is denied by the 1st Respondent that the Returning Officer and Counting Officials conducted a supplementary counting of votes in respect of 5 EVMS after completion of 19th round without the permission of Election Commission of India and in the absence of Petitioner and his Authorized Agent, as set out therein, or otherwise, or at all. In fact, no supplementary counting took place in the Kolathur Constituency.
3.23. The news paper reports are not reliable and news contents in Dina Malar and Dinamani mentioned are totally false, fabricated and are of no evidentiary value. There were 203 EVMs for Kolathur Constituency. The counting was done in 19 rounds. In the first 18 rounds, 11 EVMs were counted and in the 19th round, the balance 5 EVMs were counted. After the counting in 18 rounds were completed at 7.00 p.m., on 13.05.2011, when the Petitioner found that the 1st Respondent was leading, he and his agent planned to raise frivolous objections by raising disputes about 3 out of the 5 EVMs yet to be counted in the 19th round. Till the conclusion of 18th round by 7.00 p.m., no EVMs were disputed by the Petitioner. At this stage, the Petitioner realised that they had lost the Elections and he and his 'Goondas' planned to create a commotion and engage in violence in order to disrupt the counting process to demand a re-poll.
3.24. That apart, on completion of 18th round, the 1st Respondent was leading by 2100 votes as compared to the Petitioner. At about 7.30 P.M., on 13.05.2011, the Petitioner and his agent and a large number of his supporters tried to disrupt the counting by creating the disturbance and resorting to Goondaism. The Petitioner's party won the majority in other Assembly Constituencies in the State of Tamil Nadu and this was known to all by 7.00 P.M. and the Petitioner's dream of becoming a Minister came to naught, he and his agents resorted to violence to stall the counting of remaining EVMs so as to create the situation to order re-poll.
3.25. The Petitioner submitted a false complaint before the Returning Officer stating that the 3 disputed EVMs were not to be counted and asked for re-poll for booths 52(W) 53(W) and 105(AW). The disputed 3 EVMs along with the two undisputed EVMs were counted at about 9.00 P.M., on 13.05.2011, and after taking into account the votes cast in the said 3 EVMs, it was found that the Petitioner had lost the election by margin of 2423 votes and not by a margin of 2739 notes as alleged in the Petition. When the Petitioner came to know that he lost the election, he submitted his complaint to the Returning Officer. The said complaint was submitted after the counting of the 3 disputed EVMS or in other words after counting in the 19th final round was completed.
3.26. The Petitioner had miserably failed to specify the details of the alleged irregularities, malpractices and other violations said to have been purported to be committed by the 1st Respondent, Chief Election Agent, Party Functionaries or workers of his party during the during the time of counting.
3.27. It is denied that the 1st Respondent or his Party Functionaries with his consent or otherwise distributed cash of Rs.500/- per vote to the voters of Kolathur Constituency. Further, it is denied that the payment of Rs.500/- was increased to Rs.1,000/- on 10.04.2011 and Rs.5,000/- on 11.04.2011. Also, it is denied that money was distributed liberally or otherwise, or at all, at the instance of the 1st Respondent by his party men or with his consent and / or knowledge or that they paid a sum of Rs.10,000/- per vote on the day of polling. The fact that the Petitioner had not filed any complaint before the CEO or other Election Officials in respect of the afore stated allegations goes to prove the falsity of the same.
3.28. It is denied by the 1st Respondent that on 12.04.2011 at 3.00 p.m., a vehicle bearing Registration No.TN.22.AJ-2621 was found to be transporting cash in Kolathur Area to the tune of Rupees One Crore and Eighteen Lakhs through 10th Street, GKM Colony, Chennai 82. As a matter of fact, the said vehicle was a Bank Security Vehicle transporting the Bank's cash about which the Petitioner and his cohorts had complained to the police. The police impounded the vehicle, seized the cash and deposited the same in Sub-Treasury Account in Perambur on 12.04.2011. When the Bank demonstrated to the police that the money belonged to them, the money was returned to them on 14.04.2011. It is to be noted that there was no campaigning on 12.04.2011, as the campaigning was over by then. However, the complaint was taken on file and the Police issued CSR No.60 of 2011.
3.29. It is denied by the 1st Respondent that when the police endeavoured to open the doors of the aforesaid vehicle, the local DMK Men viz., V.J.Srinivasan, A.Nagarajan or other DMK Party Workers prevented opening of the doors or that the doors had to be opened by force. Also it is denied that with the help of public such an act was prevented. Consequently, a police complaint was lodged by the Petitioner as set out therein.
3.30. The 1st Respondent or his Agent were not aware of any money that might have been seized by the Police or Election Officials and even if some money was seized by the authorities, the same was not meant for distribution to the voters of Kolathur Constituencies. At his instance, his agent or representatives or with his consent, had nothing to do with any of the alleged incidents said to have taken place, the question of Election Commission of India or Police taking any action against them does not arise. The C.Ds., containing the alleged event on 12.04.2011 would not be relied upon by the Petitioner as no details or particulars were set out to indicate who had filmed the same, at whose instance, at what time, in whose presence and under what circumstances the videographs were taken.
3.31. The Petitioner had not filed any purported application before the Election Commission of India, applying for a copy of the alleged C.D., and for this reason the C.D., is not admissible in evidence. The 1st Respondent went to Kolathur Constituency for campaigning only on four occasions and this is borne out by records maintained by him.
3.32. The Kolathur Constituency has five wards and in fact the said constituency has six wards. It is denied by the 1st Respondent that with the help of party officials, Corporation officials and one Kannaiah (who is allegedly, the present of Southern Railway Co-operative Credit Society and its employees) was indulged in distribution of money to the voters.
3.33 It is denied by the 1st Respondent that the officials rendered assistance to him to make payment freely to the voters without taking proper action as alleged therein. Further, it is denied that he or his party functionaries distributed money to an extent of Rupees Sixty Crores to the voters of Kolathur Constituency for the reasons set out therein. The very fact that the police took on record the Petitioner's complaint without admitting the veracity of the same, clearly showed that the police had not helped the 1st Respondent in any way during election. Further, the Police Department of Kolathur Constituency was functioning under the control of Election Commission of India. The 1st Respondent or his agent never visited the Railway Premises or other premises on the various days referred to by the Petitioner in Election Petition, when the corrupt practices were attributed to the 1st Respondent in Kolathur Constituency, he was not present there as he was campaigning in various constituencies in the state in his capacity of a Senior Leader of DMK Party.
3.34 It is denied by the 1st Respondent that the State Police Official helped him or his party workers to bribe voters of Kolathur Constituency or they failed to take action against them when brought to their notice. Further, it is denied that the Police Force, Government Officials and the Subordinates of the Returning Officer leaked the information of the flying squad's visit. The 1st Respondent was touring for election campaign all over the State being a popular and Senior Leader of the party and he was not present in the area when the alleged acts were said to have been committed. In fact, no complaint was lodged against the Returning Officer or any Police Officials by or on behalf of the Petitioner.
3.35. The veracity of the C.Ds' relating to the incident allegedly recorded on 06.04.2011, 7.04.2011 and 24.03.2011 by the Petitioner along with the Election Petition would not be considered as there were no pleadings about the details of how and when, in whose presence and by whom the videograph was taken. The Petitioner had not furnished any details as to who recorded the videograph, place and the time of recording, persons present at the time of recording, the veracity and authenticity of recording and in the absence of pleading relating to these facts, no evidence can be allowed to be adduced. Also that the CDs do not show the 1st Respondent or his agent were engaged in corrupt practice.
3.36. It is denied that the said CDs show how the Police, or other officials have not taken any action of their lethargic attitude on 24.03.2011 06.04.2011 and 07.04.2011. It is also denied by the 1st Respondent that the Election of the Petitioner was materially affected due to alleged help provided by the Police Officials on the aforesaid dates by not taking any action against him and his party beneficiaries and workers. Even assuming while denying that some had distributed money to the voters, the 1st Respondent or his agent had nothing to do with them and the same was not done with his consent and / or knowledge nor that of his agent.
3.37. It is denied by the 1st Respondent that his wife stayed in Kolathur Constituency for more than 10 days. His wife had only visited Kolathur Constituency for a few days and that too, for canvassing in his favour. It is denied that his wife with the assistance of Mayor of Chennai had supervised distribution of money to the voters. Also it is denied that his wife conducted meetings without police permission in violation of Model Code of Conduct. It is vehemently denied that his wife wooed the voters to vote in his favour by assurance of providing cot and material benefit of medical supply to voters.
3.38. The Petitioner had misinterpreted the Article published in Tamil Magazine. It is denied by the 1st Respondent that his wife made an assurance during her campaign to provide cot and necessary financial assistance to the voters of Kolathur Constituency. Further, it is vehemently denied that his wife with his consent gave any assurance to the voters. Also he denied that he had in any manner influenced the voters of Kolathur Constituency by entering into pre-poll arrangement.
3.39. The aforesaid Kanniah is not an active Member of DMK and therefore, the question of other Railway employees canvassing or working for the 1st Respondent does not arise. It is denied that Kanniah or 300 Railway Employees had canvassed for DMK under his instructions. The Petitioner had not represented any complaint or brought this alleged happenings to the Election Commission's notice or their employees. Moreover, it is denied that a Railway employee was engaged by Kanniah between 07.04.2011 and 12.04.2011 or that they distributed money to the voters in Kolathur Constituency between 10.00 a.m. and 5.30 p.m., more particularly in areas where Government Officials and Railway employees are residing in large numbers. In any case, neither the 1st Respondent nor his agent had, in any way distributed or consented to distribution or were aware of distribution of money to the voters.
3.40. It is denied by the 1st Respondent that DMK party men representing him came in bikes along with certain members of Railway Employees Co-operative Credit Society Limited and distributed money to the voters of Kolathur Constituency. The Petitioner had not provided any details as to the source of his information or other details pertaining to the alleged incident.
3.41. It is denied by the 1st Respondent that at about 6.45 p.m., it was found that Srinivasan of DMK party along with DMK party workers came in twelve motor bikes with registration numbers or that they distributed money to the voters in the said area. The averment of the Petitioner is that the DMK Party workers made an attempt to escape on seeing him or that the Petitioner or his party men seized Rs.500 currency bundle notes placed in front of vehicles is denied by the 1st Respondent. On the one hand, the Petitioner had stated that as soon as he and his men reached the spot, out of 12 motor bikes, 8 bikes escaped and thereafter, he contradicts himself by mentioning that out of 4 bikes, 3 bikes escaped from the scene. It is absurd to believe that the Petitioner and his men saw 12 motor bikes with Rs.500/- currency notes bundled in plastic covers placed in front portion of the vehicle. The entire story set out by the Petitioner is a concocted one and it is stoutly denied by the 1st Respondent. It is denied by the 1st Respondent that a sum of Rs.10,000/- was found in a plastic cover in the front portion of the vehicle bearing registration No.TN-02-AB-5481. It is further denied by the 1st Respondent that the Petitioner informed the same to one Shyam Sundar of the flying squad or that he was reluctant to take any action against these offenders.
3.42. According to the Petitioner, the complaint and First Information Report were taken on record by the police. As such, the 1st Respondent was at a loss to understand how the Petitioner could complain about the police inaction. The Petitioner had not filed any complaint against Shyamsundar, who is alleged to have shown reluctance to take action against the alleged offenders. The 1st Respondent filed his nomination only on 22.03.2011 and he was declared as a Party Candidate only on 28.03.2011, after 3.00 P.m. Therefore, the purported incident that on 24.03.2011 some of the DMK workers distributed money to more than 50 self help group members in Kolathur Constituency could not be believed as he was not even declared as a party candidate at that point of time. In fact, no such incident took place at any point of time and neither himself or his agent or representative had indulged in any corrupt practice including distribution of money to voters.
3.43. It is denied by the 1st Respondent based on the statement of Petitioner's party workers Vetrinagar Sundar and Poompuhar Mahalingam, 16 women members of different Self Help Groups were caught red handed by the flying squad and that the alleged event was videographed. It is also denied that the lady members were allegedly been caught red handed in Eswari Hospital Premises on 24.03.2011 or that they gave any statement to the Police to the effect that they had received money from 1st Respondent's party functionaries or that the Police had not pursued any action due to the instructions given by the 1st Respondent to the police officials.
3.44. In regard to the C.Ds', the Petitioner was remiss in setting out the identities of the persons who took videographs, in whose presence it was taken, the identity of the persons who allegedly received money and the nexus between the persons alleged to have distributed money and the 1st Respondent or his agent. In the absence of the same, the authenticity of C.Ds are suspect and could not be relied upon. The Petitioner had not given any details to show any nexus between the 1st Respondent, his agent and said Women Member or so called Police supporters, who have said to have allegedly influenced the election process. Further, when the alleged incident was purported to have taken place in Kolathur Constituency, neither the 1st Respondent, nor his agent was present.
3.45. It is denied that when the distribution of money taken place on 24.03.2011, the DMK party workers allegedly involved therein called the 1st Respondent and the Assistant Commissioner of Police, Subbarao who came with the police team and prevented any further enquiry in the matter. Also he denied that the said Assistant Commissioner of Police or other Police Officials, who accompanied him protected his party functionaries or that no action was taken and that the media was not allowed to enter the Hospital.
3.46. It is denied that the 1st Respondent distributed money to Self Help Group Members. Although the incident allegedly took place on 24.03.2011, the purported complaint was lodged before the Chief Election Commissioner, Tamil Nadu in regard to the said incident by the Petitioner only on 28.03.2011 and on the very next day, W.P.No.8311 of 2011 was filed against the Chief Election Commissioner, Tamil Nadu would show that the alleged complaint and the filing of the Petition by the Petitioner were pre-meditated.
3.47. The aforesaid W.P.No.8311 of 2011 was disposed of on 27.06.2011 by this Court, wherein authorities were directed to consider the Petitioner's representation dated 24.03.2011. The filing of the nomination of the candidates for the Election commenced on 19.03.2011 and that the 1st Respondent filed his nomination papers on 22.03.2011. The scrutiny of nomination of all the candidates took place on 28.03.2011 till 3.00 P.M., the Returning Officer declared the valid nomination after 3.00 P.M., on 28.03.2011. The date for withdrawal of valid nomination was fixed at 3.00 P.M., on 30.03.2011 and thereafter the Returning Officer declared the valid candidates for Election. The entire incident alleged to have been taken place on 24.03.2011 was a charade cooked up by the Petitioner immediately after he was declared as a valid Nominee on 28.03.2011.
3.48. It is denied by the 1st Respondent that the Petitioner's Party worker, Nirmal Kumar was approached by DMK People and was given a sum of Rs.500/- to vote for the 'Rising Sun' or they had also assured to pay amount through 2nd and 3rd instalments. It is absurd to suggest that the DMK Party workers would approach AIADMK party workers and offer money.
3.49. It is denied by the 1st Respondent that vehicle bearing Registration No.TN-09-AV-6811 came with DMK Party Workers to distribute money to the voters in that area or that one Nirmal Kumar had lodged any complaint about the same. In fact, no materials facts, particulars or details were furnished regarding the same.
3.50. It is denied by the 1st Respondent that his party workers distributed any money on 07.04.2011 at about 8.30 a.m., in Kamala Nagar area or in any other area. Further, it is denied by the 1st Respondent that he had consented to bribe the voters and distributed money to the voters. As such, the question of his committing any corrupt practices does not arise. Even the complaint of the Petitioner does not disclose the names of the persons, who allegedly distributed money or whom the money was distributed.
3.51. It is denied by the 1st Respondent that on 07.04.2011 one Lilly Kalpana, the Divisional Secretary of the Petitioner's Party and the Petitioner's Party Workers saw distribution of Rs.500/- to the voters by one Palani, Former Youth Wing Secretary of DMK. Also it is denied that Mrs. Lilly Kalpana or other AIADMK party workers were witnesses to the distribution of Rs.500/- to the voters of Ramana Nagar or that the 1st Respondent had consented the same. In fact the said Lilli Kalpana or other AIADMK party workers had not lodged any police complaint about the alleged incident. The Petitioner's said Divisional Secretary was aware of the names and details of the voters in that area and inspite of the same, the identity of voters to whom money was allegedly distributed was not disclosed. In the absence of any details about the identity of men, who recorded the CDs, date, time and place etc., the CD has no evidentiary value.
3.52. V.J.Srinivasan is not the DMK Party Chairman as alleged by the Petitioner. It is denied that V.J.Srinivasan assisted Palani to facilitate distribution of money in the said area or that the 1st Respondent used his power and position as Deputy Chief Minister and helped those persons to go scot free.
3.53. It is denied that inspite of information to the Election Commission they had not taken any action or that some of the residents had even complained about the alleged distribution of money by the party workers headed by one Jesuraj, DMK Party Functionary in Kolathur Area. It is vehemently denied that due to the influence of the 1st Respondent, the police failed to take action or that Inspector told Lilly Kalpana to take money from DMK party workers. The 1st Respondent denied the authenticity and validity of CD allegedly obtained by the 1st Respondent from the Election Commission of India. Even assuming while denying that the CDs are admissible in evidence, the contents thereof do not implicate 1st Respondent.
3.54. It is denied that one Inspector Selvakumar acted or helped the 1st Respondent in an open manner or that he is related to the security officer of the 1st Respondent. It is denied that the said Inspector helped the 1st Respondent in any way by not taking action against the DMK workers, who allegedly involved in distributing the money with the consent of 1st Respondent. Also it is denied that the said Inspector acted in a partisan manner supporting DMK workers or that he got his suspension revoked with the help of the 1st Respondent. The alleged complaint dated 24.03.2011 purported to have been given by the Petitioner's party man one Vetrinagar Sundar addressed to CEO was false and cooked up one. In fact, the same does not contain any official seal or acknowledgement by the authorities. It is denied that the Inspector of Police, Selvakumar acted for furtherance of the prospect of the 1st Respondent by utilising his service engaged in corrupt practices, inspite of the allegation of the Petitioner about the police not taking any action against DMK party workers, the very same Inspector against whom the allegations were made had registered Two First Information Reports against the 1st Respondent's party workers based on complaints made on behalf of the Petitioner.
3.55. It is denied that another Sembiam Police Inspector, Radhakrishnan helped him to distribute money or that the said officer helped him in many ways. It is denied that the said officer refused to receive complaint of the Petitioner's party workers. It is also denied that the Petitioner had sent any complaint to the Election Commission. It is vehemently denied that the 1st Respondent or his agent or his representative was engaged in any corrupt practice as alleged in the Election Petition.
3.56. The Petitioner and his 'Goondas' had assaulted one Kumutha of Kancheepuram District and she has lodged a complaint with the District Collector against him and his hoodlums. The said Kumadha filed W.P.No.9019 of 2011 before this Court, since no action was taken by the District Collector. This Court on 08.04.2011 had directed the District Collector to take appropriate action against the Petitioner. The said Kumudha not being intimated by the Petitioner's muscle power filed another Petition in Crl.O.P.No.8956 of 2011 against the Petitioner for a direction to register a case by the police. On 11.04.2011, this Court passed an order directing the police to register a case on her complaint. Accordingly, on 27.04.2011, the police registered a First Information Report against the Petitioner for the offences under Sections 371, 427 and 506(ii) of IPC.
3.57. It is denied that the 1st Respondent's Chief Election Agent, Ravi distributed xerox copies of news paper, which appeared in the Dailies on 08.04.2011 about the incident relating to the petitioner assaulting the said Kumudha.
3.58. The 1st Respondent denied that he consented to his party workers allegedly circulated the said notice or that he observed any un-ethical way or engaged in corrupt practices etc., Even assuming while denying that the 1st Respondent's party men distributed the said news paper reports to the voters, the same does not constitute any corrupt practice by any stretch of imagination.
3.59. It is the business of the 'News Channel' to air the news and making the same known to the public and Kalaignar and SUN TV were well within their rights to air news and the video about the complaint lodged by the said Kumutha and orders passed by this Court. As such, the question of any character assassination of the Petitioner by the 1st Respondent does not arise 3.60. It is denied by the 1st Respondent that one M.K.Lenin gave money to the persons and distributed the same to the voters. It is vehemently denied that the alleged action of Lenin was with the consent of the 1st Respondent. Also it is denied that the said Lenin had called upon the individual to attend the meeting held by him or that the attenders were given covers during the said meeting.
3.61. It is further denied that when the petitioner's party workers enquired of the said attendees of the meeting, they had mentioned that the 1st Respondent's party men and M.K.Lenin, Divisional Secretary gave them covers containing Rs.500/- for distribution to the voters. It is not pleaded by the Petitioner as to how he came to the conclusion that the 1st Respondent's consent was obtained, even assuming while denying that such an incident took place.
3.62. It is denied that a complaint dated 10.04.2011 was given by the Petitioner's workers to the Chief Election Commissioner. The said alleged complaint was a cooked up one, as it does not contain any signature, seal or acknowledgement of the authority. Even the names of Petitioner's party workers, who had allegedly witnessed the same was not mentioned. A perusal of the said complaint shows that the signatures therein do not even remotely match the names of the Petitioner's party workers. In any case, the 1st Respondent is not in any way connected with the alleged incident, even assuming while denying that the same took place.
3.63. Under the Representation of People Act, 1951, an 'Election Expense' is to be sent to the Election Commissioner, who is an appropriate authority to verify and check the same. In fact, the 1st Respondent had submitted his 'Accounts' to the authority concerned well within the prescribed time limit and obtained the necessary approval by the concerned authority. The said issue cannot be raised by the Petitioner before this Court since he had not complained about the same before the appropriate authority. Further, it is not for this Court to tally the accounts of the candidates. It is denied that he had exceeded the election expenses than what he had submitted to the Election Authorities. He further denied that he transported 'Ponnaidais' (shawls) by using police vehicle bearing registration number mentioned in the Petition or any other police vehicles to carry the same or that he abused his powers as Deputy Chief Minister, Tamil Nadu.
3.64. The procedure in regard to the issuance of 'Booth slips' is to be answered by the Returning Officer. It is denied by the 1st Respondent that he or his agent or his representative printed any booth slips with his party symbol. Further, it is denied that in Kolathur Constituency, the Corporation officials or other officials engaged by the Returning Officer had not given booth slips, as alleged by the Petitioner. It is denied that he used his official powers or prevented the Petitioner's party workers from giving booth slips to the voters. However, it was the Petitioner, his agent and party workers who printed booth slips with their party symbols against the Election Commission and distributed the same to the voters of Kolathur Constituency and the complaint was lodged to this effect before the authorities at the instance of 1st Respondent's party workers. The Petitioner had not lodged any complaint or any representation about the DMK party workers for having allegedly printed booth slips. In fact the news report published in The Hindu dated 14.05.2011 sets out the statement of Chief Minister / Party Leader of AIADMK given during the press meet held after the AIADMK won the assembly election.
3.65. Since the Petitioner and his party men printed and distributed booth slips with AIADMK party symbol, two First Information Reports were registered by the Special Sub Inspector of Police, Albert against the Petitioner's party men, who were distributing the booth slips. The said First Information Reports were registered directly by the said Special Sub Inspector, who caught the perpetrators committing the offence and not on the basis of any complaint lodged by the 1st Respondent party workers. Therefore, the question of Mr.Albert or T.Moorthy taking any action against the 1st Respondent's party workers, does not arise. It is denied by the 1st Respondent that even on 03.04.2011, his party workers were distributing booth slips with the party symbol of Rising Sun to the voters or that he used his official powers to foist false case against the Petitioner. It is denied by the 1st Respondent that the Police or Chennai Corporation Officials had not acted as per directives of the Election Commission of India.
3.66. The 1st Respondent had not committed any violations of the instructions of Election Commission of India. Further, he denied that he or his agent issued any booth slips with party symbol in Kolathur Constituency. The purported samples provided by the Petitioner was not printed with the consent or instructions of the 1st Respondent or his agent. It is denied that the Returning Officer or police machinery was used by the 1st Respondent or DMK Party workers gave booth slips containing the symbol of 1st Respondent's party or that the said authorities allowed him to issue the booth slips without any hindrance.
3.67. The 1st Respondent was not aware of the transactions between Vetrinagar Sundar and the authorities concerned relating to the alleged distribution of booth slips and it is for the Returning Officer to answer the same. No document / complaint dated 12.04.2011 was filed by the Petitioner along with Election Petition. He was not aware of the significance document issued by AERO / Kolathur to the Petitioner. The said document was not authentic since neither complete nor it disclosed the nature of the document. The document does not disclose to whom and for what purpose the same was issued.
3.68. What transpired during the counting of Kolathur constituency was that out of a total of 203 EVMs counting of 198 EVMs in 18 rounds were completed at 7.00 p.m., and only 5 EVMs were remained to be counted during the 19th round. The procedure followed by the Election Commission of India is that if party raises a dispute in respect of any EVM, the counting of the same is kept pending till the end of the counting of the undisputed EVMs and after confirming the authenticity and correctness of the disputed EVMs, counting was commenced.
3.69. In the present case at about 7.00 P.M., when the counting of 18 rounds were completed in Kolathur Constituency, 1st Respondent was leading by 1700 votes more than the Petitioner. By then the counting of votes was concluded in most of other constituencies of the State and everyone was aware that the Petitioner's Party had succeeded with a large majority. Once the Petitioner came to know about it, his ambition of becoming a Minister over took whatever good sense he might have had and he, his agent and other party workers started creating a ruckus at the counting centre and the Returning Officer was constrained to seek the assistance of C.E.O and D.E.O to commence counting. Therefore, the CEO, deputed DEO to the counting centre and thereafter, the due verification of the EVMs were carried out by DEO and the Returning Officer in the presence of Petitioner and his Agent, Counting commenced.
3.70. The Petitioner was well aware that none of the EVMs were faulty when he left the centre. He was aware that the 1st Respondent was leading in the Election and he started complaining and raised slogans and created commotion about the alleged disputed EVMs in order to disrupt the counting process. In regard to the reply received by the Petitioner for his RTI Application dated 26.05.2011, the Returning Officer in reply to Question no.3 in his letter dated 14.06.2011 had answered that none of the EVMs were faulty on the date of counting.
3.71. It is denied by the 1st Respondent that the CDs provided by the Election Commission of India related to the counting on 13.05.2011 do not reflect the correct recording of event or appear to be an edited one. The 1st Respondent and his party workers had not created any problem and therefore, the question of taking any action against them does not arise. It is denied that an observer was unable to understand the grievances of the Petitioner and his authorised agent due to lack knowledge in local language. It is denied that the Returning Officer failed to discharge his statutory duties. It is denied that the Petitioner's Agent/ Party Legal Wing Chief, Mr.Sethuraman had pointed out irregularities to the Returning Officer or that the Returning Officer had not given any attention to the complaint.
3.72.It is denied that the Returning Officer or the Officials allegedly deployed from Corporation of Chennai acted in an unfair manner or completed the 3 rounds of counting from 16th to 19th rounds in Petitioner's absence or that any supplementary counting took place in the Petitioner's absence. It is denied that 13.05.2011 before the conclusion of counting process, the 1st Respondent along with 100 DMK party men, his person and one Sekhar Babu entered the counting hall or that after a brief stay they walked out with the declaration stated to have been issued by the Returning Officer. The 1st Respondent had not visited the counting centre at all on 13.05.2011 prior to the declaration of results. He came to the counting centre only for receiving the certificate after the Returning Officer had declared him as a successful candidate. No case is made out by the Petitioner for the grant of any of the reliefs sought for by him in his Election Petition.
4. In the main Election Petition, the following issues were framed for determination:
1.Whether the 1st Respondent has committed corrupt practice within the meaning of Section 123(1)(A)(b) of the Representation of the People Act, 1951?
2.Whether the election petition of the 1st Respondent is void within the meaning of Sections under Sections 100(1)(b), 100(1)(d)(ii), 100(1)(d)(iv) of the Representation of the People Act, 1951 and liable to be set aside under the said provisions?
3.Whether the Election Petitioner is entitled to a declaration that the election of the 1st Respondent/Returned Candidate is void?
4.Whether the Election Petitioner is entitled for further declaration that he has been validly elected to the Tamil Nadu Legislative Assembly from No.13, Kolathur Assembly Constituency in the Election held on 13.04.2011?
5.Whether the election of the 1st Respondent is void by the non-compliance of the provisions of the Constitution and the provisions of the Representation of the People Act, 1951?
6.Whether the Election Petition is maintainable either in Law or on Facts?
Issue No.6: [Material Facts and Particulars]:
5.Petitioner's Submissions:
5.1. The Learned Senior Counsel for the Petitioner contends that as per Section 83 of the Representation of the People Act, 1951, an Election Petition (a) shall contain a concise statement of the material facts on which the Petitioner relies and further, as per Section 83(b) of the Act, the Election Petition 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. Besides this, the Election Petition shall be signed by the Petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of the pleadings to satisfy Section 83(c) of the Act.
5.2. It is represented on behalf of the Petitioner that in respect of any corrupt practice alleged by the Petitioner, the Petition shall be accompanied by an Affidavit in the prescribed format of supporting the allegation of such corrupt practice and the particulars thereof.
5.3. The Learned Senior Counsel for the Petitioner refers to Section 83(2) of the Representation of the People Act, 1951 which enjoins that 'Any schedule or annexure to the Petition shall also be signed by the Petitioner and verified in the same manner as the Petition'.
5.4. The Learned Senior Counsel for the Petitioner takes a stand that the Petitioner has pleaded all the material facts and full particulars of corrupt practice in the Election Petition. In this regard, the Learned Senior Counsel for the Petitioner, by adverting to Sections 82 (Parties of the Petition), 83 (Contents of Petition), 86 (Trial of Election Petitions) and 100 (Grounds for declaring election to be void) of the Representation of the People Act, 1951, points out that the Petitioner has complied with the mandatory requisites by setting out the material facts in a concise statement coupled with furnishing of particulars of the corrupt practice in the main Election Petition and therefore, the present Election Petition filed by the Petitioner is perfectly maintainable in Law and on Facts.
5.5. The Learned Senior Counsel for the Petitioner draws the attention of this Court that the Petitioner at the time of filing E.L.P.No.1 of 2011 had filed the Verification Supporting Affidavit under Order VI Rule 15(4) C.P.C. [in regard to the averments made in paragraph Nos.1 to 65 which was based on his own knowledge and information received from his party workers viz., Vetrinagar Sundar and 6 others; in regard to the averments made in paragraph Nos.66 to 90, 92 to 119 of the Election Petition, the same was based on the Petitioner's personal knowledge and in respect of the averments of the Election Petition relating to paragraph Nos.83 to 86, the said information was stated to be furnished by Mr.Ganesan and 5 others] and thereby had satisfied the requirement of Section 83(c) of the Representation of the People Act, 1951.
5.6. The Learned Senior Counsel for the Petitioner points out that the Petitioner in E.L.P.No.1 of 2011 had filed a Verification Supporting Affidavit in respect of the list of documents/annexures under Section 83(2) of the Representation of the People Act. Also, the Petitioner had satisfied the Form 25 (Rule 94A of the Conduct of Election Rules, 1961) in regard to the affidavit referred to in Section 83(1) of the Representation of the People Act, 1951.
5.7. To lend support to the contention that the Election Petition No.1 of 2011 filed by the Petitioner is maintainable not only in Law, but also on Facts, the Learned Senior Counsel for the Petitioner cites the decision of the Hon'ble Supreme Court in G.M.Siddeshwar V. Prasanna Kumar, (2013) 4 SCC 776 at special pages 778, wherein it is held as under:
There is no mandate in the RP Act that no maintain an election petition (in a case where resort to corrupt practices has been alleged against the returned candidate), it is imperative for an election petitioner to file an affidavit in terms of Order 6 Rule 15(4) CPC in support of the averments made in the election petition in addition to an affidavit required to be filed by the proviso to Section 83(1) of the RP Act. P.A.Mohammed Riyas, (2012) 5 SCC 511 which suggests to the contrary, is overruled on this point.
Order 6 Rule 15 CPC no doubt requires that a verification of the plaint is necessary and in addition to the verification, the person verifying the plaint is also required to file an affidavit in support of the pleadings. However, Section 83(1)(c) of the RP Act merely requires an election petitioner to sign and verify the contents of the election petition in the manner prescribed by CPC. There is no requirement of the election petitioner also filing an affidavit in support of the averments made in the election petition except when allegations of corrupt practices have been made. That Order 6 Rule 15 requires an affidavit also to be filed does not mean that the verification of a plaint is incomplete if an affidavit is not filed. The affidavit, in this context, is a stand-alone document. A plain and simple reading of Section 83(1)(c) of the RP Act clearly indicates that the requirement of an additional affidavit is not to be found therein. While the requirement of also filing an affidavit in support of the pleadings filed under CPC may be mandatory in terms of Order 6 Rule 15(4) CPC, the affidavit is not a part of the verification of the pleadings both are quite different. While the RP Act does require a verification of the pleadings, the plain language of Section 83(1)(c) of the RP Act does not require an affidavit in support of the pleadings in an election petition. The Court is being asked to read in a requirement that does not exist in Section 83(1) (c) of the RP Act. 5.8. Also, the Learned Senior Counsel for the Petitioner refers to the aforesaid decision, at special page 780, wherein it is observed as follows:
A perusal of the affidavit furnished by the election petitioner ex facie indicates that it was not in absolute compliance with the format affidavit (Form 25). However, the High Court correctly opined that on a perusal of the affidavit, there was substantial compliance with the prescribed format. It is correct that the verification was also defective, but the defect is curable and cannot be held fatal to the maintainability of the election petition. If an election petition did not comply with Section 83(1) proviso of the RP Act, it would still be called an election petition. Merely, because the affidavit may be defective, it cannot be said that the petition filed is not an election petition as understood by the RP Act. The affidavit filed by the election petitioner in compliance with the requirements of Section 83(1) proviso was not an integral part of the election petition, and no such case was set up. As long as there is substantial compliance with the statutory form of the affidavit, there is no reason to summarily dismiss an election petition on this ground. However, an opportunity must be given to the election petitioner to cure the defect. Hence, the High Court rightly concluded that the affidavit not being in the prescribed format of Form 25 and with a defective verification, were curable defects and that an opportunity ought to be granted to the petitioner to cure the defects. 5.9. The Learned Senior Counsel for the Petitioner cites the decision of the Hon'ble Supreme Court in Ishwardas Rohani V. Alok Mishra and Others, (2012) 7 Supreme Court Cases 309 wherein it is observed that 'For maintainability of the election petition what is relevant is that election petition must disclose a cause of action and must not be vague so that the Respondent cannot deal with it and give a proper response.' 5.10. The Learned Senior Counsel for the Petitioner seeks in aid of the decision of the Hon'ble Supreme Court in Jagjit Singh V. Dharam Pal Singh and Others, 1995 Supp (1) Supreme Court Cases 422 at Special Page 429, wherein at paragraph 21, it is observed as follows:
21.The trial Judge has held that since there is no averment in the petition that the result of the election was materially affected by improper rejection or acceptance of votes, it is devoid of cause of action. We are unable to agree that the absence of such an averment in the facts of this case is fatal. As pointed out by this Court, there may be cases where the obvious conclusion to be drawn from the circumstances is that the result of the election has been materially affected and that Section 100(1)(d) of the Act is not intended to provide a convenient technical plea in a case where there can be no dispute at all about the result of the election being materially affected by the alleged infirmity. (See Durai Muthuswami V. N.Nachiappan (2 (1973) 2 SCC 45: (1974) 1 SCR 40). In the present case, the appellant in the election petition has stated that he has lost by a margin of 80 votes only. From the various averments in the election petition it was evident that the number of valid votes of the appellant which are alleged to have been improperly rejected is much more than 80. From the averments contained in the election petition it is thus obvious if the appellant succeeds in establishing his case as set out in the election petition the result of this election, insofar as it concerns the returned candidate, would be materially affected. 5.11. Further, the Learned Senior Counsel for the Petitioner cites the decision of the Hon'ble Supreme Court in Durai Muthuswami V. N.Nachiappan and Others, (1973) 2 Supreme Court Cases 45 at Special Page 46, wherein it is observed and held as under:
What Section 100 requires is that the High Court before it declares the election of a returned candidate is void should be of opinion that the result of the election insofar as it concerns a returned candidate has been materially affected by the improper acceptance of any nomination. It is not intended to provide a convenient technical plea in a case where there can be no dispute about the election being materially affected by the acceptance of the improper nomination. Materially affected is not a formula that has got to be specified but it is an essential requirement that is contemplated in this section. Law does not contemplate a mere repetition of a formula. (para 3)
(ii) All that Section 100(1)(a) requires is that on the date of his election a returned candidate was qualified or was disqualified to be chosen to fill the seat under the Constitution or this Act. The question of the election being materially affected does not arise in a case falling under Section 100(1)(a).
On the allegations contained in the petition, if they were established, the respondent must be deemed to suffer the disqualification under Section 9-A of the Act. In order to declare his election void it is not necessary that the election petition should state that the result of the election was materially affected thereby. (para 4)
6.Contentions of the 1st Respondent:
6.1. The Learned Senior Counsel for the 1st Respondent submits that the Representation of the People Act, 1951 is a comprehensive Act and that a Court of Law cannot go beyond pleadings. Further, it is the stand of the 1st Respondent that pleadings of a concerned party must be precise with necessary particulars and moreover, in an Election Petition, a concise statement must be made mention of.
6.2. The Learned Senior Counsel for the 1st Respondent contends that the charge of corrupt practice in an Election Petition is to be established like a criminal charge. Further, the burden of proof is very high on the side of the Election Petitioner. In short, it is the plea of the 1st Respondent that the allegations/averments in corrupt practices ought to be clear, precise and the charge must be proved to the hilt as in a criminal trial, by means of clear cut, cogent and believable evidence and in this regard, he places reliance on the Order of this Court dated 25.09.2014 in E.L.P.No.2 of 2011 (between S.Ramachandran V. E.V.Velu and 15 others).
6.3. The Learned Senior Counsel for the 1st Respondent contends that an Election Petition is to be prepared only in the manner mentioned in Act, 1951 of Parliament. Further, it is represented on behalf of the 1st Respondent that the term 'cause of action' means a 'Bundle of Facts' which gives rise to a right or liability. What is essential to be proved is material facts upon which the Petitioner pleads his case. In short, the words 'cause of action' means every fact which the Petitioner/Plaintiff will have to establish if traversed to obtain his right and not 'every piece of evidence', in the considered opinion of this Court.
6.4. The Learned Senior Counsel for the 1st Respondent proceeds to submit that the ingredients of Section 83(1)(a) & (b) of the Representation of the People Act, 1951 are quite similar to Order VI Rule 1, 2 and 4 and Order VII Rule 1(e) C.P.C.
6.5. The Learned Senior Counsel for the 1st Respondent emphatically takes a plea that in Law, 'Material Facts' mean those facts which are essential so as to make out a complete 'cause of action'. Added further, the Learned Senior Counsel for the 1st Respondent strenuously contends that to make out a case of cause of action all the main facts are to be established by a party. As a matter of fact, the rudimentary facts which constitute the ingredients of certain corrupt practice must be mentioned in an Election Petition. Besides this, all facts are necessary to make the petition with a complete cause of action and based on the said facts, the concerned Election Tribunal will deliver its verdict in the main Petition.
6.6. The Learned Senior Counsel for the 1st Respondent refers to Section 83(1) of the Representation of the People Act, 1951 speaks of 'Contents of Petition' and the filing of affidavit in prescribed form in support of the allegation of corrupt practice and the particulars thereof. Also, he adverts to Section 123(1)(A) for the act of 'corrupt practice'. Moreover, he points out that as per Section 83(2) of the Representation of the People Act, 1951, an affidavit in the prescribed form is necessary. Also, he banks on Rule 94-A of the Conduct of Elections Rules, 1961 which pertains to an 'Affidavit' mentioned in Section 83(1) of the Act before a Magistrate of the first class/Notary/ Commissioner of Oaths which shall be in Form 25 in this regard.
6.7. The Learned Senior Counsel for the 1st Respondent takes a stand that the ingredients of Rule 94 of the Conduct of Elections Rules, 1961 are mandatory in character. Further, the Learned Senior Counsel for the 1st Respondent refers to Form 25 (See rule 94-A) Affidavit, para (a) which mentions inter alia that '... and the particulars of such corrupt practice mentioned in paragraphs ...' of the Election Petition. Further, he laid emphasis upon the words '... and in paragraphs ..... of the Schedule annexed thereto are true to my knowledge'. Further, he refers to para (b) of Form 25 of the Conduct of Elections Rules, 1961, wherein it was, among other things, mentioned as '... and in paragraphs .... of the Schedule annexed thereto are true to my information'.
6.8. The Learned Senior Counsel for the 1st Respondent submits that the Election Petitioner had not categorised in his Election Petition No.1 of 2011, the particulars of corrupt practice in paragraphs, but clubbed the said particulars relating to knowledge and information.
6.9. The Learned Senior Counsel for the 1st Respondent points out that the Petitioner in his Election Petition simply mentions under Section 123(1)(A)(b) Part VII of the Representation of the People Act, 1951. In fact, para 2(e) of his Verification Supporting Affidavit (filed along with Election Petition dated 27.06.2011), he had clubbed the particulars of corrupt practice mentioned by him in paragraphs of the Election Petition pertaining to personal knowledge and true to his information and Section 129 of the Representation of the People Act, 1951 enjoins that 'Officers, etc., at elections not to act for candidates or to influence voting' and the said electoral offence is a criminal cognizable one and in this regard, the Petitioner cannot include/mention Section 129 of the Representation of the People Act, 1951 in his Verification Supporting Affidavit at paragraphs (p), (q) [filed under Section 83(2) of the R.P. Act , 1951 on 27.06.2011].
6.10. The Learned Senior Counsel for the 1st Respondent contends that in the Verification Supporting Affidavit (filed under Section 83(2) of the R.P. Act by the Petitioner) at paragraph (n), the Petitioner had mentioned that '... and the particulars of such practice mentioned in paragraphs 83, 84, 85 and 86 of the same petition and the documents referred to thereof and filed in the Schedule annexed thereto are true to my knowledge and the information received from by party workers Ganesan, T.Saravanan, Vinodhan, P.Murari, V.Karthik and S.R.Murali and believe the same to be true'. In this connection, the Learned Senior Counsel for the 1st Respondent brings it to the notice of this Court that these persons were not examined by the Petitioner in the main Election Petition.
6.11. The Learned Senior Counsel for the 1st Respondent submits that in the Verification Supporting Affidavit (filed under Section 83(2) of the R.P. Act, 1951 on 27.06.2011) at paragraph (n) had mentioned the names of 7 persons referred to supra and in the averment in para (n) aforestated that it was based on Petitioner's knowledge and information received from Petitioner's party workers, is quite contrary to the Verification Supporting Affidavit filed by the Petitioner Under Order VI Rule 15(4) C.P.C. It is represented on behalf of the 1st Respondent that reference to para 91 of the Election Petition is missing in (n) paragraph of the Verification Supporting Affidavit.
6.12. The Learned Senior Counsel for the 1st Respondent contends that the averments made by the Election Petitioner in the Election Petition from paragraphs 1 to 65, was said to be based on Petitioner's knowledge and information received from party workers. Further, the averments in paragraphs 66 to 119 of the Election Petition were said to be from personal knowledge of the Petitioner. The averments from paragraphs 83 to 86 of the Election Petition were said to be based on information received from others, who were not examined as a witness. From paragraphs 106 to 109 of the Election Petition made by the Election Petitioner, it is the stand of the 1st Respondent that the Petitioner cannot rely upon the same, because of the reason that the Returning Officer was struck off as party in the Election Petition.
6.13. The Learned Senior Counsel for the 1st Respondent submits that the Verification Supporting Affidavit filed by the Petitioner dated 21.06.2011 starts from paragraph 25 of the main Election Petition. Also, it is represented on behalf of the 1st Respondent that the statement made in para 25 of the Election Petition mentioning about the distribution of money at the rate of Rs.500/-, subsequently, increased to Rs.1000/- on 10.04.2011, Rs.5000/- on 11.04.2011 and Rs.10,000/- on 13.04.2011 to the voters of Kolathur Constituency etc. is not concerned with the 1st Respondent. Moreover, it is the stand of the 1st Respondent that P.W.1 to P.W.3 in their evidence before this Court never spoke of increase of amount of Rs.500/- to Rs.1000- etc. 6.14. The Learned Senior Counsel for the 1st Respondent contends that at para 25 of the Election Petition in regard to the distribution of cash amount of Rs.500/- on 13.04.2011 etc. the details like, who paid the said sum, to which of the inmates of the house, in which street, are found wanting. In fact, these averments made by the Petitioner in his Election Petition only to prejudice the mind of this Court.
6.15. In short, the plea of the 1st Respondent is that the allegation of 'corrupt practice' cannot be put against the 1st Respondent because of defective supporting affidavit.
6.16. The Learned Senior Counsel for the 1st Respondent submits that the verification contemplated under Section 83(1)(c) of the Representation of the People Act, 1951 shall be signed by the Petitioner and verified in the manner laid down in Civil Procedure Code. Therefore, the Supporting Affidavit is contrary to the two verifications mentioned in the Election Petition as well as the Supporting Affidavit and hence, it is not in compliance of Section 83(1)(c) of the Representation of the People Act, 1951.
6.17. The Learned Senior Counsel for the 1st Respondent, to lend support to the aforesaid plea that the Petitioner had not satisfied the requirement of Section 83(1)(c) of the Representation of the People Act, 1951, cites the decision of the Hon'ble Supreme Court in L.R.Shivaramagowda and Others V. T.M.Chandrashekar (Dead) by Lrs. And Others, (1999) 1 Supreme Court Cases 666 at Special Pages 671 to 673, wherein at paragraph 6, it is held as follows:
6. At first, we will consider the contentions urged by the appellant's counsel. The relevant pleading is found in para 39 of the election petition which reads as follows :
It is submitted that the accounts furnished by the 1st respondent to the District Election Officer on 21-12-1989 is not pertaining to the election period. He has not given true and correct accounts of expenditure. He has not furnished the details of expenditure from the date of nomination till the date of election. He has not further furnished the expenditure incurred on printing of pamphlets, Badges and advertisement published in newspaper and other amounts paid by him to several printing presses including 'Indivar Printers', Chandramouleshwara Printers and Auto Xerox' and 'Nagamangala Mitra' Newspaper. He had hired more than 10 vehicles and had used them on hire from 6.11.89 to 24.11.89. He has incurred an expenditure as expenses of Rs. 500 per day per vehicle. The price of the Nagamangala Mitra is 0.50p. per copy and he had got printed and purchased 20,000 copies for distribution to the voters. All these costs incurred by the 1st respondent has not been furnished in his statement of account as required under Section 77 of Representation of Peoples Act and Rules 86 and 90 of Conduct of Election Rules 1961 and also contravention of Section 123(6) of Representation of People Act. The certified copy of the statement of account of the 1st respondent is produced herewith as Annexure R'".
In the affidavit filed by the first respondent along with the election petition, the following averments are found in paragraph (f) :-
''....that the statement made in paras 28 and 39 of the said petition about the commission of the corrupt practice of Shri L.R. Shivarama Gowda and the particulars of such corrupt practice given in paras 28 and 39 refers to suppression of a true and correct account of all expenditure in connection with his election incurred by him between the date on which he had been nominated and the date of declaration of the result thereof both dates inclusive and incurring expenditure in contravention of Section 77 of the Representation of the People Act 1951."
Para (g) reads :
"....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 the Annexures A to B are true copy of the original."
In the written Statement filed by the appellant paras 41 & 43 read as follows :
"41. Regarding allegation in para 39 that the accounts furnished by the first respondent to the District Election Officer is not pertaining to the election period is false. The expenditure threat does pertain to the expenses of the election in question. It is also incorrect to say he has not given true and correct accounts of expenditure. The further allegation that there is no detail of expenditure and that he has not furnished the expenditure of printing of pamphlets, badges, advertisement published in newspaper, etc., are false. Indeed were was no payments made to Indivara Printers and Sri Chandramouleshwara Printers and Auto Xerox, Nagamangala Mitra and others, since no printing got done by them. That he hired more than 10 vehicles and used them on hire from 6.11.89 to 23.11.89 is false. The further allegation this respondent has incurred an expenditure of Rs. 500 per day per vehicle is false. The allegation that Nagamangala Pathrike is 50 paise per copy and this respondent got printed and purchased 20,000 copies is false. He has not purchased any copy. There is no violation of Section 77 of Representation of People Act nor Rules 86 and 90 of Conduct of Election Rules as alleged. There is no contravention of sub-section (6) of Section 123 of Representation of People Act."
43 : The affidavit of the petitioner contains false statements and it does not contain specific supporting assertion for any of the particular corrupt practices the petitioner may have in his mind. The affidavit is not in the form prescribed by the special law, as such in the eye of law, it is not an affidavit at all. The affidavit is vague and unacceptable apart from it being false and tailored for the purpose of this case."
6.18. Moreover, in the aforesaid decision, at page 681 and 682, he refers to paragraphs 16, 16A and 17, wherein it is mentioned as follows:
16. If the above well-settled principles are applied in this case, there is no doubt whatever that the election petition suffers from a very serious defect of failure to set out material facts of the alleged corrupt practice. The defect invalidates the election petition in that regard and the petitioner ought not to have been permitted to adduce any evidence with reference to the same.
16A.We have already extracted paras (f) & (g) of the affidavit filed along with the election petition. It does not disclose the source of information. Nor does it set out which part of the election petition was personally known to the petitioner and which part came to be known by him on information. Significantly, paragraphs (a) to (e) of the affidavit state that the averments therein are true to his information. Para (f) is silent on this aspect of the matter. Para (g) refers to all the 42 paragraphs in the petition. The affidavit is not in conformity with the prescribed Form No. 25. Thus there is a failure to comply with Rule 94-A of the Conduct of Elections Rules. It is a very serious defect which has been overlooked by the High Court.
17. Learned counsel for the first respondent made an attempt to show that the pleading contains the relevant material facts. According to him, para 39 of the election petition sets out the expenses incurred by the appellant per vehicle per day and the total number of vehicles used by him. It was also contended that the price of the newspaper Nagamangala Mitra per copy was mentioned and the total number of copies purchased for distribution to the voters was also mentioned. It was argued that those were the material facts and by themselves they proved that the appellant had incurred an expenditure exceeding the prescribed limit. We are unable to accept this contention. After setting out those figures, the averment found in the election petition is only to the effect that said cost incurred by the appellant had not been furnished in his statement of account. The fact that in the last part of the said sentence, it was alleged that there was contravention of Section 123(6) of the Act, would not come to the aid of the first respondent to contend that the relevant material fact of excessive expenditure over and above the prescribed limit had been pleaded. We must also refer to the fact that for the purpose of Section 100(1)(d)(iv), it is necessary to aver specifically that the result of the election insofar as it concerns a returned candidate has been materially affected due to the said corrupt practice. Such averment is absent in the petition. 6.19. The Learned Senior Counsel for the 1st Respondent relies on the decision of the Hon'ble Supreme Court in Baldev Singh V. Shinder Pal Singh and another, 2007 (1) SCC 341 at special page 350, wherein at paragraph 23, it is observed as under:
23. The verification of an election petition, it was trite, must be done strictly in terms of Order 6 Rule 15 of the Code of Civil Procedure. It was, thus, incumbent on the part of the respondent herein to specifically state as to which statements made in the election petition were true to his knowledge and which were true to his brief. A factual averment made in the election petition cannot be both true to the knowledge and belief of the deponent. 6.20. The Learned Senior Counsel for the 1st Respondent cites the following decisions relating to 'Material Facts' and 'Material Particulars':
(i) In Virender Nath Gautam V. Satpal Singh and Others, (2007) 3 Supreme Court Cases 617, at special page 628, 629, wherein at paragraphs 30, 31, 34 & 35, the Hon'ble Supreme Court has observed as follows:
30. All material facts, therefore, in accordance with the provisions of the Act, have to be set out in the election petition. If the material facts are not stated in a petition, it is liable to be dismissed on that ground as the case would be covered by clause (a) of sub-section (1) of Section 83 of the Act read with clause (a) of Rule 11 of Order 7 of the Code.
31. 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 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 plaintiff's 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.
34. A distinction between material facts and particulars, however, must not be overlooked. Material facts are primary or basic facts which must be pleaded by the plainiff 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.
35. 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.
(ii) In the decision of the Hon'ble Supreme Court Mahadeorao Sukaji Shivankar V. Ramaratan Babu and Others, (2004) 7 Supreme Court Cases 181 at Special Page 185, wherein at paragraphs 6 & 7, it is observed as follows:
6. Now, it is no doubt true that all material facts have to be set out in an election petition. If material facts are not stated in a plaint or a petition, the same is liable to be dismissed on that ground alone as the case would be covered by clause (a) of Rule 11 of Order 7 of the Code. The question, however, is as to whether the petitioner had set out material facts in the election petition. The expression material facts has neither been defined in the Act nor in the Code. It may be stated that the material facts are those facts upon which a party relies for his claim or defence. In other words, material facts are facts upon which a party relies for his claim or defence. In other words, material facts are facts upon which the plaintiff's 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 existence of cause of action or defence are material facts and must be stated in the pleading of the party.
7. But, it is equally well settled that there is distinction between material facts and particulars. Material facts are primary or basic facts which must be pleaded by the petitioner 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 finishing touch to the basic contours of a picture already drawn so as to make it full, more clear and more informative. Particulars ensure conduct of fair trial and would not take the opposite party by surprise.
(iii) In the decision of the Hon'ble Supreme Court Hari Shanker Jain V. Sonia Gandhi, (2001) 8 Supreme Court Cases 233 at Special Page 251, wherein at paragraph 23, it is held as under:
23. Section 83(1)(a) of RPA, 1951 mandates that an election petition shall contain a concise statement of the material facts on which the petitioner relies. By a series of decisions of this Court, it is well settled that the material facts required to be stated are those facts which can be considered as materials supporting the allegations made. In other words, they must be such facts as would afford a basis for the allegations made in the petition and would constitute the cause of action as understood in the Code of Civil Procedure, 1908. The expression cause of action has been compendiously defined to mean every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of court. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. The function of the party is to present as full a picture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet. (1969) 3 Supreme Court Cases 238: (1969) 3 SCR 603) Samant N.Balkrishna v. George Fernandez, (1969) 2 Supreme Court Cases 433 Jitenda Bahadur Singh v. Krishna Behari), Merely quoting the words of the section like chanting of a mantra does not amount to stating material facts. Material facts would include positive statement of facts as also positive averment of a negative fact, if necessary. In V.S.Achuthanandan v. P.J.Francis (1999) 3 Supreme Court Cases 737) this Court has held, on a conspectus of a series of decisions of this Court, that material facts are such preliminary facts which must be proved at the trial by a party to establish existence of a cause of action. Failure to plead material facts' is fatal to the election petition and no amendment of the pleadings is permissible to introduce such material facts after the time-limit prescribed for filing the election petition.
(iv) In the decision of the Hon'ble Supreme Court V.S.Achuthanandan V. P.J.Francis and another, (1999) 3 Supreme Court Cases 737 at Special Page 738, wherein it is observed and held as under:
The trial Judge did not distinguish between the material facts and the material particulars of allegations regarding corrupt practices as defined under Section 123 of the Act. The distinctions among the ideas of the grounds in Section 81(1); of material facts in Section 83(1)(a) and of full particulars in Section 83(1)(b) are obvious. The provisions of Section 83(1)(a) and (b) are in the familiar pattern of Order 6 Rules 2 and 4 and Order 7 Rule 1(e) of the Code of Civil Procedure. While failure to plead material facts is fatal to the election petition and no amendment of the pleading is permissible to introduce such material fats after the time-limit prescribed for filing the election petition, the absence of 'material particulars' can be cured at a later stage by an appropriate amendment in terms of Order 6 Rule 17 CPC. Material facts are such primary facts which must be proved at the trial by a party to establish existence of a cause of action. A reasonable cause of action means a cause of action with some chances of success when only the allegations in the pleadings are considered. So long as the claim discloses some cause of action or raises some questions fit to be decided by a Judge, the mere fact that the case is weak and not likely to succeed is no ground for striking it out. An election petition is not liable to be dismissed in limine merely because full particulars of corrupt practice alleged were not set out. Whether in an election petition a particular fact is a material fact or not, and as such, required to be pleaded is a question which depends on the nature of the charge levelled, the ground relied upon, and in the light of the special circumstances of the case. 6.21. Apart from the above, the Learned Senior Counsel for the 1st Respondent cites the decision of the Hon'ble Supreme Court in Samant N.Balkrishna and another V. George Fernandez and others, 1969 (3) Supreme Court Cases 238 at special page 239, wherein it is among other things held that '... Mere repetition of the words of statute does not amount to a proper statement of facts. The material facts of the corrupt practices must be stated in petition and if they are missing, it is impossible to think that the charge has been made or can be amplified later.' Also that, in the aforesaid decision, at page 250, at paragraph 27, it is observed that '...... To get the benefit of not having to prove the affect of the corrupt practice upon the election the consent of the candidate or his election agent to the alleged practice will have to be established.' 6.22. The Learned Senior Counsel for the 1st Respondent refers to the decision of the Hon'ble Supreme Court in Ramakant Mayekar V. Celine D'Silva, (1996) 1 Supreme Court Cases 399 at special page 400, wherein it is held that 'The requisite consent of the candidate cannot be assumed merely from the fact that the candidate belongs to the same political party of which the wrongdoer was a leader since there can be no presumption in law that there is consent of every candidate of the political party for every act done by every acknowledged leader of that party. The corrupt practice for which a candidate can be held vicariously guilty for an act of any other person who is not his agent in whose favour general authority is presumed, must be pleaded and proved to be with the consent of the candidate.' 6.23. The Learned Senior Counsel for the 1st Respondent cites the decision of the Hon'ble Supreme Court in Mulayam Singh Yadav V. Dharam Pal Yadav and Others, (2001) 7 Supreme Court Cases 98 at special page 99 wherein it is observed that 'The 'schedule' was an integral part of the petition and since the original video cassette had not been filed along with the copies thereof, the petition was incomplete and in non-compliance with Sections 81 and 83 of the Representation of People Act, 1951'.
6.24. The Learned Senior Counsel for the 1st Respondent seeks in aid of the decision of the Hon'ble Supreme Court in Jeet Mohinder Singh V. Harminder Singh Jassi, (1999) 9 Supreme Court Cases 386 at special page 388, wherein it is observed as under:
Material facts and particulars as to commission of corrupt practice are required to be given in the election petition and not in the replication filed much after the expiry of the period of limitation for filing election petition. The material facts and particulars alleged for the first time in the replication and not forming part of the averments made in the election petition cannot be tried and cannot be made the subject-matter of issues framed by the Court. (Para 45) In the present case, firstly, the respondent does not have an opportunity of denying the averments-- whether facts or particulars, introduced for the first time in replication. Secondly, material facts and particulars as to corrupt practice are required to be supported by an affidavit in the prescribed pro forma. The replication is not supported by any affidavit in the prescribed pro forma. The Designated Election Judge was, therefore, justified framing the issues only by reference to the averments made for the first time in the replication. (Para 45) 6.25. The Learned Senior Counsel for the 1st Respondent relies on the decision of this Court in R.S.Raja Kannappan V. K.R.Periakaruppan and Others reported in (2015) 5 L.W. 306 at special page 307, wherein it is observed as under:
28. Perusal of the above provision would make it clear that the election petition should contain concise statement of material facts and full particulars of any corrupt practice that the election petitioner alleges including a full statement as possible of the names of the parties alleged to have committed corrupt practice and the date and place of commission of such practice. Therefore, it is evident that mere reproducing the term 'corrupt practice' in the pleading is not sufficient but on the other hand, full material facts with particulars with specifications should be stated by the election petitioner.
30. Perusal of the above said provision would show that any assistance obtained or procured or abetting or attempting to obtain or procure by a candidate or his agent or by any other person from any person whether or not in the service of the Government and belonging to the classes referred to therein for the furtherance of the prospects of the candidate of the election, is deemed to be a corrupt practice. Needless to say that when such serious allegation of corrupt practice is made in an election petition, it is the bounden duty of the election petitioner to prove such allegation beyond any reasonable doubt, as it involves the reputation of not only the contesting candidate against whom such allegation is made but also that of the responsible officials of the Government. Thus, election petitioner, apart from giving full particulars of such corrupt practice, has to prove the same by adducing material evidence. 6.26.The Learned Senior Counsel for the 1st Respondent cites the decision of the Hon'ble Supreme Court in Azhar Hussain V. Rajiv Gandhi reported in 1986 (Supp) Supreme Court Cases 315, wherein it is held as under:
All the facts which are essential to clothe the petition with complete cause of action must be pleaded and failure to plead even a single material fact would amount to disobedience of the mandate even a single material fact would amount to disobedience of the mandate of Section 83(1)(a). An election petition therefore can be and must be dismissed if it suffers from any such vice. 6.27. The Learned Senior Counsel for the 1st Respondent submits that non production of the evidence produced by the Petitioner along with the Election Petition can be relied upon as they are lacking in material details. Furthermore, the 1st Respondent or his agent were not engaged in any illegal acts or corrupt practices as averred by the Election Petitioner in his Election Petition. Therefore, the Election Petition filed by the Petitioner is not maintainable in Law and on Facts.
Analysis:
7.At this juncture, this Court significantly points out that Section 83 of the Representation of the People Act, 1951 is undoubtedly mandatory in nature. Further, it requires not only a concise statement of material facts and full particulars of the alleged corrupt practice, with a view to project full and comprehensive scenario of the action to be mentioned in the Election Petition. Besides this, the proviso to Section 83(1) of the Act speaks of an Election Petition levelling allegation of corrupt practice is required by law to be supported by an affidavit in which the Election Petitioner is obliged to disclose his source of information in regard to the perpetration of that corrupt practice. As a matter of fact, an Election Petitioner while levelling necessary allegations against the opponent is to own up responsibility for making of such allegations/charges and in any event, a returned candidate ought not to be taken by surprise.
8. It cannot be gainsaid that Section 83 of the Representation of the People Act, 1951 specifies a difference between Material Facts and Material Particulars. The difference between Material Facts' and 'Material particulars is not to be taken easily because of the reason that altogether different consequences may arise from the deficiency of such facts or particulars pertaining to a pleading.
9.The term Material Facts is neither defined under the Representation of the People Act, 1951 nor in the Civil Procedure Code. According to Burtons Legal Thesaurus (3rd Edition) at page 349, the meaning of material means Cardinal fundamental, crucial, indispensable, decisive, elementary or primary. In brief, the Material Facts are facts upon which the Petitioner/Plaintiffs cause of action or the defense of the Respondent/Defendant depends upon what could be classified/termed as Material Facts would depend upon the facts of a given case. No wonder, a rigid application in this regard cannot be prescribed.
10.It cannot be forgotten that all primary and basic facts which are necessary should be established during the trial by a litigant to prove the existence of a cause of action or defense or material facts and must be averred in the pleading. In relation to an allegation of corrupt practice, the words Material Fact would mean that all the essential facts constituting the ingredients of the particular corrupt practice alleged, which the Petitioner is bound to substantiate before he can come out successfully on that charge.
11.Furthermore, in an Election Petition, a certain fact is material or not and therefore, the same whether is to be pleaded, is an issue which centers around the nature of allegation levelled, the ground relied upon and the special circumstances of the case. However, the particulars are the one relates to the details of the case projected by a litigant, material particulars within the purview of Section 83(1) of the Representation of the People Act, 1951 would therefore mean all requisite details which are essential to define and embellish the material facts already pleaded in the Petition, in satisfaction of the requirement of Section 93(1)(a). The particulars are not only informative but would not take the other side quite unaware. If detailed information is given in a pleading of a litigant, then, it will provide an atmosphere for the conduct of a Fair Trial of an Election Petition.
12.In determining an issue whether the Election Petition contains a concise statement of material facts on which the Petitioner places reliance, a Court of Law is to assume, for this purpose that the averments contained in the Election Petition are true. As long as the relief sought for by the Petitioner in an Election Petition discloses some aspects of cause of action and the same is to be adjudicated by a concerned Court, the fact that the case is not likely to succeed or the same is weak cannot be a ground for dismissing the Petition.
13.Indeed, the failure of the pleadings to point out a reasonable cause of action is different from the absence of 'Full Particulars'. A careful scrutiny of the ingredients of Section 83(1)(A)(b) are like that of Order VI Rule 2 & 4 coupled with Order VII Rule 1(e) of the Civil Procedure Code. In reality, 'Material Facts' and 'Particulars' which constitute the facts to be established or the facta probanda on the one side, the evidence by which the said facts are to be established 'Facta' 'Probantia' on the other side ought to be borne in mind by a person to know the difference.
14.It is to be noted that as per Order VII Rule 11(a) C.P.C. if an Election Petition does not disclose a 'cause of action', an Election Petition can be rejected by the Court concerned. If the pleadings mentioned in an Election Petition are frivolous, vexatious or scandalous one, then, as per Order VI Rule 16 C.P.C., the same can be struck off, in the considered opinion of this Court.
15.No wonder, it may not be out of place for this Court to make a pertinent mention that in the decision Bruce and Odhams Press Limited, reported in 1936 1 K.B. at page 699, Scott L.J. referred to Phillips V. Phillips ((1878) 4 QBD 127) observed as follows:
The cardinal provision in Rule 4 is that the statement of claim must state the material facts. The word 'material' means necessary for the purpose of formulating a complete cause of action; and if any one 'material' statement is omitted, the statement of claim is bad; it is 'demurrable' in the old phraseology, and in the new is liable to be 'struck out' under R.S.C. Order 25 Rule 4 (see Phillips V. Phillips); or ' a further and better statement of claim' may be ordered under Rule 7.
16.In so far as the 'Function of Particulars', the same is quite different and the role of the particulars is to fill up the case of the Petitioner's cause of action with information adequately mentioned to place the Respondent on guard as to the case he is to meet and consequently, to enable him to get ready trial. The legal position is that an Election Petition cannot be dismissed ex facie for 'want of particulars'. However, if the Court concerned opines that certain particulars are necessary, an opportunity ought to be given to the Petitioner to amend the petition and to include the particulars.
17.It may not be out of place for this Court to make a significant mention that the ingredients of Section 86(5) of the Representation of the People Act, 1951 enjoins the High Court to permit the particulars of any corrupt practice averred in the Petition to be either amended or amplified, subject to the condition that the amendment does not have the effect of widening the ambit of the Election Petition by introducing particulars of corrupt practice not earlier pleaded.
18.To put it succinctly, only the particulars of corrupt practices which were furnished in the Election Petition earlier can be amended or amplified and there cannot be any introduction of any new corrupt practice. It is a sine qua non that there is a distinction between material facts referred to in clause (a), particulars referred to in clause (b) and what Section 86(5), allows is the amendment amplification of the latter and not the former. Therefore, the power of amendment given by the Section 86(5) of the Representation of the People Act, 1951 is relatable to clause (b) of Section 83(1), and is coupled with a prohibition viz., the amendment will not relate to a corrupt practice not already pleaded in the Election Petition. As a matter of fact, the power is not relatable to clause (a) of Section 83(1) of the Representation of the People Act, 1951, as the plain language of Section 86(5), confines itself to the amendments of particulars of any corrupt practice averred in the petition and does not extend to Material Facts.
19.It cannot be forgotten that the power to allow further and better particulars will include a power to allow a fresh witness of the charges, which form the grounds for challenging the election. The word Matter is not to be given a narrow meaning so as to mean the same thing as particulars, as per decision in Harish Chand Bajpai V. Triloki Singh reported in AIR 1957 SC 440. It is to be pointed out that since an Election Petition is permitted by the Tribunal to be amended, the petition which has been amended, would, from the date of amendment, be the only petition before the Court.
20.Coming to the aspect of the Verification of Pleadings and Affidavit filed in support of the pleadings, it is to be pointed out that both are quite different. An affidavit is stand alone document and not forms part of verification, as per decision of the Hon'ble Supreme Court in G.M.Siddeshwar V. Prasanna Kumar, AIR 2013 SCC 1549. Also, if a verification was made para-wise after affixing signature, affidavit filed describing that statements made in petition were true to the knowledge of the Petitioner and if the Election Petition contain material facts constituting 'cause of action', the Petition filed was duly verified and affidavit in accordance with Rule 94-A Form 25 was duly complied with, then, there is a mandatory compliance of the ingredients of Sections 81, 82 and 117 of the Representation of the People Act, 1951.
21.Moreover, as per Section 83(1)(c) of the Representation of the People Act, 1951, the verification of the petition must be as per Order VI Rule 15 C.P.C. The aim of requiring verification of an Election Petition is clearly to determine the responsibility for the averments and allegations made in the petition on an individual signing the verification and, at the same time, discouraging wild and irresponsible allegations unsupported by facts, as per decision F.A.Sapa V. Singora, AIR 1991 SC 1557. As far as the Civil Procedure Code is concerned, the defect in verification is not fatal and that omission of verification or wrong verification is merely an irregularity and not an illegality, in the considered opinion of this Court. Also, a defect reflecting in 'copy of affidavit' served on the Respondent would be of little consequence. It is to be pointed out that the High Court while dealing with the Election Petition retains the status of a Court and inherent powers are available to it.
22.In this connection, it may not be out of place for this Court to make a pertinent mention that Section 83(1)(c) of the Representation of the People Act, 1951 clearly mentions that the verification should be carried out in the manner prescribed in the Civil Procedure Code by an Election Petitioner. An affidavit filed as per Order VI Rule 15 C.P.C. does not mean that the verification of the Petition is an incomplete one, if an affidavit was not filed. Indeed, the aspect of 'Additional Affidavit' is not to be found in Section 83(1)(c) of the Representation of the People Act, 1951.
23.It is to be remembered that the requirement of also filing an affidavit in support of pleadings filed under the CPC may be mandatory in terms of Order VI Rule 15(4) C.P.C., the affidavit is not a part of the verification of the pleadings. To put it precisely, both are different. In fact, Section 83(1)(c) of the Representation of the People Act, 1951 merely requires an Election Petitioner to sign and verify the contents of the Election Petition in the manner prescribed by the C.P.C. Also that, there is no requirement of the election petitioner also filing an affidavit in support of the averments made in the Election Petition except when allegations of corrupt practices have been made. As a matter of fact, the filing of two affidavits is not warranted by the Representation of the People Act, 1951. Also, it is not necessary to file the two affidavits, especially when a 'Composite Affidavit' can achieve the expected result.
24.Indeed, a reading of the ingredients of Section 83 of the Representation of the People Act, 1951 unerringly points out that only a verification and not an affidavit in support of the allegations made in Election Petition is required, except when the allegations of corrupt practices are made by the Election Petitioner. That apart, an Election Petition is one document consisting of the Election Petition proper and the affidavit referred to Section 83(1) proviso. Furthermore, an affidavit as per Section 83 of the Representation of the People Act, 1951 must be in prescribed form. As per Section 94-A and Form 25 of the Conduct of Elections Rules, 1961, it would suffice for the Petitioner to aver that the statement made are true to his knowledge as per decision of the Hon'ble Supreme Court in K.M.Mani V. P.J.Antony, AIR 1979 SC 234. Without 'Affidavit', an Election Petition cannot be treated as a complete Election Petition within the meaning of the term specified in Section 81(3) of the Representation of the People Act, 1951 because of the requirement of the affidavit mentioned in Section 83(1)(b), Proviso, being a mandatory one, as per decision Rameshwar Dayal Arale V. Munna Singh Bhadoria, AIR 1992 M.P. 161.
25.It is to be pointed out that the Representation of the People Act, 1951 is a self contained and complete code within which any rights sought for in relation to an election or an election dispute should be found to the extent as permissible by Section 87 of the Representation of the People Act, 1951. The provisions of Civil Procedure Code are applicable. A scheme of the Representation of the People Act, 1951 would expect that an election can be questioned, provided by Section 80 on the grounds mentioned in Section 100 of the Representation of People Act, 1951. Section 83 of the Act postulates that an Election Petition shall contain a concise statement of material facts and set forth full particulars of corrupt practice. No wonder, the pleadings are regulated by Section 83 and it is incumbent on the part of the Election Petitioner to furnish the requisite facts, details and particulars with exactitude. Allegations of corrupt practice are like criminal charges and therefore, there ought to be no opaqueness/vagueness in the allegations because of the reason that the Returned Candidate is to know the case he is to encounter.
26.Furthermore, a 'Cause of Action' is a bundle of facts which taken together with the Law applicable, confers on a litigant a right to seek relief against the opposite party. The words 'cause of action' means every fact which plaintiff will have to establish if traversed in order to obtain his right but not every piece of evidence, as opined by this Court. Admittedly, the 'cause of action' should be antecedent to the filing of petition/suit, in the earnest opinion of this Court. In a restricted sense, 'cause of action' means the circumstances forming the infraction of the right or the immediate occasion for the action. In a larger sense, it means the necessary conditions for the maintenance of the suit/petition including not only the infraction of right but the infraction coupled with the right itself. Every fact which is essential to be proved, as distinguished from every piece of evidence which is necessary to prove each fact, comprises 'cause of action'. Of course, it is to be decided in a given set of facts of an individual case as to where the cause of action accrues. Also, 'cause of action' means an action for which the Defendant/Respondent is answerable to the competent/ concerned Court. It is to be mentioned that failure of pleadings to disclose a reasonable cause of action is distinct from the absence of full particulars.
27.It is to be pointed that dismissal of Election Petition in limine is not permissible on the ground of defect in verification of Election Petition or affidavit accompanying such petition, because of the reason the said defect is incurable. Even if the said defect is not rectified or set right by the Petitioner concerned before the trial of the main Election Petition, then, the same can be taken into consideration at the time of final disposal of the main Election Petition. Also that, in a given case, if the Election Petitioner furnishes necessary details which he ascertained and if the said details raise contentious and triable issues, they are to be decided necessarily based on oral and documentary evidence to be let in by the concerned parties, in that event also, the Election Petition cannot be dismissed at the threshold. In so far as the statement of the Election Petitioner that the details furnished by him in the Election Petition were due to the best of his knowledge is efficient verification, as opined by this Court. Undoubtedly, the primordial importance of verification and desirability of furnishing statement of correct facts of any petition lies on the shoulders of the Petitioner and any casual or inept attitude, in this regard, ordinarily cannot be countenanced.
28.At this stage, this Court aptly points out the decision of the Hon'ble Supreme Court in Kamalnath V. Sudesh Verma reported in AIR 2002 SC 599 wherein it is observed that 'If an Election Petition alleging corrupt practice had accompanied affidavit mentioning the particulars of corrupt practice, then, such petition is not liable to be dismissed at the inception for want of source of information of the deponent'.
29.It is to be noted that an Election Petition cannot be rejected at a primary stage on the ground that it does not contain a concise statement of material facts, as per decision Ashwani Kumar Sharma V. Yaduvanshi Singh reported in AIR 1999 SC 337.
30.It is to be pertinently pointed out by this Court that the 'Rules of Pleadings' are meant as lending aid for the conduct of comprehensive/fair/complete trial and to arrive at a proper decision. In fact, an 'action at Law' ought not to be equated/compared with the game of chess. It is to be borne in mind that the ingredients of relevant provisions of a particular act/enactment are not meant to be followed and implemented as regular rituals in a function. Behind the legal provisions, there lies a 'juristic concept and principle' which is to be found out and followed in true letter and spirit by the concerned Court.
31.It cannot be gainsaid that an Election Petition is liable to be dismissed in limine under Section 86(1) of the Act only if the Election Petition does not comply with either the provisions of Section 81 or Section 82 or Section 107 of the Act. Indeed, the specification of filing an affidavit along with an Election Petition in the prescribed format, in support of the averments of corrupt practice is contained in Section 83(1) of the Act. As such, an Election Petition is not liable to be dismissed in limine under Section 86 of the Act, for alleged non compliance with the provisions of Section 83(1) of the Act or of its proviso.
Finding:
32.Be that as it may, in the upshot of detailed qualitative and quantitative discussions and also on considering the respective contentions, this Court, on going through the averments made in the Election Petition, is of the considered view that the Election Petition do contain enough statement of 'Material Facts' and 'Particulars' on which the allegations were made and resultantly, this Court holds that the Election Petition filed by the Petitioner is maintainable both in Law and on Facts and answered accordingly.
33. Issue No.1:
Whether the 1st Respondent has committed corrupt practice within the meaning of Section 123(1)(A)(b) of the Representation of the People Act, 1951?
34.Submissions of the Election Petitioner:
(a) Money Distribution at Eswari Hospital:
34.1. The Learned Senior Counsel for the Petitioner submits that the Petitioner, in his Election Petition, at paragraph 47, had averred that his party worker Vetrinagar K.Sundar and other party workers saw the distribution of money on 24.03.2011 at 3.30 p.m. by the 50th Divisional Secretary one Panneerselvam, DMK party Youth Wing in-charge and that V.Muralidharan, District Representative, Turner Murali, Giriraja, Tamilmani from Eswari Hospital premises situated at S.R.P.Colony, 10th Street, Ramana Nagar, Chennai 82 to more than 50 Self Help Group members and that the said distribution of money to the Self Help Group and its members were made systematically throughout the Kolathur Constituency, to secure the votes in favour of the 1st Respondent.
34.2. The Learned Senior Counsel for the Petitioner contends that the Petitioner, in paragraph 48 of his Election Petition, had averred that upon intimation being given by the Petitioner's party workmen Vetrinagar Sundar and Poompuhar Mahalingam on 24.03.2011, 16 women members of different Self Help Groups were caught red handed by the flying squad and the Tahsildar, and that the said event was also video graphed. Also that, the lady members, who caught red handed in the Eswari Hospital premises on 24.03.2011, gave statements to the Police to the effect that they had received money from the 1st Respondent's party functionaries for the benefit of its members and to distribute the same to the voters of their respective areas with a view to secure the votes polled in favour of the 1st Respondent and in fact, the Police had not pursued any action in regard to the incident at Eswari Hospital due to the instruction of the 1st Respondent through the superior Police officials.
34.3. The Learned Senior Counsel for the Petitioner takes a stand that at the time of distribution of money at Eswari Hospital in a black and white fashion, the DMK party workers involved in the distribution of money on 24.03.2011 called the 1st Respondent and suddenly, the Assistant Police Commissioner one Subba Rao, who came with a Police team literally prevented further enquiry being conducted and allowed them to go scot free. Further, it is represented on behalf of the Petitioner that no further action was taken and that media was also not entered into the Hospital. Moreover, it is the submission of the Learned Senior Counsel for the Petitioner that from the information received from Vetrinagar Sundar and his party workers, the Assistant Commissioner and other Police officials accompanied him had evinced interest to protect the 1st Respondent party functionaries.
34.4. The Learned Senior Counsel for the Petitioner vehemently come out a plea that Vetrinagar Sundar filed W.P.No.8311 of 2011, since no action was taken by the Chief Electoral Officer, Chennai in regard to his representation addressed to the Chief Electroral Officer dated 24.03.2011, narrating all the events that took place and in fact, the said Vetrinagar Sundar, Poompuhar Mahalingam and other AIADMK party workers who were worked on behalf of the Petitioner saw the illegal act of distributing money to the voters, in order to secure their votes in favour of the 1st Respondent and in short, the act of the 1st Respondent's party workers (mentioned in paragraph 47 of the Election Petition) in bribing the voters and the Self Help Group members would amount to an act of corrupt practice.
34.5. The Learned Senior Counsel for the Petitioner refers to the evidence of P.W.1 (Election Petitioner) wherein he had stated that it was pointed out to the officials that monies were distributed to 50 persons in a Hospital, the officials from the Election Commission used to take video and make note of the same, however, no action was taken by them. He also points out the evidence of P.W.1, who had deposed that in Eswari Hospital money was given to women Self Help Groups to be distributed to the voters and that soon after receipt of message, the election officials, flying squad and police were informed and he went in person to the Eswari Hospital along with his party workers and that his party Secretary Vetrinagar Sundar asked the police to let him into Hospital, but the police delayed his entry and that the flying squad took video of what happened in Eswari Hospital and that the said CD was filed before this Court along with the Election Petition.
34.6. The Learned Senior Counsel for the Petitioner submits that P.W.1 (in his cross examination) had stated that on viewing the CDs recorded by the election officials one would know about the transfer of election officials.
34.7. The Learned Senior Counsel for the Petitioner refers to the evidence of P.W.1 (in cross examination) wherein he had stated that he was in a car in a street next to Eswari Hospital at the time of incident which took place at 3.30 p.m. on 24.03.2011, as mentioned in paragraphs 47 and 48 of his Election Petition. Further, the Learned Senior Counsel for the Petitioner points out to the evidence of P.W.1 wherein he had stated that Poompuhar Mahalingam was present when the statements from the lady members, who were caught red handed in the Eswari Hospital premises were recorded and that the said Mahalingam informed him about this matter.
34.8. Besides the above, the Learned Senior Counsel for the Petitioner refers to the evidence of P.W.1, who had stated that he was not present on 24.03.2011 when the DMK party workers were involved in the distribution of money etc. and that his party man Poompuhar Mahalingam informed about the incident of 24.03.2011.
34.9. The Learned Senior Counsel for the Petitioner submits that P.W.1, to a question that the Police had delayed his party Secretary viz., Vetrinagar Sundar's entry into the Eswari Hospital, had answered that in short content form, he had mentioned it in his Election Petition.
34.10. The Learned Senior Counsel for the Petitioner submits that P.W.2 (Poompuhar Mahalingam) in his evidence had stated that he personally saw money being given by the 1st Respondent's party men to the Self Help Groups to be distributed to the voters on the instructions of the 1st Respondent in Eswari Hospital, Kolathur and that he went to Kolathur on 24.03.2011 to see the Election Petitioner and that about 120 women were standing outside the entrance of Eswari Hospital and that about 25 men wearing white dhotis with DMK party colour borders were also standing with them and he stood outside the Hospital and from the 150 women, who were standing there, he called two of them separately and enquired as to what was happening in the Hospital and that the said two women informed him that the 1st Respondent's men were giving money to the women Self Help Groups to be distributed to the voters and lure them to vote for the DMK in the symbol of 'Rising Sun' and after that, he stood in a corner of the Hospital to know what was happening and found that all the women of Self Help Groups, who were coming out of the Hospital, had bundles of money in their hands and that after the people came from inside the Hospital, the women were standing outside went in and only after coming and confirming 15 women came out with bundles of money, he called the Election Petitioner and informed him that on the instructions of the 1st Respondent, the 1st Respondent's men were distributing money among the women of the Self Help Groups in Eswari Hospital, Kolathur to be distributed to the voters.
34.11. The Learned Senior Counsel for the Petitioner points out the evidence of P.W.2 that he was asked by the Election Petitioner (P.W.1) to stay out there and that he would inform the flying squad as well as his party men and when he attempted to enter the Hospital, two policemen and two DMK party functionaries wearing white dhotis with DMK colour borders chased him away and on suspicion, the police men and DMK party men were trying to send the women inside from the Hospital quickly.
34.12. The Learned Senior Counsel for the Petitioner submits that P.W.2 in his evidence had deposed that from the first floor of the Hospital four black bags were thrown out by the people, who were distributing money inside and that the zip of one of the bags opened and that money came out of the bag and in the meanwhile, the election flying squad arrived at the Hospital and he informed them that the money was thrown out from bags at the backside of the Hospital and asked them to go there immediately and seize them.
34.13 The Learned Senior Counsel for the Petitioner refers to the evidence of P.W.2, who had stated in his evidence, that the gate was kept locked and the flying squad asked them to open the gate and went inside and when he went inside along with them one photographer came along with the flying squad and that the flying squad enquired the employees of the Hospital and they said that they were not aware of any money distributed to the Hospital and immediately, the flying squad members said that they wanted to search the Hospital and that the Hospital Authorities opened each of the rooms in the ground floor to the flying squad and the same was video graphed and that the flying squad caused an enquiry with the employees as to who were there in the first floor for which the employees informed the flying squad that the first floor was locked and no one was there and immediately, the flying squad went to the first floor and that the grill gate of the first floor was bolted from inside and that the flying squad knocked the door and a woman opened it and that the flying squad told the woman that they had got information about the money being distributed and asked the woman as to who was inside the first floor for which, the woman answered that no one was there.
34.14. The Learned Senior Counsel for the Petitioner takes a stand that P.W.2 in his evidence had stated that the flying squad told the woman to open the rooms as they wanted to search the Hospital and that the flying squad searched all the rooms when the woman opened the doors, no one was inside the rooms and then the flying squad asked the woman on the first floor as to who was in the second floor, for which, the woman replied that no one was in the second floor and that was locked and again when the flying squad searched the second floor, the second floor was locked and that all this was being video graphed by the videographer and that the flying squad people instructed the woman in the first floor to open the second floor and she went down stairs to bring the keys and on opening the second floor entering the same, the flying squad saw two more women there and when the flying squad people enquired them as to who they were and what they were doing, the woman informed the flying squad that they were Hospital Employees and that the flying squad asked them about the room and the two women opened one of the rooms and that the flying squad went into the room, but found nothing.
34.15. Further, on the side of the Petitioner, a reference is made to the evidence of P.W.2 that when the flying squad asked the women as to what was in the other room, they did not answer and the two women inside the room opened the door and the people from the flying squad enquired men as to who they were and what they were doing, but they remained dumb folded and that one of them told that his name was Panneerselvam and he was the Circle Secretary of the DMK and the other person wearing a dhoti with DMK party colour border remained silent and that the flying squad asked both the persons inside to come out and both of them came out of the room and stood outside and upon a search being made by the flying squad in the room, they found nothing and that inside the room, there was a locked door and that the flying squad asked about the locked door, but there was no one to answer and that the flying squad called Hospital employee and asked him to open the locked door and about 15 to 16 women who were ashamed to show their faces had covered their faces and were hiding behind a bureau and under a cot and the women were reluctant to come out side on being asked by the flying squad police to come out and after pacifying them, they came out one by one and when they came out, Panneerselvam (Circle Secretary) who was standing outside the door, warned the women not to disclose that they came to receive money or they would be imprisoned and that all the women came out of the room.
34.16. The Learned Senior Counsel for the Petitioner submits that why should women sit under the cot, hide their faces, come out one by one and in fact, they had not gone there for some treatment or for any function.
34.17. The Learned Senior Counsel for the Petitioner points out the evidence of P.W.2 that flying squad people enquired the women in the second floor (who came out of the room) and when the Sub Inspector of Police of the flying squad caused an enquiry with the woman about their names and addresses, they were not able to reply and they were also crying and when the police enquired the women as to what for they came to Eswari Hospital and who had called them, one of them answered that she was brought by their group leader and that one of the women from the group told the police on the 1st Respondent's instructions, his men had asked the women of the Self Help Groups to come there, to receive money and to distribute money among the voters and at that time, the Assistant Commissioner of Police came there with the flying squad and was present throughout the search, but he had not evinced any interest and was talking over the phone all along.
34.18. The Learned Senior Counsel for the Petitioner refers to the evidence of P.W.2, who had stated in his evidence that when the interrogation of the women was on, the Assistant Commissioner of Police asked the Sub Inspector of Police as to what was being enquired into and that the Sub Inspector of Police informed the Assistant Commissioner as to the enquiry made by him and that immediately the Assistant Commissioner of Police asked the woman to leave and that P.W.2 asked the Assistant Commissioner of Police that when the flying squad was conducting an enquiry, he asked him as to who was he to question him, for which, he replied that he belonged to the party of the Election Petitioner (P.W.1) and that the Police officer to get out of the Hospital and then he came out.
34.19.Moreover, the Learned Senior Counsel for the Petitioner also refers to the evidence of P.W.2 to the effect that he was aware that in general, each Self Help Group has a particular kind of Saree and each group choose and wear it to their liking and from out of the 150 women, the two women, he spoke to, told him that they belong to Self Help Groups, but they had not informed him to which Self Help Groups they belong to, but they informed him that they belong to Self Help Groups and they came their to receive money.
34.20.The Learned Senior Counsel for the Petitioner adverts to the evidence of P.W.2 who had stated that he saw the women going into the Hospital which was a true one and that the Election Petitioner (P.W.1) had not come to the Eswari Hospital when the flying squad came there and it was true that he only saw the women, they were coming out with money from the Eswari Hospital.
34.21.The Learned Senior Counsel for the Petitioner refers to the evidence of P.W.2, who had stated that he only say that black bags filled with money were thrown from the first floor and that he does not remember whether they were thrown out from the window or through the entrance and the bags fell out of the first floor on the ground near the compound wall and there were about 20 to 30 DMK party men and few women standing nearby and further he could not say whether the black bags fell out of a window or balcony and that black bags were taken by the DMK party men standing nearby and he saw the money spilling out from one of the four black bags thrown out with zip opened.
34.22.The Learned Senior Counsel for the Petitioner points out to the evidence of C.W.2, who had deposed that Ex.C8 was the original CD of the video footage dated 24.03.2011 taken at Eswari Hospital. Further, the Learned Senior Counsel for the Petitioner refers to the evidence of C.W.2, who had deposed (in his cross examination) that his office clerk made the green markings on the slips kept with the CDs marked as Exs.C8 to C15 series. Also, C.W.2 in his evidence had stated that it was not marked on the CD Ex.C8 that it is the video footage taken at the Eswari Hospital and further, he had deposed that since the address written on the CD correlates with the abstract of records with the place where Eswari Hospital was located, he says that Ex.C8 is the video footage taken at Eswari Hospital.
34.23.The Learned Senior Counsel for the Petitioner contends that R.W.3 (1st Respondent) in his evidence (during cross examination) to a query that in Ex.C8 CD recorded on 24.03.2011 in timings 15:46:06 to 15:55:00, women of the Women Self Help Groups sitting inside a locked door, leaving the room hiding their faces, the police and the flying squad investigating inside the premises of the Eswari Hospital, had answered that these incidents could have happened, but he denied that this was done for the DMK party or for him in the 2011 Assembly Elections.
34.24.The Learned Senior Counsel for the Petitioner points out that in Ex.C8 CD, Advocate Girirajan, who campaigned for the 1st Respondent (R.W.3), is seen and further, the Proprietor of Eswari Hospital, DMK party functionary Panneerselvam, Tahsildar, Police were all there.
34.25.The Learned Senior Counsel for the Petitioner contends that the non examination of Panneerselvam DMK party functionary, Advocate Girirajan by the 1st Respondent's side would draw an adverse inference on his side. Further, it is represented on behalf of the Petitioner, if the aforesaid Panneerselvam and Girirajan were examined, by the 1st Respondent side, then, they would assist the Court. Further, in the present case, the evidence of P.W.1, P.W.2 coupled with Ex.C8 (CD) stands unrebutted.
34.26.The Learned Senior Counsel for the Petitioner points out that C.W.2, in his evidence, had deposed that he had brought the original CDs (15 numbers) sought to be produced in Item Nos.1 to 8 in Application No.695 of 2015 and these CDs were already available in his office and they were maintained by the earlier Returning Officer (Mr.M.Rajarathinam) of Kolathur Constituency during the Assembly Elections 2011.
34.27.The Learned Senior Counsel for the Petitioner submits that C.W.2's evidence pertaining to identification of CD Ex.C8 was corroborated by the evidence of C.W.3, who had deposed that it was correct to state that during Assembly Elections 2011, he video graphed the election campaigns, meetings, processions etc. and that the earlier then Returning Officer of Kolathur Constituency viz., M.Rajarathinam viewed the video himself and kept it under his personal custody in the office. Further, C.W.3 had deposed that the people, who were engaged to take videos, would hand over the same to the Returning Officer, who viewed them and he kept them in his personal custody in the office and further that, the CDs would be maintained as a permanent record even after the completion of election process.
34.28.The Learned Senior Counsel for the Petitioner refers to the evidence of R.W.3 (1st Respondent) to the effect that on reading the Newspaper/Magazines, he came to know that the Election Commission had arranged for videography to shoot critical events and further, he had stated in his counter that his party had scrupulously followed the rules and guidelines of the Election Commission.
34.29.The Learned Senior Counsel for the Petitioner refers to Ex.C20 Instructions on Expenditure Monitoring in Elections (of the Election Commission of India) wherein in Para I, at paragraph 4.4.1 under the head 'Video Surveillance Teams', it is mentioned that '... The Video Surveillance Team, at the beginning of the shooting shall record in voice mode the title and the type of the event, date place and the name of the party and candidate organizing the event'. Further, it is represented on behalf of the Petitioner that the said Team will capture the video in such a way that the evidence of each vehicle, its make and Registration Number, Furniture, Rostrum, Banner, Cut out etc. can be clearly seen and the expense thereon can be estimated. Also that, in Ex.C20, paragraph 4.4.3 is also referred to on the side of the Petitioner which speaks of 'The video surveillance team shall prepare a Cue Sheet at the time of recording in the format given in Annexure 7 and this Cue Sheet should be given to the viewing team along with the recorded CD and should always be kept with the CD'. That apart, the video CDs captured by the Video Surveillance Teach shall be viewed by the Video Viewing Team daily for identifying expenditure related issues and MCC related issues (vide 4.5).
34.30.The Learned Senior Counsel for the Petitioner submits that according to the Petitioner (P.W.1) on 24.03.2011 there was an incident at Eswari Hospital by 3.30 p.m. a woman Self Help Group was there, but the DMK party functionaries viz., Panneerselvam and Advocate Girirajan were there to be used as conduit to induce the voters and that the Petitioner has made out a case for corrupt practice based on probabilities and on averments.
34.31.The Learned Senior Counsel for the Petitioner contends that to have a direct evidence in respect of an allegation of corrupt practice, it is next to impossibility and the consent of the Returned Candidate can be inferred through a circumstantial evidence. Furthermore, it will be a secret affair and the incident on 24.03.2011 speaks for itself.
34.32.The Learned Senior Counsel for the Petitioner submits that inferences can be drawn through circumstantial facts and in the Eswari Hospital on 24.03.2011 members of women Self Help Groups were used and that Panneerselvam and Girirajan were there in the Hospital and they might have even gone there casually. But, there is no necessity for them to go to Eswari Hospital by chance and they were there with a purpose.
34.33.The Learned Senior Counsel for the Petitioner brings it to the notice of this Court that why women Self Help Group people hide their faces and come one by one and that they had not gone to the Hospital for treatment or for a function and as such, an inference can be drawn.
34.34.The Learned Senior Counsel for the Petitioner submits that Panneerselvam and Girirajan of DMK party could have given evidence before this Court as a person seen in Ex.C8 were not Self Help Group people, but they were not examined as witnesses on 1st Respondent's side.
34.35.The Learned Senior Counsel for the Petitioner, in short, projects an argument that in Eswari Hospital on 24.03.2011 the incident took place and the same was a direct consequence and not a surprise by any means whatsoever.
35. 1st Respondent's Reply:
35.1. The Learned Senior Counsel for the 1st Respondent contends that as regards as the money distribution at Eswari Hospital, there is no pleading that money was distributed with the consent of the 1st Respondent. Furthermore, it is represented that for Ex.C8 - CD [Original footage dated 24.03.2011], there is lack of certification under Section 65-B of the Indian Evidence Act.
35.2.The Learned Senior Counsel for the 1st Respondent points out that the 1st Respondent in his counter to the main Election Petition had stated that he filed his nomination only on 22.03.2011 and that he was declared as the party candidate only on 28.03.2011 after 3.00 p.m. and therefore, the alleged incident that on 24.03.2011 some of the DMK workers distributed money to more than 50 Self Help Group members in Kolathur Constituency could not be believed and further, according to the 1st Respondent, no such incident took place at any point of time and neither he nor his agent or representative had indulged in any corrupt practice including distribution of money to voters.
35.3.The Learned Senior Counsel for the 1st Respondent proceeds to take a stand that the Petitioner in his Election Petition had not furnished any details to show any nexus between the 1st Respondent, his agent and the said women members.
35.4.The Learned Senior Counsel for the 1st Respondent refers to the evidence of C.W.2 who had stated in his evidence that he was able to identify the CDs as they were already labelled.
(b)Distribution of Money at Railway Institute:
36.Petitioner's Submissions:
36.1.The Learned Senior Counsel for the Petitioner submits that the Petitioner had averred in paragraphs 30, 38 to 46 about the money distribution for votes at the Railway Institute whereby and whereunder, it was alleged that one Kannaiah, President of the Railways Employees Cooperative Credit Society Limited, Chennai openly canvassed and worked for the 1st Respondent (R.W.3) at Kolathur Constituency by engaging 300 railway employees, who were members of the said society and these employees from railways worked in the constituency after reporting duty, as per instructions of said Kannaiah.
36.2.The Learned Senior Counsel for the Petitioner contends that the aforesaid Railway employees were specially engaged between 07.04.2011 to 12.04.2011 by the aforesaid Mr.Kannaiah to distribute money to the voters in Kolathur Constituency more particularly in the areas mentioned between 10.00 a.m. to 6.30 p.m. where the Government officials and railway workmen were living in large numbers.
36.3.Apart from the above, the Learned Senior Counsel for the Petitioner takes a stand, on behalf of the Petitioner, that even the said Kannaiah helped the 1st Respondent, his party workers and the society members to make use of a place Southern Railway Institute in Sirvallur High Road to distribute money to the voters on 07.04.2011 at 6.30 p.m. and Ex.C9 - CD would show that the police officials including the flying squad never wanted to take any stringent action against the supporters of the 1st Respondent, who indulged in the act of money distribution.
36.4.The Learned Senior Counsel for the Petitioner points out that the Petitioner in his Election Petition had stated that the Petitioner received an information on 07.04.2011 (around 6.30 p.m. at the time of his election campaign) from his party functionary that the DMK party workmen representing the 1st Respondent came in bikes together with certain members of the Railways Employees Cooperative Credit Society Limited were distributing money to the voters of the said area, from the Railway premises situated at Siruvallur Road, for the success of the 1st Respondent.
36.5.The Learned Senior Counsel for the Petitioner submits that on receipt of aforesaid information, he proceeded to said place with his Division Secretary, Vetrinagar M.Sundar, S.R.Murali, A.Vinodhkumar and other AIADMK party workers and at 6.45 p.m. when he reached the place, he found the Zonal Chairman, Srinivasan of DMK party along with his party workers came in 12 motorbikes with necessary registration numbers with the members of the Railway Employees Union distributing money to the voters in the area and upon seeing the Petitioner and his party men, they made an endeavour to escape in a hurried manner, but some of the youths present in the nearby playground stopped them, but inspite of the same, some vehicles fled the scene and the Petitioner and his party men saw Rs.500/- currency notes bundles in plastic covers placed in front portion of all the vehicles.
36.6.The Learned Senior Counsel for the Petitioner brings it to the notice of this Court that except four vehicles with necessary registration numbers other vehicles fled from the scene and the individuals who drove the three vehicles except the vehicle bearing Registration No.TN 02 AB5481 (TVS Victor) also ran away with the cash covered in plastic covers and further that, the Petitioner found a sum of Rs.10,000/- in a plastic cover placed in front of the vehicle bearing Registration No.TN 02 AB5481 and that the flying squad headed by Shyamsundar, who showed reluctance to take any action against those offenders, with a view to help the 1st Respondent's party workers, but the Petitioner gave complaint (Ex.P46) before the K-1, Sembiyam Police Station narrating the events and handed over the bikes, currency notes, visiting card of one N.Sekar for investigation purpose.
36.7.The Learned Senior Counsel for the Petitioner points out that though the Petitioner gave Ex.P.6 complaint dated 07.04.2011 under Section 171(H) I.P.C., a case was registered in Crime No.389 of 2011, but the Police had not taken any action and Ex.C9 Original CD video footage dated 07.04.2011 would show that Police failed to take any action against the 1st Respondent party workers.
36.8.The Learned Senior Counsel for the Petitioner refers to the averment of the 1st Respondent, in his counter at paragraph 32, whereby the 1st Respondent had denied that with the help of party functionaries, Corporation officials and one Kannaiah, (who is alleged to be the President of the Southern Railway Cooperative Credit Society) and his employees, he was involved in the distribution of money to the voters. Further, the Learned Senior Counsel for the Petitioner points out that the 1st Respondent, in his counter at paragraph 39 to the Election Petition, had stated that Mr.Kannaiah was not an active member of the DMK and hence, the question of other Railway employees canvassing or working for him does not arise.
36.9.The Learned Senior Counsel for the Petitioner contends that the 1st Respondent, in his counter at para 40, had denied that any railway employee was engaged by Mr.Kannaiah between 07.04.2011 and 12.04.2011 or that they distributed money to the voters in Kolathur Constituency between 10.00 a.m. to 5.30 p.m. and more particularly in areas where Government officials and railway workmen were residing in large numbers.
36.10.The Learned Senior Counsel for the Petitioner refers to the denial of the 1st Respondent made at para 42 of his counter to the allegation that at about 6.45 p.m., it was found that Zonal Chairman, Srinivasan of DMK party along with party workers had come in 12 motorbikes with registration numbers and distributed money to the voters etc. Also, the Learned Senior Counsel for the Petitioner draws the attention of this Court that the 1st Respondent had also denied that a sum of Rs.10,000/- was found in a plastic cover in front portion of the vehicle bearing Registration No.TN 02 AB5481 and he further denied that the Petitioner informed the same to Shyamsundar of the flying squad or that he was reluctant to take any action against these offenders.
36.11.The Learned Senior Counsel for the Petitioner adverts to the evidence of P.W.1 in his evidence he had deposed that he has personal knowledge about distribution of money and know about the same through information given by the rank and file of his party cadre and also through information provided by the public.
36.12.The Learned Senior Counsel for the Petitioner refers to the evidence of P.W.1 to the effect that he had not taken any action after assumption of office against the Corporation officials for election malpractices.
36.13.The Learned Senior Counsel for the Petitioner, by pointing out to the evidence of P.W.1, brings it to the notice of this Court that P.W.1 had stated that he had filed the CDs into Court, in and by which, he would be able to identify the persons after seeing the CDs to find out whether the persons in the CDs are members of the Railways Employees Cooperative Credit Society Limited or not.
36.14.The Learned Senior Counsel for the Petitioner submits that P.W.1 in his evidence had deposed that he had not mentioned in Ex.P43 complaint that the SRMU members distributed money to the voters and further, it is the evidence of P.W.1, (in his cross examination), had stated that he had visited the railway premises situated at Siruvallur Road within the railway campus Perambur on the day of lodging of his complaint (Ex.P43) dated 07.04.2011 and further that, all he had mentioned in his complaint - Ex.P43 were true.
36.15.The Learned Senior Counsel for the Petitioner refers to the evidence of P.W.1, who had stated, in his evidence, that he does not know the identity of Corporation officials, but his party men had informed him that Corporation officials were present there.
36.16.The Learned Senior Counsel for the Petitioner points out that P.W.1, also in his cross examination had stated that he had personal knowledge about the distribution of money and came to know about the same through information furnished by his rank and file of his party cadre and also through information provided by public.
37. Reply of the 1st Respondent:
37.1. The Learned Senior Counsel for the 1st Respondent submits that there is no pleading nor any acceptable proof that money was distributed with the consent of the 1st Respondent at Railway Institute.
37.2.The Learned Senior Counsel for the 1st Respondent refers to the evidence of R.W.3 to the effect that one Kannaiah is an office bearer of a Railway Association and being his long time friend and during the Elections, he always helps him and there are other several public welfare associations also worked for him and he knows the said Kannaiah only in this regard and further that, he denies the allegations made by the Petitioner pertaining to the money distribution at Railway Institute.
(c) Money Distribution at Ramana Nagar, Brinda Theatre etc.:
38.Contentions of the Petitioner:
38.1. The Learned Senior Counsel for the Petitioner points out that the Petitioner, in his Election Petition at para 12, had referred to the 'Thirumangalam Formula' by which the 1st Respondent party provided money to the voters in a novel way of community feedings, courier service, currency in Newspaper, Arathi Plate contributions and slips to the voters to purchase consumer items etc. 38.2. Further, the Learned Senior Counsel for the Petitioner draws the attention of this Court that the Petitioner in his Election Petition at para 18, inter alia, observed that the polling officials including the police force because of the 1st Respondent's political background had never taken serious actions against the 1st Respondent party functionaries or workers on the various illegal acts at the time of election process pointed out by the Petitioner and his party worker and that the various Tamil News Dailies reported and published the illegal acts of Distribution of Money to the voters in various parts of Kolathur Constituency.
38.3. The Learned Senior Counsel for the Petitioner proceeds to project an argument that the Petitioner, at para 19 of the Election Petition, had averred that the 1st Respondent (R.W.3), his election agent V.S.Ravi, District Secretary V.S.Babu and other DMK party functionaries with his consent and knowledge indulged in the illegal acts of distributing money ranging from Rs.500/-, Rs.1000/-, Rs.5000/- and Rs.10000/- liberally to the residents of Ward Nos.50 to 54 and 62 from the date when the 1st Respondent nomination was accepted on 30.03.2011 till the date of poll on 13.04.2011 in almost one or other part of the streets forming part of the above mentioned wards, in order to secure his success.
38.4. At this juncture, the Learned Senior Counsel for the Petitioner refers to the averment of the Petitioner at para 19 of the Election Petition to the effect that the 1st Respondent and his party workers with his consent and knowledge, behaved and conducted themselves while making to voters, as if the valuable votes of the Residents of the Kolathur Constituency can be procured like buying Chattels from Shandy.
38.5.The Learned Senior Counsel for the Petitioner points out to the averment of the Petitioner in Election Petition at paragraphs 20, 24, 25 and 31 wherein the Petitioner had mentioned about the act of distributing money at the instance of the 1st Respondent by his party workers, the act of distributing money of Rs.500/- per vote to the voters in Kolathur Constituency from the beginning stages of Election campaign after the announcement of poll till 13.04.2011 and later the said amount was increased to Rs.1000/- on 10.04.2011 and Rs.5000/- on 11.04.2011 per vote, even the payment of Rs.10,000/- per vote on the date of polling with the consent of the 1st Respondent and the distribution of money at 5 wards beginning from Ward Nos.50 to 53 and 62 comprising of more than thousand streets and ultimately the act of distribution of money to an extent of Rs.60 Crores to the voters of Kolathur Constituency, by the 1st Respondent and his party men by using the premises of railway in Siruvallur Road and the premise belonging to the party functionaries.
38.6.The Learned Senior Counsel for the Petitioner points out that the Petitioner, at para 35 of the Petition, had averred that the 1st Respondent's wife with the assistance of Mayor of Chennai supervised the distribution of money and gifts to the voters during her stay in Kolathur between 31.03.2011 to 11.04.2011 and also that the 1st Respondent's wife wooed the voters to vote in favour of the 1st Respondent by providing cot and other material benefit of medical supply to the voters during her stay at Kolathur Constituency.
38.7.The Learned Senior Counsel for the Petitioner also refers to the averment made by the Petitioner in his Election Petition at para 54 to the effect that one Nirmal Kumar of AIADMK party filed a complaint before the K-1, Sembiyam Police Station stating that on 07.04.2011 around 8.30 a.m., DMK people came in a red colour car bearing Registration No.TN 09 AJ5556 and gave a sum of Rs.500/- and asked him to vote for the Rising Sun and also they assured to pay amounts to second and third instalments etc. 38.8.The Learned Senior Counsel for the Petitioner informs this Court that the Petitioner had averred in his Election Petition at para 55 by mentioning that another vehicle bearing Registration No.TN 09 AV6811 came with DMK party workers to distribute money to the voters, to cast their votes in favour of the 1st Respondent and further that, the party workers of the 1st Respondent with his consent distributed money on 07.04.2011 at 8.30 a.m. at the rate of Rs.500/- for the voters in Ramana Nagar area of Kolathur Constituency to cast their votes and that the act of the 1st Respondent to bribe the voters with his consent through party workers would amount to the act of corrupt practice.
38.9.The Learned Senior Counsel for the Petitioner referred to the averments in his Election Petition at para 57 wherein the Petitioner's party Divisional Secretary Lilly Kalpana (P.W.3) and his other party workers saw the distribution of Rs.500/- to the voters of Division No.52 by the 1st Respondent's party workers with his consent on 07.04.2011 around 3.00 to 3.30 p.m. by C.Palani (former youth wing leader of DMK party)) from the premises situated in No.7/11, Jawahar Street, Ramana Nagar, Chennai 11 and that one V.S.J.Srinivasan, DMK party Chairman of that area had assisted Palani to facilitate the distribution of money and that the 1st Respondent with his power and position as a Deputy Chief Minister and in connivance with the Police help, had allowed that persons to go scot free.
38.10.The Learned Senior Counsel for the Petitioner points out that the Petitioner in his Election Petition from paragraphs 60 to 61, had referred to the distribution of money to the voters at Brinda Theatre in Kolathur on 07.04.2011 and also that, the 1st Respondent's party workers with his consent had distributed money to the voters of the residents in Sankara Mutt Street, Perambur on 06.04.2011 around 8.00 p.m. and further refers to the averment of the Election Petition at paragraphs 62 to 65, whereby and whereunder, no action was taken against the DMK workers by the Inspector of Police viz., Selvakumar and further that, the Sembiyam Police Inspector Radhakrishnan also virtually helped the 1st Respondent and his party workers to distribute money to the voters through Self Help Group members in Kolathur Constituency and that the said officer also had not taken any action against the 1st Respondent's party workers.
38.11.The Learned Senior Counsel for the Petitioner refers to the averment of Election Petition at paragraphs 83 to 86, whereby and whereunder, it is mentioned that 'M.K.Lenin, the 62nd DMK Division Secretary, Kolathur with the consent of the 1st Respondent sent invitations to Sembiyam, Kolathur, Peravallur and Thiru.Vi.Ka. Nagar Welfare Association Federation, for a meeting scheduled on 10.04.2011 Sunday at 10.00 a.m. in No.5-A, 6th Main Road, Jawahar Nazgar, Chennai 82 describing the purpose as one for canvassing votes in favour of the 1st Respondent and further that, five members of the each Association were asked to attend and also that, on 10.04.2011 around 11.00 a.m. the Petitioner party workers Ganesan, and four others saw people coming out of the premises bearing No.5-A, 6th Main Road, Jawahar Nagar, Chennai 82 with bunch of covers bearing the symbol of 1st Respondent party. On enquiry, they mentioned that the 1st Respondent party men M.K.Lenin, Divisional Secretary of 62nd DMK Division, Kolathur gave those covers containing Rs.500/- notes for distributing the same to the voters, who are members of the respective Welfare Association, with a view to cast their votes in favour of the 1st Respondent and thereafter, the Petitioner's party workers gave a complaint on 10.04.2011 to the Chief Election Commission, New Delhi and also the Chief Electoral Officer of Tamil Nadu, but no action was taken. In short, the stand of the Petitioner is that the act of the 62nd Divisional Secretary of DMK, Kolathur Mr.M.K.Lenin, distributing money on 10.04.2011 at 11.00 a.m. at the aforestated place etc. amounts to an act of corrupt practice and the monies were paid to influence the voters.
38.12.The Learned Senior Counsel for the Petitioner also submits that the Petitioner, in his Petition at para 87, had averred, inter alia, to the effect that apart from distributing money to the voters through workers, the 1st Respondent, his election agent and party functionaries spent huge amounts to the tune of more than Rs.30 Crores in the entire constituency.
38.13.The Learned Counsel for the Petitioner refers to the evidence of P.W.1 (in chief examination), whereby and whereunder, he (Election Petitioner) had deposed that on coming to know that the 1st Respondent's men had gathered in order to distribute money to the voters, he went in person and on seeing him, they fled from the scene and they distributed money to the tune of Rs.60 Crores to the voters and while they were fleeing, they left behind a few motorcycles and in the front of the said motorcycles, they had currency in plastic bags, each plastic bags containing 500/- rupee note bundles and that after they left the place, when the vehicles were searched, a visiting card in the name of Sekar and a sum of Rs.10,000/- was found in one vehicle and all these events were videographed by the Election Commission and in spite of the fact regarding this incident, a complaint was registered at the Sembiyam Police Station and no further action was taken by the Police except registering the FIR (Ex.P6) in Crime No.389/2011.
38.14.The Learned Senior Counsel for the Petitioner refers to the evidence of P.W.1, who had stated that in Kolathur Constituency money was distributed in a manner which was called Thirumangalam Formula and by resorting to novel methods, the money was distributed to the voters and that money kept in Newspapers were distributed to each house and the money was also distributed through Courier service and by way of tokens and if the tokens were handed over to the shops, money or things would be given to the voters and if the voters had pledged or mortgaged gold items or other items, they would be redeemed.
38.15.The Learned Senior Counsel for the Petitioner points out to the evidence of P.W.1 wherein the Election Petitioner (P.W.1) had stated that voters were given money to artificially arrange for feasts in order to vote for DMK and that the usual concept of a feast was that people would take food in the feast and give money to the person who arranged the feast and in an 'artificial feast' the invitees were fed and given money to vote. Further, it is the evidence of P.W.1 that former Mayor M.Subramamaniam who acted as the Election Agent of the 1st Respondent was involved in campaigning for the 1st Respondent to conduct public meetings, seek votes, protect people, who distributed money and he was used to assign electoral work to corporation officials, Government officials and election officials and they were all used for malpractices and further that, these incidents were reported widely in the Newspapers and he had filed the Newspaper articles before this Court.
38.16.The Learned Senior Counsel for the Petitioner draws the attention of this Court that P.W.1 (Election Petitioner) in his cross examination, had deposed that he had filed CDs recorded by the Election Commission as proof to substantiate his statements of 1st Respondent's party which provided money to the voters in a novel way of community feedings, courier service, currency, Newspaper, Arathi plate contributions etc. and indeed, P.W.1 had stated that to substantiate his statement in this regard, he would examine other witnesses on his side. That apart, P.W.1 had deposed that all the Magazines, Newspapers and Media had reported that the Thirumangalam Forumula was implemented in Kolathur Constituency and that was seen by him directly.
38.17.In this connection, the Learned Senior Counsel for the Petitioner refers to the evidence of P.W.1 who had stated that in regard to the incident mentioned in para 54 of the Election Petition pertaining to 'Nirmal Kumar' his party men, who filed a police complaint before the K-1, Sembiyam Police Station on 07.04.2011 in regard to the DMK people coming in a red colour car bearing Registration No.TN 09 AJ5556 and giving a sum of Rs.500/- and asking him to vote for the Rising Sun, he had answered that he received a phone call and went to the spot.
38.18.The Learned Senior Counsel for the Petitioner points out the evidence of P.W.1 to the effect that the 1st Respondent's wife Durga Stalin was engaged in distribution of money to the voters and meeting several NGOs and further, she stayed at Kolathur for ten days and supervised the distribution of money to the voters and gave several assurances like giving cots, material help and material benefits to the voters and that she ensured that these were carried out after the election through her husband. Further, it is projected on the side of the Petitioner that the 1st Respondent's wife Durga Stalin had admitted to the aforesaid assurances in her autobiography in a weekly magazine Kumudam Snehidhi (Ex.P53).
38.19.The Learned Senior Counsel for the Petitioner refers to the evidence of P.W.1 that he had stated that Jesudoss was distributing money and the same was informed to the Police and flying squad by P.W.3 (Lilly Kalpana) and the Police came to the spot and told her that money was offered, she could also take it and this statement of the police was recorded by the flying squad and the CD was filed.
38.20.The Learned Senior Counsel for the Petitioner points out that the evidence of P.W.1, who had stated in his evidence that only Mrs.Lilly Kalpana (P.W.3) saw the incident of 'Sankaramadam' in person and he went to the spot only on receipt of telephonic information given by her and when he reached there, the incident was already over and that he had received the Video (CD) from the Returning Officer and that the video recorded by a person authorised by the Election Commission and he had filed the same.
38.21.The Learned Senior Counsel for the Petitioner refers to the evidence of P.W.1 who had stated in his evidence that he had filed the copies of the CDs recorded by the person authorised by the Election Commission of India and also another set of copies of the CDs recorded by the Press.
38.22.The Learned Senior Counsel for the Petitioner submits that P.W.1 (Election Petitioner) had filed a complaint before the Chief Electoral Officer, Tamil Nadu dated 08.04.2011 wherein he had prayed for transfer of the Sembiyam Police Inspector Radhakrisnan who by misusing his position was acting in support of the DMK candidate and further, he had not taken any action when the Self Help Groups which gave Rs.1000/- each to the voters, but inspite of the fact that they were caught red handed and handed over at the K-1 Sembiyam Police Station, no action was taken for which the said Police Officer was responsible etc. 38.23.The Learned Senior Counsel for the Petitioner refers to the evidence of P.W.3 who had deposed that one day when they were in the party booth, they saw the 1st Respondent's vehicle stopped out side the DMK party booth and 10 or 15 minutes after his vehicle left, they saw Yesudoss, Divisional Secretary of DMK distributing money to the voters and Self Help Groups Rs.500/- per vote and this incident took place on 06.04.2011 around 8.00 p.m. and that on seeing the women coming out with money in their hands, she called the election officer and informed him that the said Yesurajan @ Yesudoss was distributed money to the voters viz., the Self Help Groups and the public in batches of 25 people and that the said Yesurajan @ Yesudoss was the DMK Party Divisional Secretary and that the election officer came to the spot only 10 minutes after she made the call.
38.24.Further, on the side of the Petitioner, it is pointed out that P.W.3 in her evidence had added that the election officer came with a Sub Inspector of Police to the spot and enquired her as to what happened and she informed them that the women present there had money in their hands and that she asked them to videograph the same for which the election officer informed her that the women might have come to see the election officer and also that the said officer had not paid any heed to their complaints and also not enquired anything from the said Yesurajan @ Yesudoss and further that, she informed the election officer that the money was going to be distributed at Ramana Nagar, the next day morning and she told them to come there and videograph the same.
38.25.Continuing further, it is the evidence of P.W.3 that on the next day morning, the 1st Respondent came to Ramana Nagar and left two vehicles, one red car and another maroon car came along with the 1st Respondent's vehicle and in the red car bundles of money with denominations of Rs.1000/- and Rs.500/- were stacked on the back seat of the vehicle and there was only a driver in the vehicle and she informed her party men over the phone that money was being distributed from one Palani's house at Ramana Nagar and as soon as she informed the election official, she saw the 1st Respondent leaving the spot and that the election officer came only after the 1st Respondent left the spot and that the election department videographed all who were present and she asked the election officer as to why, they came only after the 1st Respondent's vehicle and the red car carrying money left the spot and that the election officer searched the house of Palani only as a formality and she lodged a complaint at the Sembiyam Police Station against the 1st Respondent and one Nirmal Kumar who was issued with an I.D. Proof received Rs.500/- on producing it and that she went to the Sembiyam Police Station along with him and registered a complaint in the name of Nirmal Kumar against the Respondent and that she signed as a witness in the said complaint.
38.26.The Learned Senior Counsel for the Petitioner refers to the evidence of P.W.3, who in her evidence, had deposed that though the police registered the complaint, but they had not taken any action and that one Palani, Deva, Sathiya, Nizar, Former Chairman V.S.J.Srinivasan, Ashokkumar and other DMK party men who are not in the said division were present at Palani's house, but the police had not taken any action on any of their complaints because they were under the influence of the 1st Respondent and that when she informed the flying squad that money was being distributed, they told her that she can also get the same and that the police went nowhere near Yesurajan @ Yesudoss house and that the police searched outside the house just as a formality.
38.27.The Learned Senior Counsel for the Petitioner, in regard to the aspect of Brinda Theatre, points out the evidence of P.W.3, who had stated that Brinda Theatre was opposite to Yesurajan @ Yesudoss house and that on 06.04.2011 she made a complaint to the election officer that money was kept at Brinda Theatre and that the election officer informed the 1st Respondent as and when he received complaints from the AIADMK party men, but he took no action against the 1st Respondent and that the money at Brinda Theatre was kept by the 1st Respondent's men to be distributed to the voters and Self Help Groups at Rs.500/- per vote.
38.28.Proceeding further, the Learned Senior Counsel for the Petitioner proceeds to point out that P.W.3, in her evidence, had stated that she does not know the exact address of Yesurajan @ Yesudoss and that the details of the District wise election campaign of the 1st Respondent in Murasoli mentioned in the news item dated 04.04.2011 (found in Ex.P30 original to Ex.P46) may be false and that she saw the 1st Respondent at Kolathur Constituency on 06.04.2011 and when she saw the 1st Respondent at Kolathur, the incident had happened before 8.00 p.m. on 06.04.2011 and that she does not know the name of the election officer, who had not taken action on their complaints.
38.29.The Learned Senior Counsel for the Petitioner brings it to the notice of this Court that P.W.3 in her evidence had deposed that when the election officer came to Yesudoss's house, Sumathi was standing a little away from there and that the women were standing at about 5 feet from Yesudoss and that it is correct to state that nearly 5 feet away from Yesudoss house on M.H.Road about 100 women were leaving after getting money. Further, P.W.3 in her evidence had continued to depose that she informed the election officer that money was to be distributed at Ramana Nagar the next morning and that the ladies had informed her that the 1st Respondent gave money to Yesudoss to be distributed to the voters to vote for DMK party symbol, so that, DMK wins in the election.
38.30.The Learned Senior Counsel for the Petitioner refers to the evidence of P.W.3 who had deposed that she was informed by a lady that money was going to be distributed at Ramana Nagar on 07.04.2011 and that she could not identify the lady who informed her and further that the women were receiving money and election officials came and left the spot and one among the women who received the money informed her that money was distributed at Ramana Nagar the next morning and further that, she saw with her own eyes that the 1st Respondent came to Ramana Nagar and that the election official took video of what happened on 06.04.2011 and not the DMK party workers. Moreover, P.W.3 in her evidence had deposed that on seeing the bundles of money in the back seat of the car, she called the election officials and her party men and that she saw the election officials going inside the Palani's house and together with election officials and the police one or two of her party men went inside Palani's house and that she was standing outside Palani's house. Further, it is the evidence of P.W.3 that only after her screaming on seeing groups of women with money, Prabhu came out of Yesudoss's house and she does not remember whether she informed Election Petitioner that on 07.04.2011 V.S.J.Srinivasan, DMK party worker would distribute money to the voters from Brinda Theatre.
39.1st Respondent's Reply:
39.1.The Learned Senior Counsel for the 1st Respondent submits that the 1st Respondent had denied, in his counter at paragraph 37, that his wife wooed the voters to vote in favour of him by means of assurance of providing cot and other material benefit of medical supply to voters.
39.2.Also, the Learned Senior Counsel for the 1st Respondent, by adverting to para 47 of the counter of the 1st Respondent, points out that the 1st Respondent had denied that any AIADMK party worker saw the illegal act of distributing money to the voters or that his party workers had bribed voters or Self Help Group members are indulged in corrupt practice.
39.3.Moreover, the 1st Respondent had denied that Petitioner's party worker Nirmal Kumar was approached by DMK people and he was given a sum of Rs.500/- to vote for the Rising Sun etc. Also, the 1st Respondent had denied in his counter at para 49 that the vehicle bearing Registration No.TN 09 AV6811 came with DMK party workers to distribute money to the voters in that area or that one Nirmal Kumar has lodged any complaint about the same.
39.4.That apart, the Learned Senior Counsel for the 1st Respondent submits that the 1st Respondent had denied at paragraphs 50 and 51 of his counter to the effect that his party workers distributed any money on 07.04.2011 at about 8.30 p.m. in Kamala Nagar area or any other area as alleged by the Petitioner and further he denied on 07.04.2011 one Lilly Kalpana, Divisional Secretary of Petitioner's party and her workers saw distribution of Rs.500/- to the voters by one Palani, former Youth Wing Secretary of DMK.
39.5. The Learned Senior Counsel for the 1st Respondent draws the attention of this Court that the 1st Respondent in his counter at para 52 had denied that Mrs.Lilly Kalpana or other AIADMK party workers were witnesses to the distribution of Rs.500/- to the voters of Ramana Nagar or he had consented to the same. Further, the 1st Respondent in his counter had stated at para 53 that V.S.J.Srinivasan was not DMK party Chairman. Also, the 1st Respondent had denied at para 54 of his counter that DMK party functionaries distributed money to the voters in the premises of Brinda Theatre or that inspite of Petitioner's alleged complaint to the flying squad that had not taken any action against his party workers.
39.6.Besides the above, the Learned Senior Counsel for the 1st Respondent points out that the 1st Respondent had denied in his counter at para 56 that one Inspector acted or helped him in an open manner or that he was related to his security office. Moreover, the 1st Respondent in his counter at paragraph 57 had denied that Sembiyam Inspector Radhakrishnan helped him to distribute money or that the said officer helped him in many ways etc. 39.7.Apart from these, it is the submission of the Learned Senior Counsel for the 1st Respondent that the 1st Respondent had denied that one M.K.Lenin gave money to the persons for distributing the same to the voters and further, he had denied that his party men and M.K.Lenin gave the attendees of the meeting, covers containing Rs.500/- for distribution to the voters.
39.8.The Learned Senior Counsel for the 1st Respondent points out that the 1st Respondent had denied that a complaint dated 10.04.2011 was given by the Petitioner's workers to the Chief Election Commissioner etc. and in fact, it is the stand of the 1st Respondent that he is not in any way connected with the alleged incident, even assuming while denying that the same took place.
(d)Money Seizure:
40.Submissions of the Petitioner:
40.1.The Learned Senior Counsel for the Petitioner refers to the evidence of P.W.1 who had deposed (in his chief examination) that on 12.04.2011, evening at about 4.15 p.m. he received information from his party people through telephone that the Election Commission's flying squad during the vehicle search found bundles of currency kept in a vehicle and the same was seized and kept in a police station and that when he went to the police station, he found that the Press and Media were taking shots of the bundles of currencies kept in boxes in the seized vehicle and the bundles bore the RBS bank's seal and the paper covering them had 'RBS' written over it and that he went to the police station and he asked the election officials and policemen from where, how and whose orders they seized the vehicle, they informed him that they did not get any orders from any one and further informed that when they were engaged in vehicle search and they asked this vehicle to stop, but it sped away without stopping and after chase, the vehicle was stopped and later the policemen had called for all the election officials and they were talking to them and though the vehicle driver and all the people in the vehicle were made to sit in the police station and they were enquired etc. and a person who identified himself from G4S Security concern informed that he was in charge of the vehicle and that the police enquired him as to where and to whom this money came from and informed that the person who collected this money would come in 15 minutes and he would give the details and the money seized in the Van was Rs.1 Crore and 18 lakhs and that he gave the police complaint, but others also gave the police complaint and as per Election Commission's Directives, for any money seized in a vehicle search, an FIR was to be registered, but no FIR was registered on his complaint and that no action was taken on his complaint.
40.2.The Learned Senior Counsel for the Petitioner refers to the evidence of P.W.1, who had stated that Ex.P38 was the complaint dated 12.04.2011 sent by him as regards the transportation of Rs.1,18,00,000/- to the K-5, Peravallur Police Station.
40.3.The Learned Senior Counsel for the Petitioner points out to the evidence of P.W.1 (in his cross examination) wherein he had deposed that he does not know what 'RBS' stands for and further, P.W.1 had deposed that Income Tax officials, police officials, election officials viz., I.A.S. officers came to the spot and they enquired with the three persons who were in the Van and that the officials questioned as to why the boxes had not borne the name of the company and further, they enquired as to why no security was provided for Rs.1,18,00,000/- found in the boxes seized in the Van, for which, there was no proper reply given by the said three persons and that he was informed that sum seized was Rs.1,18,00,000/-.
40.4.The Learned Senior Counsel for the Petitioner points out that the Petitioner in his evidence had stated that a sum of Rs.1,18,00,000/- seized on 12.04.2011 was brought only for the purpose of distributed the same to the voters.
40.5.The Learned Senior Counsel for the Petitioner refers to Ex.P31 - Reply from Deputy Commissioner of Income Tax dated 21.12.2012 addressed to Shri.J.Ponnudurai (an RTI Applicant) wherein it was informed that the investigation/assessment proceeding was under process with the Deputy Commissioner of Income Tax, Circle-12(1), New Delhi and also that the matter is pending before the Hon'ble Supreme Court of India and consequently, the requisite information was not provided also because of the reason that the same was exempted under Section 8 of the RTI Act etc. 40.6.The Learned Senior Counsel for the Petitioner points out that the Petitioner had addressed a complaint dated 12.04.2011 to the Inspector of Police, K-5 Peravallur Police Station praying to take action for illegal transportation of cash of Rs.1,18,00,000/- by goods carrier vehicle bearing Registration No.TN 22 AJ 2621.
40.7.The Learned Senior Counsel for the Petitioner refers to the letter of the Petitioner dated 20.06.2011 viz., Ex.P15 complaint addressed to the Chief Electoral Officer Tamil Nadu and three others wherein he had made a request to investigate about the 12 facts mentioned by him therein by taking necessary actions.
41.Reply Submissions of the 1st Respondent:
41.1.The Learned Senior Counsel for the 1st Respondent refers to the evidence of R.W.3 (1st Respondent) to the effect that he is no way related to the incident of seizure relating to Rs.1,18,00,000/- and that C.W.4 (Additional Commissioner Income Tax, Special Range 4, New Delhi) in his evidence had deposed that the money seized by the election officials amounting to Rs.1,18,00,000/- was relating to G4S Cash Solutions India Private Limited, pursuant to the order of S.L.P.No.22826 of 2012 dated 24.02.2015 (Ex.C16) after due investigation.
41.2.The Learned Senior Counsel for the 1st Respondent refers to the fact that the aforesaid sum of Rs.1,18,87,490/- was returned to M/s.G4S Cash Solutions India Private Limited by the Commissioner of Income Tax 4, New Delhi as per Cheque dated 23.03.2015 (Ex.C17) and in fact, the said sum was not assessed as undisclosed income in the hands of M/s.G4S Cash Solutions India Private Limited.
(e)Kumudham Snehidi (Tamil Magazine):
42.Petitioner's Contentions:
42.1.Dealing with the averment of the Petitioner that the 1st Respondent's wife purported stay in Kolathur Constituency for more than ten days from 31.03.2011 to 11.04.2011 at No.78, Vairakannu Flats and in the premises of his relative situated at Venus Nagar etc., the Learned Senior Counsel for the Petitioner points out that at para 35 of his Petition had stated inter alia that the 1st Respondent's wife with the assistance of Mayor of Chennai supervised the distribution of money and gifts to the voters during her stay etc., and further, the 1st Respondent's wife wooed the voters to vote in favour of the 1st Respondent by providing cot and other material benefit of medical supply to the voters during her stay at Kolathur Constituency and also that, in this regard, she had stated in an Article published in Ex.P53 - Kumudham Snehithi Tamil Magazine (June 1 June 15, 2011) issue that even after polling was over, she had asked her husband to provide cot and necessary financial assistance to whom she assured during her campaign made on behalf of her husband (1st Respondent) that she entered into such pre-poll assurances with the consent of her husband, to confer benefits to the voters after completion of election process and further that, the 1st Respondent had adopted a novel way to influence the voters of Kolathur Constituency by entering into such pre-poll arrangement to corrupt the voters, R.W.3 (1st Respondent) in his evidence had deposed that during election campaigning, a candidate would promise to the people that once he is elected to a post he would cater to the needs of the people, which is a normal practice and he would state with conviction that his wife would have also made the promises only in this context.
42.2.The Learned Senior Counsel for the Petitioner refers to the evidence of P.W.7 (Editor of Tamil Magazine Kumudam Snehidhi) inter alia to the effect that the the Article at Page Nos.102 106 of Ex.P53 under the caption Thalapathiyum Naanum was marked as Ex.P54 and the said contents of Article was part of the biographical series of the 1st Respondent's wife written down by her and published as informed by the wife of the 1st Respondent.
42.3.The Learned Senior Counsel for the Petitioner submits that P.W.7 (Editor of Tamil Magazine Kumudham Snehithi) in her evidence had deposed about the interview of 1st Respondent's wife. Further, it is represented on behalf of the Petitioner that the contents of the Article Thalapathiyum Naanum in Ex.P54 (pages 102 -106 of Ex.P53) was written by her and published as told by the wife of the 1st Respondent. Moreover, it is the plea of the Petitioner that Ex.P53 (pages 105 -106) were proof of consent where the wife of 1st Respondent (R.W.3) had stated that she had asked her husband to satisfy the needs by purchasing their requirements and this act of inducement or promise indirectly made by her would attract the ingredients of Section 100(1)(b) viz., the 'corrupt practice' committed by the 1st Respondent (R.W.3) which is a ground for declaring his election to be void by this Court.
43.Submissions of the 1st Respondent:
43.1.The Learned Senior Counsel for the 1st Respondent points out that the 1st Respondent in his counter had denied that he had in any manner influenced the voters of Kolathur Constituency by entering into pre-poll arrangement and further, he had denied that his wife with his consent gave assurance to the voters.
43.2.In this connection, the Learned Senior Counsel for the 1st Respondent submits that Ex.P53 Article in Tamil Magazine refers to the wife of the 1st Respondent by saying that whether the party comes to power or not, helping needy people on humanitarian basis was important and further, there was no material to show that this was pertaining to the election.
44.Petitioner's Case Laws:
44.1.The Learned Senior Counsel for the Petitioner submits that a plea of 'corrupt practice' will have to be inferred from the proved facts and circumstances of a given case and it may not be quite possible to prove 'corrupt practice' committed by the Returned Candidate or his election agent by means of a direct evidence and to lend support of his contention, he seeks in aid of the decision of the Hon'ble Supreme Court Magraj Patodia V. R.K.Birla and others, 1970 (2) SCC 888.
44.2.The Learned Senior Counsel for the Petitioner relies on the decision of the Hon'ble Supreme Court in Dr.M.Chenna Reddy V. V.Ramachandra Rao and another, (1972) 40 ELR 390 wherein at paragraph 34, it is, inter alia, observed as follows:
'.... The trial of an election petition on the charge of commission of corrupt practice is somewhat different. More often than not proof of such corrupt practices depends on the oral testimony of witnesses. The candidate charged with such corrupt practice invariably leads evidence to prove his denial; it becomes the duty of the Court to weigh the two versions and come to a conclusion as to whether notwithstanding the denial and evidence in rebuttal, a reasonable person can form the opinion that on the evidence the charge is satisfactorily established. We cannot also lose sight of the fact that quite apart from the nature of the charge the trial itself goes on as if the issues in a civil suit were being investigated into. The petitioner has to give particulars of the corrupt practice with details in default whereof the allegations may be ignored; the petitioner has to ask for certain declarations and the procedure before the High Court is to be in accordance with that applicable under the Code of Civil Procedure to the trial of suits with the aid of the provisions of the Indian Evidence Act. Inferences can therefore be drawn against a party who does not call evidence which should be available in support of his version. 44.3.The Learned Senior Counsel for the Petitioner cites the decision of the Hon'ble Supreme Court in P.C.Purushothama Reddiar V. S.Perumal, 1972 (1) SCC 9, at special page 13, wherein at paragraph 12, it is, among other things observed that 'It is true that in election cases oral evidence has to be examined with great deal of care because of the partisan atmosphere continuing even after the election. But it will be wrong on the part of courts to just brush aside the oral evidence even when the evidence is highly probable and the same is corroborated by unimpeachable documentary evidence.' 44.4.The Learned Senior Counsel for the Petitioner points out to the decision of the Hon'ble Supreme Court in Sushil Kumar V. Rakesh Kumar, (2003) 8 Supreme Court Cases 673, wherein it is held that 'The 'initial burden is on the election petitioner to prove the allegation made therein and that the onus then shifts on the candidate to prove the facts which are within his knowledge'. Also, in the aforesaid decision, it is observed that 'Where both parties adduced evidence, the question of the onus of proof becomes academic.'
45.Decisions relied on by the 1st Respondent:
45.1.The Learned Senior Counsel for the 1st Respondent cites the decision of the Hon'ble Supreme Court in Baldev Singh Mann V. Surjit Singh Dhiman, (2009) 1 Supreme Court Cases 633, wherein it is, inter alia, observed that '... The Court should take judicial notice that the candidate who has lost by narrow margin would ordinarily make all efforts and gather all kind of material against the elected candidate and level all kinds of allegations of corrupt practices whether substantiated or not.' 45.2.The Learned Senior Counsel for the 1st Respondent refers to the decision of the Hon'ble Supreme Court in V.S.Achuthanandan V. P.J.Francis reported in 1999 (3) Supreme Court Cases 737 at Special Page 742, wherein at paragraph 6, it is observed and held as follows:
6.It may further noticed, as observed by this Court in Raj Narain v. Indira Nehru Gandhi [(1972) 3 SCC 850] that rules of pleadings are intended as ids for a fair trial and for reaching a just decision. An action at law should not be equated to a game of chess. Provisions of law are not mere formulae to be observed as rituals. Beneath the words of a provision of law, generally speaking, there lies a juristic principle. It is the duty of the court to ascertain that principle and implement it. The purpose Section 86 of the Act is to ensure that every charge of corrupt practice is brought before the Court within the prescribed period of limitation and not thereafter, so that the trial of the case is not converted into a persecution by adding more and more charges or by converting one charge into another as the trial proceeds. 45.3.The Learned Senior Counsel for the 1st Respondent seeks in aid of the decision of the Hon'ble Supreme Court in Jeet Mohinder Singh V. Harminder Singh Jassi, (1999) 9 Supreme Court Cases 386 at Special Page 388, wherein it is observed as under:
The onus of proving the averments made in the election petition lies on the election petitioner. It is for the election petitioner to examine the witness which in this case was essentially a witness to be examined by him in the facts and circumstances. If he has failed in discharging his own onus, he cannot bank upon the plea of non-examination of that witness by the returned candidate. The election petition cannot be permitted to derive strength from the weakness, if any, of the returned candidate. (Para 26) 45.4.The Learned Senior Counsel for the 1st Respondent refers to the decision of the Hon'ble Supreme Court in Gajanan Krishnaji Bapat and Another V. Dattaji Raghobaji Meghe and Others, (1995) 5 Supreme Court Cases 347 at Special Pages 350, wherein it is laid down as follows:
In the case of an election petition, based on allegations of commission of corrupt practice, the burden of proof is on the petitioner and that burden does not shift. A charge of corrupt practice is in the nature of a quasi-criminal charge, as it consequence is not only to render the election of the returned candidate void but in some cases even to impose upon him a disqualification for contesting even the next election. Therefore, the standard of proof is generally speaking that of criminal trial, which requires strict proof of the charge beyond a reasonable doubt and not merely by preponderance of probabilities as in civil action. Vague allegations and discrepant evidence may only create a doubt but then the charge of corrupt practice cannot be held to be proved on mere lurking suspicion or doubts. 45.5.The Learned Senior Counsel for the 1st Respondent seeks in aid of the decision of the Hon'ble Supreme Court in Joseph M.Puthussery V. T.S.John and Others, (2011) 1 Supreme Court Cases 503 at Special Page 504, wherein it is laid down as under:
To prove that the corrupt practice of a third party is attributable to a candidate under Section 123 of the RP Act, 1951, it must be shown that the candidate consented to the commission of such act. The finding that the appellant knew about the alleged distribution because benefit of such distribution could only ensure to him, but he kept silent despite knowledge of such distribution, is nothing else but an unwarranted inference and surmise on the part of the High Court. The High Court's understanding of law that the appellant would be liable for penalty under Section 99 of the RP Act for the acts of his agents without the conviction of such agents is completely erroneous in law. When a candidate is held to be guilty of corrupt practice vicariously, then the ultimate finding to this effect has to be recorded and that too only after notice under Section 99 to that other person and an inquiry must be held as contemplated therein naming the other person simultaneously for commission of such corrupt practice. The impugned judgment is vitiated since no concluded finding on this question is recorded against the UDF workers, who had allegedly distributed Ext.X-4, choosing to ignore the requirement of Section 99 of the Act. moreover, it was found that there was insufficient data to conclude that those UDF workers who had distributed Ext. X.4 pamphlets had the requisite contumacious mind. If the workers had no contumacious mind, the appellant could hardly have been fastened with any vicarious liability for the so-called corrupt practice. 45.6.The Learned Senior Counsel for the 1st Respondent cites the decision of the Hon'ble Supreme Court in R.S.Raja Manohar Joshi V.Nitin Bhaurao Patil and Another, (1996) 1 Supreme Court Cases 169 at Special Page 171, wherein it is held as follows:
The requirement of proof of a corrupt practice at the trial of an election petition is higher and confined to strict legal evidence. The question is whether the corrupt practice as defined in the Act to permit negation of the electoral verdict has been made out. 45.7.The Learned Senior Counsel for the 1st Respondent refers to the decision of the Hon'ble Supreme Court in Dhartipakar Madan Lal Agarwal V. Rajiv Gandhi, 1987 (Supp) Supreme Court Cases 93 at Special Page 96, wherein it is observed as under:
Each and every corrupt practice must be clearly and specifically pleaded and it should be complete in itself. No corrupt practice can be inferred from reading one sentence here and the other sentence there. The allegations must fulfil the basic ingredients to make out a ground for challenging the election under Section 100 of the Act. 45.8.The Learned Senior Counsel for the 1st Respondent relies on the decision of the Hon'ble Supreme Court in Kamalnath V. Sudesh Verma, reported in (2002) 2 Supreme Court Cases 410 at Special Page 411, wherein it is held as follows:
To plead corrupt practice as contemplated by law it has to be specifically alleged that the corrupt practices were committed with the consent of the candidate and that a particular electoral right of a person was affected and it cannot be left to time, chance or conjecture of the Court to draw inference by adopting an involved process of reasoning. 45.9.The Learned Senior Counsel for the 1st Respondent cites the decision in Ayanur Manjunath V. S.Bangarappa and others reported in ILR 2002 KAR 2642, wherein it is held that 'Nature of evidence required to prove corrupt practice must be convincing and it should be proved beyond reasonable doubt'.
45.10.The Learned Senior Counsel for the 1st Respondent draws the attention of this Court to the decision of the Hon'ble Supreme Court in Daulat Ram Chauhan V. Anand Sharma reported in (1984) 2 Supreme Court Cases 64 at Special Page 65, wherein it is observed as follows:
The combined effect of Sections 82(b) and 86 is that once allegations of corrupt practice were made against a candidate it was incumbent on the election petitioner to join him as a party and failure to do so would automatically lead to the dismissal of his petition under Section 86. But before Section 82(b) or Section 86 could come into play in the instant case, it must be proved whether or not the allegation of corrupt practices made against 'B' and 'S' amounted to corrupt practice as contemplated by Section 123. 45.11.The Learned Senior Counsel for the 1st Respondent seeks in aid of the decision of the Hon'ble Supreme Court in Mercykutty Amma V. Kadavoor Sivadasan and another reported in (2004) 2 Supreme Court Cases 217 at Special Page 219, wherein it is observed as under:
Naming of a person as having indulged in corrupt practices has serious consequences. A person indulged in corrupt practices whether party to the petition in terms of Section 82 or who subsequently receives a notice in terms of Section 99 would stand on the same footing having regard to the provisions contained in Section -8A of the Act. Such a person may not be a necessary party within the meaning of Section 82 of the Act but it is beyond any cavil that no finding could be recorded by naming such a person unless the mandatory provisions of Section 99 are complied with. (para 32) 45.12.The Learned Senior Counsel for the 1st Respondent relies upon a decision of the Hon'ble Supreme Court in M.J.Jacob V. A.Narayanan and Others reported in (2009) 14 Supreme Court Cases 318 at Special Page 330, wherein at paragraph 26, it is laid down as follows:
26. It is now well settled that the five ingredients required to establish a corrupt practice under Section 123(4) of the Act are:
(i) there should be a publication by the candidate or his agent, or by any other person, with the consent of a candidate or his election agent;
(ii) the said publication should contain a statement of fact which is false;
(iii) the person making such publication should either believe such statement to be false or not believe it to be true;
(iv) such false statement should be in relation to the personal character or conduct of any candidate; and
(v) such false statement should reasonably be calculated to prejudice the prospects of that candidate's election.
There is thus no doubt that any false accusation relating to the personal character or conduct of any candidate calculated to prejudice the prospect of his election would amount to a corrupt practice. But what is crucial is that the false statement should relate to the personal character or conduct of a defeated candidate. Where the false statement was about someone other than the candidate, this Court has refused to consider the publication to be a corrupt practice under Section 123(4).
45.13.The Learned Senior Counsel for the 1st Respondent cites the decision of the Hon'ble Supreme Court in Kanhaiyalal Vishindas Gidwani V. Arun Dattatray Mehta and others reported in (2001) 1 Supreme Court Cases 78 at Special Page 87, wherein at paragraph 11, it is, among other things, observed as follows:
11. ... ... The evidence on record shows that all these witnesses after concerted plan decided to tell the high command that the nomination paper was signed by them when it was blank and that they had intended to propose a party-candidate. The language used in the reply and the evidence of these witnesses go to show that all o f them together decided on the nature of the reply. That also shows that there was an effort to extricate themselves from the likely disciplinary action by the high command. The high command having accepted such explanation, these witnesses had no way out but to stick to that stand even before the court, which they did in not a very convincing manner. Their parrot-like statement that they signed a blank nominating form runs counter to the ordinary common sense and reasoning. Their conduct in not questioning the leader of opposition for having misused their signatures after they came to know that it was used for nominating Respondent 1, in our opinion, belies their statement that they were ignorant of the fact who they were proposing or that they signed a blank nomination form. It is to be noted that their evidence is in the nature of an interested witness because if they had deposed differently and admitted that they had signed the nomination paper of Respondent 1 then there was every likelihood of the high command reopening disciplinary proceedings against them. Therefore, they had to stick to the stand that they had already taken in reply to the show-cause notice. In view of this self-preservation instinct, it had become necessary for them to depose before the court that they had signed only a blank paper. In that view of the matter, their evidence cannot be accepted sans independent corroboration of the same. 45.14.The Learned Senior Counsel for the 1st Respondent, On behalf of the 1st Respondent, a reference is made to the decision V.Narayanaswamy V. C.P.Thirunavukkarasu, (2000) 2 Supreme Court Cases 294, wherein it is observed that 'The allegation of corrupt practice must be supported by affidavit disclosing source of information and stating that the allegations are true to Petitioner's knowledge and believed by him to be true'. Moreover, the allegations should be clear, precise and specific and should not be open to more than one inference. Apart from that, it is also observed that 'It must be specifically stated that the corrupt practice was committed with the consent of the candidate and particular electoral rights were affected thereby'.
45.15.The Learned Senior Counsel for the 1st Respondent placed reliance on the Order dated 12.02.2016 in E.L.P.No.1 of 2010 [between Amin Yadav v. Kunwar Jayesh Prasad and Others] wherein it is observed that 'The courts are under an obligation to enforce the technicalities prescribed under the statute with all rigours and not to dilute them with a view to safeguard the purity of election'.
(f) Electronic Evidence:
46.Petitioner's Side Submissions:
46.1.The Learned Senior Counsel for the Petitioner points out that the source for Exs.C8 to C15 (CDs) under the orders of the Election Commission of India and further they are public documents maintained in regular course of business. In this connection, the Learned Senior Counsel for the Petitioner refers to Section 65-B (b)(iv)(c) of the Indian Evidence Act, in and by which, if statement is desired to be given in evidence, a certificate dealing with any of the matters to which conditions mentioned in sub-section (2) of Section 65-B relate shall purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be in evidence of any of the matter mentioned in the certificate and even P.W.1 (Election Petitioner) can produce the same and the person should furnish certificate in this regard need not come to Court and adduce evidence and in short, no more further proof is necessary.
46.2.The Learned Senior Counsel for the Petitioner proceeds to point out that if a person who certifies himself comes before a Court or a person who maintain in his official capacity comes and states in his evidence as per Section 65-B (iv) of the Evidence Act, it is enough and it is a compliance in terms of Section 65-B(iv)(c) of the Indian Evidence Act.
46.3.The Learned Senior Counsel for the Petitioner, in regard to the admissibility of electronic records under Section 65-B of the Indian Evidence Act, cites the decision of the Hon'ble Supreme Court in Anvar P.V. V. P.K.Basheer and Others, (2014) 10 Supreme Court Cases 473 at Special Pages 484, 486 wherein at paragraphs 17, 18 and 24, it is observed and held as under:
17.Only if the electronic record is duly produced in terms of Section 65-B of the Evidence Act, would the question arise as to the genuineness thereof and in that situation, resort can be made to Section 45-Aopinion of Examiner of Electronic Evidence.
18.The Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements under Section 65-B of the Evidence Act are not complied with, as the law now stands in India.
24.The situation would have been different had the appellant adduced primary evidence, by making available in evidence, the CDs used for announcement and songs. Had those CDs used for objectionable songs or announcements been duly got seized through the police or Election Commission and had the same been used as primary evidence, the High Court could have played the same in court to see whether the allegations were true. That is not the situation in this case. The speeches, songs and announcements were recorded using other instruments and by feeding them into a computer, CDs were made therefrom which were produced in court, without due certification. Those CDs cannot be admitted in evidence since the mandatory requirements of Section 65-B of the Evidence Act are not satisfied. It is clarified that notwithstanding what we have stated herein in the preceding paragraphs on the secondary evidence of electronic record with reference to Sections 59, 65-A and 65-B of the Evidence Act, if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act, the same is admissible in evidence, without compliance with the conditions in Section 65-B of the Evidence Act. 46.4.The Learned Senior Counsel for the Petitioner points out that C.W.2 in his evidence before this Court had deposed that Serial Nos.1 to 8 in O.A.No.695 of 2015 are presently available in his office and further it is his evidence that the said CDs in original (15 Nos.) were maintained by the earlier Returning Officer in his office and that he was not in a position to certify these CDs because of the reason he is holding the post of Assistant Commissioner, Zone 6, Chennai Corporation only from 01.03.2014 etc. and that he was not aware of the contents of CDs as to how they were produced, how they were stored and how they were reproduced.
46.5.The Learned Senior Counsel for the Petitioner brings it to the notice of this Court that Ex.C8 is the original CD of the Video Footage dated 24.03.2011 taken at Eswari Hospital and Ex.C9 is the original CD of the Video Footage dated 07.04.2011 taken at Ramana Nagar, Railway Institute and Lilly Kalpana and Ex.C10 is the original CD of the Video Footage dated 04.04.2011 in respect of the incidents during the distribution of booth slips near Canara Bank and Ex.C11 series (2 Nos.) are the original CDs of the Video Footage dated 12.04.2011 in respect of the seizure of Rs.1,18,00,000/- and Ex.C12 is the original CD of the Video Footage shot on 06.04.2011 at Neelam Thottam and Ex.C13 series (5 Nos.) are the original CDs of the Video Footage dated 13.05.2011 taken during counting regarding invalid EVM and Ex.C14 series (3 Nos.) are the original CDs taken on 13.05.2011 during the counting of votes in respect of the last round in which the 1st Respondent appears and Ex.C15 series (4 Nos.) are the original CDs of the Video Footage dated 21.03.2011, 26.03.2011 and 07.04.2011 supplied by the Election Commission of India relating to the campaign done by the 1st Respondent, as per the evidence of C.W.2 and in fact, the then Returning Officer Mr.M.Rajarathinam retired on 30.09.2011 as Zonal Officer, Chennai Corporation and in fact, summons could not be served on him and therefore, certificate in question could not be obtained from him.
46.6.The Learned Senior Counsel for the Petitioner refers to the evidence of C.W.3, who had stated, among other things, in his evidence, that he was not competent to furnish certificates under Section 65-B of the Indian Evidence Act, 1872 for Ex.C8 to Ex.C15 series (15 Nos.) and he was not aware of the CDs marked as Ex.C8 to Ex.C15 and since there were kept in the personal custody of the then Returning Officer viz., M.Rajarathinam, Zonal Officer/Assistant Commissioner of Zone IV (Now Zone VI) of the Chennai Corporation and was the Returning Officer of Kolathur Constituency during Assembly Elections 2011 and further, he had stated in his cross examination that he had not seen the persons hired to take videos, handing over the CDs to the Returning Officer.
46.7.The Learned Senior Counsel for the Petitioner refers to the evidence of C.W.6 (Divisional Engineer of Corporation of Greater Chennai), who had deposed before this Court that in the year 2011, he was working as Assistant Divisional Engineer for the Corporation of Chennai and that during the year 2011 Assembly Elections, Mr.M.Rajarathinam was the Returning Officer and that he was assigned with the duty of arranging electrical and electronic equipments/devices such as videography etc. during the 2011 Assembly Elections at Kolathur Constituency and further that, he arranged for three computer systems for the then Returning Officer to copy video tapes and convert them into compact discs and apart from that, he was also engaged in ensuring the proper functioning of computer systems and providing assistance in case of any system failure.
46.8.The Learned Senior Counsel for the Petitioner points out that C.W.6 had added in his evidence that he had 36 computers under his control and had one Engineer to rectify the defects or problems in the computer systems and that he supplied three computers to Mr.M.Rajarathinam immediately after the elections and that his job was only to provide computer systems for converting video tapes into CDs and the conversion from video tapes into CDs was done in the Conference Hall of the Corporation Building and that the CDs were recorded and assigned numbers and besides this, he was present in the Conference Hall during the conversion of video tapes into CDs and that Ex.C23 is the Certificate produced by him before this Court.
46.9.The Learned Senior Counsel for the Petitioner brings it to the notice of this Court that C.W.6 had issued a Certificate Ex.C23 to the effect that as directed by Thiru.Rajarathinam (who was the then Returning Officer of Kolathur Constituency during the Tamil Nadu Assembly Elections 2011), he provided three computers and blank compact discs and the computers which were in good working condition and that as directed by the said Returning Officer, the critical events contained in the video tapes were transferred to those computers and at that time, he was present as the Assistant Divisional Engineer, Electrical Department, Corporation of Chennai and one Manikandan was also present and continuing further, the said information which were transferred from the video tapes to the computers were transferred from the computers to the said compact discs as directed by the Returning Officer and that he was present at the time when the critical events were from the video tapes to the computers and when the same information was transferred from the computers to the said compact discs etc.
47.Reply of the 1st Respondent:
47.1.The Learned Senior Counsel for the 1st Respondent, as regards the electronic evidence (CDs), takes a plea that the evidence adduced in respect of electronic evidence (CDs) on behalf of the Petitioner through witnesses suffered from a basic and incurable infirmity viz., lack of certification under Section 65-B of the Indian Evidence Act, 1872.
47.2.The Learned Senior Counsel for the 1st Respondent points out before this Court that the Election Petitioner, on earlier occasion, filed O.A.No.244 of 2017 during the pendency of the main Election Petition [praying for passing of an order by this Court to issue subpoena to Mr.Thirunavukarasu, Divisional Engineer (South), Electrical Department, Corporation of Chennai to come and tender evidence in regard to Exs.C8 to C.15 and give necessary certificate thereto under Section 65-B of the Indian Evidence Act, 1872] and the said Application was filed by the Petitioner with a calculated and deliberate endeavour to fill up the lacunae in his evidence at the fag end of the trial and moreover, the new set of facts, which were not mentioned earlier in his pleadings or in his oral evidence before this Court, ought not to be permitted. After contest, this Court had allowed O.A.No.244 of 2017 on 16.03.2017 by directing the issuance of subpoena to the aforestated person to appear before this Court on 22.03.2017 at 2.15 p.m. in E.L.P.No.1 of 2011 and to tender evidence etc. As against the said order, the 1st Respondent filed Petition(s) for Special Leave to Appeal (C) No(s). 9032/2017 and the same was dismissed by the Hon'ble Supreme Court on 31.03.2011. In this connection, this Court points out that the Hon'ble Supreme Court while dismissing the Special Leave Petition had left it open to the 1st Respondent to raise such objections as are available to him in Law as far as fresh evidence was concerned. In fact, the Divisional Engineer mentioned in O.A.No.244 of 2017 was examined by this Court as C.W.6 and Ex.C23 was marked.
47.3.The Learned Senior Counsel for the 1st Respondent refers to the evidence of R.W.3 (1st Respondent) who had denied in his evidence in regard to the allegations made by the P.W.1 and P.W.2 and according to him, they are all false one, stated in a deliberate manner.
47.4.To fortify this plea, the Learned Senior Counsel for the 1st Respondent draws the attention of this Court to the following Decisions:
(i) In the decision Anvar P.V. V. P.K.Basheer and Others reported in (2014) 10 Supreme Court Cases 473 at Special Pages 484 to 486, wherein at paragraphs 16 to 20 and 24, the Hon'ble Supreme Court has laid down as follows:
16. It is further clarified that the person need only to state in the certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, compact disc (CD), video compact disc (VCD), pen drive, etc., pertaining to which a statement is sought to be given in evidence, when the same produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice.
17. Only if the electronic record is duly produced in terms of Section 65-B of the Evidence Act, would the question arise as to the genuineness thereof and in that situation, resort can be made to Section 45-Aopinion of Examiner of Electronic Evidence.
18. The Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements under Section 65-B of the Evidence Act are not complied with, as the law now stands in India.
19. It is relevant to note that Section 69 of the Police and Criminal Evidence Act, 1984 (PACE) dealing with evidence on computer records in the United Kingdom was repealed by Section 6 of the Youth Justice and Criminal Evidence Act, 1999. Computer evidence hence must follow the common law rule, where a presumption exists that the computer producing the evidential output was recording properly at the material time. The presumption can be rebutted if evidence to the contrary is adduced. In the United States of America, under Federal Rule of Evidence, reliability of records normally go to the weight of evidence and not to admissibility.
20. Proof of electronic record is a special provision introduced by the IT Act amending various provisions under the Evidence Act. The very caption of Section 65-A of the Evidence Act, read with Sections 59 and 65-B is sufficient to hold that the special provisions on evidence relating to electronic records shall be governed by the procedure prescribed under Section 65-B of the Evidence Act. That is a complete code in itself. Being a special law, the general law under Sections 63 and 65 has to yield.
24. The situation would have been different had the appellant adduced primary evidence, by making available in evidence, the CDs used for announcement and songs. Had those CDs used for objectionable songs or announcements been duly got seized through the police or Election Commission and had the same been used as primary evidence, the High Court could hav eplayed the same in court to see whether the allegations were true. That is not the situation in this case. The speeches, songs and announcements were recorded using other instruments and by feeding them into a computer, CDs were made therefrom which were produced in court, without due certification. Those CDs cannot be admitted in evidence since the mandatory requirements of Section 65-B of the Evidence Act are not satisfied. It is clarified that notwithstanding what we have stated herein in the preceding paragraphs on the secondary evidence of electronic record with reference to Sections 59, 65-A and 65-B of the Evidence Act, if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act, the same is admissible in evidence, without compliance with the conditions in Section 65-B of the Evidence Act.
(ii)In Sanjaysinh Ramrao Chavan V. Dattatray Gulabrao Phalke, (2015) 3 Supreme Court Cases 123 at Special Page 124, at paragraph 16, it is, inter alia, observed that .... Be that as it may, only basis for supporting the allegation is the conversation that is said to be recorded by voice recorder, Directorate of Forensic Science laboratories, has stated that the conversation is not in audible condition and, hence, the same is not considered for spectrographic analysis. The respondents submit that the conversation has been translated and the same has been verified by panch witnesses. Admittedly, panch witnesses have not heard the conversation, since they were not present in the room. As the void recorder is itself not subjected to analysis, there is no point in placing reliance on the translated version. Without source, there is no authenticity for translation. Source and authenticity are the two key factors for an electronic evidence'.
(iii) In Harpal Singh Alias Chhota V. State of Punjab, (2017) 1 Supreme Court Cases 734 at special page 737, the Hon'ble Supreme Court had observed that 'electronic evidence in nature of secondary evidence cannot be admitted unless requirements of Section 65-B of the Indian Evidence Act, 1872 are satisfied'.
47.5.Apart from the above, the Learned Senior Counsel for the 1st Respondent relies on the Order of this Court in Election Petition No.2 of 2011 dated 25.09.2014 (between S.Ramachandran V. E.V.Velu and 15 others) wherein at paragraph 24, it is observed as follows:
24. It is to be noted that as per Section 65B of the Indian Evidence Act, 1872 Electronic Records such as, Computer Print Out, C.Ds. Pen Drives, Micro-Chips, V.C.Ds. etc. are considered as secondary evidence. As per amended Evidence Act, the person in-charge of duplication of Data is to give the Court a certificate that the Data or authentication is to the best of his knowledge. Without a certificate the secondary evidence in this regard is not to be permitted by a Court of Law.
48.Discussions:
48.1.At the outset, it is to be pointed out that Section 123(1)(A) under the caption corrupt practice while referring to 'Bribery' says that 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 objects, directly or indirectly, of inducing etc. Further, Section 123(1)(a)(b) of the Representation of the People Act, 1951 reads as under:
(a) a person to stand or not to stand as, or [Substituted by Act 47 of 1966, S.53, for to withdraw (w.e.f. 14.12.1966) [to withdraw or not to withdraw] from being a candidate at an election; or
(b) an elector to vote or refrain from voting at an election, or as a reward to -
(i) a person for having so stood or not stood, or for (Substituted by Act 47 of 1966, S.53, for having withdrawn and withdrawing, respectively (w.e.f. 14.12.1966) [having withdrawn or not having withdrawn] his candidature; or
(ii) an elector for having voted or refrained from voting; 48.2.In Law, a charge of 'corrupt practice' under the Representation of the People Act, 1951 is to be established beyond reasonable doubt and it cannot be forgotten that the standard of proof is the same as in a criminal case.
48.3.It cannot be gainsaid that the charge 'corrupt practice' is a quasi criminal in nature and the allegations thereto ought to be sufficiently clear, precise and must be proved by evidence of a conclusive nature. It is to be remembered that a strict proof to an allegation of corrupt practice is required to hold a person guilty. An evidence creating some 'needle of suspicion' is not adequate to prove the charge of 'corrupt practice', in the considered opinion of this Court.
48.4.One cannot brush aside a very significant fact that in an election case, it is easy to procure the aid of 'Partisan'/Interested Witnesses', but it is for the Petitioner to prove the charges levelled by him against the Respondent concerned. Undoubtedly, a corrupt practice may be inferred form the proved circumstances.
48.5.It is to be mentioned that as per Section 45 of the Representation of the People Act, 1951 an 'Election Agent' is to perform only such functions as an authorised by or under the Act. If an election agent traverses beyond the authority given under Section 45 of the Representation of the People Act, 1951 and commits an illegal act or an offence may be electoral or criminal. Ordinarily, he cannot pass on the sins to the candidate and escape punishment and consequences on proof of commission of such act or offence merely on the premise that he is only an election agent of a candidate and that it is adequate to proceed against the candidate alone.
48.6.At this juncture, this Court aptly points out that to plead 'corrupt practice' as contemplated by Law, it is to be alleged that the corrupt practices were committed with the consent of candidate and that a certain electoral right or an individual is affected. In this regard, it is not out of place to make a pertinent mention that it cannot be left to chance or conjecture/surmises/presumption/assumption for a Court of Law to draw an adverse inference by resulting to an involved process of reasoning.
48.7.In reality, the term 'connivance' and 'consent' cannot be equated. A 'consent' implies that parties are 'ad idem'. A 'connivance' does not imply that of one mind. However, a consent cannot be inferred from mere knowledge alone and the same is a question of fact which is to be established by the Election Petitioner before he seeks relief under Section 100 of the Representation of the People Act, 1951. It is to be noted that the word 'consent' is of wider import and includes both express and implied consent. After all, the consent of a candidate or his agent must be proved.
48.8.It is to be noted that the proof of 'corrupt practice' requires cogent and reliable evidence and the allegation/charge levelled against the opposite party ought to be satisfactorily proved, it cannot be established by mere preponderance of probability. To render an individual an accomplish his participation in the crime should be criminally corrupt. To decide whether an individual is or is not an accomplish, the aspect of 'guilty mind' is a primordial fact to be taken into account. In so far as the corrupt practices are concerned, 'Mens Rea' is excluded by necessary implication, in the considered opinion of this Court. One has to bear in mind that an individual who accepts 'gratification' whether he has knowledge of the ingredients of Section 123(1) of the Representation of the People Act, 1951 or not is an 'Accomplish', a 'PARTICIPES' 'CRIMINIS' in the commission of corrupt practices. It is true that the word 'Corruption' is the 'Greatest Enemy' of our Nation.
48.9.As far as the 'proof of corrupt practice' is concerned, Section 106 of the Indian Evidence Act, 1872 is quite inapplicable. The onus is always on the Election Petitioner. Indeed, 'the onus of proof' cannot be thrown on the shoulders of a successful candidate on the basis that the facts are specially within his knowledge. Apart from that, just because an enquiry into 'corrupt practice' is in the nature of criminal case, the Respondent is absolved from all responsibilities to adduce evidence or to rebut the case of the Petitioner. The allegation made is the evidence let in, the admission of parties, circumstances and probabilities of the case, and the entire conspectus of material facts available on record is to be considered by the Court concerned deciding whether particular corrupt practice has been committed or not. A Court of Law is to act with great care, caution and circumspection in regard to the matter pertaining to an Election of a Returned Candidate and the same should not be set aside either on flimsy, vague or uncertain evidence.
48.10.The aim of incorporating Section 123 of the Representation of the People Act, 1951 is to ensure that the elections are held in a free and fair manner, as per decision of the Hon'ble Supreme Court in Patangrao Kadam V. Prithiviraj Sayajirao Yadav Deshmuk and others, AIR 2001 SC 1121.
48.11.At this juncture, this Court worth recalls and recollects the decision of the Hon'ble Supreme Court in Vimal (Dr.) V. Bhaguji, AIR 1995 SC 1836 wherein it is held that 'the allegation of corrupt practices must be established by a clinching and unimpeachable Evidence'.
48.12.Indeed, this Court aptly points out the decision in Ramachandran Kadanga Palli V. K.P.Noorden, AIR 1988 Kerala 141, it is held that 'any allegation of corrupt practice in election petition, the consent of candidate to such practice should be proved'.
48.13.No wonder, a Court of Law is to see whether 'Charity' is used as a cloak for, or with an ulterior aim of winning the votes. There is a distinction between declaration of public policy and a promise of gratification. A promise pertaining to a public action which does not bring any profit or personal benefit to voter or a declaration of a public policy cannot possibly characterised as one to be an offer of gratification within the meaning of word 'gratification' as used and defined in Section 123(1) of the Representation of the People Act, 1951.
48.14.It is to be pointed out that an Election although is not meant to prevent 'Charity' in normal course, under the guise of 'charity' voters cannot be induced or influenced. A charitable gift, however, injudicious it may be, is not a harmful one, notwithstanding its effect upon the Recipients/Beneficiaries. However, if the 'Motive of Charity' is corrupt, then, it is a form of 'Bribery'. It is to be mentioned that providing 'charity' in a small way would not lead to an automatic inference that this was meant to woo/influence the voters of the Constituency.
48.15.Suffice it for this Court to point out that the 'gratification' refers only to cases where a gift is made of something which gives a material advantage to the recipient. In order that the offer of gratification is to be regarded as a corrupt practice, it must be made after the individual offering gratification has begun to hold himself as a prospective candidate. To bring within the purview of 'corrupt practice', this Court relevantly points out that the gift must be made with the object of inducing a person to stand or not to stand, or to withdraw or not to withdraw from being a candidate, at the election, or inducing an elector to vote or refrain from voting, or it must be given as reward to a person for having so stood or not stood or for having withdrawn or not withdrawn his candidature or to a voter for having voted or refrained from voting.
48.16.The crux of the corrupt practice of 'Bribery' lies in inadverting to do something for those opposed to the candidate with a view to changing their votes and as a bargain for votes, as per decision of the Hon'ble Supreme Court in Dev Raj V. Bhagwan Dass, AIR 1971 SC 241.
48.17.It cannot be gainsaid that where the Election Petitioner was alleging commission of corrupt practice of 'Bribery' by the Returned Candidate, but no names of persons receiving the bribe were stated, the petition would be liable to be dismissed as per decision Mani Ram V. Surinder Kumar, Air 1993 Punjab & Haryana 152. The 'motive of gift' is the deciding factor (Windsor, 2 O' M & H 90).
48.18.To constitute an act of corrupt practice, an existence of an intention is essential, if the motive is really to give charity and it is not a corrupt practice, it will be deemed as an innocent act, as per decision Shankara Gowda V. Mariyappa, 6 ELR 101. Besides this, acts of benevolence with no oblique motive in themselves innocent cannot be treated as 'corrupt', in the considered opinion of this Court.
48.19.In this connection, this Court points out the decision of the Hon'ble Supreme Court in Ram Singh and others V. Col. Ram Singh reported in AIR 1986 Supreme Court 3, wherein it is observed that 'for proving the corrupt practice, it must be committed by an elected candidate or his polling agent only with their consent'. Also, in the decision of the Hon'ble Supreme Court in Surinder Singh V. Hardial Singh and others, AIR 1985 Supreme Court 89, it is observed that 'oral evidence of witness belonging to rival political party is no proof of corrupt practice'.
48.20.It is to be noted that in the decision Borgaram Deuri V. Permodhar Bora and others, AIR 2003 Gauhati 135, it is, inter alia, observed that '.... witnesses examined on both sides were also partisan in character and no independent witness was examined by either party'. Also, it is to be mentioned that on the mere oral testimony of a witness, a corrupt practice cannot be proved, as per decision A.Younus Kunju V. R.S.Unni reported in (1984) 3 SCC 347.
48.21.It is to be noted that Section 82 of the Representation of the People Act, 1951 speaks of only a candidate (Returned Candidate) being made as a party. Under Section 99 of the Representation of the People Act, 1951, if the Court comes to the conclusion that some third person indulged corrupt practices, then, he may be made a party after giving him notice about the alleged corrupt practices. Moreover, no individual other than a candidate in election has to be impleaded and the provisions of Civil Procedure Code which are supplementary and complementary is not to be applied, as opined by this Court.
48.22.It is to be stated that it is not enough that the third person induces the voter. It is the fact of payment the third person must induce the voter as per decision Kalya Singh V. Gende Lal, AIR 1975 SC 1634. Ordinarily, an election of a Returned Candidate ought not to be set aside on flimsy, vague and uncertain evidence.
48.23.Moreover, under the Representation of the People Act, 1951, the corrupt practice of 'Bribery' involves an element of bargain and unless there is evidence to show that the direct or indirect bargain, there is no corrupt practice, as per decision of the Hon'ble Supreme Court in Banu Kumar Sastri V. Mohan Lal Sukadia reported in AIR 1971 SC 2025.
48.24.It is to be pointed out that Section 171-B I.P.C. defines the offence of Bribery at an election. Section 171-E I.P.C. speaks of 'Punishment for Bribery'. Section 171-H I.P.C. deals with 'illegal payments in connection with an election'. Indeed, 'Bribery' is not made an electoral offence under the Representation of the People Act, 1951, as it is an offence under I.P.C. The corrupt practice of 'Bribery' is defined under Section 123(1) of the Representation of the People Act, 1951 which is a limited to the commission of corrupt practice by the candidate or his agent or by any other person with the consent of candidate or his election agent.
48.25.It is to be pointed that 'First Information Report' is not mentioned, but it is understood to mean information recorded under Section 154 Cr.P.C., as per decision Manimohan Ghose (1931) 58 Cal 312. The prime purpose of the First Information Report from the stand point of the Complainant is to set the Criminal Law in Motion. Also that, the information in F.I.R. must disclose a cognizable offence. Further, it is to be remembered that 'First Information Report' is not a plaint. What is important is that the information furnished ought to disclose a commission of a cognizable offence and the said information so lodged/given must provide a platform for the police officer to suspect the commission of a 'cognizable offence', in the considered opinion of this Court.
49.Findings on Corrupt Practices:
49.1.In the instant case, although the Election Petitioner, in his Election Petition at paragraphs 47 to 53, had averred to the act of the 1st Respondent's party workers/functionaries in bribing the voters and the distribution of money to the Self Help Groups and its members etc. at Eswari Hospital and also spoken to about it in his evidence as P.W.1 (in chief examination), it is to be pointed out that he is not a direct witness to the said allegation. Further, he received the message that at Eswari Hospital money was given to women Self Help Groups to be distributed to the voters and only informed the election officials, flying squad and police and went in person to Eswari Hospital along with party workers. Further, it is the evidence of P.W.1 that his party Secretary Vetrinagar M.Sundar asked the police to let him into Eswari Hospital, the Police had delayed his entry etc. and further that, the incident at Eswari Hospital was videographed by the election official and that apart, he had deposed in his evidence that he had personal knowledge about the distribution of money and that he gave a police complaint in Sembiyam Police Station etc., and that Ex.C8 (CD) was a proof of the incident that took place on 24.03.2011 at Eswari Hospital, this Court is of the considered view that P.W.1 in his evidence had specifically stated that it was only Poombuhar Mahalingam (P.W.2) had informed him that the lady members were caught red handed in Eswari Hospital premises on 24.03.2011 gave statements to the Police to the effect that they came to receive money from the 1st Respondent party functionaries for the benefit of members and to distribute the same to the voters of respective areas with a view to secure the votes to and in favour of the 1st Respondent, on 24.03.2011 the Petitioner had filed his nomination only on 22.03.2011 and was declared as a party candidate only on 28.03.2011 after 3.00 p.m. Further, the Petitioner gave complaint only on 28.03.2011 regarding the money being distributed to Self Help Group members by the 1st Respondent's party functionaries.
49.2.In the present case, a perusal of the averments made by the Petitioner in his Election Petition from paragraphs 47 to 53, this Court comes to an irresistible conclusion that there was no categorical averment that the 1st Respondent had given his consent to his party functionaries to bribe the voters and Self Help Group members with a view to attract a misdeed of 'corrupt practice'. Moreover, a consent in Law cannot be inferred even from the mere knowledge alone. Apart from that, the 1st Respondent cannot be held even vicariously liable for the alleged act of his party functionaries/workers in bribing the voters and Self Help Group members at Eswari Hospital when the same was done without his consent. Further, on behalf of the Petitioner, Vetrinagar M.Sundar was not examined, but only P.W.2 (Poompuhar Mahalingam) was examined.
49.3.It is the evidence of P.W.2 that he knows that the Eswari Hospital is situated at Jaganathan Street, Periyar Nagar, who had stated that he could not answer to a suggestion whether to go to Rettai Eri Kolathur Main Road one has to pass through Jaganathan Street, Periyar Nagar, since he does not know the area. Further, he had deposed in his evidence that he got into the auto and asked the auto driver to take him to Rettai Eri Kolathur Main Road by the shortest route and also went on to add that he does not remember during his election campaign, whether he had covered Jaganathan Street as well as Rettai Eri Kolathur Main Road. When P.W.2 is the Secretary of South Madras North District Fishermen's Wing belongs to political party of the Election Petitioner, then, his evidence to the effect that he does not know the area viz., whether to go to Rettai Eri Kolathur Main Road, one has to pass through Jaganathan Street, Periyar Nagar, is of simmering doubt and unworthy of credence, as opined by this Court.
49.4.That apart, it is also the evidence of P.W.2 that the two women with whom he spoke to outside the Eswari Hospital were not in uniform and they wearing ordinary sarees and further, he had added that, he does not remember the identities of ten women whom he saw going into Hospital and he does not remember the ten women who went into the Hospital coming out and in an emphatic term, he had stated that he only knew that they went in. In this connection, this Court aptly points out that in Law, 'suspicion', however strong must be, cannot take the place of legal proof and more often than not it is placed between 'Moral Certainty' and 'Legal Evidence'.
49.5.In so far as the evidence of P.W.2 is concerned, when he attempted to enter the Eswari Hospital, two policemen and two DMK party functionaries wearing white dhotis with DMK colour borders chased him away and on suspicion, the police men and DMK party men were trying to send the women inside from the Hospital quickly, no police complaint or any other complaint was lodged by P.W.2 in this regard, which is certainly not a favourable circumstance/factor to and in favour of the Petitioner.
49.6.In the instant case, although the Petitioner had taken a stand (through the evidence of P.W.2) that women came out from the Eswari Hospital one by one hiding their faces, it is for him to establish before this Court beyond reasonable doubt that the said women came to the Hospital to receive money or they received money on the instructions of the 1st Respondent (Returned Candidate) or that the 1st Respondent gave his consent to his DMK party workers to distribute money with a view to secure the votes of the voters of Kolathur Constituency [especially in the light of evidence of P.W.2 that the employees of the said Hospital were unaware of any money being distributed there].
49.7.Further, notwithstanding the fact that P.W.2 in his evidence, had deposed that he went to Kolathur to see the Election Petitioner on 24.03.2011 and that about 120 women standing outside the entrance of the Eswari Hospital etc. and that apart, he had stated in his evidence that two women informed him that the 1st Respondent's men were giving money to the women of Self Help Groups to be distributed to the voters and lure them to vote for the DMK in the symbol of 'Rising Sun' and that all the women of the Self Help Groups were coming out of the Hospital with bundles of money in their hands and only after seeing and confirming 50 women came out with bundles of money, he called the Petitioner and informed him that on the instructions of the 1st Respondent, the 1st Respondent's men were distributing money among the women of the Self Help Groups in Eswari Hospital, Kolathur to be distributed to the voters and that he saw the black bags filled with money were thrown from the first floor and that he saw money spilling out from one of the four black bags thrown out with zip opened etc., these would not ipso facto go to prove with ring of certainty or with high degree of proof or conclusiveness which is required to establish the allegation of the Petitioner that the 1st Respondent party functionaries/workers had bribed the voters [by means of 'gratification' corrupt practice] and Self Help Group members at the Eswari Hospital with the consent or knowledge or approval of the 1st Respondent or his election agent. Also that, in the present case, P.W.2 had not, in his evidence, identified the two women, who had purportedly informed him that the 1st Respondent's men were giving money to the women Self Help Groups to be distributed to the voters, which is not a favourable circumstance in favour of the Petitioner.
49.8.In so far as the aspect of 'Money Distribution' at the Railway Institute, Perambur, the Petitioner's case is that the 1st Respondent with the help of his party functionaries, Corporation officials, one Kannaiah, President of the Railways Employees Co-operative Credit Society Limited, its employees were involved in the distribution of money for votes after the nomination of the 1st Respondent was filed on behalf of the DMK party and that the 300 Railway employees of the Society were engaged for open canvass and working for the 1st Respondent and the Society members and the 1st Respondent's party workers were permitted to make use of the place called Southern Railway Institute in Siruvallur High Road to distribute money to the voters on 07.04.2011 at 6.30 p.m. and also the said Kannaiah had helped the 1st Respondent and in this regard, Ex.C9 CD would point out to the relating events that took place on 07.04.2011 and in fact, the allegation that the the Railway employees were engaged between 07.04.2011 to 12.04.2011 by the said Kannaiah to distribute money to vote in Kolathur Constituency on aforesaid dates to 10.00 a.m. to 5.30 p.m., which was denied by the 1st Respondent to the effect that the said Kannaiah is not an active member of the DMK and further that, neither he nor his agent in any way distributed or consented to the distribution or aware of distribution of money to the voters as averred in the Election Petition, this Court is of the considered view that the Petitioner had not established the said corrupt practice of money distribution committed with the express or tacit knowledge or consent or approval or inducement of the 1st Respondent or his polling agent, as the case may be.
49.9.In regard to the allegation of money distribution by the 1st Respondent's party by adopting Thirumangalam Formula in a novel way of community feedings, courier service, currency in News paper, Arathi Plate contributions and slips to the voters to purchase consumer items etc., this Court points out that there is no convincing, satisfactory and acceptable proof produced on the side of the Petitioner and as such, it is held by this Court that the same remains unproved.
49.10.In regard to the Petitioner's averment at para 18 of the Petition that reports appeared in various Tamil News dailies (filed along with Election Petition) published reports about the illegal act of distribution of money to the voters in various parts of Kolathur Constituency, this Court points out that P.W.6 (Editor of Tharasu Magazine), in his evidence, had deposed that they had engaged one A.P.Muruganandam as the stringer for Kolathur Constituency and they published the report based on the information given by the stringers engaged by him. Further, he had stated in his evidence that the said Muruganandam reported daily to their magazine and handed over the chip containing the photos and videos taken at Kolathur Constituency and that they engaged temporary reporters for covering the Assembly Elections and that on 11.04.2011 they had uploaded two news items in their web edition. Apart from the above, this Court refers to the evidence of P.W.6, who had stated that the first news item was about the camera of one such stringer, Mr.Rajaram being stolen by somebody when recording the election campaign of the 1st Respondent at Kolathur Constituency on 11.04.2011 and the said Rajaram was shooting the activities of the DMK's election office and the other news item uploaded by him on the web edition is based on the information given by the stringers about the 1st Respondent's election campaign and the disbursement of money to the voters by the DMK and that the sum distributed among voters was increased from Rs.500/- to Rs.1000/-. Furthermore, P.W.6, had also stated that they had only reported that money was distributed among voters but they had not mentioned the manner in which the money was distributed and added further, they had reported in the news item that generally at about 9.00 p.m., the electricity was shut down to enable the distribution of money among the voters and that he was informed by his reporter Mr.Rajaram that Women Self Help Groups had received lumpsum money to the tune of Rs.50,000/- to Rs.1,00,000/- and by the word Udanpirappukal in the news item, he referred to the DMK cadre and according to the report, the money was distributed by DMK workers to enable the victory of the 1st Respondent and that he had also enclosed news item (downloaded) from Dinakaran daily dated 09.04.2011 and that the print out of the news item dated 11.04.2011 was Ex.P49 series and the CD filed into Court containing videos shot by their stringer Muruganandam during the 2011 General Assembly Elections in Kolathur Constituency was marked as Ex.P51 and the certificate issued by him dated 06.02.2015 was Ex.P52 and the CD filed into Court containing the photos shot by their stringer Muruganandam during the 2011 General Assembly Elections in Kolathur Constituency was marked as Ex.P50 and the copies of CD and the Certificate were issued by him.
49.11.In the present case, one Rajaram (Stringer), whose camera was purportedly stolen by somebody while he was recording the election campaign of the 1st Respondent at Kolathur Constituency on 11.04.2011, was not examined as a witness before this Court. Furthermore, although P.W.6 had deposed that the other news item uploaded on the web edition was based on the information given by the stringers about the 1st Respondent's election campaign and distribution of money to the voters by the DMK and the sum distributed among voters was increased from Rs.500/- to Rs.1000/- etc., this Court points out that to vouchsafe the correctness of the said information/allegation, the concerned stringer was not examined before this Court on the side of the Petitioner.
49.12.At this juncture, this Court relevantly points out that in 'Hearsay Evidence' the person tendering such evidence does not own any responsibility. After all, the Law requires a witness to take responsibility for his testimony. Apart from that, the word 'Hearsay' refers to what is done or spoken or written and in legal parlance, it means 'that kind of evidence which does not derive its value from the credit given to the witness himself, but which rests in part, on the veracity and the competency of some other or another individual', in the considered opinion of this Court. Therefore, a Court of Law is concerned with 'quality of evidence' and not with the 'quantity of evidence' in a given case. Viewed in that perspective, the evidence of P.W.6 that based on the informations given by their stringers about the 1st Respondent's election campaign and the distribution of money to the voters by the DMK party etc., are not valuable piece of evidence ex facie and being a 'Hearsay Evidence' stand unsubstantiated on the side of the Petitioner.
49.13.In so far as the incident at Railway Club was concerned, it is to be pointed out that along with Ex.P6 F.I.R. a report was submitted dated 07.04.2011 by DC/FS addressed to the Returning Officer, 13 Kolathur A/C in Ref.No.ANNEXURE VIIIA, FS/KOLATHUR/ 2011 wherein it was, among other things, mentioned that the Squad and the Police team entered the premises and searches were made and the searches were conducted in two floors, indoor games hall, but no cash was found and that the entire proceedings were videographed and also that, the team searched the parking two wheelers and after sometime, the Petitioner had arrived and further searches were made in the auditorium and that the AIADMK cadres insisted to seize the two wheelers parked in the premises as they suspected to be used for transfer of money and they also preferred a complaint that this premise was used for the money transactions and take action etc. and moreover, the Squad or the Police S.S. Team had not seized any cash. Further, in Ex.P43 Copy of F.I.R. dated 07.04.2011 in Crime No.389/ 2011 (Ex.P6), the Election Petitioner as Complainant had ultimately prayed for seizure of sum of Rs.10,000/- in four bikes, visiting card and for conducting an investigation and to take action as per Law. Therefore, it is held by this Court that the Petitioner had failed to establish his averment/allegation made in para 31 of his Election Petition, inter alia, to the effect that the 1st Respondent's party men used the premises of Railway Institute situated at Siruvallur Road for distribution of money to the voters of Kolathur Constituency (with a view to secure the success of the 1st Respondent) beyond any shadow of doubt.
49.14.It is to be pointed out that P.W.1 at para 31 of his Petition had averred that the 1st Respondent and his party men used the Railway premises situated in Siruvallur Road and the premises belonging to the party functionaries, distributed money to a tune of Rs.60 Crores to the voters of Kolathur Constituency in order to secure the success of the 1st Respondent (R.W.3). But, in paragraph 87 of his Election Petition, he had stated that 'apart from distributing money to the voters through its workers, the 1st Respondent, his election agent and party functionaries spent huge amounts to the tune of more than Rs.30 Crores in the entire constituency'. Therefore, it is candidly clear that the P.W.1 (Election Petitioner), in his evidence, is not quite consistent, but, in fact, he is nebulous in this regard as to the exact amount viz., whether the 1st Respondent or that of his election agent etc. had spent either Rs.30 Crores or Rs.60 Crores in the entire Kolathur Constituency.
49.15.Coming to the aspect of the evidence of P.W.1 (Election Petitioner) that the 1st Respondent's wife viz., Durga Stalin was engaged in distribution of money to the voters and meeting several NGOs and further that, she stayed in Kolathur for ten days and supervise the distribution of money to the voters, it is to be pointed out that the 1st Respondent, in his counter at paragraph 37, had denied that his wife stayed in Kolathur Constituency for more than 10 days and in fact, his wife had only visited Kolathur for three days and that too for his canvassing. Further, the 1st Respondent had denied in his counter that his wife with the assistance of the then Mayor of Chennai (Ma.Subramaniam) had supervised the distribution of money to the voters etc. 49.16.In regard to the allegation of the Petitioner that the 1st Respondent's wife had stayed at Kolathur for ten days, the 1st Respondent as R.W.3 in his evidence, had deposed that he read the interview given his wife in Kumudam Snehidi (Tamil Magazine) Ex.P53 (Article at Ex.P54) and nowhere in Ex.P54, it was mentioned that his wife had stayed in Kolathur Constituency to campaign for the election. Further, he had denied the suggestion made on behalf of the Petitioner that his wife had made the promises to the voters prior to the election. In view of the categorical denial of the 1st Respondent and the aforesaid evidence of R.W.3 (1st Respondent), this Court holds that the averment of the Petitioner and also in his evidence as P.W.1 that 1st Respondent's wife stayed in Kolathur Constituency to campaign for the election was not established.
49.17.In regard to the aspect of Distribution of Money by Yesurajan @ Yesudoss to the Self Help Groups and the public in batches of 25 people and that the Police went nowhere near his house and they searched outside the house just as a formality and moreover, he was not a rich man, but stacks of money was found in his house (as deposed by P.W.3), at this stage, this Court, on perusal of the averments made by the Election Petitioner at para 61 of his Election Petition, is of the considered view that there is no mention of money being distributed to Self Help Groups, but it was averred that the 1st Respondent party workers with his consent distributed money to the voters of the residents at Sankara Mutt Street, Perambur on 06.04.2011 around 8.00 p.m. which was seen by P.W.3. As a matter of fact, the Petitioner had averred at para 61 of his Election Petition that due to the influence of the 1st Respondent, the Police had failed to take any action etc. Suffice it for this Court to make a pertinent mention that the allegation of the Petitioner that Yesurajan @ Yesudoss DMK party functionary of Kolathur area distributed money and even the residents had complained about the said affair, as averred by him at para 61 of his Petition, is not established to the subjective satisfaction of this Court beyond all reasonable doubt.
49.18.As regards the averment of the Petitioner at para 35 of his Election Petition that the 1st Respondent's wife conducted a meeting without obtaining Police permission and in violation of Model Code of Conduct over the roof top of area of Canara Bank Branch, Chennai 82, a premises owned by Mr.Deva Jawahar, a General Body Member of DMK party, this Court points out that the Petitioner had not taken any steps to summon Mr.Deva Jawahar as a Court witness to substantiate the same. As such, it is held by this Court the allegation that the 1st Respondent's wife conducted a meeting without obtaining Police permission at the premises of a General Body Member of DMK party remains unproved.
49.19.In regard to one M.K.Lenin, 62nd Divisional Secretary, who was distributing money on 10.04.2011 at 11.00 a.m. (as per allegation of the Petitioner), was not examined even as a Court witness is not a favourable circumstance in favour of the Petitioner.
49.20.It is to be pointed out that although the Petitioner in his Election Petition had averred that his party worker Nirmal Kumar of Chennai-11 filed a complaint with K-1 Sembiyam Police Station mentioning that on 07.04.2011 around 8.30 a.m., DMK people came in a red colour car bearing Registration No.TN 09 AJ5556 and gave a sum of Rs.500/- and asked him to vote for the rising sun and further that, they had assured to pay the amounts through second and third installments and that the flying squad sent them away after recording their faces etc., this Court is of the considered view that the Petitioner to substantiate this allegation had not examined Mr.Nirmal Kumar on his side as a witness.
49.21.Likewise, the Petitioner's averment in the Election Petition at para 55 and his evidence to the effect that another vehicle bearing Registration No.TN 09 AV 6811 came with DMK party workers to distribute the money to the voters of their area to cast their votes in favour of the 1st Respondent and that the said Nirmal Kumar gave a complaint which was registered in Crime No.387/2011 in K-1 Sembiyam Police Station on 07.04.2011 at 12.30 p.m. etc., and that as usual the Police had not taken any action in this regard, this Court points out that the said averment of DMK party workers came to distribute money to the voters in the vehicle mentioned to cast their votes in favour of the 1st Respondent remains unproved to the subjective satisfaction of this Court. But the evidence of P.W.3 (P.W.1's party functionary) is that she went to the Sembiyam Police Station along with Nirmal Kumar who was issued with an I.D. Proof etc., registered a complaint in the name of Nirmal Kumar. In short, the evidence of P.W.3 in this regard remains uncorroborated in the absence of examination of Nirmal Kumar as a witness.
49.22.Dealing with the averment of the Petitioner at para 56 of his Petition that the 1st Respondent's party workers with his consent distributed money on 07.04.2011 at 8.30 a.m. at the rate of Rs.500/- for the voters in Ramana Nagar area of Kolathur Constituency to cast their votes in favour of the 1st Respondent and further that, the Petitioner's party Divisional Secretary Mrs.Lilly Kalpana (P.W.3) and himself saw the distribution of Rs.500/- to the voters of the said division by C.Palani, former Youth Wing leader of the DMK party from the premises situated in No.7/11, Jawahar Street, Ramana Nagar, Chennai 11 and that the Petitioner had filed a copy of the C.D. [Ex.C9 CD dated 07.04.2011 taken at Ramana Nagar, Railway Institute and Lilly Kalpana] to show that the Police allowed DMK women party worker to go free without any action and the same being denied by the 1st Respondent in his counter, this Court is of the considered view that although the Petitioner had averred in his Election Petition that the act of the 1st Respondent's party workers with his consent distributed money on 07.04.2011 at the rate of Rs.500/- for the voters in Ramana Nagar area, the very fact that the 1st Respondent had purportedly given consent for the act of distribution of money was not established on the side of the Petitioner to the subjective satisfaction of this Court. Further, even that the 1st Respondent had any possible knowledge in this regard was also not proved on the side of the Petitioner.
49.23.However, the very fact that P.W.3 had deposed, in her evidence, that she could not identify the lady who informed her that money was going to be distributed at Ramana Nagar on 07.04.2011, her evidence, in this regard, is not a valuable piece of evidence as ex facie, it is only 'Hearsay Evidence'. Therefore, her evidence in this regard does not inspire the confidence of this Court to its subjective satisfaction.
49.24.In regard to the averment of the Petitioner in his Election Petition at para 60 to the effect that on 07.04.2011, P.W.3 (Divisional Secretary of AIADMK) and her party workers saw the distribution of money by one Mr.Srinivasan DMK party functionary of Kolathur to the voters from the premises of Brinda Theatre situated in Kolathur and that the flying squad, who came to the scene, on the basis of complaint, belatedly, had not taken any action against the 1st Respondent party worker Mr.Srinivasan and others who indulged in the act of distributing money to the voters, P.W.3, in her evidence, had merely stated that money at Brinda Theatre was kept by the 1st Respondent's men to be distributed to the voters and Self Help Groups at Rs.500/- per vote. In fact, she had not deposed in her evidence that the said Srinivasan (DMK party functionary) distributed money to the voters from the premises of Brinda Theatre, Kolathur. In this connection, it is to be significantly pointed out by this Court that P.W.3 only deposed for the first time about the Self Help Groups in her evidence. But, a perusal of the averment made in para 60 of his Election Petition would go to show that the words 'Self Help Groups' at Rs.500/- per vote were missing.
49.25.Dealing with the aspect of Petitioner's averment at para 59 of his Petition that DMK party chairman to that area Mr.V.S.J.Srinivasan had also assisted Palani to facilitate distribution of money to the voters of Ramana Nagar, it is to be pointed out that P.W.3 in her evidence that Palani, Deva, Sathiya, Nizar, Former Chairman V.S.J.Srinivasan, Ashok Kumar and other DMK party men, who were not from the said division, were present at Palani's house and that the Police had not taken any action of their complaints because they were under the influence of 1st Respondent, the 1st Respondent, in his counter, had denied that the said Srinivasan assisted Palani to facilitate distribution of money etc., and further that, his party functionary distributed money to the voters in the premises of Brinda Theatre etc., this Court points out that P.W.3 in her evidence had deposed that she does not remember whether she informed that money was distributed in the morning of 07.04.2011 at Ramana Nagar and further, she had stated that she was informed by a lady that money was going to be distributed at Ramana Nagar on 07.04.2011 and that she could not identify the lady who informed her and further that, the election official took video of the incident that took place on 06.04.2011, she informed the Election Petitioner and election officials that money was to be distributed at Ramana Nagar the next morning, but she had not informed the Press or Media and in short, this Court is of the considered view that even though the Petitioner had averred in his Petition at para 60 of his Election Petition that Srinivasan, DMK party functionary of Kolathur had distributed money to the voters from the premises of Brinda Theatre which was seen by P.W.3 (Lilly Kalpana) etc., the act of the said Srinivasan and the 1st Respondent's party workers who indulged in the act of distributing money to the voters was at the instance of the 1st Respondent or with the consent or knowledge of the 1st Respondent was not proved on the side of the Petitioner to the subjective satisfaction of this Court.
49.26.Furthermore, this Court relevantly points out that at para 60 of the Election Petition, the Petitioner had averred that the Petitioner states that these acts committed at the instance of the 1st Respondent etc. The word 'consent' of the 1st Respondent is not found and in the absence of the said word with the 'consent' of the 1st Respondent or any imputation/positive knowledge being attributed on the part of the 1st Respondent, this Court, without haziness, comes to a consequent conclusion that the aspect of the 'Money Distribution' at Ramana Nagar, Brinda Theatre etc., as 'corrupt practice' is not established beyond doubt on the side of the Petitioner.
49.27.In regard to the averment of the Petitioner that the 1st Respondent's wife in an Article, published in Fortnight Edition June 1 June 15, 2011 Tamil Magazine Snehidi (Ex.P53) to the effect that even after polling was over, she did ask her husband to provide cot and necessary financial assistance to whom she assured during her campaign made on behalf of the 1st Respondent and that she with his consent (1st Respondent) entered into such pre-poll assurances, to confer benefits to the voters after completion of election process and the evidence of R.W.3 (1st Respondent) that during election campaigning, a candidate would promise to the people that once he is elected to a post he would cater to the needs of the people and this is normal practice and further that, with conviction, his wife would have also made the promises only in this context, this Court is of the considered view that the aspect of the 1st Respondent's wife asking him to provide cot and necessary financial assistance to whom she assured during her campaign made on behalf of the 1st Respondent can only, at best, be described as charity gifts simpliciter without any oblique motive, with Humaneness/Human consideration and to attribute any motive or to take a plea that the 1st Respondent's wife with his consent entered such pre-poll assurances to confer benefits to the voters after completion of election process cannot be countenanced. Viewed in that perspective, the contra plea of 'corrupt practice' taken on behalf of the Petitioner fails.
49.28.Further, in the instant case, the 1st Respondent (being a Deputy Chief Minister) during 2011 Assembly Elections under characteristic and it is not quite unnatural for the needy human beings to make request before the 1st Respondent's wife to satisfy their requirements of cot to sleep and to attend to their medical requirements, in as much as the cot is very much required for sleeping day to day and their medical requirements which cannot be termed as a 'luxury' or an extravaganza. Moreover, it is a normal behaviour of the public to expect the 1st Respondent to redress the grievance of the people in satisfying their daily needs/requirements and in the absence of corrupt motive, the act of charity or benevolence cannot be blown out of proportion and the same cannot be characterised as an inducement to woo the voters by means of the promise made by the 1st Respondent's wife with his consent.
49.29.Pertaining to the 'Money Seizure' of Rs.1,18,00,000/- as averred by the Election Petitioner at paragraph 26 of his Election Petition wherein it was, among other things, mentioned that on 12.04.2011 at 3.00 p.m., a Goods Carrier named G4S bearing Registration No.TN 22 AJ 2621 found to be transporting cash in Kolathur area to the tune of Rs.1,18,00,000/- through 10th Street, G.K.M. Colony, Chennai 82 accompanied by a driver and three others and that on intimation being given to the election authorities, the vehicle was chased and stopped, brought to the K-5 Police Station along with the occupants of the said vehicle, upon opening the doors of the said Goods vehicle, huge cash to the tune of Rs.1,18,00,000/- was found inside the boxes bearing a rubber stamp as RBS etc. and further that, the Election Commission of India's instruction issued regarding movement of cash in vehicles violated so blatantly, at the instance of the 1st Respondent etc. and added further, at para 27 of the Election Petition that when police tried to open the door of the vehicle, local DMK man viz., A.Nagarajan, MC-54th Division, DMK Secretary V.J.Srinivasan and other DMK party workers prevented the opening of the door and made an attempt to remove the vehicle by force and with the help of Police, such attempt was prevented and that a Police complaint was taken in C.S.R.No.K5/ 2011 dated 12.04.2011, the same was counted by the 1st Respondent in his counter at para 28 that the vehicle in question was a Bank Security vehicle transporting cash of the Bank about which the Petitioner and his cohorts had complained to the Police and that the Police impounded the vehicle seized the cash and deposited the same in Sub-Treasury Action in Perambur on 12.04.2011 and the money belonged to the Bank was returned to them on 14.04.2011. The stand of the 1st Respondent is that there was no campaigning on 12.04.2011 since the campaigning had ended by that time. Further, the 1st Respondent as R.W.3 in his deposition had denied that he had arranged for this money to be distributed among the voters and it is completely false and according to him, the truth was that he was no way related to the incident.
49.30.In this connection, this Court aptly points out the evidence of C.W.4 (Additional Commissioner Income Tax, Special Range 4, New Delhi), who had deposed before this Court that as per Records, G4S Cash Solutions India Private Limited filed S.L.P.No.22826/2012 and that Ex.C16 is the copy of the order passed by the Hon'ble Supreme Court dated 24.02.2015 in the said S.L.P. Further, it is the evidence of C.W.4 that pursuant to the orders passed by the Hon'ble Supreme Court in the aforesaid S.L.P., the cash viz., a sum of Rs.1,18,87,490/- was returned to G4S Cash Solutions India Private Limited by the Commissioner of Income Tax 4, New Delhi through cheque dated 23.03.2015 and Ex.C17 was the photocopy of the cheque taken through a mechanical process. Moreover, it is the evidence of C.W.4 that a sum of Rs.1,18,00,000/- was not assessed as 'undisclosed income' in the hands of M/s.G4S Cash Solutions India Private Limited. Besides this, C.W.4 had stated, in his cross examination, that an Assessment records for the year Assessment year 2012-2013 containing a reply from M/s.G4S Cash Solutions India Private Limited stating that the cash does not belong to the Assessee and that it belongs to 11 parties and further that, the Assessment Order was passed on 31.03.2014 and in fact, G4S gave the names and addresses of 11 parties. Apart from the above, it is the evidence of C.W.4 on 20.09.2013, a notice was issued under Section 153A to G4S Cash Solutions India Private Limited to which a reply dated 25.09.2013 was filed by Mr.Deepak Kataria, APRA & Associates, Chartered Accountants on behalf of the G4S Cash Solutions India Private Limited.
49.31.In view of the evidence of C.W.4, it is candidly clear that the cash was not assessed as undisclosed income in the hands of M/s.G4S Cash Solutions Private Limited and in fact, the said amount was returned by virtue of the Order of the Hon'ble Supreme Court (Ex.C16) through Ex.C17 photocopy of the cheque. Therefore, this Court holds that the 1st Respondent is not in any way connected with the seizure of the aforesaid amount by the local Police and as such, the averment of the Petitioner that the Election Commission of India's instruction regarding movement of cash in vehicles was violated so blatantly at the instance of the 1st Respondent is totally unfounded. Further, the other averment at para 28 of the Election Petition made by the Petitioner that 'the 1st Respondent is solely responsible for transportation of such a huge amount on the eve of the polling dates more particularly after the closing date of canvassing' sans merits.
49.32.It is to be pointed out that the computer evidence must follow the common Law rule, where a presumption exists that the computer producing the evidential output was recording properly at relevant/material point of time. Further, in United States of America in Federal Rule of evidence reliability of records normally goes to the 'weight of evidence' and not to the admissibility, as per decision Anvar P.V. V. P.K.Basheer and others, AIR 2015 SC 180.
49.33.In regard to the plea of the 1st Respondent that Ex.C8 - CD [Original video footage dated 24.03.2011 at Eswari Hospital], Ex.C9 - CD [Original video footage of Ramana Nagar, Railway Institute and Lilly Kalpana dated 07.04.2011] and Ex.C12 CD (Original video footage dated 06.04.2011] [i.e., Electronic Evidence pertaining to the incidents] suffer from a basic and incurable infirmity viz., for want of Certification under Section 65-B of the Indian Evidence Act, 1872, it is to be relevantly pointed out by this Court that C.W.2, in his evidence, had clearly deposed that CDs were produced form the office of the Corporation of Chennai which were maintained by the earlier Returning Officer of Kolathur Constituency viz., Mr.Rajarathinam. Further, it is the evidence of C.W.6 (Divisional Engineer), in his evidence, had deposed that he was assigned with the duty of arranging electrical and electronic equipments/devises such as Videography etc. during 2011 Assembly Elections at Kolathur Constituency etc. and that he supplied three computers to Mr.Rajarathinam (then Returning Officer) immediately after the elections and his job was to provide computer systems for converting video tapes into CDs etc. and that the CDs were recorded and assigned the numbers and at that time, he was present at Conference Hall during the conversion of video into CDs and the certificate produced by him is Ex.C23, this Court holds that in view of the source, lawful custody of Exs.C8, C9, C12 [CDs] and its production/authenticity cannot be doubted in any manner. Furthermore, the Election Commission of India had authorised its Election Officials to take Videography as per Ex.C20. Therefore, in view of its reliable source, authenticity etc. and notwithstanding the fact according to Petitioner, it is a primary evidence, considering the fact that the said Exs.C8, C9 and C12 [CDs] were recorded and assigned numbers and the said CDs were converted from the video tapes, this Court opines that it is admissible as 'secondary evidence' and more so, when a Certificate was issued by C.W.6 as per Section 65-B(4) of the Indian Evidence Act and in Law, the said CDs does not suffer from any basic or incurable infirmity.
49.34.In the instant case, just because Exs.C8, C9, C12 [CDs] were marked on the side of the Petitioner, it cannot be said with fool proof that money was distributed to the voters of Kolathur Constituency at the places mentioned by the Petitioner [both in his Election Petition and in his evidence] either at the instance of the 1st Respondent or his Agent or with his consent or that of his Agent.
Conclusion:
50.In view of the detailed qualitative and quantitative discussions, considering the rival submissions, attendant facts and circumstances of the case in a cumulative fashion and the findings so rendered, it is held by this Court that the Petitioner has not established his aforesaid allegations of 'corrupt practices' with unimpeachable evidence committed by the 1st Respondent [Returned Candidate] or his Polling Election Agent with their consent [by excluding every hypothesis except that of guilt] within the meaning of Section 123(1)(A)(b) of the Act, 1951 and answered accordingly.
51. Issue Nos.2 and 5:
2. Whether the election petition of the first respondent is void within the meaning of sections under sections 100(1)(b), 100(1)(d)(ii), 100(1)(d)(iv) of the Representation of the Peoples Act, 1951, and liable to be set aside under the said provisions ?
5. Whether the election of the first respondent is void by the non compliance of the provisions of the constitution and the provisions of the Representation of the Peoples Act 1951?
52. Election Petitioner's Contentions:
52.1. The Learned Senior Counsel for the Petitioner contends that the Petitioner in his main Election Petition at Paragraph No.87 had averred that ever since from the day as and when the 1st Respondent came to Kolathur Constituency for Election Campaign, he and his party workers at all levels flouted all the norms of the Model Code of Conduct, including the expenditure limit prescribed under Section 77 of the Representation of People Act, 1951.
52.2. On behalf of the Petitioner, a stand is taken that the Petitioner in his Election Petition had further averred at Paragraph No.87 that apart from distributing money to the voters through its workers, the 1st Respondent, his Election Agent and party functionaries spent huge amounts to an extent of more than Rs.30 Crores for the entire Constituency.
52.3. The Learned Senior Counsel for the Petitioner submits that the Petitioner at Paragraph No.88 of his Election Petition had averred that the 1st Respondent, who canvassed in the streets of Kolathur Constituency had fired crackers in each street, which would be more than Rs.30 Lakhs and further that the Petitioner came out with a stand in Election Petition that as and when the 1st Respondent entered the street in Kolathur Constituency, his party workers with his consent fired Ten Thousand Wala Crackers at the entrance and another Ten Thousand Wala Crackers while leaving the said street. In fact, the expenses relating to firing of crackers would be included in the account of the party charges of Section 77 of the Representation of People Act, 1951.
52.4. The Learned Senior Counsel for the Petitioner points out before this Court that as per Election Commission's Directive, Thousand Wala crackers would be valued at the rate of Rs.350/- for including the same in candidate's expenses and even as per the Commission's Directive, the value of Ten Thousand Wala crackers would be Rs.3,500/-. In this connection, the Learned Senior Counsel for the Petitioner proceeds to state that as per the price list issued by the Fireworks Company during the time of October / November 2010 Deepavali season, value of Ten Thousand Wala crackers was mentioned as Rs.3,900/- and added further, the Kolathur Constituency consists of more than 1,025 streets, out of which as per the programme of the 1st Respondent announced in his party Magazine Murasoli, he passed through more than 500 streets comprised in all the Divisions of Kolathur Constituency and that the 1st Respondent party workers in each street, in his presence fired two numbers of Ten Thousand Wala crackers in each street throughout all the time as when the 1st Respondent campaigned in the streets through which he passed by. As such, it is represented that the amount of money spent for firing the crackers itself would exceed more than Rs.1 Crore going by the value given by the Election Commission of India.
52.5. The Learned Senior Counsel for the Petitioner refers to the averment of the Election Petitioner at Paragraph No.91 of his Petition to the effect that during the time of 1st Respondent's Election Campaign in the streets of Kolathur Constituency as per schedule announced in 1st Respondent's Party Newspaper Murasoli and as per Ex.P.46, those streets were decorated on both sides with DMK flags and festoons in large numbers, in violation of the prescribed norms, mentioned in the Model Code of Conduct and the value of Panimanai structure installed in all the Wards / Divisions, value of the Ponnadai would be more than Rs.35 Lakhs.
52.6. The Learned Senior Counsel for the Petitioner adverts to the averment of the Petitioner at Paragraph No.91 of the Election Petition, to the effect that the 1st Respondent during his election campaign transported the Ponnadai's (shawls) by using Police Vehicle/ Bolero bearing Registration No.TN 23 G0824. Further, it is the case of the Petitioner that in the accounts submitted to the Election Commission of India (Now available in Website) there was no mention or details about the shawls of more than Thousand given to the 1st Respondent as and when he passed through the streets of Kolathur Constituency. In effect, it is the contention of the Petitioner that the act of the 1st Respondent in directing the Police to carry shawls given to him during his election campaign, would amount to abuse of power as then Deputy Chief Minister of Tamilnadu.
52.7. The Learned Senior Counsel for the Petitioner draws the attention of this Court that Election Petitioner at Paragraph No.92 of his Election Petition had averred that during the 1st Respondent's Campaign more than 20 to 30 vehicles bearing DMK Party flags were operated as pilot vehicles with the consent and knowledge of the 1st Respondent violating the Model Code of Conduct and in fact, the Model Code of Conduct binds the 1st Respondent.
52.8. The Leaned Senior Counsel for the Petitioner refers to the averment of the Election Petitioner at Paragraph No.93 of his Petition to the effect that the 1st Respondent had filed a false expenditure account without including the actual expenses incurred in respect of the crackers fired and amounts spent for Panimanai construction, value of Ponnadai and fuel charges paid to piloting vehicles used during the time of his campaign. Further, it is represented on behalf of the Petitioner that the 1st Respondent and his agent spent money for his party workers to parade in motorbikes with party flags on all the dates during the time when he campaigned in the Constituency covering the Division Nos. 50 to 54 and 62 and the streets situated thereof and the same was not shown in the Election Accounts of the 1st Respondent. As a matter of fact, it is the stand of the Petitioner that the 1st Respondent had suppressed numerous factors while filing the Statement of Account relating to the expenses incurred at his instance.
52.9. The Learned Senior Counsel for the Petitioner points out that the Petitioner (P.W.1) had elaborately spoken about the Panimanais (Election Offices) and that the 1st Respondent had 27 Panimanais within the Kolathur Constituency and this was not specifically denied by the 1st Respondent.
52.10. Moreover, the Learned Senior Counsel for the Petitioner contends that the 1st Respondent (R.W.3) in his evidence had admitted that he had inaugurated many 'Panimanais' and further that the News item published in Ex.P.47 Series shows that the 1st Respondent had cut open many Panimanais. In short, it is the stand of the Petitioner that the 1st Respondent (R.W.3) had furnished the expenditure account for only one 'Panimanai' and that too for a very nominal value. That apart, the expenses for other Panimanais (Election Offices) were not included in Ex.C.19.
52.11. The core plea of the Petitioner is that the 1st Respondent had filed a false account showing the expenses incurred in the Election as sum of Rs.3,32,709/- when the actual expenses would be more than Rs.100 Crores, apart from that, the amounts given to the voters to secure his success and therefore, the 1st Respondent had exceeded the expenses limit of Rs.16 Lakhs mentioned in Section 77 of the Representation of People Act, 1951.
52.12.The Learned Senior Counsel for the Petitioner brings it to the notice of this Court that Ex.C.15 (CDs relating to bursting of crackers), plastic flags, vehicles, flags hoisted to polls, serial lights with symbol of 'Rising Sun', Tube lights, backdrop of Jeep, canvassing uniformed labour wing of women cadres with Badges and Mufflers, Sendai Melam, music troop with band and these would show that the 1st Respondent had exceeded the expenses limit of Rs.16 Lakhs.
52.13. The Learned Senior Counsel for the Petitioner points out that in fact, the 1st Respondent (R.W.3) should have examined his Auditor to prove Ex.P.17.
52.14. The Learned Senior Counsel for the Petitioner submits that the 1st Respondent in his counter at Paragraph No.65 had among other things mentioned that he submitted his accounts to the Authorities Concerned well within the time limit prescribed under the Representation of People Act, 1951 and obtained the necessary approval.
52.15. At this juncture, the Learned Senior Counsel for the Petitioner points out that the 1st Respondent in his counter at Paragraph No.65 had averred that the Petitioner had not complained about the 1st Respondent's Accounts before the Appropriate Authority and further, has taken a plea that it is not for this Court to tally the accounts, which is incorrect in the eye of Law.
52.16. The Learned Senior Counsel for the Petitioner submits that 40 persons can be named by Political Party and these are the persons / leaders, who will address as per Section 77 Explanation (1) (2) of the Representation of People Act, 1951. Further, it is represented on behalf of the Petitioner that if the leaders are to come for the election campaign meeting, it will not be included in the expenses of the candidates, but, the names should have been intimated within seven days from the date of notification for such election published in the Gazette of Government India or the State Official Gazette and about the 40 persons it is within the knowledge of the 1st Respondent (R.W.3). However, according to the 1st Respondent (R.W.3), these persons came on their own. The Learned Senior Counsel for the Petitioner contends that as far as Section 77(1)(2) of the Representation of People Act, 1951 is concerned, it comes under Section 10-A of the Representation of People Act, 1951 read with Rule 89 of the Conduct of Election Rules, 1961.
52.17. The Learned Senior Counsel for the Petitioner refers to the evidence of P.W.1 (Election Petitioner), who had deposed in his Chief Examination that in the Election Commission's Website, it was shown that the 1st Respondent spent about Rs.3 Lakhs and odd as Election Expenses and Ex.P.17 is the 'Abstract Statement of Election Expenses' of the 1st Respondent with breakup and they are incorrect. Further, it is the evidence of P.W.1 that Ex.P.18 is the 'Notification of Rates' for various items for calculating election expenditure given by the Election Commission of every candidate and further that the 1st Respondent from the date of filing his nomination to the date of counting, had spent money in various ways in Kolathur Constituency and that the 1st Respondent had visited his constituency for six times in extravagant processions.
52.18. The Learned Senior Counsel for the Petitioner points out that the Petitioner, as P.W.1, had deposed (in Chief Examination) that the 1st Respondent travelled 135 Kms in procession at Kolathur Constituency to gather votes and that there were at least 1000 people in the procession and in the said procession, hundreds of two wheelers, such as scooters and motorbikes had joined and the Black and Red uniforms to men and sarees to women were distributed and worn by the participants in the procession. Moreover, P.W.1 had stated in his evidence that the participants in the procession wore Black and Red caps, Badges and mufflers and hundreds of participants tied cloth flags on PVC pipes in the procession and before each procession, a campaigning vehicle with a loudspeaker decorated with 'Rising Sun' symbol in flex boards and cloth posters would proceed and next a vehicle with music band bearing party symbol would follow and thereafter, it will be followed by two wheelers which will be followed by the candidate's vehicle which in turn would be followed by other vehicles.
52.19. The Learned Senior Counsel for the Petitioner mentions to the evidence of P.W.1, who had stated that even before the 1st Respondent reached the spot, Ten Thousand Wala cracker would be burst and if it was the morning, One thousand, Five thousand and Ten Thousand Wala Crackers would be burst and if it was in the night, fancy colour fireworks would be burst along with it and in the procession path, on both sides of the streets at the distance of 10, 15 and 20 feet, flag staffs were arranged and on these flag staffs, the DMK flags along with the flags of their alliance partners were fixed and on the path of the procession, the streets were thickly decorated with plastic flags like a 'Panthal' and if it was in the evening, tube lights, halogen lights and serial lights in the form of 'Rising Sun' were tied throughout the streets and that the Election Commission had fixed Rs.20/- for a flag staff and Rs.1.50/- for each plastic flag and it also stipulated amounts for tube lights, halogen lights, serial lights etc., and in spite of knowing the same, the 1st Respondent had spent enormous money for his election expenses and this itself was an example to show that his election was void.
52.20. The Learned Senior Counsel for the Petitioner contends that the Petitioner, as P.W.1, in his evidence had deposed that the Election Commission had prescribed a sum of Rs.150/- for shawl and Rs.250/- for a garland and the 1st Respondent in spite of knowing this, received the same wherever he went and the police vehicles were used to carry the shawls and garlands thus received. Besides this, the Election Commission had determined Rs.85/- for the breakfast in respect of participants and Rs.90/- for their lunch / biriyani and expenses for the participants who came in two wheelers namely, petrol expenses, expenses for the plastic pipes, flag etc., together with expenses for lunch and breakfast for the thousands of people, who participated in procession would point out that the Election Rules were violated and how many Lakhs were spent per day on such occasions.
52.21. The Learned Senior Counsel for the Petitioner points out the evidence of P.W.1 (Petitioner), who had deposed that the 1st Respondent had used about 13.50 Lakhs of plastic flags throughout the stretch of 135 Kms and the Election Commission had fixed a sum of Rs.1.50 for each plastic flag, the cost of the flags used by the 1st Respondent alone would cost more than Rs.20 Lakhs as per Election Rules and further that three vehicles utilised by the 1st Respondent during his election campaign were fixed with loudspeaker and for a loudspeaker, the Election Commission had prescribed a sum of Rs.3,000/-, for three loudspeakers the cost would come to Rs.9,000/-. Driver's batta for one day was fixed at Rs.350/- and for three vehicles it would amount to Rs.1,050/- per day and in all, for one day, including petrol expenses, expenses for loudspeaker and driver's batta, it would be Rs.12,000/- per day and for six days, the expenditure for these three vehicles alone would be Rs.72,000/-
52.22. The Learned Senior Counsel for the Petitioner refers to the evidence of P.W.1, who had deposed that as per expenses stipulated by the Election Commission, the expenses for the hundreds of two wheelers in the 1st Respondent's campaign including petrol expenses, plastic pipes, flag caps, batches and mufflers would amount to Rs.174/- per person and in the procession 400 men were given uniforms and about 150 women were given sarees and considering the sum of Rs.400/- per uniform and Rs.150/- per saree it would show several lakhs of rupees could have been spent on their uniform alone.
52.23. The Learned Senior counsel for the Petitioner points out that P.W.1 had deposed that women also wore caps and bathes except mufflers and more than Rs.1 Crore could have been spent on crackers alone before starting any procession and that several Lakhs of Rupees were spent on people, who participated in the Election Rally and that the Election Commission had stipulated Rs.20/- per tube light and about 10,000 tube lights were utilised and expenses for this would be at Rs.2 Lakhs and in each place, the 1st Respondent addressed the gathering not less than 5 Halogen lamps were used.
52.24. The Learned Senior Counsel for the Petitioner submits that P.W.1 in his evidence had stated that for the halogen lamps, the amount was stipulated was Rs.75/- by the Election Commission and for 5 lamps it would amount to Rs.375/- and the expenses for the serial lights fixed by the Election Commission was Rs.30/- and for 1000 serial lamps fixed by the 1st Respondent, the expenses would be Rs.30,000/- and that the entire expenditure for the lamps, loudspeakers alone would run to several Lakhs of Rupees. Moreover, it is the evidence of P.W.1 that for 5 days, the vehicles which accompanied the candidates were fixed for generators and halogen lamps and the Election Commission had determined Rs.3,000/- per generator and the expenses for the vehicles including generator, halogen lamp, driver's batta, rent and petrol expenses for five days would approximately goes to Rs.25,000/- and several thousands of Rupees were spent on electric charges for the electric lamps, loudspeakers, halogen lamps and tube lights and pamphlets were distributed throughout the election rally and the expenses incurred would approximately be Rs.2 Lakhs and the estimated expenses for 5 to 6 days incurred for flex board and flag banners would run several Lakhs of Rupees and that during the first 6 days of Election Campaign, the 1st Respondent received about 2,000 silk shawls for which the Election Commission had restricted Rs.150/- per shawl and for 2,000 shawls, the price of the shawls would be Rs.3.50 Lakhs and that the 1st Respondent received 150 garlands and if calculated at the rate of Rs.250/- per garland prescribed by the Election Commission then it would amount to Rs.50,000/- and in short, the 1st Respondent had not furnished all the aforesaid expenses in his accounts submitted to the Election Commission and had stated furnished false account.
52.25. The Learned Senior Counsel for the Petitioner contends that P.W.1 had also deposed that if the District Electoral Officer, the Returning Officer of the Constituency and the Crew appointed to observe election expenses had acted upon the videos taken in the Election Campaign, the election itself would have been cancelled for serious violations of Rules and Regulations of the Election Commission.
52.26. The Learned Senior Counsel for the Petitioner contends that the P.W.1 in his chief examination had also deposed that 1st Respondent had set up 27 Election Offices throughout the Kolathur Assembly Constituency and the expenses for the same was more than the amount determined by the Election Commission for the entire expenses of a candidate for the Assembly Constituency and in front of each of the election office, a decorated front elevation made of coconut leaves covered by cloth have been provided and each Election Office was provided with a table, chair, 20 liters Bisleri Water Can, tube lights and halogen lamps and the expenses for those would run to several Lakhs of Rupees and at a place called Poombuhar Nagar of Kolathur Constituency, the Election Office was set up on the planks centered like a cinema set and in Thenpalani, the election office was modeled after the new Secretariat building, now a Super Specialty Hospital at Annasalai and the Election offices were functioning from 21.03.2011 till the polling day and in each Election Office, per day 50 people had gathered and they performed the Election work and for these people, foods and snacks were provided by the 1st Respondent and the extent of 27 Election Offices, (Panimanais) would be around 12,000 Sq.Ft., and the rent stipulated by the Election Commission per Sq.Ft., was Rs.1/- and if calculated for 22 days, the rent for the Election Offices would alone cross several Lakhs of Rupees and that electricity was used in all the Election Offices for electrical appliances such as lamps, fans, halogen lamps etc., and further that several Lakhs of Rupees would have been spent on electricity, if estimated by the Election Commission's figures.
52.27. The Learned Senior Counsel for the Petitioner refers to the evidence of P.W.1, who had deposed that 100 persons accompanied the 1st Respondent in two wheeler during his campaign, who were holding PVC Pipes, flags etc., and the expenses for one person would be Rs.174/- and the total expenses for 100 persons would be more than rupees one lakh and for 400 persons, who participated in the rally, the uniform was provided and the cost of uniform per head would be Rs.400/- and the total amount spent for uniform for 400 persons would be Rs.1,60,000/- and for about 150 women, sarees were distributed and for that purpose Rs.22,000/- was spent and in the said rally, atleast 1000 people would have participated and Rs.265/- per head was spent for their tiffin, biriyani and meals and the total amount of Rupees approximately 15 Lakhs would be spent in this regard and for 'Sendai Melam' brought from Kerala, the amount spent was Rs.26 Lakhs approximately and in total. the amount spent for placing flag poles for the entire stretch of 135 Kms would be Rs.8,60,000/- and for pamphlets Rs.2 Lakhs were spent during the campaign by the 1st Respondent for votes and for the 27 Election Workshops, which were set up by the 1st Respondent, the total expenses would be around Rs.27 Lakhs.
52.28. The Learned Senior Counsel for the Petitioner refers to the evidence of P.W.1, who had deposed that the Returning Officer informed him that the 1st Respondent obtained license for 38 vehicles but the registration numbers of 21 vehicles were furnished and for the remaining 17 vehicles registration numbers were not furnished and in Ex.P.17, the expenses for usage of vehicles were furnished as if only 7 cars and 2 autos were used. Therefore, the statement under Ex.P.17 was a false one.
52.29. The Learned Senior Counsel for the Petitioner brings it to the notice of this Court that P.W.1 in his evidence had deposed that in Ex.P.17, Statement it was mentioned that license was obtained for five vehicles on 24.03.2011, for two vehicles on 31.03.2011 and for one vehicle on 04.04.2011 and for one vehicle on 05.04.2011 and that the batta charges as prescribed by the Election Commission for one driver was Rs.350/- and out of 38 vehicles permitted by the Election Commission, for 21 vehicles license was obtained and for 7 vehicles, the details were not furnished and that the fuel charges for one vehicle would be Rs.1,500/- and the fuel charges for all the 9 vehicles used by the 1st Respondent would be more than Rs.1 Lakh and that the allowed amount for using one loudspeaker was Rs.3,000/- and in Kolathur Constituency, there are six divisions and for each division, one loudspeaker was used and if calculated, the entire amount pertaining to usage of loudspeakers in all the six divisions would be Rs.18,000/- per day and for the 22 days in regard to the usage of two wheelers the amount would cross to Rs.4 to 5 lakhs and if 38 vehicles were used by the 1st Respondent, the expenses made would be 2 or 3 times more than the amount mentioned by him.
52.30. The Learned Senior Counsel for the Petitioner by pointing out to the evidence of P.W.1 who had deposed in his evidence that in Ex.P.17, only four meetings were shown and the account furnished therein were false and that the expenses furnished in tabular column in Ex.P.17 were false and in short, despite spending such a huge amount for convening meetings, false accounts were furnished in Ex.P.17.
52.31. The Learned Senior Counsel for the Petitioner refers to the evidence of P.W.1 who had deposed that in Ex.P.17, the election expenses and the electricity charges for the other meetings were not shown and even though 27 Election Offices were set up 22 meetings were held and electricity was used for lights throughout 135 kms., electricity for generators for only four meetings were shown, in the election expenses, namely, in Ex.P.17.
52.32. The Learned Senior Counsel for the Petitioner refers to the evidence of P.W.1 (Election Petitioner) (in cross examination) wherein he had deposed that the bursting of the crackers was done by the 1st Respondent's party cadre and further that for a 10,000 wala to burst it would take more than 30 to 40 seconds. Further, the Learned Senior Counsel for the Petitioner draws the attention of this Court to the evidence of P.W.1, who had stated that the details mentioned by him in his chief examination dated 25.03.2013 was a summary / resume of what happened on the six days of 1st Respondent's campaign and that apart he had stated that these were not the details of the 1st Respondent's procession on the night he witnessed the same but went on to add that these events / details were inclusive of what he had witnessed on that particular night.
52.33. The Learned Senior Counsel for the Petitioner points out to the evidence of P.W.1 who had deposed in his cross examination that he was informed by his party cadre that daily shawls were given to the 1st Respondent and that he had estimated the value of shawls as more than Rs.35 Lakhs based on the value for each of the item stipulated by the Election Commission. Also it is projected on the side of the Petitioner that P.W.1 had stated in his evidence that he had taken the copies of the C.Ds given by the Election Commission and filed the originals of C.Ds given by the Election Commission into Court and that he took copies of C.Ds given by Press to him and filed that into the Court and the same were given to the respondents as well.
52.34. The Learned Senior Counsel for the Petitioner submits that the Petitioner, as P.W.1, had stated in his evidence that Ex.P.30 (22 in Nos.) viz., the xerox copy of Murasoli, Tamil News Paper was certified on 24.03.2013 and the same was certified by Vignesh (Public Relations Officer of the Chennai Corporation) and further he does not know whether the said 24.03.2013 was Sunday or not.
52.35. The Learned Senior Counsel for the Petitioner points out that the Election Petitioner, as P.W.1, (in cross examination) had deposed that the Newspaper cuttings of Murasoli in Ex.P.30 were taken from Connemara Library through C.Ds and that he is in possession of the said C.Ds.
52.36. At this juncture, the Learned Senior Counsel for the petitioner refers to the evidence of P.W.1 (Election petitioner) who had stated before this Court that the original Murasoli Newspaper containing news articles between 20.03.2011 and 12.04.2011 were marked as Ex.P.46 series (22 Nos) and further that he had produced the photocopies of the articles published in the said Article marked as Ex.P.30 Series on 09.04.2013.
52.37. The Learned Senior Counsel for the Petitioner submits that the Petitioner in his evidence as P.W.1 had marked Ex.P.17 (downloaded copy) of Abstract Statement of Election Expenses (Annexure 15) pertaining to the 1st Respondent in and by which he had shown a sum of Rs.3,32,709/- as his election expenses. In this regard, the Learned Senior Counsel for the Petitioner points out that P.W.1 had stated in his evidence that Ex.P.28 contains the details of vehicles used by the 1st Respondent for the Election Campaign, which was furnished by the election officials.
52.38. The Learned Senior Counsel for the Petitioner submits that the Petitioner had marked his complaint letter dated 28.03.2011 (addressed to the chief election officer) whereby and where under he had stated that the 1st Respondent (R.W.3) had campaigned for votes in violation of the Rules and Regulations of the Election Commission and also spent in excess of the amount stipulated by the Election Commission.
52.39. The Learned Senior Counsel for Petitioner points out that P.W.1 had deposed in his evidence that Ex.P.35 was the letter dated 02.04.2011 sent by him to the Chief Election Officer stating all that he had mentioned in his Election Petition and further that Ex.P.37 was the objection of the Petitioner in regard to the Election Expenditure account of the 1st Respondent without correct bills, (details) exceeding the limit prescribed under Section 44 of the Representation of People Act.
52.40. The Learned Senior Counsel for the Petitioner refers to the evidence of P.W.4 who had deposed that he took videos and photos for 'Tharasu Magazine' in respect of 1st Respondent's Election Campaign and he took videos of the shawl and other lavish expenses made during the 1st Respondent's election campaign and further that he recorded the convoy of vehicles that were used for 1st Respondent's Election campaign and the bursting of crackers and shawls given by the 1st Respondent's during election campaign. That apart he had also recorded 'Kerala Sendai Melam' (Kerala style of beating of Drums) the crackers burst and the festoons used during 1st Respondent's Election Campaign and that he recorded that large number of two wheelers and four wheelers were used for the 1st Respondent's Election Campaign and he took photos and videos on all the days the 1st Respondent had campaigned and he would be able to identify the C.Ds on seeing the footage recorded.
52.41. The Learned Senior Counsel for the Petitioner refers to the evidence of P.W.4, who had stated that he was engaged by the Tharasu Magazine to use both video camera and still camera and that he does not know about the Election Rules and Regulations and his statement that more crackers were burst in a 1st Respondent's campaign was based on his own opinion and he had not seen right number of crackers being burst in any election campaign and the 1st Respondent had not burst the crackers but his followers burst and he came to know that the crackers were burst by the DMK badge, DMK towel and dhoties with DMK borders worn by them and he had handed over the photos / memory card to his editor every day and that the still camera was hired by him.
52.42. Further, it is the evidence of P.W.4 that he would give memory card to his Editor after contents are copied into a hard disk/DVD or CD, the contents are erased and the empty memory card was returned to him and that he was not aware into which computer the contents of the memory card were transferred to by the Editor and he does not know personally whether the contents of memory card were transferred or not, since he does not know about the process.
52.43. The Learned Senior Counsel for the Petitioner adverts to the evidence of P.W.4, who had stated that he had not taken the photos of the 1st Respondent campaign in place other than Kolathur Constituency and the 1st Respondent would have campaigned for more than 5 or 6 days although he does not remember the exact number of days and since he felt expenditure made in the 1st Respondent election campaign was more than the limit fixed by the election commission of India. He would say that the expenditure was lavish in 1st Respondent's campaign. Further he had stated that he does not know whether the 1st Respondent had made lavish expenditure to his Election Campaign and that he might have done it and now he feels that the 1st Respondent had spent lavishly for his Election Campaign.
52.44. The Learned Senior Counsel for the Petitioner refers to the evidence of P.W.6 (Editor Tharasu) who had deposed that Ex.P.50 was the photos shot by stringer, Muruganandam (P.W.4) during 2011 General Assembly Elections in Kolathur Constituency and the videos shot by the said P.W.4 was marked as Ex.P.51 (during 2011 General Assembly Elections in Kolathur Constituency) and the certificate issued by him dated 06.02.2015 was marked as Ex.P.52.
52.45. The Learned Senior Counsel for the Petitioner points out to the evidence of P.W.6 to the effect that the photos inscribed in Ex.P.50 were stored in many computers date-wise and that he had transferred the photos to P.W.4, Muruganandam available with him after receiving the request from the Election Petitioner and Ex.P.50 (Containing two files) one file containing 26 images and another file containing 48 images and that he had saved the photos from the office computer through his pen drive for the purpose of Election Petition and also he had transferred into the CDs which were marked as Ex.P.50.
52.46. The Learned Senior Counsel for the Petitioner refers to the evidence of C.W.2 who had deposed before this Court that Ex.C.15 Series (four numbers) were the original C.Ds of the video footage dated 21.03.2011, 26.03.2011 and 07.04.2011 supplied by the Election Commission of India pertaining to the campaign done by the 1st Respondent which is evident from Ex.C.20 (Instructions on Expenditure Monitoring in Elections issued in February 2011 and September 2011 by Election Commission of India) in and by which the important critical events were videographed by the video surveillance team and in fact, C.W.5 had stated in his evidence that the said critical events were supplied by the said Video surveillance team as per Ex.C.20 and moreover, C.W.6 had produced necessary certificate namely, Ex.C.23, which was prepared with the help of Legal Cell of Corporation of Chennai.
52.47. The Learned Senior Counsel for the Petitioner refers to the evidence of C.W.3 who had stated in his evidence that the election campaigns, meetings and processions were video graphed and that the Returning Officer of Kolathur Constituency during Assembly Elections 2011 did not entrusted to him the videos handed over to him by the expenditure observers and flying squad and that C.Ds Exs.C8 to C15 were kept in the personal custody of the Returning officer (Rajarathinam as he then was) .
52.48. The Learned Senior Counsel for the Petitioner refers to the evidence of R.W.3 (1st Respondent) wherein he had deposed that Part III of Ex.P.17 is the abstract of expenditure of elections by the candidate or his Election Agent and further it is correct to state that Ex.P.17 is the abstract statement of election expenses filed by him and the expenditure mentioned Para III of Ex.P.17 were met by him, (But, they were spent through his election agent) and that the contents of Part V of Ex.P.17 were filled by his Chartered Accountant / Auditor, further he denied the suggestion that he had incurred expenses more than what was shown in Ex.P.17 and further denied that he had not tendered true and proper accounts in Ex.P.17.
52.49. The Learned Senior Counsel for the Petitioner points out that R.W.3 (1st Respondent) in his evidence had stated that it is correct to state that the name of the party in II of Part II of Ex.P.17 was mentioned as DMK party and his party authorised some one to meet the election expenses but he does not remember who was authorised by then and most probably his election agent would have been the authorised person and further with regard to the amount handed over to V.S.Ravi and how much he had spent in the election must be with V.S.Ravi etc., Besides this, it is the evidence of R.W.3 that in that it is correct to state that the height of the stage and the extent of the stage in square meters was not mentioned in Part V Column IV of Ex.P.17 etc., 52.50. The Learned Senior Counsel for the Petitioner submits that Part III of Ex.P.17 refers to ' Abstract of Expenditure on Election by the Candidate / His Election Agent and for the public meetings, processions etc., the expenditure incurred was mentioned as Rs.66,700/- in Column Nos.2,3 and 4, under the head of Political party, which set him up it was mentioned as 'Not known' and in Column No.3 of Part III of Ex.P.17, in respect of the caption 'Any other Association / Body of Persons / Individual, it was mentioned as 'Not known' and the Column No.3 of Part III of Ex.P.17 is not in compliance with Section 77 of the Representation of People Act, 1951 coupled with Rules 86 to 90 of the Conduct of Election Rules, 1961.
52.51. The Learned Senior Counsel for the Petitioner points out that Ex.P.28 speaks of 'Details of Vehicles used for Election Campaign' and in short, the said document speaks of permit for 21 vehicles and Ex.P.17 of Part IV speaks of 'Details of Expenditure of Vehicles Used'.
52.52. The Learned Senior Counsel for the Petitioner takes a plea that in Part IV of Ex.P.17 nothing is said as to who obtained the permit (whether it was by the candidate or election agent) and it is seen from Ex.P.28 that no permission was obtained in 1st Respondent's name and all the permits were obtained in the name of other candidates in Ex.P.28 and not in 1st Respondent's name. In short, it is the submission of the Learned Senior Counsel for the Petitioner that Part IV of Ex.P.17 is contrary to Ex.P.28 and in fact, no explanation was given why only 9 vehicles expenditure were given and the Learned Senior Counsel for the Petitioner points out that it is the duty of the 1st Respondent to satisfy this Court only 9 vehicles were used and in fact, the originals of Ex.P.17 should be with the 1st Respondent (R.W.3) and in Ex.P.28 nothing is stated as to what vehicles were used for the campaign.
52.53. The Learned Senior Counsel for the Petitioner contends that in Ex.P.17, Part IV, 9 vehicles Numbers were mentioned and 1 to 7 were Cars and two were Autos and in Ex.P.28, Permit Nos.33 and 34 were not there and in short, a comparison of Ex.P.28 and Ex.P.17 would show the vehicles used were not properly accounted for and further no evidence was placed as to which were the vehicles used and what was the expenditure for each vehicle and if it was hired, what were the hire charges, driver batta paid, if any were not mentioned. Apart from that it is represented on behalf of the Petitioner that a cursory perusal of Ex.P.17 and Ex.P.28 would show that the 1st Respondent (R.W.3) had incurred an expenditure of more than 16 Lakhs and therefore there is a violation of Section 77(3) of the Representation of People Act, 1951 which would attract Section 123 (6) and 100(1)(d)(iv) of the Representation of People Act.
52.54. The Learned Senior Counsel for the Petitioner points out that apart from the vehicle expenses, the bursting of crackers expenses incurred were not included in Ex.P.17 and also the expenditure incurred for Panimanai were also not included. In this regard, the Learned Senior Counsel for the Petitioner points out that for the 27 Election offices, the 1st Respondent in his evidence as R.W.3, has answered that 'He does not remember' in this regard.
52.55. The Learned Senior Counsel for the Petitioner brings it to the notice of this Court that the person who submitted that Ex.P.28, Report was not examined and further, the 1st Respondent's Agent and Lawyer were not examined and in short, the 1st Respondent (R.W.3) is not assisting the Court. Further, it is represented on behalf of the Petitioner that he does not remember whether 27 Election Offices were set by the DMK Party in 2011 Assembly Election and accordingly he could not have been maintained election offices for his party and also he does not remember whether flex boards were erected in all the Election offices of DMK Party in Kolathur Constituency.
52.56. The Learned Senior Counsel for the Petitioner contends that only an only inferential or circumstantial evidence can only be let in an Election Petition case and that the Petitioner has discharged his onus in this regard and now the burden shifts on the 1st Respondent. Added further, it is the plea of the Petitioner that as per Section 106 of the Indian Evidence Act, the burden of proving fact especially within the knowledge of the particular individual lies in schedule of the 1st Respondent (R.W.3). Moreover, the 1st Respondent's Election Agent, Ravi and his Lawyers were not examined to show how many Election Offices were set up on behalf of the 1st Respondent during 2011 Assembly Constituency Election. In fact, the bursting of crackers were not accounted for. Also that the real quantum of expenditure incurred was not shown in Ex.P.17 and there is an excess expenditure and further the expenses of door to door campaign were not mentioned in Ex.P.17. Also that as to who paid for 'Sendai Melam' was not disclosed in Ex.P.17. Apart from that, the expenses incurred for the street corner meeting were not shown in Ex.P.17 fully and in short, there is an excess expenditure incurred by the 1st Respondent in this regard.
52.57. The Learned Senior counsel for the petitioner points out that in regard to the expenses for Plastic flags of DMK, Expenses for Thoranam, the expenses for flag bearers were not included in Ex.P.17 and that the 1st Respondent came in his car to Kolathur Constituency accompanied by various vehicles and in short, the expenses incurred by the 1st Respondent were not fully disclosed in Ex.P.17.
52.58. The Learned Senior Counsel for the Petitioner proceeds to state that the 1st Respondent gets in an open jeep at Kolathur Constituency and when he enters the Kolathur Constituency crackers were burnt, Sendai Melam was played, shawls were put and also his jeep no. TN02B01100 were driven by DMK party people (men and Women) wearing badges of DMK flag, DMK border colour dothi and all expenses in this regard were not included in Ex.P.17 and if the same were included it would exceed more than Rs.16 Lakhs.
52.59. The Learned Senior Counsel for the Petitioner points out that DMK flags in PVC pipes were carried by DMK's Party cadre in front of open jeep of 1st Respondent (R.W.3) and these expenses were not included in Ex.P.17. Also that the uniformed labour progressive forms (Labour Wing of DMK Party) proceeding in uniform and the number of persons, expenses in this regard were not included in Ex.P.17.
52.60. The Learned Senior Counsel for the Petitioner submits that during night time, throughout the street, DMK tube lights were lit on both sides of the road and DMK flags with Plastic PVC pipes with a gap of 10 to 20 feet were used as spoken to by the P.W.1 in his evidence.
52.61. The Learned Senior Counsel for the Petitioner points out that R.W.3 in his evidence had deposed that (1st Respondent) when he went for campaign in the street of Kolathur, the flags could have been hung on either side of the street and they were hung only wherever the permission was obtained and he does not remember exactly as to where they were put up.
52.62. The Learned Senior Counsel for the Petitioner refers to the evidence of R.W.3 (1st Respondent) to the effect that he would have been done Election campaign during 2011 for 4 to 5 days, two hours in the morning and two hours in the evening only and further he had stated that he does not remember where the election head office for Kolathur Constituency was situated in Kolathur during the 2011 Assembly Elections and that the party cadre create election offices, ward wise / booth wise as per their convenience and he does not remember how many offices each ward or booth had during the said Elections.
52.63. The Learned Senior Counsel for the Petitioner draws the attention of this Court to the evidence of R.W.3 to the effect that there were Six Corporation Wards in the Kolathur Constituency. At this juncture, the Learned Senior Counsel for the Petitioner refers to the evidence of R.W.3 who had deposed that though he campaigned in Assembly Election 2011, he does not remember the dates on which he campaigned at Kolathur Constituency and further that then Mayor, M.Subramaniam had campaigned in several places and on his behalf also in Kolathur Constituency.
52.64. The Learned Senior Counsel for the Petitioner refers to the evidence of C.W.2, who had deposed that Ex.C.15 series (4 nos) were the original CDs of the video footage dated 21.03.2011, 26.03.2011 and 07.04.2011 supplied by the Election Commission of India relating to the campaign of the 1st Respondent. Also the Learned Senior Counsel for the Petitioner points out that C.W.3 had stated in his evidence that during the Assembly Elections 2011, they videographed the happenings, namely, election campaign, meetings, procession etc., (but he had not certified the Ex.C.15) 52.65. The Learned Senior Counsel for the Petitioner points out to the evidence of R.W.3 (1st Respondent), who had deposed that Sendai Melam was not played and to a question 'is 'Chendai melam' played in the footage shown to you?' the answer of R.W.3 was that he does not remember and further R.W.3 had stated that he does not remember whether as shown in the footage dated 21.03.2011 of Ex.C-15 series (tube lights) serial lights bearing DMK symbols were fitted all along the Streets.
52.66. The Learned Senior Counsel for the Petitioner points out that the 1st Respondent (R.W.3) had not examined his Chartered Accountant and to another question, R.W.3 had answered that 'within the permissible limits set out by the Election Commission, fire works, crackers were used.
52.67. The Learned Senior Counsel for the Petitioner proceeds to state that the R.W.3 (1st Respondent) in his evidence had deposed that he does not specifically remember as to whether the expenses shown in four sheets of Part V of Ex.P.17 relates to public meetings/ rallies.
52.68. The Learned Senior Counsel for the Petitioner points out that R.W.3 in his evidence had stated that it is correct to state that he had attended DMK workers meeting, but he does not remember the date. In this connection, the Learned Senior Counsel for the Petitioner refers to the evidence of R.W.3., who had stated that he does not remember whether the meetings were held in the street corners to campaign in the 2011 Assembly elections and also he had stated in his evidence that the vehicles namely 'Auto' bearing registration nos.TN01AE3904 and TN051713 were not owned by his party.
52.69. The Learned Senior Counsel for the Petitioner refers to the evidence of R.W.3 who had stated in his evidence that no transport expenses were paid to K.Veeramani, K.Anbazhagan and Subaveerapandian. The Learned Senior Counsel for the Petitioner refers to the evidence of R.W.3, who had deposed in his evidence that it was correct to state that his party men carried flag pipes during election in Kolathur Constituency but they would follow him to some distance and that the expenses for flag pipes were borne by themselves on their own interest.
52.70. The Learned Senior Counsel for the Petitioner points out that the admissions of R.W.3 coupled with Ex.P.46, Murasoli (22 Nos), Exs.P.50 and 51 series and the evidence of P.W.4, P.W.6, the evidence of C.W.2 and C.W.3. all these things put together would show that the expenses incurred by the 1st Respondent (R.W.3) were beyond the permissible limits of Representation of People Act, under Section 123(6) read with Section 77(3), Section 100(1)(b) and 100(1)(d)(iv) of Representation of People Act.
52.71. The Learned Senior Counsel for the Petitioner points out that if the Petitioner makes out a case he need not prove that the result of the election expenses was materially affected and in the present case, Section 77(3) of Representation of People Act alone would apply and to attract Section 123(6) of the Representation of People Act, the Petitioner has to make out a case that the 1st Respondent (R.W.3) had spent more than Rs.16 Lakhs towards election expenses and that the Petitioner had made an attempt to establish that the 1st Respondent had incurred an expenses of more than Rs.16 Lakhs.
52.72. The Learned Senior Counsel for the Petitioner points out that as per Section 77(1) and (2) of Representation of People Act, the Petitioner is to maintain true accounts in respect of the expenses in connection with the 2011 Assembly Kolathur Constituency elections and in fact, the District Election Officer should send a report to the Election Commission and it is the constitutional duty of D.E.O under the Representation of People Act 1951 and the non compliance of these statutory duty under Rule 89 of Sub Rule 1 to 8 read with Section 77(1)(2) of Representation of People Act is a serious violation.
52.73. The Learned Senior Counsel for the Petitioner contends that the District Election Officer has not perused the accounts of Election expenses and has failed in its statutory and constitutional duty and he mechanically received the accounts expenses of the 1st Respondent and in fact the result of the election, in so far as it concerns, a returned candidate was materially affected as per Section 100(1)(d) of the Representation of People Act.
52.74. The Learned Senior Counsel for the Petitioner submits that in an Election Petition, it is not possible for the Petitioner to establish by meticulous evidence as regards actual expenses incurred by the candidate and in fact, in each election office, there were persons and they cannot be without tiffin and Ex.P.18 is the Notification of Rates of various items for calculating Election Expenditure and the Appendix XXXI-A, Chapter XVIII, Paragraph 1.4 of Annexure-I of the Hand Books for Candidates issued by the Election Commission of India 2009, (Reprint 2011) refers to register for maintenance of day today accounts of Election expenses by contesting candidates and the format in the aforesaid appendix is the same as seen in Ex.P.17.
52.75. The Learned Senior Counsel for the Petitioner submits that the hand bills were distributed and the 1st Respondent's wife went to Door to Door campaign and also she went other political parties as seen from Ex.P.46 and in Ex.P.17 under the caption Part-V in respect of erecting of Pandhal and Fixtures, stage the rate per unit was mentioned as Rs.3,000/- and in fact the said Part V of Ex.P.17 contains details of expenditure of public meetings / rallies and Ex.P.18 deals with Notification of Rates for various items for calculating various expenses in Assembly Election 2011 and in Ex.P.18, the page 6 speaks of the Notification of Rates for various items for calculating election expenditure-III beginning, from Iron Stencil on Wall painting-Colour per sq.ft. Rs.11/- ending with-IV Sl.No.26 Cloth Flag (Used with Stick /Pole) medium with the rate 14.00/-, Large with Rate Rs.23.00/- and in respect of Anbazhagan's meeting it was only the candidate had incurred expenditure of Rs.19,500/- and for 50 tube lights, expenses in Ex.P.17 in respect of star campaigner K.Veeramani, the amount incurred by the candidate (Election Agent) mentioned as Rs.1,000/- (for 50 tube lights) and for the 50 flag pipes also Rs.1,000/- was shown as expense and in respect of K.Anbazhagan's star campaigners meeting, the expenses for tube lights was incurred by the candidate as Rs.1,000/- and for the star campaigner, Suba.Veerapandiyan's campaign in respect of erecting Pandhal & Fixtures, Stage of 192sq.ft., rate per unit was Rs.3,300/-, the amount incurred by the candidate / election agent was mentioned as Rs.3,300/- In Ex.P.17 of Part V under the caption 'Other Miscellaneous Expenses' in the Backdrops expenses was shown as Rs.1,500/-, in respect of Flag Pipes it was shown as Rs.1,000/- and in respect of Generator it was shown as Rs.700/- said to be incurred by the Candidates / Election Agent.
52.76. The Learned Senior Counsel for the Petitioner contends that R.W.3 in his evidence had stated that the crackers were burst in regard to performance of Sendai Melam he was not concerned with those things and in fact, R.W.3 is concerned with Ex.P.46 (Party organs News paper Murasoli ) and nothing elicited from R.W.3 (1st Respondent) that the contents of Ex.P.46- Murasoli were false.
52.77. The Learned Senior Counsel for the Petitioner projects an argument that Ex.P.46 Murasoli (in original) was proved and it is a valid document and the contents were proved and the 1st Respondent (RW3) was not able to deny the contents therein and in fact, he had admitted his photo and not demur that his photo was morphed or manipulated.
52.78. The Learned Senior Counsel for the Petitioner points out that in Ex.P.30 series (so many vehicles come) and they were not explained in Ex.P.17 and the Ex.P.46 (20.03.2011) campaign expenses should have been shown in 1st Respondent's expenses account, also the driver batta, the payment vouchers, mike expenses should have been shown and apart from that, it is for the R.W.3 (1st Respondent) to say what were the expenses incurred for the election offices and in Page 2 of Murasoli dated 22.03.2011 when the 1st Respondent filed his nomination, the same is shown and in the podium there were tube lights and further in respect of the mike at podium who had supplied and what was the rent paid for the mike and these things were not known and they were not disclosed in Ex.P.17 and no body verified EX.P.17 and in this regard there was failure of statutory authorities, viz., the Election Authorities.
52.79. Also it is for R.W.3 to establish that how many Election offices were established and in Ex.P.46 at Page 2 dated 25.03.2011, the news item with photo of the 1st Respondent's wife along with others campaigning for the 1st Respondent's election at GMK Colony, 54 circle was seen and at Page 3 of Ex.P.46 Murasoli dated 25.03.2011 a news item in the name of Secretary of DMK Kolathur was published to show that from the next day evening (26.03.2011) 3.00 clock to night 10.00 p.m., the 1st Respondent was going in the campaign at Kolathur Constituency circle / Ward nos.51 to 53 and the grievance of the Petitioner is that these expenses were not shown in Ex.P.17.
52.80. The Learned Senior Counsel for the Petitioner contends that Ex.P.17 was not prepared by R.W.3 and his signature was found in Ex.P.17 and no endeavour was made on the part of the 1st Respondent to examine V.S.Ravi and in fact, he should come have before this Court and given evidence about it, but, Ex.P.17 is silent about it.
52.81. The Learned Senior Counsel for the Petitioner points out that in Ex.P.46 dated 25.03.2011 there was a Election Advisory Meeting held and that chairs and wooden chairs were used and about these expenses in Ex.P.17 silence was maintained and the election commission had not asked any question about these aspects.
52.82. The Learned Senior Counsel for the Petitioner refers to Ex.P.46, Murasoli Paper dated 26.03.2011 wherein at Page 6 it was mentioned that from evening 3.00 P.M., to night 10.00 P.M., the 1st Respondent was gathering votes during his campaign in streets, pertaining to Kolathur Constituency 51,52 and 53 Circle.
52.83. The Learned Senior Counsel for the Petitioner submits that in Ex.P.46, Murasoli dated 27.03.2011, at Page 2 the 1st Respondent was seen campaigning at Kolathur Constituency to gather votes and it was a procession and for the said campaign party cadres came there and huge expenses were indulged and that somebody should take responsibility in this regard and the said meeting was a grand gala one.
52.84. The Learned Senior Counsel for the Petitioner points out that in Ex.P.46 dated 28.03.2011 the photo of the 1st Respondent (R.W.3) was seen at the Kolathur Election campaign and for the reception accorded him, the expenses incurred should be shown and for 4 or 5 times in open jeep, the 1st Respondent would have come for campaign and thus expenses to be included in Ex.P.17 and also that it is for the 1st Respondent to answer that who are the owners of two wheelers and who had spent for their petrol and in Ex.P.46, Murasoli dated 29.03.2011 Page 4 in left hand side, the President of Tamilnadu Differently Abled Development Society went for a street to street campaign to gather votes to and in favour of the 1st Respondent (R.W.3) and according to the Petitioner, these expenses were not disclosed in Ex.P.17.
52.85. The Learned Senior Counsel for the Petitioner points out that in Ex.P.46 dated 30.03.2011 at Page 12, the wife of the 1st Respondent was seen and in a meeting at Kolathur Constituency 62nd Circle, Venus Nagar, where she took part, for receiving the 1st Respondent's wife, who came there, for campaigning one has to spend and that amount of expenses for the said campaign should be included in Ex.P.17.
52.86. The Learned Senior Counsel for the Petitioner points out that in Ex.P.46 dated 03.04.2011 at Page IV the 1st Respondent opened the Election Office of North Madras Parliamentary Constituency youth congress and he was seen in the photo and who spent for the same and whether it was accounted for and the concerned person who spent for the same was not examined. Also in Ex.P.46 dated 03.04.2011, dated 07.04.2011 votes were canvassed in the campaign of the 1st Respondent and these expenses should have been included in Ex.P.17. Further in Ex.P.46 dated 31.03.2011 at Page 12 it was mentioned that G.K.Vasan, Dr.Ramdoss, Subaveerapandiyan were campaigning in support of the Kolathur Consitutency on 14.11.2011 at 3.00 p.m., 4.00 p.m., and 7.00 p.m., respectively and in Ex.P.17 Part V these expenses in respect of G.K.Vasan, Dr.Ramadoss were not mentioned and further the expenses incurred for Subaveerapandiyan in Ex.P.17 was not correctly mentioned and in Ex.P.46 at page IV it was mentioned at Egmore 61st Circle the election office was to be opened by ParuthielamVazhuthi and also the photo of Kolathur 51st Circle Tamilnadu Adi Andhra Artist welfare Centre's President, Mr.Munirathnam in the presence of Elamantha and others were seen and what was the expenses incurred in this regard one does not know and these expenses does not find a place in Ex.P.17, according to the Petitioner.
52.87. The Learned Senior Counsel for the Petitioner brings it to the notice of this Court that Ex.P.46 (Murasoli Tamil News Paper 22 in Series) with reference to the issue dated 01.04.2011 points out to the photo showing numerous persons who had canvassed for the 1st Respondent (R.W.3). Likewise, the Learned Senior Counsel for the Petitioner refers to the Ex.P.46, Murasoli issue dated 02.04.2011 wherein one Liagath Ali khan canvassed for the 1st Respondent and also the photo showed 1st Respondent canvassed in open jeep at Kolathur and christened the name of the child. Moreover, the Murasoli issue dated 03.04.2011 in Ex.P.46 refers to the photo showing the 1st Respondent who opened the Election Office at Kolathur and also a news item was seen mentioning that about a meeting at Kolathur and also the photo showing numerous persons had canvassed on behalf of the 1st Respondent.
52.88.The Learned Senior Counsel for the Petitioner by referring to Ex.P.46, Murasoli issue dated 04.04.2011 points out that the photo in the said paper showed that the 1st Respondent's wife had canvassed for him and also the said paper carried the news item mentioning that 1st Respondent's wife had canvassed door by door and others had canvassed on behalf on 1st Respondent.
52.89. The Learned Senior Counsel for the Petitioner by referring to Ex.P.46 dated 05.04.2011 Murasoli issue submits that the photo in the paper showed 1st Respondent's wife had canvassed on behalf of him visiting every street. Further, there was a news item in the said paper by mentioning that 1st Respondent's wife had canvassed on his behalf and also Tamilnadu Merchant Association had canvassed for the 1st Respondent.
52.90. The Learned Senior Counsel for the Petitioner refers to Ex.P.46, Murasoli issue dated 06.04.2011 and points out that the Congress party had canvassed on behalf of the 1st Respondent and also in the said paper there was a photo showing that the 1st Respondent's wife had canvassed on his behalf.
52.91. The Learned Senior Counsel for the Petitioner by pointing out to Ex.P.46, Murasoli issue dated 07.04.2011 brings it to the notice of this Court that the photo showing others had canvassed on behalf of the 1st Respondent. Also the said paper carried a news item mentioning 1st Respondent would canvass on 07.04.2011 and Mr.M.Subramanian would accompany him. That apart, the said paper dated 07.04.2011 in Ex.P.46 refers to the following aspects: a) Photos showing others canvassed on behalf of the 1st Respondent.
b) Photos showing others candidates on behalf of the 1st Respondent.
c) the News Item mentioning others had canvassed on behalf of the 1st Respondent.
d) The photo showing other DMK personnel had canvased on behalf of the 1st Respondent.
52.92. The Learned Senior Counsel for the Petitioner by referring to Ex.P.46, Murasoli Issue dated 08.04.2011 points out that the said paper carried news item that the 1st Respondent's father would canvass at Kolathur on 08.04.2011. Also in the said paper it was mentioned that the 1st Respondent opened the Election Office at GKM Colony, Kolathur. Moreover one V.S.J.Srinivasan had canvassed on behalf of the 1st Respondent. Besides this, the said issue of Murasoli dated 08.04.2011 contains a photo showing Founder President of Dravida Iyakkam who canvassed on behalf of the 1st Respondent at Thanoigachalam Nagar, Balaji Nagar and Vetri Nagar etc., 52.93. The Learned Senior Counsel for the Petitioner by referring Ex.P.46, Murasoli issue dated 09.04.2011 proceeds to state that the 1st Respondent's father had requested the voters of Kolathur Constituency to vote for the 1st Respondent in 'Rising Sun' symbol. Further the said issue contains photograph to show that the 1st Respondent canvassing in open jeep at Kolathur and Thiruvallur. Also the said news paper carried a news item showing Tol.Thirumavalavan (Member of Parliament), who canvassed on behalf of the 1st Respondent. Also in the said paper it was mentioned that S.Kuppusamy had canvassed on behalf of the 1st Respondent. Moreover, in the said paper dated 09.04.2011 there was a photo showing the General Secretary of All India Thalith Minority Social Justice Federation along with the 1st Respondent's wife had canvassed on behalf of the 1st Respondent.
52.94. The Learned Senior Counsel for the Petitioner points out to the issue of Murasoli issue dated 10.04.2011 in Ex.P.46 and states that said paper carried the news item issued in the name of V.S.Ravi mentioning that the 1st Respondent would canvass on 10.04.2011 at Kolathur Constituency. That apart, said paper contained a photo showing that 1st Respondent's wife had canvassed on behalf him at Agaram North by indulging house to house campaign. The said paper also carried a photo showing other DMK members who had canvassed on behalf of the 1st Respondent. The paper also carried a news item stating the administrative servants of Tamilnadu State Transport Corporation. Also had canvassed on behalf of the 1st Respondent at Vasantha Garden. That apart, one Dhatchayani had also canvassed on behalf of the 1st Respondent.
52.95. The Learned Senior Counsel for the Petitioner points out that the Murasoli Tamil issue dated 11.04.2011 contains the following details:-
1. The Photo showing that the 1st Respondent had canvassed in open jeep at Kolathur. The Photo showing that the 1st Respondent had canvassed at Thitti Thottam.
2. The news item mentioned that the 1st Respondent completed canvassing at Kolathur. The news item showing that Mohammed Amsa canvassed on behalf of the 1st Respondent. The news item stating Merchants had canvassed on behalf of the 1st Respondent
3. Photos showing that DMK persons were canvassing on behalf of the 1st Respondent.
4. The photo showing All India Merchants Association President had canvassed on behalf of the 1st Respondent.
52.96. Besides the above, the said paper issue dated 11.04.2011 also refer to the canvassing made on behalf of the National Democratic Front various leaders canvassed on behalf of the 1st Respondent. Also the said paper mentions about the 1st Respondent's wife canvassing at Srinivasa nagar before the Christian Community.
52.97. The Learned Senior Counsel for the Petitioner mentions that the Murasoli issue dated 12.04.2011 in Ex.P.46 contains the following aspects:-
1.News Item mentioning that the 1st Respondent had canvassed at Kolathur on 11.04.2011.
2.News Item mentioning that High Court had directed the registration of cases against the Election Petitioner.
3.The photo showing the Tamilnadu Clay Pot Employees Welfare Board's President had canvassed on behalf of the 1st Respondent.
4.The photos showing the 1st Respondent canvassing at Kolathur in open jeep.
5.The photos showing Indian National Christian Party President canvassed on behalf of 1st Respondent.
6.The photos showing christian fathers had canvassed on behalf of the 1st Respondent and the photos showing Datchayani canvassed on behalf of the 1st Respondent. The photos showing various other persons had canvassed on behalf of the 1st Respondent.
7.Photos showing the Founder President of Dravida Iyakkam had canvassed on behalf of the 1st Respondent.
52.98. The Learned Senior Counsel for the Petitioner by referring to the aforesaid materials / news item published in Ex.P.46 series (22 Nos) makes an emphatic plea before this Court that the photographs showed the election campaign of the 1st Respondent in an extravagant manner and the expenses incurred for his campaigning was not included in his election account and further that the 1st Respondent had participated and addressed in many Executive Soldiers Meeting (Seyal Veerargal Kottam) and the expenses incurred was not included in the election expenses.
52.99. The Learned Senior Counsel for the Petitioner submits that the 1st Respondent had campaigned and visited his Kolathur Constituency on numerous occasions and he campaigned in open jeep surrounded by his party men in uniform holding flag pipes with DMK flag and as a matter of fact, the 1st Respondent was greed with shawls and garlands and those expenses were not included in election expenses.
52.100. The Learned Senior Counsel for the Petitioner contends that the 1st Respondent had cut open the Election Offices of DMK Party within the Constituency and each election office was decorated with all facilities to cater to the needs of the cadres, like table, chairs, water cans, tube lights and halogen bulbs. Also that the Election offices were decorated with flex boards. Moreover the expenses in the election office were not included in the expenses account.
52.101. The Learned Senior Counsel for the Petitioner draws the attention of this Court that P.W.1 (Election Petitioner) had elaborately in his evidence spoken about the Election Office and the plea of the petitioner was that the 1st Respondent 27 Election Offices in Kolathur Constituency, which was not disputed specifically in the counter of the 1st Respondent.
52.102. The Learned Senior Counsel for the Petitioner projects an argument that R.W.3 (1st Respondent) had admitted in his evidence that he had inaugurated many Election offices and Ex.P.46 series would unerringly point out that the 1st Respondent had cut open many Panimanai and apart from that in Ex.C-19, the 1st Respondent had given the expenditure account for only one election office and that too for a very nominal value and the expenditure for other election offices were not included in Ex.C.19.
52.103.The Learned Senior Counsel for the Petitioner comes out with an argument that from Ex.P.46 series many individuals including the 1st Respondent's wife and his Party Men and Others and various Associations and Organisations had canvassed for the 1st Respondent and their expenses in the campaign were not included and the 1st Respondent's Election Expenses and if they were included it would go much beyond the permissible limit of 16 Lakhs. In this connection, the Learned Senior Counsel for the Petitioner points out that the ingredients of Section 77 of the Representation of People Act, 1951 mentions that those expenses would have to be included to the account of the 1st Respondent.
52.104. The Learned Senior Counsel for the Petitioner submits that as per Ex.P.46, the estimated election expenses of the 1st Respondent amounting to Rs.1,41,857.80/- was not fully disclosed in Exs.C.18, C.19. Further, the Learned Senior Counsel for the Petitioner puts forward an argument that the estimated election expenses of the 1st Respondent as per Ex.C.15 series amounting to Rs.1,56,690/- in all was not disclosed in Exs.C.18 and C.19. Moreover, a sum of Rs.33,349/- was also an estimated Election Expenses as per Ex.C.15 (series) was not fully disclosed in Exs.C.18 and 19.
52.105. The Learned Senior Counsel for the Petitioner submits that as per Ex.P.46, the Election expenses incurred by the 1st Respondent (R.W.3) was not fully disclosed in Exs.C.18 and 19 and the same comes to Rs.1,06,10,622/- and the break up of the same is as under :
Hand Bills Rs.0.85 per No. (As per Ex.P.18) - Rs. 1,91,250.00 Plastic Hanging (Rs.38) per unit (As per Ex.P.18) - Rs. 18,69,600.00 Flag Post Rs.20 post (As per Ex.P.18) - Rs. 7,13,120.00 Tube Lights Rs.20 (As per Ex.P.18) - Rs. 1,98,420.00 Hallaogen lights Rs.90 per no.
(As per Ex.P.18) - Rs. 62,100.00
Rs.12/- Unit 4 Unit 1Symbol
(As per Ex.P.18) - Rs. 2,37,072.00
Black and Red Uniform
per set Rs.450
(as per Minimum general
Norms) - Rs. 1,12,500.00
Crackers 10000 Wala (Rs.3000)
5000 Wala (Rs.1500)
1000 Wala (Rs.350)
(As per Ex.P.18) - Rs. 61,97,800.00
Shawl Rs.150
(As per Ex.P.18) - Rs. 1,00,500.00
Badge Rs.4
(As per Minimum General Norms) - Rs. 7,320.00
Muffler Rs.20
(As per Minimum General Norms) - Rs. 20,400.00
Sound System Rs.2000
(Installed in each street)
(As per Ex.P.18) - Rs. 5,48,000.00
Sound System Rs.2000
& Generator Charge Rs.3000
(as per street wise announcement
during the procession proganda
vehicle Ex.P.18) - Rs. 90,000.00
Music Band Rs.5000/- 2 hrs
(As per election Com Exp.Norms
Ex.P.18) - Rs. 77,500.00
Hat Rs.8.50 (As per Ex.P.18) - Rs. 4,420.00
Spl. Muffler Rs.40
(As per Minimum General Norms
Ex.P.18) - Rs. 2,800.00
Light Music Rs.10,000/- per day
(As per Ex.P.18) - Rs. 40,000.00
Cloth flag used with pole
medium Rs.14 & Large Rs.23
(As per Ex.P.18) - Rs. 12,820.00
Lunch & Tiffin C Class
Rs.50 (Ex.P.18) - Rs. 1,25,000.00
Grand Total - Rs. 1,06,10,622.00
In short, the plea of the Petitioner that the total expenditure incurred by the 1st Respondent as per Ex.P.46 under various numerous headings Rs.1,14,976.789/-.
52.106. Further, it is also projected on the side of the Petitioner that the calculation of expenses incurred by the 1st Respondent as per the rate determined by the Election Commission under Ex.P.18 was established as per Ex.P.46, corroborated by Exs.P.50, 51 and C-15 Series.
52.107. According to the Petitioner, the canvassing expenses by DMK Party Cadres as per Ex.P.46 in respect of the election expenses of 1st Respondent was not fully disclosed in Exs.C.18 and 19 and the same comes to Rs.63,614/- Further, it is the stand of the Petitioner that the Election Canvas Expenses incurred by the 1st Respondent's wife as per Ex.P.46 was not fully disclosed in Exs.C-18 and 19 and the same comes around Rs.73,132/-. Likewise, the Canvassing Expenses other Leaders incurred as per Ex.P.46 was not disclosed in Exs.C.18 and 19 and the same is Rs.43,505/-. The Public Meeting by other leaders as per Ex.P.46 comes around to Rs.1,41,857.80 and the same was not disclosed in Exs.C.18 and C.19. The Canvas by various Association resulting in an Election Expenses of Rs.1,13,625.00 was not fully disclosed in Exs.C.18 and C.19.
52.108. In respect of Street Corner Meeting as per Ex.P.46, the Estimated Election Expenses by 1st Respondent was not fully disclosed in Exs.C.18 and C.19 and according to the Petitioner, the same comes around to Rs.1,08,080/-.
52.109. The Learned Senior Counsel for the Petitioner submits that the 1st Respondent had not included the various expenditure found in Ex.P.50 (CD) Ex.P.51 and Ex.C.15 (Series) in his accounts filed in Ex.C.19 and if those expenses were included, then, the expenditure of the 1st Respondent would surpass the permissible limit.
52.110. The Learned Senior Counsel for the Petitioner contends that Ex.C.15 series was marked through C.W.2 who clearly deposed that Ex.C.15 series (CD) were maintained by the earlier Returning Officer in his office with Labels to identify the same and also C.W.3 was examined to prove the same. In this connection, the Learned Senior Counsel for the Petitioner brings it to the notice of this Court that as far as Ex.C.15 (Series) were concerned, those visuals were taken by the Election Commission by employing their Men as per Compendium of inspections on expenditure monitoring in the elections marked as Ex.C.20. Moreover, the Exs.P.50 and 51 were proved by examining P.W.4, who took the photographs and visuals during Election campaigning of the 1st Respondent and also the examination of P.W.6 would show that he had certified Ex.P.52 authenticated Exs.P.50 and 51 CDs.
52.111. The Learned Senior Counsel for the Petitioner submits that C.W.5 had not produced the reconciliation order and in fact according to him Ex.P.17 (containing Part I to Part VI was downloaded by someone and in this connection, it is the plea of the Petitioner that if someone downloads today, only Part I to Part III would be available and when he downloaded, it contained six parts.
52.112. The Learned Senior Counsel for the Petitioner points out that C.W.5 in his chief examination had stated that one P.Ashok Kumar, Systems Manager, Public (Elections) Department, Secretariat had certified that the scanned records relating to the 1st Respondent in Kolathur Assembly Constituency during the Assembly Elections 2011 was uploaded in the website of the Chief Electoral Officer on 18.06.2011 at 4.08 P.M. Further, it is the evidence of C.W.5 that from the available contents of the website, it is seen that only two pages have been uploaded and these two pages were never been changed or modified subsequent to uploading and Ex.C.18 is the attested printout of two pages namely, 'Abstract Statement of Election Expenses' of the 1st Respondent available on the website of the Chief Electoral Officer as on today.
52.113. The Learned Senior Counsel for the Petitioner submits that the aforesaid Ashok Kumar had no business to upload the records in question and in fact he could not have uploaded Part I to Part III and if he had not uploaded the said parts, then, Section 100(i)(d)(iv) of Representation of People Act, 1951 is attracted.52.114. The Learned Senior Counsel for the Petitioner refers to the evidence of C.W.5, who had deposed in his evidence that he could not recall from the memory as to where Ashok Kumar was working in 2011 and in fact, it is the stand of the Petitioner that Ex.C.18 is Part I to Part III of Ex.P.17 and in fact Ex.C-18 was downloaded on 11.01.2017. In short, it is the submission of the Learned Senior Counsel for the Petitioner that C.W.5 is not assisting the Court.
52.115. The Learned Senior Counsel for the Petitioner points out that Ex.C.18 is filed by the 1st Respondent which comprises of Part I to Part III in two sheets. According to C.W.5, only two sheets were uploaded in the website which is contrary to 17.10.4 of Part I of C-20 which enjoins that scanned copy of abstract statement of Part I to VI were to be put in website.
52.116. The Learned Senior Counsel for the Petitioner contends that as per Annexure 15 mentioned in Part II of Ex.C.20, the Abstract Statement of Election Expenses should contain Part I to Part VI hence on the face of it Ex.C.18 is an incomplete document, which was also admitted (during his cross examination) by C.W.5.
52.117. In so far as Ex.P.17 is concerned, it is the submission of the Learned Senior Counsel for the Petitioner that it contains Part I to Part VI in Annexure 15 and it is found in Page No. 34 of Part II of Ex.C.20 and in fact, Part II and Part III of Ex.P.17 deals with details of expenditure incurred by the 1st Respondent. As a matter of fact, Part IV and V were the break-up details of expenditure mentioned in Part III. Therefore, it is the submission of the Petitioner that without Part IV and Part V, Ex.P.17 would not be a complete one and the break-up details of Part II of Ex.P.17 were found in Ex.C.19 it tallies with the break-up details of Part IV and Part V of Ex.P.17 and the total amount also tallies with Part III of Ex.P.17.
52.118. The Learned Senior Counsel for the Petitioner contends that Exs.C.18 and C-19 corroborate and establish the correctness of Ex.P.17 coupled with admission of R.W.3 (1st Respondent) at Page No.12 of his evidence.
52.119. The Learned Senior Counsel for the Petitioner submits that in Ex.C.19, the total expenditure said have been incurred by the 1st Respondent as Rs.3,32,709/-. In fact, this figure of tallies with the total expenditure mentioned in Ex.P.17. At this stage, the Learned Senior Counsel for the Petitioner points out that C.W.5 had admitted (in his cross examination) that Ex.P.17 is only the 'Abstract statement of Accounts' given in Ex.C.19 and in Ex.C.19, the expenditure account maintained by the 1st Respondent do not tally with the shadow register maintained by the Election Expenditure Observer.
52.120. The Learned Senior Counsel for the Petitioner contends that contrary to the specific instructions in 5.4 of Part I of Ex.C.20, the said discrepancy has been compromised without issuing any show cause notice to the 1st Respondent and the discrepancy in Ex.P.17 at pages 17, 21, 26, 27 and 31 of Ex.C.19 between the accounts maintained by the 1st Respondent and the accounts said to have been maintained by the so-called Shadow Register.
52.121. The Learned Senior Counsel for the Petitioner submits that the Shadow Register reflected the expenses of Rs.5,83,600/- and that the 1st Respondent had shown the account for Rs.3,32,709/- and there was a discrepancy of Rs.2,50,891/- which was comprised without the following mandatory provisions of issuing show cause notice. In this connection, the Learned Senior Counsel for the Petitioner projects a legal plea that there is a non compliance of mandatory provisions of the Rules framed under the Representation of People Act, 1951 and in fact, in Paragraph No. 65 of the counter, the 1st Respondent had not disclosed that the expenditure account given by him for Rs.3,32,709/- was not accepted.
52.122. Also it is the stand of the Petitioner that the 1st Respondent accepted the figure of Rs.5,83,600/- as found in the so-called Shadow Observation Register. The Learned Senior Counsel for the Petitioner contends that C.W.5 in his evidence had deposed that one Ashok Kumar had uploaded Ex.C.18 which consists of only two pages and it consists of only Part II to III of Ex.P.17. In this regard, the Learned Senior Counsel for the Petitioner comes out with a plea that the evidence of CW.5 that Ashok kumar had uploaded Ex.C.18 comprising only two pages is only a hearsay evidence and in fact, the said Ashok Kumar was not examined. Also it is the plea of the Petitioner that as per 17.10.4 of Part I of Ex.C.20, the Chief Election Officer is bound to up load Part I to Part VI of Annexure-15 and the authorities had deemed to have acted as per Ex.C.20.
52.123. The Learned Senior Counsel for the petitioner submits that in the absence of evidence of Ashok Kumar, as per 17.10.4 of Part I of Ex.C.20, Abstract Statement of Accounts should contain Part I to Part VI and Ex.P.17, which contains Part I to VI is a valid one. At this juncture, the Learned Senior Counsel for the Petitioner points out that C.W.5 had stated in his evidence that the original of Ex.P.17 is not traceable and Exs.P.17 and P19 are forming part of the same document.
52.124. The Learned Senior Counsel for the Petitioner takes a stand that when Ex.C.19 is available, it is not known why Ex.P.17 was not available and it is nobody's case it was destroyed and therefore, it is quite evident that there has been non-compliance of Rules of Orders viz., Ex.C.20.
52.125. The Learned Senior Counsel for the Petitioner contends that the Expenditure Observer should have been taken note of the video surveillance team, Ex.C.15Series, which covered the election campaign of the 1st Respondent. Also that the Assistant Expenditure Observer shall have to personally supervise the video graphs and therefore, there is a clear non-compliance of statutory provisions and consequently election of the 1st Respondent is liable to be set aside under Section 100(1) (d) (iv) of Representation of People Act, 1951.
53. Petitioner's Citations:
53.1. Learned Senior Counsel for the Petitioner cites the decision of the Hon'ble Supreme Court in Ashok Shankarrao Chavan V. Madhavrao Kinhalkar and Others (2014) 7 Supreme Court Cases 99 at Special Page 103, wherein it is held as follows:
It is appropriate to state and even judicial notice can be taken of the fact about every kind of manipulations and malpractices that are being adopted and applied in elections in the recent past as is reported widely in the press and media. Unlike the yesteryears i.e. Immediately after Independence, the role of Election Commission while holding the public elections has become so vital, a greater and wider responsibility is imposed on the Election Commission to ensure that those who contest the elections maintain high levels of intergrity and honesty and that the voting public are not duped by their evil designs. With that when we come to Rule 89 of the Conduct of Elections Rules, 1961 (the 1961 Rules), the said Rule contains sub-rules (1) to (8), which specify the extent to which the verification of the correctness and genuineness of the accounts of election expenses lodged can be enquired. Under Rule 89(1), after lodging of the true copy of the account, the District Election Officer (DEO) should report to the Election Commission, amongst other things, that whether the account was lodged within the required time and in the manner required by the Representation of the People Act, 1951 (the 1951 Act) and the 1961 Rules. When this stipulation, namely, the manner required under the 1951 Act is referred, it will have to be stated that the manner required would certainly include the true and correct accounts to be maintained, a copy of which alone can be stated to mean having been lodged in the manner required. Furthermore, in the aforesaid decision at page 105, it is observed among other things as under:
..... When Section 10-A of the 1951 Act is read as compared to Sections 7(c) and 8(b), as they originally stood, Section 10-A in its very opening words, empowers the Election Commission on being satisfied about the defects in the lodging of the account of election expenses as contemplated under Sections 77(1) and (3) read along with Section 78 and Rules 86 to 90 of the 1961 Rules, to pass an order of disqualification which is for a period of three years from the date of the order. Such a detailed nature of power, now prescribed under Section 10-A of the 1951 Act, was not provided for under Section 7(c) read along with Section 8(b), as it originally stood. Also, while incurring such election expenditures, a true and correct account should also be maintained and such expenditure should not exceed the prescribed limit as is contemplated under Sections 77(1) and (3) of the 1951 Act read with Rule 90 of the 1961 Rules (see Shortnote N). If such a stringent provision for incurring election expenses has been brought into the statute book and if the real intent and purpose of such provisions are not understood and allowed to be implemented in its true spirit, it would provide scope for any contesting candidate to violate such a statutory requirement flagrantly and thereby, make the provision a dead letter. Moreover, in the aforesaid decision at page 106, it is observed as follows:
It is common knowledge as is widely published in the press and media that the nowadays in public elections payment of cash to the electorate is rampant and the Election Commission finds it extremely difficult to control such a menace. There is no truthfulness in the attitude and actions of the contesting candidates in sticking to the requirement of law, in particular to Section 77 of the 1951 Act and there is every attempt being made to violate the restrictions imposed in the matter of incurring election expenses with a view to woo the electorate concerned and thereby, gaining the votes in their favour by corrupt means viz., by purchasing the votes. Therefore, Court cannot turn a Nelson's eye and state that Sections 77(1) and (3), as well as 78 of the 1951 Act would be relevant only for the purpose of ascertaining the corrupt practices under Section 123(6) of the 1951 act and that such requirement of incurring bona fide and correct expenditure need not be a requirement for ascertainment for the Election Commission while exercising its powers under Section 10-A of the 1951 Act. While Section 123(6) of the 1951 Act is relatable to Section 77(3), there is no bar to invoke Sections 77(1) and (2) while holding the enquiry under Section 10-A of the 1951 Act. In fact, ascertainment of the requirement under Section 77(3) of the 1951 Act viz., the expenses incurred do not exceed the limit prescribed can be made both for the purpose of an enquiry under Section 10-A of the 1951 Act, as well as in the event of a candidate exceeding the limit as a corrupt practice for the purpose of invalidating the election. Therefore, the requirement under Section 77(3) of the 1951 Act has got twin objectives to be fulfilled. 53.2. The Learned Senior Counsel for the Petitioner relies on the decision of the Hon'ble Supreme Court R.Puthunainar Alhithan and Others V. P.H.Pandian and Others reported in (1996) 3 Supreme Court Cases 624 at Page 625 , wherein it is held as follows:
Under the circumstances of the case it stands established that the appellant returned candidate had used two vehicles. From this, the necessary conclusion is that he did not specify in his expenditure return that he used the said vehicle and the expenditure incurred towards that vehicle. Thus he deliberately suppressed the material fact of the user of the vehicle and the expenditure incurred for its use. What expenditure he had incurred for the use of the vehicle can be inferred from proved facts Had the appellant gone into the witness-box and examined himself as a witness, he would have been subjected to cross-examination of his acual total expenditure . More over even though notice was issued to produce his account, he deliberately withheld its production. From these facts, the High Court has reasonably arrived at the finding that had he produced the account, the expenditure would have been shown to be in excess of the limit prescribed under the Act. An adverse inference was drawn from the omission to produce the account that the appellant had committed corrupt practice under Section 123(6) of the Act. This conclusion, on the basis of the evidence on record, cannot be said to be vitiated by any error of law. In an election petition, it is not reasonably practicable for the election Petitioner to establish by meticulous evidence as regards the actual expenditure incurred by the candidite. The said evidence is always within the exclusive knowledge and custody of the returned candidate or other person. Under Section 77, it is for the candidate/election agent to maintain a regular account of the expenditure incurred in connection with the election and a statement in that behalf is required to be filed notice to the appellant-returned candidate calling upon him to produce the expenditure account which he did not produce.
An inference from the proved facts must be so probable that if the court believes, from the proved facts, that the facts do exist, it must be held that the fact has been proved. The interference of proof of that fact could be drawn from the given objective facts, direct or circumstantial. To drawn an inference that a fact in dispute has been established, there must exist, on record, some direct material facts or proof required cannot be put in a strait-jacket formula. No mathematical formula can be laid on the degree of proof. The probative value could be gauged from the facts and circumstances in a given case. Also in the aforesaid decision at pages 628 to 630 in Paragraph Nos. 5, 6, 8 and 9, it is observed as under:
5. Under sub section (2) the account shall contain such particulars, as may be prescribed. Under sub-section (3), the total of the said expenditure shall not exceed such amount as may be prescribed. Admittedly, the prescribed expenditure is Rs.50,000. Under sub-section (6) of Section 123, incurring or authorising of expenditure in contravention of Section 77 shall be deemed to be corrupt practice for the purpose of the Act. It is now an admitted position that in his expenditure return, the appellant had specifically mentioned that he had used one vehicle bearing Registration No.TN-72 1909 and the expenditure for use of that vehicle was Rs.15,875. In the written statement, he has admitted that he used the vehicle bearing No.TNH-555. Admittedly, he did not mentioned in his election return either the use of the said vehicle or the expenditure incurred for its use. In the rejoinder affidavit the Respondent has specifically pleaded that the said vehicle was used and he estimated the expenditure at Rs.19,870. Though an opportunity was available to the appellant to get into the witness-box and explain the admission of the user of the vehicle bearing Registration No.TNH-555 whether it was by way of mistake or was by way of substitution for the vehicle bearing Registration No.TN-72 1909, as sought to be projected in this Court, he did not deliberately examine himself as a witness nor led any evidence in that behalf. PW 9 had specifically stated that the said vehicle was used. In the cross-examination, his attention was drawn only to the nature of the vehicle, namely, whether it is a taxi or tourist vehicle. The user thereof was not questioned. Under those circumstances, it stands established that the appellant had used two vehicles. From this, the necessary conclusion is that he did not specify in his expenditure return that he used the said vehicle and the expenditure incurred towa4rds that vehicle. Thus he deliberately suppressed the material fact of the user of the vehicle and the expenditure incurred for its use. What expenditure he had incurred for the use of the vehicle can be inferred from proved facts. Had the appellant gone into the box and examined himself as a witness, he would have been subjected to cross-examination of his actual total expenditure. Morever, even though notice was issued to produce his account, he deliberately withheld its production. In an election petition, it is not reasonably practicable for the election Petitioner to establish by meticulous evidence as regards the actual expenditure incurred by the candidate. The said evidence is always within the exclusive knowledge, and custody of the returned candidate or other person. As seen, under Section 77, it is for the candidate/election agent to maintain a regular account of the expenditure incurred in connection with the election and a statement in that behalf is required to be filed before the Collector. It is not in dispute that the Respondent had issued a notice to the appellant calling upon him to produce the expenditure account which he did not produce.
6.Section 3 of the Evidence At, 1872 provides that a fact is said to be 'proved' when, after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstance of the particular case, to act upon the supposition that it exists; a fact is said to be 'disproved' when, after considering the manner before it, the court either believes that it does not exist, or considers its non-existence so probable that prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist; a fact is said to be not proved when it is either proved nor disproved. Therefore, the court, after considering the evidence before it, either believes the fact to exist or considers its existence so probable as a prudent man ought, under the circumstances available on the facts in the case on hand, to act upon the supposition that the existence of the fact is so probable that a court can act upon that evidence.
8. An inference from the proved facts must be so probable that if the court believes, from the proved facts, that the facts do exist, it must be held that the fact has been proved. The inference of proof of that fact could be drawn from the given objective facts, direct or circumstantial.
9. Under these circumstances, the necessary conclusion would be that he had also used vehicle and its expenditure was deliberately withheld by him. He suppressed that fact in his expenditure return. From these facts, the High Court has reasonably arrived at the finding that had he produced the account, the expenditure would have been shown to be in excess of the limit prescribed under the Act. An adverse inference was drawn from the omission to produce the account that the appellant had committed corrupt practice under Section 123(6) of the Act. This conclusion, on the basis of the evidence on record, cannot be said to be vitiated by any error of law. It is true that the charge of corrupt practice under Section 123 is treated akin to a charge in a criminal trial. The trial of an election petition is like a trial in the criminal case and the burden to prove corrupt practice is on the election Petitioner. The doctrine of preponderance of probabilities in a civil action is not extended for proof of corrupt practice. It is not, like a criminal trial, that the accused can always keep mum. In a criminal trial the accused need not lead any defence evidence. It is an optional one. The burden of proof of charge in a criminal case is always on the prosecution. The guilt of the accused beyond reasonable doubt should be established by the prosecution. But in an election petition when the election Petitioner had adduced evidence to prove that the returned candidate had committed corrupt practice, the burden shifts on the returned candidate to rebut the evidence. After its consideration, it is for the court to consider whether the election Petitioner has proved the corrupt practice as alleged against the returned candidate. In view of the findings recorded earlier, it must be concluded that the Respondent had established that the appellant had committed corrupt practice under Section 123(6) of the Act and thereby the declaration of the result of the election of the appellant as void is not vitiated by any error of law warrant interference. 53.3.The Learned Senior Counsel for the Petitioner draws attention of this Court to the decision of the Hon'ble Supreme Court Magraj Patodia V. R.K.Birla and Others reported in 1970 (2) Supreme Court Cases 888 , wherein it is held as follows:
Elections-Corrupt practice in elections-No direct evidence-Inference may be drawn from proved facts and circumstances-Burden of proof. 53.4.The Learned Senior Counsel for the Petitioner points out the decision of Hon'ble Supreme Court Shri Kanwar Lal Gupta V. Amar Nath Chawla and Others reported in (1975) 3 Supreme Court Cases at Page 646 at Special Page 647, it is held as under:
(a) Not only is the incurring of excessive expenditure a corrupt practice, but also the authorising of such expenditure, and authorising may be implied as well as express. Whether a particular expenditure was impliedly authorised by the candidate must depend on the facts and circumstances of each case as appearing from the evidence adduced before the Court. This question would arise in a challenging form where expenditure in connection with the election is incurred, not by the candidate, but by the political party which has sponsored him or his friends and supporters.
The object of the provision limiting the expenditure is two-fold. In the first place, it should be open to any individual or any political party, howsoever small, to be able to contest an election on a footing of equality with any other individual or political party, howsoever rich and will financed it may be, and no individual or political party should be able to secure an advantage over others by reason of its superior financial strength. If, therefore, one political party or individual has larger resources available to it than another individual or political party, the former would certainly, under the present system of conducting elections, have an advantage over the latter in the electoral process. The availability of disproportionately larger resources is also likely to lend itself to misuse or abuse for securing to the political party or individual possessed of such resources, undue advantage over other political parties or individuals.
It is elementary that each and every citizen has an inalienable right to full and effective participation in the political process of the Legislatures and this requires that each citizen should have equally effective voice in the election of the members of the Legislatures. That is the basic requirement of the Constitution. This equal effective voiceequal opportunity of participation in the electoral processwould be denied if affluence and wealth are to tilt the scales in favour of one political party or individual as against another. The democratic process can function efficiently and effectively for the benefit of the common good and each out the benefits of self-government to the common man only if it brings about a participatory democracy in which every man, howsoever lowly or humble he may be, should be able to participate on a footing of equality with others. Individuals with grievances, men and women with ideas and vision, are the sources of any society's power to improve itself.
The small man's chance is the essence of Indian democracy and that would be stultified if large contributions from rich and affluent individuals or groups are not divorced from the electoral process.
The other objective of limiting expenditure is to eliminate, as far as possible, the influence of big money in the electoral process. The pernicious influence of big money would then play a decisive role in controlling the democratic process in the country. This would inevitably lead to the worst form of political corruption and that in its wake is bound to produce other vices at all levels. Office-bearers and elected representatives may quite possibly be inclined, though unconsciously and imperceptibly, to espouse policies and decisions that will attract campaign contributions from affluent individuals and groups.
(c) As regards the figure of expenses given by the candidate, the Court would reject them where they sound absurd in being too low in the prevalent prices at that place.
(d) Where the figures for actual expenditure are suppressed, the Court can, on the material on record, arrive at a reasonable estimate of the expenses incurred. The Court cannot fold its hands and surrender in helplessness because the Respondent refuses to co-operate and assist and holds back the relevant information in his possession. The Court in such a case is not powerless to arrive at the truth as best as it can. The Court can and must, as far as possible, assess the amount of expenditure on the basis of the material on record when it finds that there is suppression of some item of expenditure or the item is deliberately shown as less than what must have actually been incurred. 53.5. The Learned Senior Counsel for the Petitioner refers to the decision of the Hon'ble Supreme Court in Gajanan Krishnaji Bapat and Another V. Dattaji Raghobaji Meghe and Others reported in (1995) 5 Supreme Court Cases 347 at Special Page 350 wherein it is observed as under:
In the case of an election petition, based on allegations of commission of corrupt practice, the burden of proof is on the Petitioner and that burden does not shift. A charge of corrupt practice is in the nature of a quasi-criminal charge, as it consequence is not only to render the election of the returned candidate void but in some cases even to impose upon him a disqualification for contesting even the next election. Therefore, the standard of proof is generally speaking that of criminal trial, which requires strict proof of the charge beyond a reasonable doubt and not merely by preponderance of probabilities as in civil action. Vague allegations and discrepant evidence may only create a doubt but then the charge of corrupt practice cannot be held to be proved on mere lurking suspicion or doubts. 53.6. The Learned Senior Counsel for the Petitioner refers to the decision of the Hon'ble Supreme Court in L.R.Shivaramagowda and Others V. T.M.Chandrashekar (Dead) by Lrs. And Others (1999) 1 Supreme Court Cases 666 at Special Page 677 wherein it is held as follows:
What is referred to in sub-section (6) of Section 123 as corrupt practice is only the incurring or authorising of expenditure in contravention of Section 77. Sub-section (6) of Section 123 does not take into its fold, the failure to maintain true and correct accounts. The language of sub-section (6) is so clear that the corrupt practice defined therein can relate only to sub-section (3) of Section 77, i.e., the incurring or authorising of expenditure in excess of the amount prescribed. It cannot by any stretch of imagination be said that non-compliance with Sections 77(1) and (2) would also fall within the scope of Section 123(6). Consequently, it cannot fall under Section 100(1)(b). The attempt to bring such non-compliance within Section 100(1)(d)(iv) must also fail because the essential requirement under Section 100(1)(d)(iv) is that the result of the election insofar as it concerns the returned candidate has been materially affected. It is needless to point out that failure on the part of the returned candidate to maintain accounts as required by Sections 77(1) and (2) will in no case affect, and much less materially, the result of the election. 53.7. The Learned Senior Counsel for the Petitioner cites the decision of the Hon'ble Supreme Court in Common Cause (A Registered Society) V. Union of India and Others (1996) 2 Supreme Court Cases 752 at Special Pages 753 & 754, wherein it is held as follows:
A political party which is not maintaining, audited and authenticated, accounts and has not filed the return of income for the relevant period, and deliberately chooses to violate or circumvent these mandatory provisions of law and goes through the election process with the help of black and unaccounted money, the said party, ordinarily, cannot be permitted to say that it has incurred or authorised expenditure in connection with the election of its candidates in terms of Explanation 1 to Section 7 o the RP Act.
Explanation 1 is in the nature of an exception to sub-section 91) of Section 77. The expenditure, (including that for which the candidate is seeking protection under Explanation 1 to Section 77 of the RP Act) in connection with the election of a candidateto the knowledge of the candidate or his election agentshall be presumed to have been authorised by the candidate or his election agent. But the presumption is rebuttable. It shall be open to the candidate to rebut the presumption in accordance with law and to show that part of the expenditure or whole of it was in fact incurred by the political party to which he belongs or by any other association or body of persons or by an individual (other than the candidate or his election agent). The candidate shall have to rebut the presumption by the evidentrary standard as applicable to rebuttable presumptions under the law of evidence. An entry in the books of account of a political party maintained in accordance with Section 13-A of the Income Tax Act showing that the party has incurred expenditure in connection with the election of a candidate may by itself be sufficient to rebut the presumption. On the other hand, the ipse dixit of the candidate or writing at the bottom of the pamphlet, poster, cut-out, hoarding, wall painting advertisement and newspaper etc. that the same were issued by the political party may not by itself be sufficient to rebut the presumption. Any expenditure incurred or authorised by a political party in respect of general propaganda or for the propagation of its election manifesto shall not be considered an expenditure to be incurred in connection with the election of the candidate/candidates belonging to the said party. Only when the candidate discharges the burden and rebuts the presumption he would be entitled to the benefit of Explanation 1 to Section 77 of RP Act. 53.8. The Learned Senior Counsel for the Petitioner invites the attention of this Court to the decision of the Hon'ble Supreme Court P.C. Purushothama Reddiar V. S.Perumal reported in 1972 (1) Supreme Court Cases 9 wherein among other things it is held as follows :
......The incurring or authorising of an expenditure in contravention of Section 77 of the Act is one single corrupt practice. The incurring or authorising of an expenditure in connection with the election is not by itself a corrupt practice. The corrupt practice is the incurring or authorising the expenditure of more than the prescribed limit. The Hence, the Trial Court erred in thinking that each item of expenditure. Further, in the aforesaid decision, in page 13, at Paragraph No.12, it is observed as under:
12. It is true that in election cases oral evidence has to be examined with great deal of care because of the partisan atmosphere continuing even after the election. But it will be wrong on the part of courts to just brush aside the oral evidence even when the evidence is highly probable and the same is corroborated by unimpeachable documentary evidence. As mentioned earlier, according to the appellant, the Respondent stated his election campaign with a well attended meeting on February 23, 1969 at Ariyankuppam. In support of that version he examined P.Ws.3, 4, 7, 13, 16 and 19. Their evidence was corroborated by Exs. P-15 and P-35. But the learned trial Judge rejected this evidence without examining them. He came to the conclusion that the witnesses examined are partisan witnesses. Therefore much reliance cannot be placed on their testimony. But he failed to attach sufficient importance to the tell-tale evidence afforded by Exts.P-17 and P-35. Ex.P-15 is an application made by the Respondent to the Inspector of Police, 'C' Circle, Pondicherry. Therein the Respondent stated:
Please grant me permission to hold a public meeting at Ariyankuppam Cuddalore Road in front of market, on the occasion of inauguration of my electoral office on February, 23, 1969, from 9 to 12 a.m. and to make use of loud-speakers. Furthermore, in the aforesaid decision, at page 15, Paragraph no. 17, it is observed as under:
17. For the reasons mentioned above, we are satisfied that in addition to the seven election meetings which the Respondent admitted having arranged, the appellant has been able to satisfactorily prove that the Respondent had arranged at leased four more meetings. Moreover, in the aforesaid decision, at page 16 paragraph no.22, it is opined as under:
22. The first part of Section 35 of the Evidence Act says that an entry in any public record stating a fact in issue or relevant fact and made by a public servant in the discharge of his official duty is relevant evidence. Quite clearly the reports in question were made by public servants in discharge of their official duty.
54. 1st Respondent's Contentions:
54.1. In response, the Learned Senior Counsel for the 1st Respondent submits that on behalf of the Election Petitioner a reliance is placed on Ex.P.30 (Xerox copy of Murasoli News Papers) and Ex.P.46 (Original of Murasoli News papers 22 Nos) were marked by P.W.1, in addition to Exs.P.50 and 51 (CDs) which were marked through P.W.6, who issued Ex.P.52, Certificate and on the documents, namely, Exs.C8 to C.15 (series) (CDS) which were marked by CW2.
54.2. The Learned Senior Counsel for the 1st Respondent contends that Exs.P.30 and P.46 were marked by P.W.1 on 09.04.2013 pursuant to an order made in O.A.No.133 of 2013 dated 09.04.2013 and an Order in O.A.Nos.259 and 260 of 2014 dated 11.04.2014 respectively. At this stage, the Learned Senior Counsel for the 1st Respondent contends that the Murasoli News papers both Exs.P.30 and P.46 are to be treated as hear say evidence in the absence of Editor / Reporter have been examined. Moreover, it is the stand of the 1st Respondent that Ex.P.30 (Xerox copy of Murasoli News Paper 22 in series) consisted of paper copies relating to 5 dates namely, 25.03.2011, 01.04.2011, 02.04.2011, 10.04.2011 and 11.04.2011, but, when the Murasoli News Paper Originals from the date 20.03.2011 to 12.04.2011 were marked, it was marked as Ex.P.46, which is beyond the scope of the order passed by this Court.
54.3. The Learned Senior Counsel for the 1st Respondent draws the attention of this Court to the order passed by this Court on 18.01.2013 in O.A.No.1008 of 2012 in E.L.P.No.1 of 2011 wherein at Paragraph No.19, it is mentioned as under:
19. As far as the news items published in Murasoli newspaper which is the subject matter in O.A.No.1008 of 2012, for which Serial Nos.11, 16, 17, 35,37, 38 and 43 of the list of documents are filed, the news items reported in the first six serial numbers, viz., Serial Nos.11, 16, 17, 35, 37, 38 are in respect of the campaign schedule of the returned candidate in various wards. The said news items definitely will not prove the corrupt practice alleged to have been committed by the returned candidate. As far as the Serial No.43 of the list of documents, the news item published in Murasoli is concerned, the complaint given by one Kumudha against the election petitioner alleging that he has encroached on the public road which was directed to be registered by this Court was published therein. Even the said document in my considered view will not in any way prove the corrupt practice alleged to have been committed by the returned candidate. 54.4. The Learned Senior Counsel for the 1st Respondent points out that as per Paragraph No.5 of the order passed by this Court in O.A.No.133 of 2013 in ELP No.1 of 2011 dated 21.03.2013, the Murasoli Paper documents are only allowed to be marked to show the campaign schedule of the 1st Respondent and Ex.P.46, which was not part of the election petition and the list of documents annexed thereto is not to be taken into consideration by this Court and any evidence let in on the basis of this document is inadmissible in Law.
54.5. The Learned Senior Counsel for the 1st Respondent brings it to the notice of this Court that in the order dated 18.01.2013 in O.A.No.1008 of 2012 this Court had interalia observed that '....said news items definitely will not prove the corrupt practice alleged to have committed by the returned candidate' etc., and further, in regard to the observation of the Court, the news items namely, Sl.No.43 of the list of documents, the news items published in Murasoli was concerned, the complaint given by one Kumutha, against the Election Petitioner alleging that he had encroached on the public road which was directed to be registered by this Court was mentioned therein. Even the said document will not prove the corrupt practice alleged to have been committed by the returned candidate and the same do operate as 'Resjudicata' and prohibits the Petitioner from using the said papers to prove the Corrupt Practice. In short, it is the submission of the Learned Counsel for the 1st Respondent that Exs.P.30 and P.46 should not be relied upon touching any aspect of alleged 'Corrupt Practice'.
54.6. The Learned Senior Counsel for the 1st Respondent proceeds to the next limb of argument by pointing out before this Court that Ex.P.30 (series) attested by one Vignesh, RW1, who was working earlier as Public Relations Officer in the Corporation of Chennai under the Election Petitioner and that too on a Sunday namely, on 24.03.2013, which was admitted by R.W.1 in his evidence and as such, the entire exercise of filing the documents Ex.P.30 at a belated stage is an impermissible one.
54.7. The Learned Senior Counsel for the 1st Respondent submits that Exs.P.50 and 51 and C-15 series are all hit by lack of proper certificate under Section 65-B of the Indian Evidence Act, 1872. In this connection, the Learned Senior Counsel for the 1st Respondent contends that the Petitioner at the time of filing the Election Petition, along with the main Election Petition had filed 12 C.Ds and listed them under the caption of 'Details of Compact Disc Filed as Annexure' and in fact, an electronic evidence in the form of CDs, computer printouts etc., cannot be admitted and proved without a valid Certificate under Section 65-B of the Indian Evidence Act. In this connection, the Learned Senior Counsel for the 1st Respondent refers to the decision of the Hon'ble Supreme Court (Anvar P.V. V. P.K.Basheer reported in (2014) 10 SCC at Page 473 wherein at Paragraph Nos. 16, 18 and 24, it is observed as under:
16. It is further clarified that the person need only to state in the certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, compact disc (CD), video compact disc (VCD), pen drive, etc., pertaining to which a statement is sought to be given in evidence, when the same produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice.
18. The Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements under Section 65-B of the Evidence Act are not complied with, as the law now stands in India.
24. The situation would have been different had the appellant adduced primary evidence, by making available in evidence, the CDs used for announcement and songs. Had those CDs used for objectionable songs or announcements been duly got seized through the police or Election Commission and had the same been used as primary evidence, the High Court could have played the same in court to see whether the allegations were true. That is not the situation in this case. The speeches, songs and announcements were recorded using other instruments and by feeding them into a computer, CDs were made therefrom which were produced in court, without due certification. Those CDs cannot be admitted in evidence since the mandatory requirements of Section 65-B of the Evidence Act are not satisfied. It is clarified that notwithstanding what we have stated herein in the preceding paragraphs on the secondary evidence of electronic record with reference to Sections 59, 65-A and 65-B of the Evidence Act, if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act, the same is admissible in evidence, without compliance with the conditions in Section 65-B of the Evidence Act. 54.8. The Learned Senior Counsel for the 1st Respondent takes a plea that only after production of an electronic record in compliance with the provisions of Section 65-B of the Indian Evidence Act, 1872 it shall be sent to secure an opinion of 'Examiner of Electronic Evidence' and in this regard cites the decision of Hon'ble Supreme Court (Anvar P.V. V. P.K.Basheer) reported in (2014) 10 SCC at Page 473 the relevant Paragraph No.17 is as follows:
17. Only if the electronic record is duly produced in terms of Section 65-B of the Evidence Act, would the question arise as to the genuineness thereof and in that situation, resort can be made to Section 45-Aopinion of Examiner of Electronic Evidence. 54.9. The Learned Senior Counsel for the 1st Respondent takes a plea that in the instant case, there is no mention of what source of the electronic evidence submitted by the Election Petitioner, viz., the videographic information in the CDs were originally recorded through a video camera or a mobile phone or digital camera or what specification of the source device is, how the same was transferred from the source device to the computer and in short, it is the stand of the 1st Respondent that without any such information about the source authenticity of the video graphic information is in doubt.
54.10. The Learned Senior Counsel for the 1st Respondent submits that Exs.P.50 and 51 and Ex.C8 to C.15 Series are all 'Secondary Evidence' of an electronic nature and the same cannot be proved without adhering to the evidence of Section 65 of Indian Evidence Act, 1872.
54.11. The Learned Senior Counsel for the 1st Respondent proceeds to state that in respect of Ex.P.17, marked during the Chief of P.W.1, there is no certificate under Section 65-B of the Indian Evidence Act, 1872.
54.12. Insofar as Ex.P.18 (Notification of Rates) marked through P.W.1 is concerned, it is the plea of the 1st Respondent that Petitioner had not mentioned as to how the said notification was obtained and no certificate under Section 65-B of the Indian Evidence Act is produced / filed, if it is downloaded. Further, in respect of Ex.P.30 (Sl.Nos.16,17,35, 37) Murasoli Tamil News Paper copies marked through P.W.1, according to O.A.No.133 of 2013 only E-copies were filed and the Petitioner had not filed the Certificate under Section 65-B of the Indian Evidence Act, 1872.
54.13. The Learned Senior Counsel for the 1st Respondent contends that Ex.P.48, Tharasu Magazine article downloaded from website marked through P.W.6 (during chief) is a different one than the one filed as Sl.No.74 and the Certificate Ex.P.49 is defective.
54.14. The Learned Senior Counsel for the 1st Respondent points out that Ex.P.50 (Photos shot by Stringer, Muruganantham marked through P.W.6 and Ex.P.52, Certificate does not mention the pen drive used in transfer and also no specifications given, as required under Section 65-B of the Indian Evidence Act. Likewise, for the Ex.P.51 (Videos taken by P.W.4, Muruganandham, Stringer) marked through P.W.6, Certificate Ex.P.52 dated 06.02.2015 is a defective one, which does not mention pen drive used in transfer and also no specifications were furnished, as required under Section 65-B of the Indian Evidence Act.
54.15. The Learned Senior Counsel for the 1st Respondent submits that in respect of CDs, Exs.C.8 to C.15 (Marked through C.W.2 Assistant Commissioner, Corporation of Chennai), no certificate under Section 65-B of the Indian Evidence Act was issued by C.W.2 / C.W.3 and in fact Ex.C.23, Certificate given by C.W.6 is defective.
54.16. The Learned Senior Counsel for the 1st Respondent contends that in respect of Ex.P.17 (made available from the Election Commission website) there is no corresponding certificate as per Section 65-B of the Indian Evidence Act. Apart from that, the Learned Senior Counsel for the 1st Respondent points out that as per Evidence of C.W.5 the 'Abstract Statement of Election Accounts' was uploaded on the website of the Election Commission of India is different than the one produced by the Election Petitioner before this Court. As such, it is represented on behalf of the 1st Respondent that as to where from the Election Petitioner had obtained Ex.P.17 remains unanswered and therefore, the Petitioner has come before this Court with unclean hands.
54.17. At this stage, the Learned Senior Counsel for the 1st Respondent cites the decision of Hon'ble Supreme Court Mahender Pratap V. Krishnan Pal and others reported in (2003) 1 Supreme Court Cases at Page 390 at Special pages 397 & 398 wherein at Paragraph No.20, 21 and 23, it is observed as under:-
20. As seen from the decided cases mentioned above, in election petitions which are filed with prayer for re-count of votes, the court has always insisted upon a high standard of proof of grounds as would impel the court to direct re-count of votes and recheck the election results. It is only after the election petitioner is able to demonstrate before the court by leading satisfactory evidence that there was serious flaw in the counting procedure which had materially affected the result of election that the prayer for recount is generally allowed.
21. In such a state of election law, the court legitimately expects the parties to approach it with genuine grievances on truthful facts. Where false facts are pleaded and false evidence is produced to mislead the court into interfering with the people's verdict of election, the misconduct of the parties to the election has to be viewed seriously. The court allows an election petition only on strict proof of one of the grounds prescribed in Section 100 of the Act. If the parties to the election petitions are allowed to take the court lightly even though attempts are skilfully made by them by false pleas and evidence to mislead the court, the whole judicial process would be misused by clever parties to their advantage and to the detriment of the interest of the electorate who are vitally interested in the result of election.
23. In election petition, if the parties are found to have made incorrect statements in their pleadings, affidavits or depositions and there is thereby an intention on their part to mislead the court, appropriate deterrent action like dismissal of their cases with costs, prosecution for perjury or initiation of contempt proceedings should be taken by the court lest the judicial process would continue to be polluted and misused by undeserving parties who have no real grievance or cause for seeking aid of judicial forums. Such false cases not only contribute to the work load of the court and kill its precious time but create hurdles in the ways of genuine-litigants who sincerely need assistance of the court for obtaining justice. 54.18. The Learned Senior Counsel for the 1st Respondent brings it to the notice that this Court had allowed O.A.Nos.259 and 260 of 2014 (filed by the Petitioner on 11.04.2014) and this Court had permitted only the marking of Murasoli Originals in the place of those in Ex.P.30. At this juncture, the Learned Senior Counsel for the 1st Respondent submits that the order of this Court dated 21.03.2013 in O.A. No.133 of 2013 in E.L.P.No.1 of 2011 only points out to the marking of Murasoli relating to the dates 25.03.2011, 07.04.2011, 02.04.2011, 10.04.2011 and 11.04.2011 and that later P.W.1 had marked number of other documents pertaining to Murasoli Papers corresponding to other date, which is not correct.
54.19. The Learned Senior Counsel for the 1st Respondent brings it to the notice of this Court that the Election Petitioner (P.W.1) had filed number of CDs together with the Election Petition and no certificate under Section 65-B of the Indian Evidence Act,1872 was filed nor there was any information in regard to which CD related to which pleading in the Election Petition.
54.20. The Learned Senior Counsel for the 1st Respondent submits that the labelling of the CDs apparently held by the Election Commission Officials match also perfectly in terms of the titles in those filed by the Election Petitioner. In this Connection, the Learned Senior Counsel for the 1st Respondent projects an argument that it is uncertain as to how the Election Commission Officials would identify their CDS by the name of Petitioner's party worker, P.W.3 (Lilly Kalpana) and in respect of other CDs there is an almost impossible match between the details of the CDs as stated by the Election Petitioner in his Petition and the markings on the CDS, as stated by C.W.2, to be made by his Office Record Clerk (Manikandan), therefore, it is the stand of the 1st Respondent that the curious similarity between the labelling of the two sets of seven C.Ds further brings the genuineness of the C.Ds in question.
54.21. The Learned Senior Counsel for the 1st Respondent contends that the existence of Ex.P.37 (Complaint of the Petitioner dated 21.06.2011 addressed to the Chief Electoral Officer and Principal Secretary to Government) on the subject 'Objection regarding for Expenditure' of the 1st Respondent is in doubt because of the reason that no acknowledgement has been filed nor the Election Commission has confirmed its existence. Apart from that, no question was put to C.W.1 and C.W.5 on behalf of the Petitioner in regard to the action taken on Ex.P.37 Complaint.
54.22. The Learned Senior Counsel for the 1st Respondent refers to Ex.C.20 (Instructions on Expenditure Monitoring in a Elections) at Paragraph No. 4.3.3 wherein it is mentioned that the Assistant Expenditure Observer would submit a daily report to the Expenditure Observer on all his activities as per Annexure 6 and that the folder of evidence will have all the record of evidences collected during the campaign and that he should make it available to the expenditure observer on the time of inspection of the candidate's register for the election expenses.
54.23. The Learned Senior Counsel for the 1st Respondent proceeds to point out that in Ex.C.20, Apart from the Paragraph No.4.3.3 mentioned above, it is interalia observed as under:
....In case of any evidence of suppression or undervaluing of expenses in candidate's register, the Assistant Expenditure Observer will bring it to the notice of the Expenditure Observer and the candidate appropriately during the inspection. For any suppression of expenditure, the Expenditure Observer shall give his remarks in the candidate's register during inspection and put his signature. The same should be noted in the Shadow Observation Register and the signature of the election agent / candidate obtained on it. The RO issue notice to the candidate on the same day on such discrepancies. In case of any difficulty, the Expenditure Observer in turn will inform the Commission and seek its guidance. 54.24. The Learned Senior Counsel for the 1st Respondent refers to the evidence of R.W.3 (1st Respondent) (who had deposed in cross-examination) that he does not remember whether 27 Election Offices were set up by DMK Party in the 2011 Assembly Election and according to him, there could not have been many Election Offices for his party and further that the Election Petitioner could have made deliberately certain allegations.
54.25. Further, it is the stand of the 1st Respondent that Ex.C.20 shows that Ex.C.19 (Register for Maintenance of Day Today Accounts of Election Expenditure by Contesting Candidates) was scrutinised contemporaneously and rigorously by the Election Officials including the Expenditure Observers who maintained the Shadow Expenditure Observer. In this regard, the Learned Senior Counsel for the 1st Respondent contends that at least on four occasions as seen in Ex.C.19 (internal printed page nos. 17,21,27 and 31) the Expenditure Observers had cross checked the 1st Respondent's accounts and on all the said four occasions any difference between the 1st Respondent's accounts and the Expenditure Observer's accounts was accepted by the candidate.
54.26. The Learned Senior Counsel for the 1st Respondent contends that as seen from Ex.C.19 (Printed page nos.17, 21, 27 and 31) the difference amounts were noted on the document itself (in writing) and the same was accepted by the 1st Respondent. At this stage, the Learned Counsel for the 1st Respondent takes a stand that when the difference was accepted, the accounts were reconciled on each occasions so that there is no scope of any discrepancy. As such, there was no necessity for the concerned authority to issue any notice to the 1st Respondent.
54.27. The Learned Senior Counsel for the 1st Respondent takes a plea that if the difference in amount between the 1st Respondent's Account and the Expenditure Observer Account was not accepted by the 1st Respondent, then, notice should have been issued to the candidate. However, in the present case, Ex.C.19 shows that his accounts were properly maintained within the prescribed expenditure limit and they were filed with the time-period for lodgement and the same was scrutinised scrupulously, methodically and contemporaneously by the Election Officials.
54.28. The Learned Senior Counsel for the 1st Respondent takes a forceful stand that when the 1st Respondent's Election Expenses Account was accepted by the District Election officer (who in accordance with Rules 87 and 88 of the Conduct of Elections Rules, 1961 publicly displayed the same, then there can be no grievance in this regard.
54.29. Also that, the Learned Senior Counsel for the 1st Respondent submits that the District Election Officer having been satisfied with the accounts filed by the 1st Respondent had sent report to the Election Commission of India in regard to the Rule 89 of the Conduct of Elections Rules and in fact, all the Official acts are to be presumed that they were regularly performed and further in the present case on behalf of the Petitioner, there was no evidence to the contrary.
54.30. The Learned Senior Counsel for the 1st Respondent submits that since the election expenses account of the 1st Respondent was accepted by the concerned official(s), there was no occasion to proceed under Section 10A of the Representation of People Act nor was there any non-compliance of the provisions of the Constitution and ingredients of Representation of People Act, 1951 or the Orders or Rules made thereunder.
54.31. The Learned Senior Counsel for the 1st Respondent contends that the expenditure incurred by a 3rd person, who is not authorised by a candidate or an election agent is not a Corrupt Practice. Further, unless an expenditure was in fact, incurred or authorised by a candidate or his Election Agent, he cannot be saddled with that expense.
54.32. The Learned Senior Counsel for the 1st Respondent points out that C.W.2 in his evidence had deposed that he was not aware of the content of the CDs and as to how they were produced. Therefore, a stand is taken on behalf of the 1st Respondent that the CDs were without proper authentication.
54.33. The Learned Senior Counsel for the 1st Respondent contends that (i) Log Book entries (ii) The concern official's report to Higher Officials were not produced from the custody of the concerned election officials or from the custody of flying squad.
54.34. The Learned Senior Counsel for the 1st Respondent contends that as per Section 78 of the Representation of People Act, 1951, the account with the District Election Officer shall be made by the every contesting candidate at the election within 30 days from the date of election of the Returned candidate etc., and the failure to lodge the account of election expenses by a person under Section 10-A of the Act will declare him to be disqualified by the Election Commission for the period of three years from the date of the order. In this regard, it is the stand of the 1st Respondent that failure to lodge account of election expenses must be noticed by the concerned authorities, but, in the present case, it is represented on behalf of the 1st Respondent that it is not so.
54.35. The Learned Senior Counsel for the 1st Respondent brings it to the notice of this Court that Chapter 18 of Accounts of Election Expenses in Hand Book for Candidates (issued by the Election Commission of India, 2009 ((reprint 2011)) Part 2 (2.2) under the caption 'Authority with whom account should be lodged' clarifies that accounts of election expenses should be lodged with the District Election Officer of the District', who had provided the polling stations for the constituency.
54.36. The Learned Senior Counsel for the 1st Respondent also refers to Paragraph No.2.3 of Chapter 18 of the Hand book for Candidates in and by which the District Election Officer for the convenience of the contesting candidates in every constituency should also issue a letter to all the constituencies within 3 days of the Election of the Returned candidate intimating the name designation and address of the District Election Officer with whom the account has to be lodged and also the last date on which account should reach him.
54.37. The Learned Senior Counsel for the 1st Respondent by adverting to the Hand Book for Candidates, Chapter 18 'Accounts of election expenses' points out that Paragraph No.3 deals with 'Maintenance of Account and Particulars to be Entered in Account and in fact, Paragraph No.3.1 enjoins that the account should contain the following particulars mentioned therein.
54.38. The Learned Senior Counsel for the 1st Respondent refers to Chapter 18 of 'Accounts of Election Expenses' in Hand Book for Candidates wherein at Paragraph No.4.1, the Commission has directed that the day today account as maintained by a candidate in the aforesaid register together with the supporting documents shall be made available by the candidate for inspection on three occasions atleast between finalization of candidature and the date of poll to the Returning Officer, Election Observer appointed by the Commission or any other official appointed for that purpose. Further, the said paragraph enjoins that the Returning Officer shall prepare the schedule of inspection for the candidates in the constituency and given an advance intimidation to the candidates about the dates on which they are to produce the accounts etc., 54.39. The Learned Senior Counsel for the 1st Respondent points out that every candidate shall open the bank account in respect of every transaction which must be transacted through bank account (separate account in several name) and this will be checked by the concerned authority of the Election Commission.
54.40. The Learned Senior Counsel for the 1st Respondent brings it to the notice of this Court that failure on the part of the candidate to produce the Register and the supporting documents for inspection on demand shall be treated as major default on his part and he would be proceeded against under Section 171-I of Indian Penal Code vide paragraph 4.2 of Chapter of the Handbook for Candidates.
54.41. The Learned Senior Counsel for the 1st Respondent refers to Paragraph No.4.5 of Chapter 18 of the Handbook for candidates under the Caption Arrangements for Scrutinising Accounts. Also the Learned Senior Counsel for the 1st Respondent, refers to para 4.6 of Chapter 18 of the Handbook for Candidates' whereby and whereunder it is mentioned interalia that the Commission has directed all the District Election Officers to make available the rates of the intimation mentioned therein to all Election Observers immediately on their approval in the Constituency and the said list is not exhaustive but illustrative one like hiring charges of loudspeaker with amplifier and microphone, construction of podium / pandhal, clock banner etc., 54.42. The Learned Senior Counsel for the 1st Respondent refers to Paragraph No. 5.5 of the Chapter 18 of Hand Book for Candidates, which deals with 'Vouchers to be filed with Accounts' by every candidate and the same shall be serially numbered either by the candidate or his Election Agent. Also, the attention of this Court is invited to Para 15 of Chapter 18 of the Hand Book for Candidates which speaks of 'DEO will publish a copy of every report sent to the Commission by affixing a copy thereof to your notice board.
54.43. The Learned Senior Counsel for the 1st Respondent submits that Paragraph No.16 of Chapter 18 of the Handbook for candidates speaks of 'Commission 's decision on report' by the Commission in deciding whether any contesting candidate has failed to lodge his account of election expenses within a time and in the manner required by law etc., 54.44. The Learned Senior Counsel for the 1st Respondent refers to 5.2 of Chapter 18 of Account of Election Expenses in Handbook for Candidates and points out that the candidate is also required to furnish the Abstract statement in Parts I to VI of the Proforma (Appendix XXX1-A) given to him by the Returning officer along with the said register etc., also Paragraph 5.3 of the said chapter deals with filing of affidavit by each candidate on oath in support of his account of election expenses, while lodging the return. Paragraph 5.4 of the said Chapter enjoins the account which is filed should be a true and complete account kept by the candidate or his election agent and should be certified as such as by the candidate itself.
54.45. The Learned Senior Counsel for the 1st Respondent refers to Paragraph Nos.10 to 10.2 of Chapter 18 of 'Accounts of Election Expenses' in Hand Book for Candidates which deals with 'Inspection and Copies'. In fact, the Paragraph No.10.1 says that 'Any person can, on payment of an fee of Rs.1/-, inspect the account lodged before the DEO for the candidates etc., 54.46. The Learned Senior Counsel for the 1st Respondent refers to Paragraph No.11 and 11.1 of Chapter 18 of Hand book for candidates which speak of 'Report to the Commission'. In reality, Paragraph No.11.1 enjoins that immediately after the last date of filing of accounts of election expenses has expired, and in any case not later than 7 days after such expiry date, the DEO shall report to the Commission under Rule 89 of the Conduct of Election Rules, 1961 in the Form in Appendix XXXIII 54.47. The Learned Senior Counsel for the 1st Respondent submits that Ex.C.19 (Register for Maintenance of day today accounts of Election Expenditure by Contesting Candidates) need not contain the details and in fact, the Election Commission has not found any mistake in regard to the election expenses account of the 1st Respondent. As matter of fact, the DEO has accepted the 1st Respondent's election expenses account.
54.48. The Learned Senior Counsel for the 1st Respondent refers to the evidence of C.W.5 (Chief Electoral Officer and Principal Secretary to Government of Tamilnadu) and submits that it is the evidence of C.W.5 that the expenditure in Ex.C.19 was accepted by the DEO, in his scrutiny report, which means that election officer had not found any undisclosed expenditure.
54.49. The Learned Senior Counsel for the 1st Respondent points out that C.W.5 in his evidence had stated that Ex.C.19 is not the order of the District Election Officer in the expenditure submitted by the Returned Candidate (1st Respondent). Also it is the evidence of C.W.5 that Ex.C.18 does not contain any order of the DEO towards accepting of the accounts.
54.50. The Learned Senior Counsel for the 1st Respondent contends that it is the evidence of P.W.1 that more than 100 crores was spent during the Kolathur Assembly Constituency Election, 2011 by the 1st Respondent for which there is no acceptable proof in this regard.
54.51. The Learned Senior Counsel for the 1st Respondent refers to the evidence of P.W.1 (Election Petitioner) that he does not remember in which part of Kolathur, he had seen the 1st Respondent but, he had seen him campaigning when he was canvassing for votes. Also P.W.1 had deposed that once when he was canvassing for votes, he saw the 1st Respondent campaigning at Kulathur constituency in a extravagant fashion.
54.51. The Learned Senior Counsel for the 1st Respondent refers to the evidence of P.W.1 and points out that he had deposed that he does not remember which of the CDs were obtained from the press and which were obtained from the Election Commission.
54.52. The Learned Senior Counsel for the 1st Respondent proceeds to state that P.W.1 in his evidence had stated that he could not say whether the details given in Page 24 of his chief examination was witnessed by him when the 1st Respondent's procession crossed over him.
54.53. The Learned Counsel for the 1st respondent submits that Paragraph No.91 of the Election Petition dealing with the 1st Respondent's Election Campaign in the streets of Kolathur constituency as per schedule announced in 1st Respondent's news Paper Murasoli, etc., was not verified by the Petitioner in the supporting affidavit and therefore the said paragraph is not to be considered.
54.54. The Learned Senior Counsel for the 1st Respondent refers to the evidence of P.W.1 that he had admitted the value of shawls of more than Rs.35 Lakhs based on the value of each item stipulated by the Election Commission.
54.55. The Learned Senior Counsel for the 1st Respondent submits that P.W.6 in his evidence had deposed that he had not used any of those visuals in their website and further he had deposed that neither they used the photos in Ex.P.50 nor the video footage in Ex.P.51 in their website.
54.56. The Learned Senior Counsel for the 1st Respondent refers to the evidence of P.W.4 and points out that P.W.4 had deposed that he handed over memory card and digital card in the evening and when election campaign was in the evening they were handed over in the next day morning and further he had stated that he had not maintained personal copies of the Photo / video taken by him and also he does not have the memory cards taken by the videos.
54.57. The Learned Senior Counsel for the 1st Respondent contends that Exs.C.8 to C.15 are documents produced / filed beyond the 45 days period prescribed in Section 81 of Representation of People Act, 1951 and further C.W.2 in his evidence had deposed that he does not know about the contents of CDs viz.,Exs. C-8 to C-15.
54.58. The Learned Senior Counsel for the 1st Respondent brings it to the notice of this Court that C.W.3 (in his evidence) had stated that he had not seen the persons hired to take videos, handed over CDs to the returning officer, etc., 54.59. The Learned Senior counsel for the 1st Respondent contends that none of the witnesses had deposed that C.W.6 (Divisional Engineer of Corporation of Chennai) was arranging for transfer of data. The Learned Senior Counsel for the 1st Respondent refers to the decision of Hon'ble Supreme Court Anvar P.V. V. P.K.Basheer and Others reported in (2014) 10 SCC at Page 473 at Page 486 wherein at Paragraph No.24 it is interalia mentioned that '....It is clarified that notwithstanding what we have stated herein in the preceding paragraphs on the secondary evidence of electronic record with reference to Sections 59, 65-A and 65-B of the Evidence Act, if an electronic record as such is used as primary evidence under Section 62 of the Indian Evidence Act, the same is admissible in evidence, without compliance with the conditions in Section 65-B of the Indian Evidence Act'.
54.60. The Learned Senior Counsel for the 1st Respondent contends that C.W.6 will not be a truthful witness and that he was working under P.W.1 (Election Petitioner) The Learned Senior Counsel for the 1st Respondent points out that C.W.6 in his evidence had stated that the copies of the CDs were taken by Manikandan and in the instant case, said Manikandan was not examined and also that C.W.5 had deposed that he cannot identify those three computers by their specifications or Numbers.
54.61. The Learned Senior Counsel for the 1st Respondent contends that for Ex.P.17 printout (Abstract statement of Election expenses of the 1st Respondent) a certificate under section 65B of the Indian Evidence Act is required and in the absence of the same no credence can be given to the said document.
54.62. The Learned Senior Counsel for the 1st Respondent points out that for Ex.P.49 (marked through P.W.5) a certificate under Section 65-B of the Evidence Act is required.
54.63. Also the Learned Senior Counsel for the 1st Respondent projects an argument that for Ex.P.52 (Marked through P.W.6) a certificate under Section 65B of the Indian Evidence Act is required.
54.64. The Learned Senior Counsel for the 1st Respondent submits that the Ex.P.52 is defective because it does not specify the requirements of 65-B of the Indian Evidence Act. In this regard, the Learned Senior Counsel for the 1st Respondent contends that Ex.P.52 was not there on the date of filing of the Election Petition (filed by the Election Petitioner) and for Exs.P.49 to 54, the requirement of 65-B of Indian Evidence Act is not complied with.
54.65. The Learned Senior Counsel for the 1st Respondent points out that Ex.C.23 certificate (issued by C.W.6) does not correlate to which of the digital documents dated 22.03.2011 and therefore, the certificate given by him is a useless one and moreover he was not the person who transferred the data and Manikandan only transferred the data, but, the said Manikandan was not examined as a witness before this Court.
54.66. The Learned Senior Counsel for the 1st Respondent submits that Ex.P.30 (Murasoli Newspaper Series) was taken from Connimara Library and they were downloaded from the said Library and therefore, for the said Ex.P.30, a certificate under Section 65-B of the Indian Evidence Act is required.
54.67. The Learned Senior Counsel for the 1st Respondent submits that in Ex.P.17 there is no seal of authentication of Election Commission and the entire allegation of the Petitioner against the 1st Respondent relating to 'Corrupt Practice' is built on Ex.P.17, which is a defective document in the eye of Law.
54.68. The Learned Senior Counsel for the 1st Respondent refers to the evidence of C.W.1, who had deposed that the two files Exs.C.1 and C.3 pertaining to the documents 10 and 11 of the Judges Summons in O.A.No.998 of 2012 were available, but, in regard to the rest of the documents mentioned in the said applications, he does not know about it.
54.69. The Learned Senior Counsel for the 1st Respondent submits that the Petitioner (P.W.1) had not established that EX.P.37 (an objection regarding the expenditure of 1st Respondent's Election Expenses Account) was served by the concerned authority. The Learned Senior Counsel for the 1st Respondent brings it to the notice of this Court that the Petitioner (P.W.1) had completely omitted to produce Ex.C.19 and in fact Ex.P.17 (Abstract Statement of Election Expenses) is a doubtful document.
54.70. The Learned Senior Counsel for the 1st Respondent contends that Section 10-A of the Representation of People Act, 1951 dealing with the 'Disqualification for Failure to Lodge Account of Election Expenses', is a separate proceedings and in the instant case, the 1st Respondent had submitted his election expenses account, which was accepted by the concerned authority, as per rules, and in fact, C.W.5 had deposed that the account filed by R.W.1 was filed within the time and because of no dispute raised in regard to the election expenses account of the 1st Respondent, the accounts which were accepted has reached finality.
54.71. The Learned Senior Counsel for the 1st Respondent submits that as per Rule 88 of the conduct of Election Rules, 1961, the Petitioner has not inspected the accounts of 1st Respondent in spite of opportunity available to him.
54.72. On behalf of the 1st Respondent it is contended that there is no allegation specifically made by the Petitioner that the Candidate or Election Agent reimbursed or undertook to reimburse the same. As a matter of fact, in the absence of the same, the essential ingredients of 'Corrupt Practice' would not be complete and it would prove no 'Cause of Action'.
54.73. The Learned Senior Counsel for the 1st Respondent refers to Rule 89(5) of the Conduct of Election Rules, 1961 which inter alia speaks of issuance of notice in writing by the Election Commission when it decides that the contesting candidate has failed to lodge his account of election expenses within the time and in the manner required by the Rules, etc., and to show cause why he should not be disqualified under Section 10-A of the Representation of People Act, 1951 for the failure; would not apply to the 1st Respondent because of the fact that the 1st Respondent had filed his account of election expenses and the same was accepted by the concerned Authority.
54.74. Further, the Learned Senior Counsel for the 1st Respondent refers to Rule 89(8) of the Conduct of Election Rules, 1961 which deals with the passing of an order by the Election Commission after considering the representation and comments made by the District Election officer that the candidate has no good reason for the failure to lodge his account, it shall declare him to be disqualified for the period of three years from the date of order and cause the order to be published in the Official Gazette and in fact, whatever that took place prior to the lodging of account pertaining to the election expenses of the candidate, one is not concerned with and the discrepancies in respect of election expenses of the 1st Respondent, earlier, the notice by the concerned officer cannot be assailed on the supply of the Petitioner since finally the accounts of the 1st Respondent's election expenses were put at rest.
54.75. The Learned Senior Counsel for the 1st Respondent contends that there is no evidence that 1st Respondent visited the following streets:
(i) 17 Streets in Division No.51 (Beginning from Gopalapuram Junction- Starting Place ending with Gandhi Silai)
(ii) 22 Streets in Division No.52 (Beginning from Gandhi Silai Thodakkam ending with Ragavan street)
(iii) 25 Streets in Division No.53 (Beginning from Arumugam Street Right ending with Kasi Viswanathan Kovil Annai Sathya Nagar)
(iv) 29 Streets in Division No.54 (Beginning from 25th Street Muthu Mari Amman Kovil Start Radha Krishnan Nagar Elango Street ending with near Gandhi Statue)
(v) 28 Streets in Division No.50 (Beginning from Jawahar Nagar Nehru Statue Start ending with Gandhi nagar)
(vi) 12 Streets in Division No.62 (Beginning from Redhills Road Bus Route Road ending with Jayaram Nagar 3rd Main Road) and in fact, it is the evidence of R.W.3 that he visited only few selected streets.
54.76. By means of a reply, the Learned Senior Counsel for the Petitioner contents that P.W.1 in his evidence had given breakup details of the expenditure incurred by the 1st Respondent in regard to his election during 2011 Kolathur Assembly Constituency Election and in fact, Ex.P.46 series, Exs.P.50 and 51 show that the so-called Shadow Register do not reflect the right expenditure incurred by the 1st Respondent and moreover the expenditure found in Exs.P.46 and P.50 (CDs) and Ex.P.51 (CDs) and C.15 CDs were not included in the so-called expenses account maintained by the Election Observer. Further, it is the stand of the Petitioner that on what basis the expenditure observer came to the conclusion that the 1st Respondent had spent only a sum of Rs.5,83,600/-.
55. 1st Respondent's Decisions 55.1. The Learned Senior Counsel for the 1st Respondent cites the decision of Hon'ble Supreme Court (Three Judges Bench) L.R.Shivaramagowda and Others V. T.M.Chandrashekar (Dead) by Lrs. And Others reported in (1999) 1 Supreme Court Cases 666 at Special Pages 682 to 684 wherein it is held at Paragraph Nos. 18 to 22 it is observed as follows:
18. We shall now proceed to the second limb of the argument of the appellant's counsel. The High Court has held that the appellant had not maintained a true and correct account of expenditure incurred or authorised and the same amounted to corrupt practice. Corrupt practices have been set out in Section 123 of the Act. According to the first Respondent, the appellant is guilty of a corrupt practice described in sub-section (60 of Section 123. Under that sub-section, the incurring or authorising of expenditure in contravention of Section 77 of the Act is a corrupt practice. Section 77 provides that every candidate at an election shall keep a separate and correct account of all expenditure in connection with the election incurred or authorised by him or by his election agent and that the accounts shall contain such particulars as may be prescribed. Rule 86 of the Conduct of Elections Rules, 1961 sets out the particulars to be contained in the account of election expenses. Sub-sections (1) and (2) of Section 77 deal only with the maintenance of account. Sub-section (3) of Section 77 provides that the total of the election expenses referred to in sub-section (1) shall not exceed such amount as may be prescribed. Rule 90 of the Conduct of Elections Rules prescribes the maximum limit for any Assembly Constituency. In order to declare an election to be void, the grounds were set out in Section 100 of the Act. Sub-section 91)(b) of Section 100 relates to any corrupt practice 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. In order to bring a matter within the scope of sub-section (1)(b), the corrupt practice has to be one defined in Section 123. What is referred to in sub-section (6) of Section 123 as corrupt practice is only the incurring or authorising of expenditure in contravention of Section 77. Sub-Section (6) of Section 123 does not take into its fold, the failure to maintain true and correct accounts. The language of sub-section (6) is so clear that the corrupt practice defined there in can relate only to sub-section (3) of Section 77, i.e., the incurring or authorising of expenditure in excess of the amount prescribed. It cannot by any stretch of imagination be said that non-compliance with Sections 77(1) and (2) would also fall within the scope of Section 123(6). Consequently, it cannot fall under Section 100(1)(b). The attempt here by the first Respondent is to bring it within Section 100(1)(d)(iv0. The essential requirement under that sub-section is that the result of the election insofar as it concerns the returned candidate has been materially affected. It is needless to point out that failure on the art of the returned candidate to maintain accounts as required by Sections 77(1) and (2) will in no case affect, and much less materially, the result of the election.
19. This view has been expressed by this Court in Dalchand Jain v. Narayan Shankar Trivedi (1969) 3 SCC 685. A Bench of three Judges held that it is only sub-section (3) of Section 77 which can be invoked for a corrupt practice under Section 123 (6) and the contravention of Section 77 sub-section (1) and (2) or the failure to maintain correct accounts with the prescribed particulars does not fall under Section 123(6). The Bench has referred to several earlier decisions of the High Court and the decisions of this Court in Shri Kirshan v. Sat Narain 37 ELR 13.
20. Learned counsel for the first Respondent invited our attention to the judgment in Om Prabha Jain v. Charan Dass (1975) 4 SCC 849 : 1975 Supp SCR 107. There is nothing in that judgment to support the contention of the first Respondent. It was held that the charge of corrupt practice was of a criminal nature and must be proved beyond reasonable doubt. On the facts, i was held that the allegation of corrupt practice against the returned candidate had not been proved beyond reasonable doubt.
21. The judgment in Gajanan case (1995) 5 SCC 347 referred to earlier has reiterated the view set out above. It was held that the provisions of Section 123(6) related only to Section 77(3) of the Act and not to violation of sub-sections (1)(2) of Section 77.
22. It was argued by the learned counsel for the first Respondent that the aforesaid view would enable any successful candidate at an election to snap his fingers at the law prescribing the maximum limit of expenditure and escape from the provisions of Section 77(3) by filing false accounts. According to him, if the aforesaid construction of Sections 77 and 123(6) is to be adopted, there will be no sanction against a candidate who incurs an expenditure exceeding the maximum prescribed limit. Referring to Section 10-A of the Act which enables the Election Commission to disqualify a person who had failed to lodge an account of election expenses within the time and in the manner required by or under the Act had had no good reason or justification for the failure, he contended that the said section provides only for a situation arising out of failure to lodge an account and not a situation arising from a failure to maintain true and correct accounts. We are unable to accept this contention. In our opinion, sub-section (a) of Section 10-A takes care of the situation inasmuch as it provides for lodging an account of election expenses in the manner required by or under the Act. Section 77(2) provides that the accounts shall contain such particulars as may be prescribed. Rule 86 of the Conduct of elections Rules provides for the particulars to be set out in the account. The said Rule prescribes that a voucher shall be obtained for every item of expenditure and for lodging all vouchers along with the account of election expenses. Rule 89 provides that the District Election Officer shall report to the Election Commission, the name of each contesting candidate, whether such candidate has lodged his account of election expenses, and if so, the date on which such account has been lodged and whether in his opinion, such account has been lodged within the time and in the manner required by the Act and the Rules. That Rule enables the Election Commission to decide whether a contesting candidate has failed to lodge his account of election expenses within the time and in the manner require by the Act after adopting the procedure mentioned therein. If an account is found to be incorrect or untrue by the Election Commission after enquiry under Rule 89, it could be held that the candidate had failed to lodge his account within the meaning of Section 10-A and the Election Commission may disqualify the said person. Hence, we do not find any substance in the argument of learned counsel for the first Respondent. 55.2. The Learned Senior Counsel for the 1st Respondent relies on the decision of the Hon'ble Supreme Court in Ashok Shankarrao Chavan V. Madhavrao Kinhalkar and Others (2014) 7 Supreme Court Cases 99 at Special Page 169, wherein it is observed as follows:
109. We can also usefully refer to the decision referred to before us by Mr.Ashok Desai, learned Senior Counsel for the Election Commission in Union of India v. Assn. for Democratic Reforms (2002) 5 SCC 294, wherein this Court has highlighted the dire need for maintaining purity in the elections and for that purpose Article 324 to be interpreted in a broad perspective, acknowledging the wide powers invested with the Election Commission. Para 17 of the said decision which relevant for our purpose is as under: (SCC p. 308) 17. Ms.Kamini Jaiswal, learned counsel appearing on behalf of the Respondents in support of the decision rendered by the High Court referred to the decision in Kihoto Hollahan v. Zachillhu 1992 Supp (2) SCC 651 wherein while considering the validity of the Tenth Schedule of the Constitution, the Court observed: (SCC p. 741, para 179) '179. Demoracy is a part of the basic structure of our Constitution; and the rule of law, and free and fair elections are basic features of democracy. One of the postulates of free and fair elections is provision for resolution of election disputes as also adjudication of disputes relating to subsequent disqualifications by an independent authority'.
She, therefore, contended that for free and fair elections and for survival of democracy, entire history, background and the antecedents of the candidate are required to be disclosed to the voters so that they can judiciously decide in whose favour they should vote; otherwise, there would not be true reflection of electoral mandate. For interpreting Article 324, she submitted that this provision outlines broad and general principles giving power to the Election Commission and it should be interpreted in a broad perspective as held by this Court in various decisions. In the light of the above categorical statement made while holding that the rule of law and free and fair elections are the basic features and facts of our democracy, Article 324 should be interpreted in a wide perspective giving power to the Election Commission which has to be recognised in a broad sense and not in a narrow one. We fully approve of the submissions of Mr. Ashok Desai, learned Senior Counsel on the above lines and we have already held that in order to ensure free and fair elections, the power vested with the Election Commission under Section 10-A read along with the other provisions of the Act and the Rules, it should be held that the Election Commission does possess the requisite powers under Section 10-A to hold the necessary enquiry to ascertain the fact about the compliance of the statutory requirements in the matter of submission of accounts of the election expenses, i.e. The true, correct and bona fide expenses and that such expenses were within the prescribed limit of the Act. 55.3. The Learned Senior Counsel for the 1st Respondent refers to the Order of this Court in Election Petition No.2 of 2009 P.Mohan (deceased) A.Lazar V. M.K.Azhagiri and others reported in 2014 AIR CC 590 at special page 640, wherein at Paragraph No.53, it is observed as follows:
53. One more important aspect is that newspaper reports by themselves are not evidence of the contents thereof and they are only a hearsay evidence. Law is well settled that in order to depend on newspaper reports, the same have to be proved by letting in proper evidence. The said reports have to be proved in the manner, by examining the reporter as to the contents of the reports and also by taking his evidence. Without examining the concerned editor or reporter, it is impermissible to give credence to the newspaper reports, as they are not admissible without proper proof under the Indian Evidence Act. 55.4. The Learned Senior Counsel for the 1st Respondent cites the decision of the Hon'ble Supreme Court Quamarul Islam V. S.K.Kanta and others reported in 1994 Supp (3) Supreme Court Cases at Page 5 , wherein it is held that 'mere production of copy of the newspaper instead of the original manuscript cannot be treated as proof of the reports and messages/advertisements. Further, it is opined that newspaper reports are only hearsay evidence. That apart, it is observed that 'maker of the reports must also depose before the Court about the contents of the publications'.
55.5. The Learned Senior Counsel for the 1st Respondent falls back upon the decision of the Hon'ble Supreme Court Laxmi Raj Shetty and Another V. State of Tamil Nadu reported in (1988) 3 Supreme Court Cases 319 at Special Pages 346 and 347, wherein at Paragraph Nos. 25 and 26, it is observed as under:
25. As to the first, the accused Laxmi Raj Shetty was entitled to tender the newspaper report from the Indian Express of the 29th and the regional newspapers of the 30th along with his statement under Section 313of the Code of Criminal procedure, 1973. Both the accused at the stage of their defence in denial of the charge had summoned the editors of Tamil dailies Malai Murasu and Makkal Kural and the news reporters of the Indian Express and Dina Thanthi to prove the contents of the facts stated in the news item but they dispensed with their examination on the date fixed for the defence evidence. We cannot take judicial notice of the facts stated in a news item being in the nature of hearsay secondary evidence, unless proved by evidence aliunde. A report in a newspaper is only hearsay evidence. A newspaper is not one of the documents referred to in Section 78(2) of the Evidence Act, 1872 by which an allegation of fact can be proved. The presumption of genuineness attached under Section 81 of the Evidence Act to a newspaper report cannot be treated as proved of the facts reported therein.
26. It is now well settled that a statement of fact contained in a newspaper is merely hearsay and therefore inadmissible in evidence in absence of the maker of the statement appearing in court and deposing to have perceived the fact reported. The accused should have therefore produced the persons in whose presence the seizure of the stolen money from appellant 2's house at Mangalore was effected or examined the press the Respondents in proof of the truth of the contents of the news item. The question as to the admissibility of newspaper reports has been dealt with by this Court in Samant N. Balkrishna v. George Fernandez (1969) 3 SCC 238 : (1969) 3 SCR 603 : AIR 1969 SC 1201. There the question arose whether Shri George Fernandez, the successful candidate returned to parliament from the Bombay South Parliament Constituency had delivered a speech at Shivaji Park attributed to him as reported in the Maratha, a widely circulated Marathi newspaper in Bombay, and it was said: (SC p. 261, para 47) A newspaper item without any further proof of what had actually happened through witnesses is of no value. It is at best a second-hand secondary evidence. It is well known that reporters collect information and pass it on to the editor who edits the news item and then publishes it. In this process the truth might get perverted or garbled. Such news items cannot be said to prove themselves although they may be taken into account with other evidence if the other evidence is forcible.
We need not burden the judgment with may citations. There is nothing on record to substantiate the fats as reported in the newspapers showing recovery of the stolen amount from the residence of appellant 2 at Mangalore. We have therefore no reason to discard the testimony of PW 50 and the seizure witnesses which go to establish that the amount in question was actually recovered at Madras on the 29th and the 30th as alleged. 55.6. The Learned Senior Counsel for the 1st Respondent relies on the decision of the Hon'ble Supreme Court Samant N.Balakrishna and Another V. George Fernandez and Others reported in 1969 (3) Supreme Court Cases 238 at Special Pages 261 & 262 wherein at Paragraph No.47, it is observed as under:
47. The meeting at Shivaji Park which we shall say something presently, was not held in Mr.Fernandez's Constituency. The similarity of ideas or even of words cannot be pressed into service to show consent. There was a stated policy of Sampurna Maharashtra Samiti which wanted to join in Maharashtra all the areas which had not so far been joined and statements in that behalf must have been made not only by Mr.Atrey but by several other persons. Since Mr.Atrey was not appointed as agent we cannot go by the similarity of language alone. It is also very significant that not a single speech of Mr. Fernandez was relied upon and only one speech of Mr.Fernandez namely, that at Shivaji Park was brought into arguments before us by by an amendment which we disallowed. The best proof would have been his own speech or some propaganda material such as leaflets or pamphlets etc. but none was produced. The 'Maratha' was an independent newspaper not under the control of the Sampurna Maharashtra Samiti or the S.S.P. Which was sponsoring Mr.Fernandez or Mr.Fernandez himself. Further we have ruled out news items which it is the function of the newspaper to publish. A news item without any further proof of what had actually happened through witnesses is of no value. It is at best a second-hand secondary evidence. It is well-known that reporters collect information and pass it on to the editor who edits the news item and then publishes it. In this process the truth might get perverted or garbled. Such news items cannot be said to prove themselves although they may be taken into account with other evidence if the other evidence is forcible. In the present case the only attempt to prove a speech of Mr.Fernandez was made in connection with the Shivaji Park meeting. Similarly the editorials state the policy of the newspaper and its comment upon the events. Many of the news items were published in other papers also. For example Free Press Journal, the Blitz and writers like Welles Hengens had also published similar statements. If they could not be regarded as agents of Mr.Fernandez we do not see any reason to hold tht the 'Maratha' or Mr.Atrey can safely be regarded as agent of Mr.Fernandez when acting for the newspaper so as to prove his consent to the publication of the defamatory matter. We are therefore of opinion that consent cannot reasonably be inferred to the publications in the 'maratha'. We ar supported in our approach to the problem by a large body of case law to which our attention was drawn by Mr.Chari. We may refer to a few cases here:Bishwanath Upadhya v. Hardal Das and others 1958 Ass 97; Abdul Najeed v. Bhargavan (Krishnan) and Others AIR 1963 Ker 18; Rustom Satin v. Dr.Sampoornanand and Others 20 ELR 22; Sarla Devi Pathak v. Birendra Singh and Others 20 ELR 275; Krishna Kumar v. Krishna Gopal AIR 1964 Raj 21; Lasing Kesbrising Sehvar v. Vallabhdas Shankarlal Phekdi and Others AIR 1967 Guj 62; Badri Narain Singh and others v. Kamdeo Prasad Singh and Another AIR 1951 Pat 41; and Sarat Chandra Rabba v. Khagendranath Math and Others AIR 1961 SC 334. It is not necessary to refer to these cases in detail except to point out that the Rajasthan case dissents from the case from Assam on which Mr.Jethamalani relied. The principle of law is settled that consent may be inferred from circumstantial evidence but the circumstances must point unerringly to the conclusion and must not admit of any other explanation. Although the trial of an election petition is made in accordance with the Code of Civil Procedure, it has been laid down that a corrupt practice must be roved in the same way as a criminal charge is proved. In other words, the election Petitioner must exclude every hypothesis except that of guilt on the part of the returned candidate or his election agent. Since we have held that Mr.Atrey's activities must be viewed in two compartments, one connected with Mr.Fernandez and the other connected with the newspaper we have to find out whether there is an irresistible inference of guilt on the part of Mr.Fernandez. Some of the English cases cited by Mr.Jethamalani are not a safeguide because in England a distinction is made between illegal practices and corrupt practices. Cases dealing with illegal practices in which the candidate is held responsible for the acts of his agent are not a proper guide. It is to be noticed that making of a false statement is regarded as corrupt practice and not an illegal practice and the tests are different for a corrupt practice. In India all corrupt practices stand on the same footing. The only difference made is that when consent is proved on the part of the candidate or his election agent to the commission of corrupt practice, that itself is sufficient. When a corrupt practice is committed by an agent and there is no such consent then the Petitioner must go further and prove that the result of the election in so far as the returned candidate is concerned was materially affected. In Bayley v. Edmunds, Byron and Marshall (1894) 11 TLR 537 strongly relied upon by Mr.Daphtary, the publication in the newspaper was not held to be a corrupt practice but the paragraph taken from a newspaper and printed as a leaflet was held to be a corrupt practice. That is not the case here. Mr.Patil's own attitude during the election and after is significant. During the election he did not once rotest that Mr.Fernandez charged his workers with hooliganism. Even after the election Mr.Patil did not attribute anything to Mr.Fernandez. He even said that the Bombay election was conducted with propriety. Even at the filing of the election petition he did not think of Mr.Fernandez but concentrated on the 'Maratha'.
55.7. The Learned Senior Counsel for the 1st Respondent cites the decision of the Hon'ble Supreme Court Magraj Patodia V. R.K.Birla and Others reported in 1970 (2) Supreme Court Cases 888 wherein at Paragraph Nos. 16 and 17, it is observed as follows:
16.The same view was reiterated in Ram Dayal v. Brijraj Singh and Others 1969 (2) SCC 218 : (1970) 1 SCR 530: AIR 1970 SC 110. Therein this Court ruled that unless it is established that expenditure was incurred in connection with the election by the candidate or his election agent or was authorised by them, it is not necessary to be included under Section 77 of the Act. Expenses incurred by any other agent or person without anything more need not be included in the account or return as such incurring of expenditure would be purely voluntary.
17. In Mubarak Mazdoor v, Lal Bahadur (20 ELR 176), the Allahabad High Court held that the expenditure voluntarily incurred by the friends and supporters of the returned candidate does not come within Section 123 (3) even though the returned candidate was aware of the fact at the time of the election itself that his friends and sympathisers were incurring expenditure in connection with his election. That is also the effect of the decision in Rananjaya Singh's case (supra). This Court as well as the High Courts have taken the view that the expenses incurred by a political party to advance the prospects of the candidates put up by it, without more, do not fall within Section 77. That position in law was not disputed before us. But it is true as observed by the Bombay High Court in Shivram Sawant Bhonsale v. Pratap Rao Deorai Bhonsale (17 ELR 37); that if the Court comes to the conclusion that an item of expenditure has been suppressed in the return of election expenses, the mere fact that there is no sufficient evidence about the amount that must have been spent is no ground for ignoring the matter. It is the duty of the court to assess all expenses as best it can and though the Court should not enter into the region of speculation or merely try to guess the amount that must have been spent, it would generally be possible to arrive at an amount of expenditure on a conservative basis and where it is possible to arrive at any such estimate, such estimated amount should be held as not shown by the candidate in his election account.
A somewhat similar was the view taken by this Court in Amar Nath's case (Supra) 55.8. The Learned Senior Counsel for the 1st Respondent refers to the decision of the Hon'ble Supreme Court in Gajanan Krishnaji Bapat and Another V. Dattaji Raghobaji Meghe and Others (1995) 5 Supreme Court Cases 347 at Special Page 350 wherein at Paragraph No.22, it is observed as follows:
22.In P.Nalla Thampy Terah (Dr) v. Union of India [1985 Supp SCC 189v: AIR 1985 SC 1133] a Constitution Bench of this Court examined the validity of Explanation 1 to Section 77(1) of the Act (introduced in 1974) and Chandrachud, C.J. (as he then was) while upholding its constitutionality, observed: (SCC p.201, para 14) In any democratic system of Government, political parties occupy a distinct and unique place. They are looked upon as guardian angels by their members though, occasionally, they fail to discharge the benign role of guardian, leave alone the angelic part of it. It is through them that the generality of people attempt to voice or ventilate their grievances. Considering, also, the power which they wield in the administration of Government affairs, a special conferment of benefits on them in the matter of modalities governing the election process cannot be regarded as unreasonable or arbitrary. 55.9. The Learned Senior Counsel for the 1st Respondent draws the attention of this Court to the decision of the Hon'ble Supreme Court in Manohar Joshi V. Nitin Bhaurao Patil and Another (1996) 1 Supreme Court Cases 169 at Special Page 195 wherein at Paragraph No.37, it is observed as follows:
37.It was argued by Shri Ashok Desai that in case of the provocative and incendiary speeches given by acknowledged leaders of the political party the consent of the candidate set up by their party has to be assumed being implicit from the relationship of the candidate with the speaker through the medium of the party. On this basis, it was urged that a party candidate must be held to have consented to such speeches made by the leaders of that party and, therefore, if the speech of the leader satisfies the other requirements of the corrupt practice, the consent of the candidate which too is a constituent part of the corrupt practice, must be assumed to make out the ground under Section 100(1)(b) of the R.P.Act for declaring his election to be void. Shri Desai made a fervent emotive appeal that unless the law is so construed, a candidate of the party will get the benefit of appeal for votes on the ground of his religion on the basis that his consent has not been pleaded and proved, thereby frustrating the object of the enactment and adversely affecting the purity of elections which is of essence in a democracy. It was argued that leaders of the party must be assumed to be agents of the candidates of that party for the purpose of the round of corrupt practice. 55.10. The Learned Senior Counsel for the 1st Respondent draws the notice of this Court to the decision of the Hon'ble Supreme Court Dhartipakar Madan Lal Agarwal V. Rajiv Gandhi reported in 1987 (Supp) Supreme Court Cases 93 at Special Pages 110 to 112 wherein at Paragraph Nos. 19 to 21, it is observed as follows:
19. Allegations contained in paragraphs 50, 51 and 53(1)(f) of the election petition purport to sate that Rajiv Gandhi and his workers with his consent spent money on the election in excess of the ceiling limit and major portion of which was not shown by him in his election expenses return. It was alleged that in all Rs.3,15,500 had been spent by Rajiv Gandhi in his election but he did not include the same in his return. Details of the expenditure are mentioned in the sub-paragraphs 9A) to (G) of paragraph 50. In these paragraphs the appellant alleged that Rajiv Gandhi used at least 100 jeeps for thirty days and his workers with his consent used 40 jeeps and spent money on propaganda badges, leaflets, making arrangements or holding meetings for Smt. Indira Gandhi throughout the Amethi Constituency and money was spent in providing food to 100 workers of Rajiv Gandhi, in all the returned candidate and his workers with his consent spent a sum of Rs.3,15,500 but the same was not accounted for in the election expenses return. The allegations contained in these paragraphs relate to the corrupt practice under Section 123(6) of the Act read with Section 77. Section 123(6) of Section 77 is a corrupt practice. Section 77 lays down that every candidate at the election shall keep a correct and separate account of all expenditure in connection with the election incurred or authorised y him or by his election agent between the date of nomination and the date of declaration of result. The account shall contain such particulars as prescribed by Rules. Sub-section (3) lays down that expenditure shall not exceed such amount as may be prescribed. Rule 90 of the Conduct of Election Rules, 1961 prescribed that the expenses shall not exceed a sum of Rs.1 lakh for Lok Sabha election in the State of Uttar Pradesh. Section 77 and the Rules therefore prescribed a ceiling limit for election expenses and if any candidate incurs or authorises expenses in excess of the ceiling limit, he would be guilty of corrupt practice under Section 123(6) of the Act. The allegations contained in various paragraphs of para 50 merely allege that a number of vehicles were plying with Congress 9I) Flags and food was served in connection with the election meetings, distribution of badges and leaflets. There is, however, no allegation that Rajiv Gandhi incurred or authorised incurring of expenditure for the aforesaid purposes. Any voluntary expense incurred by a political party, well-wishers, sympathisers or association of persons does not fall within the mischief of Section 123(6) of the Act, instead only that expenditure which is incurred by the candidate himself or authorised by him is material for the purpose of Section 77. In Rananjaya Singh v. Baijnath Singh (1955) 1 SCR 671 : AIR 1954 SC 749, this Court pointed out that expenses must be incurred or authorised by the candidate or his election agent. In that case , the Manager, the Assistant Manager, 20 Ziladars and their peons were alleged to have worked for the election of the returned candidate. This Court held that the employment of extra persons and the incurring or authorising of extra persons and the incurring or authorising of extra expenditure was not by the candidate or his election agent. It was further pointed out that persons who volunteer to work cannot be said to be employed or paid by the candidate or his election agent. In Smt. India Gandhi v. Raj Narain [(1976) 2 SCR 347 : 1975 Supp SCC 1], Ray, C.J. Observed: (SCC p.58 para 121) Authorisation means acceptance of the responsibility. Authorisation must precede the expenditure. Authorisation means reimbursement by the candidate or election agent of the person who has been authorised by the candidate or by the election agent of the candidate to spend or incur. In order to constitute authorisation the effect must be that the authority must carry with it the right of reimbursement.
20. Section 77 requires a candidate to keep a separate and correct account of all expenditure in connection with the election incurred or authorised by him or by his election agent between the date of his nomination and the date of declaration of the result of the election. The candidate is required to maintain account of only that expenditure which he or his election agent may have authorised before the expenditure was actually incurred, which would imply that the candidate or his election agent undertook to reimburse the expenses which may have been authorised by him or his election agent to be spent at the election. In order to constitute a corrupt practice as contemplated by Section 77 and 123(6) it is necessary to plead requisite facts showing authorisation, or undertaking of reimbursement by the candidate or his election agent. A mere vague and general statement that the candidate and his workers with his consent spent money in election in excess of the permissible ceiling would not be sufficient to constitute corrupt practice.
21.In Kanwar Lal Gupta v. A.N.Chawla [(1975) 2 SCR 259: (1975) 3 SCC 646 this Court held that what Section 77(1) prescribed was not only the incurring but also the authorising of excessive expenditure and that such authorisation may be implied or express. The Court held that when a political party sponsoring a candidate incurs expenditure in connection with his election as distinguished from expenditure on a general party propaganda, and the candidate knowingly takes advantage of it or participates in the programme or activity or consents takes advantage of it or participates in the programme or activity or consents to it or acquiesces to it, it would be reasonable to infer that he impliedly authorised the political party to incur such expenditure and he could not escape the rigour of the ceiling by saying that he had not incurred the expenditure and the political party had done so. The result of the judgment was that the expenditure incurred by the political party in connection with the general party propaganda was deemed to have been incurred by the candidate himself. The Parliament amended Section 77 of the Representation of the People (Amendment) Act, 1974 by adding two explanations to the section. Explanation 1 lays down that any expenditure incurred or authorised in connection with the election of a candidate by a political party or by any association or body of persons or by any individual other than the candidate or his election agent, shall not be deemed to be incurred or authorised by the candidate or his election agent. The validity of the Amending Act was upheld by a Constitution Bench of this Court in Dr.P.Nalla Thampy Terah v. Union of India. After the amendment of Section 77(1) any expenditure at the election by a political party, sympathisers or friends cannot be held to have been incurred by the candidate or his election agent unless it is shown that the money which they spent belonged to the candidate or his election agent or that he reimbursed the same. It is thus evident that unless the allegations are specific that the candidate or his election agent authorised the expenses before the money was actually spent and that the candidate or his election agent reimbursed or undertook to reimburse the same the necessary ingredient of corrupt practice would not be complete and it would provide no cause of action to plead corrupt practice. In the instant case paragraph 50 and its various sub-paragraphs contain mere assertion of facts relating to expenditure but there is no allegation tit the expenditure was incurred or authorised by Rajiv Gandhi or that he undertook to reimburse the same. The appellant made an attempt to jumble up various allegations regarding incurring of expenditure by the returned candidate and his workers. The allegations contained therein do not make out any case of corrupt practice and the High Court was justified in striking out the same. 55.11. The Learned Senior Counsel for the 1st Respondent refers to the decision Harpal Singh Alias Chhota V. State of Punjab reported in (2017) 1 Supreme Court Cases 734 wherein at Paragraph Nos.56 and 57 it is observed as under:
56. Qua the admissibility of the call details, it is a matter of record that though Pws 24, 25, 26 and 27 have endeavoured to prove on the basis of the printed copy of the computer generated call details kept in usual ordinary course of business and stored in a hard disc of the company server, to co-relate the calls made from and to the cellphones involved including those, amongst other recovered from the accused person, the prosecution has failed to adduce a certificate relatable thereto as required under Section 65-B(4) of the Act. Though the High Court, in its impugned judgment, while dwelling on this aspect, has dismissed the plea of inadmissibility of such call details by observing that all the stipulations contained under Section 65 of the Act had been complied with, in the teeth of the decision of this Court in Anvar P.V. v. P.K.Basheer, (2014) 10 SCC 473 : (2015) 1 SCC (Civ) 27 : (2015) 1 SCC (Cri) 24: (2015) 1 SCC (L&S) 108 ordaining an inflexible adherence to the enjoinments of Sections 65-B(2) and (4) of the Act, we are unable to sustain this finding. As apparently the prosecution has relied upon the secondary evidence in the form of printed copy of the call details, even assuming that the mandate of Sectio65-B(2) had been complied with, in the absence of a certificate under Section 65-B(4), the same has to be held inadmissible in evidence.
57.This court in Anvar P.V.2 has held in no uncertain terms that the evidence relating to electronic record being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Act would have to yield thereto. It has been propounded that any electric record in the form of secondary evidence cannot be admitted in the evidence unless the requirements of Section 65-B are satisfied. This conclusion of ours is inevitable in view of the expression of pertaining to section 65-A, and 35-B of the Act as above.
55.12. The Learned Senior Counsel for the 1st Respondent draws attention of this Court to the decision of the Hon'ble Supreme Court in Ramakant Mayekar V. Celine D'Silva, (1996) 1 Supreme Court Cases 399 wherein at Paragraph No. 21, it is observed as under:
21.If the mere mention of photographs without indicating their contents in the election petition is to be construed as incorporation of their contents by reference in the election petition, then non-supply of the copy of the photographs with the copy of the election petition would result in non-compliance of Section 81(3). However, since the photographs were not annexed to the election petition, it is a case not of non-compliance of Section 81(3) but a case of total absence of any pleading in the election petition of the corrupt practice on the basis of wall paintings. Therefore, the pleading being wholly deficient in material facts necessary to constitute the cause of action, it was insufficient to raise a triable issue on that basis. In fact, this part of the pleading was liable to be struck out since it was irrelevant at the trial for the reason stated. It is clear that any evidence adduced later, in the absence of the requisite pleading of this corrupt practice was irrelevant and inadmissible and should not have been recorded and having been recorded must been excluded from consideration. The finding of the High Court of any corrupt practice being proved on this basis is contrary to law, and has to be set aside for this reason alone.
55.13. The Learned Senior Counsel for the 1st Respondent refers to the decision of the Hon'ble Supreme Court Quamarul Islam V. S.K.Kanta and others reported in 1994 Supp (3) Supreme Court Cases at page 5, wherein at Paragraph No.48, it is observed as under:
48.Newspaper reports by themselves are not evidence of the contents thereof. Those reports are only hearsay evidence. These have to be proved and the manner of proving a newspaper report is well settled. Since, in this case, neither the reporter who heard the speech and sent the report was examined nor even his reports produced, the production of the newspaper by the Editor and Publisher, PW 4 by itself cannot amount to proving the contents of the newspaper reports . Newspaper, is at the best secondary evidence of its contents and is not admissible in evidence without proper proof of the contents under the Indian Evidence Act. The learned trial Judge could not treat the newspaper reports as duly 'proved' only by the production of the copies of the newspaper. The election Petitioner also examined Abrar Razi, PW 5, who was the polling agent of the election Petitioner and a resident of the locality in support of the correctness of the reports including advertisements and messages as published in the said newspaper. We have carefully perused his testimony and find that his evidence also falls short of proving the contents of the reports of the alleged speeches or the messages and the advertisements, which appeared in different issues of the newspaper. Since, the maker of the report which formed basis of the publications, did not appear in the court to depose about the facts as perceived by him, the facts contained in the published reports were clearly inadmissible. No evidence was led by the election Petitioner to prove the contents of the messages and the advertisements as the original manuscript of the advertisements or the messages was not produced at the trial. No witness came forward to prove the receipt of the manuscript of any of the advertisements or the messages or the publication of the same in accordance with the manuscript. There is no satisfactory and reliable evidence on the record to even establish that the same were actually issued by IUML or MYL, ignoring for the time being, whether or not the appellant had any connection with IUML or MYL or that the same were published by him or with his consent by any other person or published by his election agent or by any other person with the consent of his election agent. The evidence of the election Petitioner himself or of PW 4 and PW 5 to prove the contents of the messages and advertisements in the newspaper in our opinion was wrongly admitted and relied upon as evidence of the contents of the statement contained therein.
55.14. The Learned Senior Counsel for the 1st Respondent cites the decision of the Hon'ble Supreme Court DR. B.Singh V. Union of India reported in (2004) 3 Supreme Court Cases 363 at Special pages 368 & 369, wherein it is observed as under:
3.Before we go into the desirability of even entertaining such a petition, background in which the petition has been filed needs to be noticed:
According to the Petitioner, as reflected in the petition, basis of the petition is a copy of the representation purported to have been received from one Ram Sarup which was addressed to the President of India with copies to the Chief Justice of India, Ministry of Law and Justice, Chief Justice of the Punjab and Haryana High Court, Governor of Hayna and Bar Council of India wherein allegations were made against Respondent 3. Only on the basis of what is stated therein of which apparently the Petitioner himself cannot legitimately claim to have any personal knowledge the Petitioner filed a writ petition before the Punjab and Haryana High Court which was dismissed. The Petitioner makes a grievance that the aforesaid Ram Sarup had received acknowledgement of the representation addressed to the President of India wherein it was also noted that the same had been forwarded to the Secretary to the Government of India, Ministry of Law, Justice and Company Affairs (Department of Legal Affairs) for appropriate action. But no action was taken to look into the allegations. It is not clear from the writ petition as to whether the Petitioner had sent any representation to the President and other constitutional functionaries as the enclosures to the writ petition show that the aforesaid Ram Sarup had sent representation to the President with copies to the other functionaries. The copy of the representation dated 18.10.2003 shows that it was sent by Ram Sarup. The second representation is dated 13.12.2003 in which reference has been made to a representation purported to be dated 28.11.2003. In the representation dated 13.12.2003 reference is made to the acknowledgement dated 12.11.2003. This creates an impression that the acknowledgement dated 12.11.2003, of the President's Secretariat relates to the representations sent by Ram Sarup. But the copy of purported acknowledgement filed as Annexure P-2 shows as if it was sent by the Petitioner. No copy of any representation dated 28.10.2003 as indicated in Annexure P-2 has been filed along with the petition. The Petitioner nowhere has stated that he has any personal knowledge of the allegations made against Respondent 3. He does not even aver that he made any effort to find out whether the allegations have any basis. He only refers to the representation of Ram Sarup and some paper cuttings of news items. He has not indicated as to whether he was aware of the authenticity or otherwise of the news items. It is too much to attribute authenticity or credibility to an information or fact merely because it found publication in a newspaper or journal or magazine or any other form of communication, as though it is gospel truth. It needs no reiteration that newspaper reports per se do not constitute legally acceptable evidence. Strangely, in the affidavit accompanying the writ petition he has stated as follows:
That I have read over the contents of accompanying writ petition pp. 1 to 13, paras 1 to 18, synopsis and list of dates, pp. A to C and I say that the same are true and correct on knowledge and based on the record of the case. The affidavit shows that the contents were true and correct to his knowledge and based on records. Strangely, it has not been indicated as to what is the source of his knowledge and is based on what records. Even the copy of the order passed by the Punjab and Haryana High Court where he filed writ application on allegedly identical issues, as indicated in the petition, has not been annexed. The casual and cavalier fashion in which it appears to have been handled and of late attempted to be made ipse dixit in a laconic and lackadaisical manner compels us to draw the only inference that the Petitioner is a busybody bent upon self-publicity sans any sense of responsibility unmindful of the adverse impact, at times it may go to create at the expenses of decency and dignity of constitutional offices and functionaries and there is no element or even trace of public interest involved in the petition. 55.15. The Learned Senior Counsel for the 1st Respondent cites the decision of Hon'ble Supreme Court Kamalnath V. Sudesh Verma reported in (2002) 2 Supreme Court Cases 410 at Special Page 411 wherein it is held as follows:
To plead corrupt practice as contemplated by law it has to be specifically alleged that the corrupt practices were committed with the consent of the candidate and that a particular electoral right of a person was affected and it cannot be left to time, chance or conjecture of the Court to draw inference by adopting an involved process of reasoning. 55.16. The Learned Senior Counsel for the 1st Respondent relies on the decision of Hon'ble Supreme Court Lata Devi (Mali) V. Haru Rajwar reported in (1989) 4 Supreme Court Cases 773 at Special Page 774 wherein it is inter alia observed that 'The election of the returned candidate cannot be set aside on mere surmises and conjectures. A decision in election petition can be given only on positive and affirmative evidence and not an mere speculation and suspicions, however strong they are'.
56. Analysis :
56.1. At the outset it is to be pertinently pointed out that the charges of 'Corrupt Practice' are quasi criminal in character and the allegations thereto must be sufficiently established beyond reasonable doubt and the standard of proof is the same as in criminal case, in the considered opinion of this Court.
56.2. It is to be significantly pointed out by this Court that Sub-Section 6 of Section 123 of the Representation of People Act, 1923 does not take into its fold, the failure to maintain true and correct accounts. (May be considered by the Election Commission as per decision Venkatramiah V. Narayan Gowda reported in 20. E.L.R.at Page 101) Further, the language of Sub-Section 6 is so clear that the 'Corrupt Practice' defined therein can relate only to Sub Section 3 of Section 77 namely, the Incurring or authorising of expenses in excess of the amount specified. By no means, it can be said that the non-compliance of Section 77(1) and (2) of the Representation of People Act, 1951 would also fall within the scope of Section 123(b) of the Act. Resultantly it cannot fall under Section 100(1)(b) of the Act.
56.3. In regard to an endeavour to bring within Section 100(1)(d)(iv) of the Representation of People Act, 1951, it is to be mentioned that the essential requirement under that Sub-Section is that the result of the election in so far as it concerns the returned candidate was materially affected.
56.4. It is to be noted that Section 123(2) and Section 123(7) of the Representation of People Act deal with 'Corrupt Practice' indulged at the stage prior to the casting of votes. Section 123(2) mentions that undue influence with the free exercise of any electoral right, is a 'Corrupt Practice.' 56.5. In regard to the Ex.P.46 Series, it is to be pointed by this Court that the Editor of the Tamil Murasoli was not examined as a witness before this Court. Also the concerned Reporter / Correspondent of the said Murasoli Tamil Newspaper was not examined to prove the contents of Ex.P.46 (22 in series). In fact, the clear-cut legal position is that the news items in Ex.P.46 cannot be said to prove themselves, although it may be taken into account with other evidence, if the other evidence is a forcible one, as per decision of the Hon'ble Supreme Court Haji C.H. Mohd., Koya V. T.K.S. M.A. Muthukoya) reported in AIR 1979 SC 154.
56.6. In fact, it is no evidence of facts stated therein unless the Correspondent who made a report is examined. As a matter of fact, the person, who gave the speech or the persons in whose presence the speeches were made or the Reporter of the news paper in whose presence the speeches were made and who had sent the report for publication must be produced, as per decision Khilumal TopanDas V. ArjunDas TulsiDas reported in AIR 1959 Rajasthan at Page 280.
56.7. It cannot be forgotten that a news item without any further proof of about what had transpired through witness is of no value. In reality, it is a known fact that the reporters collect information and pass it on to the editors, who edits the news item and then publishes it. By this process, it is to be pointed out that truth might get perverted or garbled therefore, the 'News Item' is at best a 'Secondary Evidence'.
56.8. It is to be mentioned that the 'Primary Evidence par excellence of the Document' is the original. Firstly, a fact is to be alleged and established and then the News Paper Reports can be taken in support of it, but not independently.
56.9. It is to be remembered that the insertion of Section 10-A of the Representation of People Act, 1951 replacing earlier Sections 7(c) and 8(b) has certainly elongated the power and purview of the Election Commission as regards the passing of an order of disqualification. In fact, Art. 324 of the Constitution of India ought to be interpreted in a wider perspective conferring power to the Election Commission, which is to be recognised in a broader sense as per decision State of Gujarat V. Justice R.A.Mehta (Retd) reported in 2013(3) SCC at Page 1.
56.10. That apart, the enquiry under Section 10-A of the Representation of People Act, 1951 is more or less of a civil nature and therefore, the 'Preponderance of Probabilities' would apply. The position of Law is that even if order of disqualification, if any, is passed under Section 10-A of the Act, of course, after following the requirement of issuance of Show Cause Notice, receipt of reply etc., there is a remedy available to the contesting candidate under Section 11 of the Act, 1951 by which an affected candidate can exhibit before the Election Commission as to how the order of disqualification would not stand and it is to be varied. Thereafter, the concerned party whose grievance is not redressed, has a remedy under Articles 32 and 226 of the Constitution of India to assail the correctness of any order that may be passed by the Election Commission of India under Sections 10-A and 11-A of the Act, 1951 56.11. It is to be noted that Section 10-A of the Representation of People Act, 1951 enjoins the 'Election Commission' to disqualify an individual who had failed to lodge the account of election expenses within the time and in the manner prescribed under the Act. In fact, Section 10-A of the Act takes care of a given situation, in as much as it provides for lodging of account of election expenses, in the manner required by or under Representation of People Act, 1951 Act.
56.12. The Rule 86 of the Conduct of Election Rules, 1961, mentions the details to be given in the accounts. Indeed the Rule contemplates that voucher shall be obtained for every item of expenditure and the same shall be lodged together with the account of Election Expenses. Only if the account is found to be incorrect or untrue by the Election Commission after enquiry under Rule 86 of Conduct Rules, 1961 it can be held that a candidate had failed to lodge his account within the manner of Section 10-A of Representation of People Act, 1951 and the Election Commission may thus disqualify the said person. In Law, a candidate incurs disqualification automatically on his failure to lodge his account.
56.13. It is to be noted that as per Section 10-A of Representation of People Act, 1951, Disqualification is only default one and not of a stigmatised character. That apart, any enquiry under Section 10-A of the Act can only be based on the report of the District Election Officer. The ambit of conducting any enquiry by an Election Commission is traceable to Article 191(1)(e) r/w Article 192(2) of the Constitution of India and not otherwise by invocation of Section 10-A of the Act.
56.14. As a matter of fact, as per Rule 89(5) of Conduct of Election Rules, 1961, when Election Commission finds that a contesting candidate had failed to lodge his account of election expenses within the time and in the manner specified under Representation of People Act as well as the Rules, it should, by notice in Writing, call upon the candidate concerned to show cause why he should not be disqualified as per Section 10-A of the Act for committing such default.
56.15. Also that as per Rule 89 (6) of the Conduct of Election Rules, 1961, once the notice to show cause was issued as per Sub Rule 5 of Rule 89 of the Rules, within 20 days on receipt of such notice, the candidate concerned should submit a representation in writing to the Election Commission and simultaneously forward a copy to the District Election officer together with the complete account of his election expenses, if he had not already furnished such accounts.
56.16. In reality, in terms of Rule 89(7) of the 1961 Rules, the District Election Officer, ought to forward his report on the representation so submitted by the candidate, if any, with such comments he wishes to point out on the said representation. An enquiry to be held is not a futile exercise, but having regard to the requirement of Law as per Sections 77(1)(3) and 78 of the Representation of People Act, 1951, it should be comprehensive enquiry. The Election Commission can find out whether the account lodged in the alleged exercise of Section 78 of the Act by a contesting candidate speaks of a true, correct and genuine Account and not a bogus one.
56.17. The Representation of People Act, 1951 has conferred a responsibility on the Election Commission which is to synchronise with an Order on Disqualification to be made under Section 10-A of the Act and in the final opinion to be delivered after such disqualification order is passed for the purpose of enabling the President of India and the Governor of State to take appropriate decision to find out the status of a member to vacate the seat as 'Member of Parliament' or as a 'State Legislature'.
56.18. It is to be mentioned that if based on an inspection made by a person under Rule 88 of 1961, Copies of such accounts disclose candidate concerned committed a very serious illegality in the matter of submission of the account of election expenses, these can be examined. Once any misfeasance in the furnishing of election account of the election expenses is brought to the notice of Election Commission, it would be for the Election Commission to set the process in motion for deciding the issue as contemplated under Section 10-A of the Representation of the People Act, 1951. However, one cannot say that no one by way of complaint can approach the Election Commission. Also for the conduct of an enquiry, under Section 10-A of the 1951 Act, the Election Commission can call upon the concerned person to substantiate complaint with relevant materials to enable the Election Commission to pass appropriate orders on 'Disqualification'.
56.19. One has to keep in mind that an enquiry to be conducted under Section 10-A of the Representation of the People Act, 1951 is not to examine any allegation of 'Corrupt Practice' coming under Section 123 of the Representation of People Act, 1951. The limited area of examination to be made in an enquiry under Section 10-A of the Act is with regard to the lodging of account of election expenses and whether such lodgement was done in the manner and as required by or under the Act. An enquiry under Section 10-A of the Representation of the People Act is more or less of a civil in character and hence the principles of 'Preponderance of Probabilities' would apply. An insertion of Section 10-A of the Act has widened the powers and scope to Election Commission and in regard to the passing of an order of disqualification. The prime duty of the Election Commission is to decide under the Rule 114(4) of the 1961 Rules where any candidate has inter alia failed to lodge the return of Election Expenses required by the Act and by Rules.
56.20. It is to be pointed out that under the old Law, it would be seen that the 'Return of expenses' was false in any material part. However, mere inaccuracy was not enough and the Corrupt Motive was to be established. As a matter of fact, it was to be proved that the 'Return' was deliberately made false and a corrupt motive was to be established. The mere fact that it was incorrect was not enough under the old Section 124(4) of the Representation of People Act, 1951. A 'Return' could be said to be false, if the corrupt motive of omission for certain expenses was established. If the Accounts are not maintained as per amended Section 77(1) of Act, 1951, no Corrupt Practice is committed after the amendment Law.
56.21. In an Election Petition, it is not enough to allege that the maximum limit prescribed was exceeded and that the items would be shown later by an amendment of a Petition or in Evidence as per decision Prabhu Das V. Jorsan reported in 18 E.L.R.110.
56.22. In Law, a candidate is not obliged to file the account books unless the authenticity of true copy of that account is challenged. Further, merely, suggesting or showing that the expenses could not have been shown much or they were likely to be more would not be sufficient enough to establish the plea of 'Corrupt Practice', in the considered opinion of this Court.
56.23. A perusal of Ex.C.19 (Register for maintenance of day-to-day accounts of Election expenditure by contesting candidate) shows that in Column No.6 under the caption 'Amount incurred by the authorised candidate or his election agent' speaks of Rs.2,92,326/- as on 11.04.2011 (the day on which ARO and Exp. Observer R-13554 had signed).
56.24. It is represented that the Shadow Register Entry refers to Rs.4,41,542/- and as on 09.04.2011, the 1st Respondent had incurred expenses of Rs.2,79,051/- thus there is a difference of Rs.1,62,491/- (Rs.4,41,542-Rs.2,79,051/-) 56.25. It is brought to the notice of this Court that the Election expenses entries made by the candidate are not reflected in the Shadow Register (as observed in Page 26, Ex.C-19). Further, it is also mentioned in Ex.C.19 that the same has to be taken into account at the time of final reconciliation. Further, it is pointed out that the total expenses declared and accepted by the candidate as on 10.06.2011 was Rs.3,32,709/- but, as per Shadow Register, the amount mentioned was Rs.5,83,600/-, thus there is difference of Rs.2,50,891/- which was accepted by the 1st Respondent (R.W.3).
56.26. As far as the present case is concerned, Ex.P.46 series (22 in nos) containing news item therein are not proved on the side of the Petitioner, in as much as the Editor of the concerned Tamil Murasoli or its Reporter or Correspondent was not examined before this Court, as a witness and in the absence of proof of the said news items as to what actually happened are of no value, as opined by this Court.
56.27. Insofar as the allegation made on the side of the Petitioner that Ex.P.46 series contains 'Published news items' in a Tamil News paper, Murasoli in respect of the returned candidate and other details of his election programme etc., it is to be pointed out that no evidence was adduced on the side of the Petitioner to show the names of alleged workers or agent or the consent of Returned Candidate viz., the 1st Respondent for such publications. Moreover, the Ex.P.46 series are not sufficient to make out a case on use of 'Corrupt Practice' under Section 123 of Representation of the People Act, 1951.
56.28. It cannot be ignored that the use of 'Corrupt Practice' which was published by the Editor, who could not be proved as an Agent or canvasser of Returned Candidate by producing material evidence on record. Therefore, an inference cannot be drawn that the Editor was an Agent or acted with the consent of the Returned candidate (1st Respondent RW3), in the considered opinion of this Court. It is to be pointed out that the ingredients of Section 106 of Indian Evidence Act would not apply when fact is capable of being known by persons other than the party, the Petitioner must give prima facie evidence of fact within the special knowledge of the concerned person, in the considered opinion of this Court.
56.29. In as much as this Court has held that Ex.P.46 Series are of no value, the xerox copy of Murasoli News Papers marked as Ex.P.30, for which the 1st Respondent's plea is that the same requires a certificate under Section 65-B of the Indian Evidence Act pales into insignificance or relegates to the back ground because of the simple reason that Ex.P.30 is a xerox or Photo copy of the said news paper and in the absence of original of the said Murasoli Paper (22 in series), the marking of the same on the ground that the said paper is DMK party organ news paper also cannot hold water. In this connection, this Court significantly points out that to make amends, the Petitioner marked Ex.P.46 (Series) being the Original of 'Murasoli News Papers', as per Section 62 of the Indian Evidence Act, 1872, which speaks of 'Primary Evidence', Ex.P.30 (22 in series) Murasoli News papers was only a 'Secondary Evidence', as such, even though on the side of the Petitioner, Ex.P.46 series (Original) were marked, yet, the contents of News paper of the relevant reports of the news items published in the said paper (22 in nos) have not established on the side of the Petitioner by examining the concerned Reporter or Editor or the Correspondent, as the case may be, in the considered opinion of this Court.
56.30. Even though a plea is projected on the side of the Petitioner that the total expenditure incurred by the 1st Respondent as per Ex.P.46 (under various heads) amounting to Rs.1,14,96,789/- is more than the permissible limit of Rs.16 Lakhs and above, this Court on going through the contents of Ex.P.46 is of the considered view that the conduct / act of gathering votes in support of the 1st Respondent under the leadership of one M.K.Dilli, or the news item mentioning that on 02.04.2011, the 1st Respondent himself was visiting the Kolathur Constituency 62nd Circle to gather votes etc., it would not go to establish that in reality, the 1st Respondent had incurred an election expenses of more than the permissible limit of Rs.16 Lakhs, in a lavish or extravagant manner.
56.31. In this connection, this Court pertinently points out that the allegation of 'Corrupt Practice' relating to incurring of expenses purported to be in violation of Section 77 of the Representation of the People Act ought not to be vague and entirely deficient in material facts. It is not sufficient to prove merely that the expenses more than the prescribed limit under Section 77 of the Representation of the People Act was incurred in connection with an Election to constitute 'Corrupt Practice'. Obviously, in the case on hand before this Court, the Petitioner has indulged in vague allegations of 'Corrupt Practice' and it is to be pointed out that mere surmises or conjectures would not be sufficient to constitute Corrupt Practice. Moreover, the allegations of Corrupt Practice made by the Petitioner in regard to incurring of election expenses (more than the permissible limit), against the 1st Respondent are made based on mere lurking assumption or presumption or suspicion and simmering doubt and not rested on unambiguous clear-cut, specific, cogent, coherent and convincing evidence of sterling unimpeachable / un-assailing character, as opined by this Court. 'It is to be noted that suspicion however, cannot take the place of legal proof'. However, in the instant case, the Petitioner has failed to establish that the purported excess expenditure was incurred with the consent and authority of the 1st Respondent (R.W.3) or his Election Agent.
56.32. It is to be kept in mind that the allegations of mere omissions in the account or the account was not properly kept, afford, no cause of action for filing an Election Petition, as per decision K.C.Sharma V. Election Tribunal reported in 15 E.L.R.111.
56.33. It is to be relevantly pointed out that true copy of Accounts of Election Expenses lodged with the District Election Officer in terms of the ingredients of Representation of People's Act, 1951 and Rules thereunder is a public record of a private document, in the light of decision Kandru Majhi V. Budneshea Majhi reported in I.L.R (1972) 2 Cal. 618.
56.34. It is to be aptly pointed out by this Court that in respect of an Election Petition under the Representation of the People Act, 1951, Order 11 Rule 14 of Civil Procedure Code applies. Further, the Court while exercising its power under Order 11 Rule 14 and Order 16 Rule 6 of Civil Procedure is to keep in mind Rule 93(1) of the Conduct of Election Rules, 1961. Also it is to be borne in mind that the Court can order production of document unless the document is in existence.
56.35. Coming to the aspect of Ex.P.17 (Abstract Statement of Election Expenses of the 1st Respondent Containing 8 pages) when notice dated 21.01.2017 was issued to the 1st Respondent to produce the original /copy of Ex.P.17, a reply dated 14.02.2017 was given stating that Copy of Ex.P.17 was not available with him, since he had not retained it. It cannot be denied that for preparing Ex.P.17 (Abstract Statement of Election Expenses) the basic document is Ex.C.19. Undoubtedly, the original of Ex.P17, viz., the Abstract Statement of Election Expenses is a public document of a private party. In fact, C.W.5 had deposed that original of Ex.P.17 is not traceable and in fact, Exs.P.17 and C.19 are forming part of the same document. Further, Ex.C.18 consists of only two pages and it contains only Part I, II, III of Ex.P.17. The person who uploaded Ex.C-18 was Ashok Kumar, as per evidence of C.W.5, who was examined before this Court. But the plea of the Petitioner is as per 17.10.4 of Part I of Ex.C.20, the Chief Election Officer is bound to upload Part I to Part VI of Annexure 15, in the instant case, the Authority has acted as per Ex.C.20.
56.36. It is to be pertinently pointed out by this Court that Section 114(g) of the Indian Evidence Act, 1872 empowers the Court to presume that the evidence which could be and has not produced would, if produced be unfavourable to the person, who withholds it. In reality, the well known maxim in this regard is 'omnia preasumuntur spoliatorem'. Further, according to Sir W.D.Evans the 'mere non production of the written evidence' which is in the power of a party, generally operates as a strong presumption against him. I conceive that has been sometimes carried too far, by being allowed to supersede the necessity of other evidence, instead of being regarded as merely a matter of inference, in weighing the effect of evidence in its own nature applicable to the subject in dispute. At this stage, this Court worth recalls and recollects the decision of Hon'ble Supreme Court (Motilal and Ors., V. Kundanlal and Ors.,) reported in A.I.R. 1917 Privy Council P.I., wherein it is observed that 'failure by a party in spite of the order for discovery to produce 'Account Books' which ought to have been produced or should have explained the non-production raises a presumption that the contents were unfavourable to the party'. However, it is for a 'Court of Law' to determine whether the 'Presumption' applies in a given case or not, of course, consistent with the facts established or admitted, as the case may be.
56.37. Even though on the side of the Petitioner an argument is advanced that in the absence of evidence of Ashok kumar as per 17.10.4 of Part I of Ex.C-20 (Abstract Statement of Account) should contain Part I to Part VI and since the Exhibit P.17 which consists of Part I to part VI relating to the 1st Respondent's Abstract Statement of Election Expenses can be treated as a valid one, this Court is of the considered view that the 1st Respondent should have produced atleast the copy of Ex.P.17 from his possession or custody. Obviously, he has not produced the same before this Court, which is certainly not a favourable circumstance in his favour. Admittedly, 1st Respondent (R.W.3) is not a 'Novice' (he served as a Mayor, Corporation of Chennai and he was the Deputy Chief Minister of the State of Tamilnadu). In as much as C.W.5 (Chief Electoral Officer) had deposed that Original of Ex.P.17 Part I to Part VI is not available in the records of the District Election Officer and to this effect Ex.C.22 letter dated 08.02.2014 was addressed by the District Election Officer to him and further, Ex.C-18 was marked through C.W.5 (Containing Part I to III 2 pages), this Court in the absence of original of Ex.P.17 opines that Ex.P.17 does not carry much weight and credence in so far as the 'Evidentiary value' is concerned. Also that for Ex.P.17 there is no certificate produced or filed on the side of the Petitioner in terms of Section 65 B(4) of the Indian Evidence Act, 1872, which is an legal infirmity as regards 'Admissibility' in the considered opinion of this Court. Besides this, the non-examination of P.Ashok Kumar, Systems Manager, Public (Elections) is also not a favourable factor in so far as the Petitioner is concerned.
56.38. In this connection, it may not be out of place for this Court to make a pertinent mention that the Election Commission of India vide its Letter No.76/2003/JS.II dated 24.10.2003 addressed to the Chief Electoral Officers of all States / Union Territories had issued Instruction Sl.No.49 in respect of Election Expenditure which reads among other things as under:
....It may not be noted that as per new Explanations 1 and 2 inserted under Section 77(1) (vide the Election and other Related Laws (Amendment) Act, 2003', already sent to you) only the expenses on account of travel of 'leaders' of the political covered under Explanation -2 will be exempted from being included in the account of election expenses of a candidate. All other expenses incurred/authorized by the political parties, other associations, body of persons, individuals - are required to be included in the account of the candidate. This change in the law should be specifically brought to the notice of the District Election Officers, Returning Officers, etc...., 56.39. It is to be pointed out that the crux of the matter is 'whose money it was' that was spent. In order to attract Explanation (i) to Section 77 of the Representation of People Act, 1951, whether it was for Bursting of Crackers or for 'Sendai Melam', Plastic Flags, Vehicles, flag hoisted to polls, tube lights, serial lights with symbol of 'Rising Sun' etc., it must be established that the source of expenditure incurred was not out of the money of the candidate or his Election Agent. An expenditure incurred by a 3rd party, who is not authorised by a candidate or an Election Agent is not a 'Corrupt Practice'.
56.40. It is to be mentioned that voluntary expenses made by friends relatives or sympathisers of candidates or candidate's political party is not required to be included in candidate's 'Return'. Unless, the expenses were incurred in the circumstances from which it could possibly be inferred that the victorious candidate had undertaken that he would reimburse the party or the person, who incurred the expenses.
56.41. Although the Original of Ex.P.17 is untraceable, yet, in view of the availability of Ex.C.19 (Register for Maintenance of day today account by contesting candidates-marked through CW5), this Court on perusal of the said document at internal Page 33 finds that the Register was inspected on 01.04.2011 by the Observer (R-13554). Further, in Ex.C.19 at inner page 33 it was mentioned that 'on scrutiny it was observed the figures as shown in the Shadow Register is Rs.2,23,926/- as on 29.03.2011.' Whereas, the candidate expenses as on 29.03.2011 is Rs.1,64,463/-. Further, in the said Ex.C.19 at Page 33 it was said as under:-
'Entries for 30.03.2011 and 31.03.2011 have not yet been made in the shadow Observation Register. The candidate has accepted the expenses as shown in shadow register as on 29.03.2011, which is on the higher side. Entries reflected in Candidates Register and not found in Shadow Register to be taken into account at the time of final reconciliation.' 56.42. In the present case, although on the side of the Petitioner, Ex.P.37 (Objection letter dated 21.06.2011 relating to election expenses of the 1st respondent) was marked before this Court, yet no proof is produced before this Court to show that Ex.P.37 was in fact received by the Chief Electoral Officer and Principal Secretary to Government. However, on verification being made by this Court in regard to the veracity of Ex.P.37, the Learned Counsel for the Returning Officer, (Originally was a party as R.27 and later on struck off) Mr.Niranjan Rajagopalan, who was present in Court apprised that no such letter Ex.P.37 was received from the Petitioner and the same was not available in the office, therefore, this Court holds that Ex.P.37 stands unproved.
56.43. It is to be noted that Ex.C.19 at Page 26 (Register for maintenance of day-to-day Accounts of Election expenses by contesting candidate) in Column No.6 under the Caption 'Amount incurred by the authorised candidate or his election agent' speaks of Rs.2,92,326/-. Further at inner page 26 of Ex.C.19, it was inspected by the Exp-Observer on 11.04.2011 and it was mentioned that the 'Shadow Register Entry as on 09.04.2011 is Rs.4,41,542/-. The candidate has incurred an expenditure as on 09.04.2011 Rs.2,79,051/- the difference being (Rs.4,41,542/- - Rs.2,79,051/- =Rs.1,62,491) Rs.1,62,491/-. Also, it was mentioned that 'there are entries made by the candidates, which are not reflected in the candidates shadow register, the same has to be taken into account at the time of filing reconciliation'.
At Page 53 in Ex.C.19 it was observed as follows:
'The candidate has brought to my notice that certain expenses have been booked in the shadow register incurred by their allied parties and not met by the candidate directly. The veracity of those expenses has not been verified by the candidate. But for this, the candidate has accepted all the other items of expenditure booked in the shadow register. Subject to the above, the candidate accepted the difference' Apart from that, at page 62 of Ex.C.19, it was observed as under:
'The total expenditure as declared and accepted by the candidate as on 10.06.2011 is Rs.3,32,709/- whereas the total expenditure as per 80R is Rs.5,83,600/- Difference being Rs.2,50,891/- which has been accepted by the candidate.' 56.44. In the instant case, since Ex.C.19 was accepted by the Concerned Authority and the same being scrutinised by the Election Officials in an contemporaneous fashion, then when the 1st Respondent had accepted the difference in amounts noted in Ex.C.19 at Page Nos.17,21,27 and 31, then, this Court holds that as per Ex.C.19, the 1st Respondent's accounts were scrutinised and accepted and consequently the allegation of the Petitioner that the 1st Respondent has spent more than the prescribed limit of Rs.16 Lakhs and above and therefore, the ingredients of Section 77 (3) read with Section 123 (6) of the Representation of People Act are attracted so as to make out a case under Section 100(1)(b) of the Representation of the People Act, 1951 is held to be un-proved.
56.45. In regard to the marking of Ex.P.49 News Item in Tharasu Tamil Magazine dated 11.04.2011, Ex.P.50 (CDs), Ex.P.51 (CDs), P.W.6 had deposed the same was produced by him (which contains photos and videos) and that print out copy was downloaded by him on 06.02.2015 and to this effect he had issued Ex.P.49 and therefore, Exs.P.49, P.50 and P.51 are admissible in evidence.
56.46. Even a certificate, Ex.P.52 issued by P.W.6 dated 06.02.2015 is true, valid one and the same does not suffer from infirmities just because it does not mention pen drive used in transfer. As such, contra plea taken on behalf of the 1st Respondent that Ex.P.52 is in violation of the ingredients of Section 65-B of the Indian Evidence Act is unworthy of acceptance by this Court.
56.47. Coming to the aspect of Exs.C.8 to C-15 (series) (CDs), this Court relevantly points out that the same are produced from lawful source, custody and they do have authenticity because the same had emanated from the Election Commission, as per Ex.C-20. Also that on behalf of the Petitioner, C.W.6 (Divisional Executive Engineer of the Corporation) was examined to show that he was engaged in ensuring the proper functioning of computer systems and providing assistance in case of any system failure during the 2011 Assembly Election at Kolathur Constituency. That apart, he had given the certificate Ex.C.23. Although Ex.C.23 certificate given by him does not explicitly refer to Exs.C.8 to C.15, yet this Court opines that the said certificate ie., Ex.C-23 is an omnibus one because of the reason that C.W.6 had mentioned relevant details in regard to the critical events contained in the videotapes, which were transferred to computer, as directed by the then Returning Officer, Rajarathinam.
56.48. Insofar as the plea of the Petitioner that there has been a non compliance of provisions or Act or Rules within the meaning of Section 100(1)(d)(iv) of the Representation of People Act, this Court is of the considered view that in the instant case, this Court has held that the Petitioner has failed to establish to the subjective satisfaction of this Court that the 1st Respondent has committed 'Corrupt Practices' [in respect of Issue No.1]. Further, the Petitioner has also failed in his endeavour to prove to the subjective satisfaction of this Court that the 1st Respondent has not maintained the accounts properly as per Sections 77(1) and 77(2) read with Rules 86 to 90 of the Conduct of Election Rules, 1961.
Finding:
57. In view of the detailed qualitative discussions, considering the respective contentions projected on either side and also on an overall assessment of the entire conspectus of the attendant facts and circumstances of the present case (which float on the surface), this Court holds that the Petitioner is not entitled to seek the relief namely that the election of the 1st Respondent is void within the meaning of Sections 100(1)(b)(d), 100(1)(d)(ii) and 100(1)(d)(iv) of the Representation of the People Act, 1951. Likewise, he is also not entitled to the relief to the effect that the election of the 1st Respondent is void by the non-compliance of the Constitution and the Provisions of the Representation of the People Act, 1951 and accordingly, the issues are answered.
58.Issue Nos.3 & 4:
3. Whether the Election Petitioner is entitled to a declaration that the election of the 1st Respondent/ Returned Candidate is void?
4. Whether the Election Petitioner is entitled for further declaration that he has been validly elected to the Tamil Nadu Legislative Assembly from No.13, Kolathur Assembly Constituency in the Election held on 13.04.2011?
(a) Misuse of Official Power:
59.Petitioner's Submissions:
59.1.The Learned Senior Counsel for the Petitioner refers to the averment of the Petition at para 10 of his Election Petition wherein he had stated that the 1st Respondent used his official, his party men and money powers in Kolathur Constituency during the time of election campaign, after filing the nomination.
59.2.Also, the Learned Senior Counsel for the Petitioner refers to the averment of the Election Petitioner made at para 13 of his Election Petition where he had averred that the 1st Respondent DMK party continued to follow the same method of Money for Voters, as a policy in Kolathur Constituency with its ill gotten money and that misuse of official and money power at the instance of the 1st Respondent played a dominant role in Kolathur Assembly Constituency during the time of entire election process, in order to ensure his success by hook or crook etc. 59.3.The Learned Senior Counsel for the Petitioner points out that the Election Petitioner at para 14 of his Petition had, inter alia, stated that in Kolathur Constituency, the main Election Manager on behalf of the 1st Respondent was the Mayor of Chennai City Municipal Corporation viz., Ma.Subramaniam etc. Moreover, it is projected on the side of the Petitioner that the Election Petitioner, at para 15 of his Election Petition, had averred that considering the presence of Mayor of Chennai, Chennai Corporation officials deployed for election duty, the 1st Respondent party safely fielded the 1st Respondent in Kolathur Constituency, so as to commit all the illegal acts to ensure his success.
59.4.The Learned Senior Counsel for the Petitioner proceeds to refer to the averment of para 16 of the Election Petition to the effect that the 1st Respondent's position as Deputy Chief Minister, his political power, association with Mayor of Chennai and the Corporation employees' supporters of DMK party literally prevented the Election Commission of India directives being implemented on the ground level of Kolathur Constituency. Further, the Election Petitioner, at para 16 of the Election Petition, had stated that in fact, many misdeeds and acts committed by the aforestated persons were not taken seriously by the police, even as and when the illegal action of the 1st Respondent and his party workers were brought to their knowledge. Moreover, it is the stand of the Petitioner that the 1st Respondent men and money power utilised in such a way that the directives of Election Commission of India could not be implemented at the ground level due to lack of co-operation at all levels, in order to ensure the success of the 1st Respondent.
59.5.The Learned Senior Counsel for the Petitioner refers to paragraph 17 of the Election Petition wherein the Petitioner had stated that he was able to perceive the sense of inaction on the polling duty officials deployed from Chennai Corporation including the police force, who failed to take at all times any stringent and strict actions against all kinds of malpractices committed by the 1st Respondent, its election agent and other DMK workers of Kolathur Constituency. Also, it is pointed out on behalf of the Petitioner at para 17 of his Election Petition, it was averred by the Petitioner that the 1st Respondent used all his official power and money power through his party functionaries and workers in Kolathur Constituency during the time of election campaign, after filing the nomination and in fact, every directive and order of the Election Commission issued for the parties to maintain flouted during his election campaign in the said constituency.
59.6.The Learned Senior Counsel for the Petitioner, by referring to para 18 of the Election Petition, takes a stand that the Petitioner had stated that because of the 1st Respondent's political background and the official power, polling officials including the police force, never took serious actions against the 1st Respondent's party functionaries or workers as and when the Petitioner and his party workers pointed out the various illegal acts during the time of election process.
59.7.The Learned Senior Counsel for the Petitioner submits that it is the plea of the Petitioner at para 18 of his Election Petition, that the ground level polling staffs deployed on election duty including the Returning Officer and subordinates worked only for the furtherance and success of the 1st Respondent and in this regard, the reports appeared in various Tamil News dailies filed along with the Petition, published reports about the illegal act of distribution of money to the voters in various parts of constituency.
59.8.The Learned Senior Counsel for the Petitioner points out to the averment of the Petitioner at para 20 of the Election Petition wherein he had stated that the act of distributing money at the instance of the 1st Respondent also become possible for the DMK party in Kolathur Constituency due to the active help of the police officials, lethargic attitude of the Returning Officer, the Corporation Officials functioned under him and absolute inaction on the part of the flying squad in not taking action against the DMK party workers at the appropriate time, who freely distributed money in Kolathur Constituency after the nomination of the 1st Respondent was accepted etc. 59.9.The Learned Senior Counsel for the Petitioner adverts to para 21 of the Election Petition wherein the Petitioner had mentioned during the time of counting on 13.05.2011, the Returning Officer and counting officials calculatedly deployed from the Corporation of Chennai at the instance of the 1st Respondent and his main Election Campaigner, Mayor of Chennai Ma.Subramaniam helped and committed irregularities violating all the orders and instructions issued by the Election Commission of India, for the success of the 1st Respondent.
59.10.The Learned Senior Counsel for the Petitioner also points out to para 22 of the Election Petition wherein the Election Petitioner had averred that the Returning Officer had acted in a partial and arbitrary manner along with the Chennai Corporation officials counting duty, to secure the success of the 1st Respondent, declared as Returned Candidate.
59.11.At this stage, the Learned Senior Counsel for the Petitioner contends that the Petitioner had given his objection before the Returning Officer on 13.05.2011 to stop the process of counting and request to order re-poll in respect of those wards, wherein the EVM showed display as Invalid was not considered and disposed of by the Returning Officer in accordance with the Election Rules and the Instructions issued by the Election Commission of India.
59.12.The Learned Senior Counsel for the Petitioner refers to the averment of the Election Petitioner at para 31 of his Election Petition wherein he had stated that the Police officials like Mr.Subba Rao, Assistant Commissioner of Police, Sembiyam, Mr.Selvakumar, Inspector of Police V-4, Rajamangalam, Mr.Radhakrishnan, Inspector of Police, Sembiyam, rendered their assistance to the 1st Respondent to make the payments freely to the voters without taking proper action, inspite of such misdeeds brought to their knowledge. Further, the Learned Senior Counsel for the Petitioner proceeds to state that the 1st Respondent and his party men used the premises of Railway situated in Siruvallur Road and the premises belonging to the party functionaries, distributed money to the tune of Rs.60 Crores to the voters of Kolathur Constituency, in order to secure the success of the 1st Respondent.
59.13.The Learned Senior Counsel for the Petitioner points out the averment of the Petitioner in para 32 of his Election Petition wherein he had stated that the Police Officials (mentioned in para 31) not only helped the 1st Respondent and his party workers in the process of bribing the voters in Kolathur Constituency, but failed to take action as and when the complaints were made against the 1st Respondent's party men. Also that, the Petitioner in the said paragraph had averred that the loyal Police force, Government officials and the subordinates of the Returning Officer even leaked the information about flying squad visit in advance, who always came belatedly and never took any action against those offenders, who distributed money to the voters in Kolathur area.
59.14.The Learned Senior Counsel for the Petitioner refers to para 33 of the Election Petition of the Petitioner wherein he had stated that he had filed CDs containing the incidents recorded on 06.04.2011, 07.04.2011 and 24.03.2011 to show that effective vigilant action was never taken against the 1st Respondent, the party functionaries and workers indulged in illegal distribution of money made on those dates.
59.15.The Learned Senior Counsel for the Petitioner points out that the Petitioner at para 34 of his Election Petition had mentioned that the CDs aforestated would show as to how the police flying squad and other officials showed their inaction and lethargic attitude on 24.03.2011, 06.04.2011 and 07.04.2011 when the complaints were made pertaining to illegal acts of distributing money to the voters of Kolathur Constituency at the instance of the 1st Respondent.
59.16.The Learned Senior Counsel for the Petitioner refers to the evidence of P.W.1 (Election Petitioner), who had deposed that to do unlawful activities in the election, the 1st Respondent used his position as Deputy Chief Minister, Minister for Local Administration and son of Chief Minister and also he used the influence of the then Mayor of Chennai Corporation viz., Ma.Subramaniam to deploy the officials of the Corporation. Further, it is the evidence of P.W.1 that whenever the election rules were violated, then and there, he had lodged complaint with flying squad, police and election commission either in person, phone call or through letters and that all the complaints were registered, but no action was taken. Moreover, P.W.1 had deposed that apart from his complaint, the party functionaries in the entire Assembly Constituency also lodged complaints on several incidents occurred in that constituency and on receipt of complaints by the Election Commission, the Commission used to send some officials to the spot, who used to arrive belatedly and they used to enquire on their arrival and although it was pointed out to the officials that money was distributed to 50 persons in Hospital, the officials from the Election Commission used to take video and make note of the same, but however, no action was taken by them.
59.17.The Learned Senior Counsel for the Petitioner refers to the evidence of P.W.1, who had deposed that the former Mayor Ma.Subrammaniam acted as an election agent of the 1st Respondent and he was involved in campaigning for the 1st Respondent, to conduct public meetings, seek votes, protect the people who distributed money and he was used to assign electoral work to the Corporation officials, Government officials and election officials and they were all used for malpractices and further, even at the counting place, the officials were misused by him and that these incidents were widely reported in Newspapers and he filed the same before this Court.
59.18.The Learned Senior Counsel for the Petitioner points out the evidence of P.W.1 (Election Petitioner), in his cross examination, who had deposed, to the effect that the Corporation employees are predominantly supporters of DMK party because of the reason that the Corporation of Chennai was under the control of DMK party since 1958 till his assumption of office as Mayor and further that, by the 'Main Election Manager' mentioned in para 14 of his Election Petition, he refers to the key person of the DMK party, who was managing the election campaign and this position was not notified by the Election Commission.
59.19.In the instant case, Ex.P32 is the letter given by the Petitioner dated 13.05.2011 addressed to the Chief Electoral Officer, Chennai and two others wherein he prayed for ordering of re-poll in Booth Nos.52(w), 53(w), 105(W) and 89(AW) of Kolathur Assembly Constituency immediately etc. Ex.P1 is the Model Code of Conduct for the Guidance of the Political Parties and Candidates issued by the Election Commission of India. Ex.P33 is the Complaint of the Petitioner addressed to the Chief Election Officer, Chennai dated 28.03.2011 alleged poll violations in Kolathur Assembly Constituency on 27.03.2011 by the 1st Respondent. Ex.P34 is the Complaint dated 28.03.2011 of the Petitioner addressed to the Chief Election Officer pertaining to the Kolathur Assembly Constituency Poll violation of rules and that the election officers were to remove the election officers of DMK (booths) etc. Ex.P35 is the Complaint dated 02.04.2011 of the Petitioner addressed to the Chief Electoral Officer, Chennai on the subject of poll violations by the DMK candidate at Kolathur Constituency etc.
60.Petitioner's Case Laws:
60.1.The Learned Senior Counsel for the Petitioner cites the decision of the Hon'ble Supreme Court in Arikala Narasa Reddy V. Venkata Ram Reddy Reddygari and another, reported in (2014) 5 Supreme Court Cases 312 at Special Page 325, wherein at paragraph 32, it is held as follows:
32.It is a settled legal proposition that the instructions contained in the Handbook for Returning Officer are issued by the Election Commission in exercise of its statutory functions and are therefore, binding on the Returning Officers. Such a view stands fortified by various judgments of this Court in Ram sukh v. Dinesh Aggarwal (2009) 10 SCC 541 and Uttamrao Shivdas Jankar v. Ranjitsinh Vijaysinh Mohite Patil (2009) 13 SCC 131. Instruction 16 of the Handbook deals with cases as to when the ballot is not to be rejected. The Returning Officers are bound by the Rules and such instructions in counting the ballot as has been done in this case. 60.2.The Learned Senior Counsel for the Petitioner relies on the decision of the Hon'ble Supreme Court in P.Mohan V. M.K.Azhagiri reported in 2014 AIR CC 590 wherein at paragraphs 54 & 55, it is observed that The election petitioner must state with exactness the time of assistance, the matter of assistance and the persons from whom assistance was obtained or procured by the candidate and the same have to be proved by taking evidence of the persons concerned and thereby substantiating the corrupt practice. On facts, it is held, the evidence let in by the petitioner runs well short of establishing the charges levelled against the returned candidate.
61.Reply of 1st Respondent:
61.1.The Learned Senior Counsel for the 1st Respondent submits that the 1st Respondent, in his counter at paragraph 12, had denied that he used his official party men or money power in Kolathur Constituency after filing of the nomination and further, he had stated that he had demitted his office on 01.03.2011.
61.2.Also, the Learned Senior Counsel for the 1st Respondent points out that the 1st Respondent had denied that the DMK party continued to follow the same method of Money for Votes, as a policy in Kolathur Constituency with its ill gotten money. In short, the 1st Respondent had denied that he had misused his official or money power in Kolathur Constituency during the time of entire Election process.
61.3.The Learned Senior Counsel for the 1st respondent contends that the 1st respondent had averred in his counter at para 16 that there is no post/designation as 'Main Election Manger' assigned to any one and therefore, he denied that Ma.Subramaniam, former Mayor of Chennai City Municipal Corporation is the so called 'Main Election Manager'.
61.4.The Learned Senior Counsel for the 1st Respondent submits that the 1st Respondent's Chief Election Agent was V.S.Ravi, a party functionary and the former Mayor of Chennai Corporation Ma.Subramaniam had not possessed any such designation as 'Main Election Manager'.
61.5.The Learned Senior Counsel for the 1st Respondent contends that the 1st Respondent had denied that the former Mayor of Chennai had deployed employees for election work and the said averment of the Petitioner was a wrong one.
61.6.The Learned Senior Counsel for the 1st Respondent takes a plea that the Election Commission was in total control of the Administration and as such, the 1st Respondent had no role or control over officials of Chennai Corporation or other officials.
61.7.The Learned Senior Counsel for the 1st Respondent submits that the 1st Respondent at paragraph 18 of his counter had denied that he misused his position as Deputy Chief Minister and in association with former Mayor or Corporation employees, prevented the directives of Election Commission from being implemented on the ground level of Kolathur Constituency. Also, the 1st Respondent had denied that the complaints made to the Police were not taken seriously even though the alleged illegal actions were brought to their knowledge.
61.8.The Learned Senior Counsel for the 1st Respondent contends that the Petitioner had not lodged any complaint before the Election Commission against the 1st Respondent misusing his official powers.
61.9.The Learned Senior Counsel for the 1st Respondent takes a stand that the 1st Respondent had denied that because of his political background and official powers, polling officials or police force had not taken serious action against the party functionaries or workers as alleged by the Petitioner.
61.10.The Learned Senior Counsel for the 1st Respondent points out that the 1st Respondent had denied in his counter at paragraph 21, that his election agent V.S.Ravi, District Secretary or any DMK worker distributed money to the voters from 30.03.2011 till the date of polling on 13.04.2011.
61.11.According to the Learned Senior Counsel for the 1st Respondent, the 1st Respondent, in his counter at para 22, had denied that he or his agent or representatives of the party worker engaged in the acts of distributing money to the voters or he received active help from the police officials or the Returning Officer or the Corporation officials.
61.12.The Learned Senior Counsel for the 1st Respondent submits that the 1st Respondent had denied that even during the time of counting on 13.05.2011, the Returning Officer and counting officials at his instance or at the instance of former Mayor, Corporation of Chennai had committed irregularities in violating the orders and instructions issued by the Election Commission of India.
61.13.At this stage, it is represented on behalf of the 1st Respondent, at paragraph 23 of his counter, had made it clear that there was no post of Election Campaign Manager and in any case, the former Mayor had not even campaigned in Kolathur Constituency except as one occasion when he visited the constituency with him as a role as party functionary.
61.14.The Learned Senior Counsel for the 1st Respondent brings it to the notice of this Court that the 1st Respondent had denied that the Returning Officer had acted in a partial or arbitrary manner together with Corporation officials during counting duty. Further, it is the stand of the 1st Respondent that the Petitioner's objection to the Returning Officer on 13.05.2011 to stop the process of counting and order re-poll in certain wards was against the Directives and Rules of the Election Commission and in view of the free and fair elections conducted by the Election Commission, such request was denied.
61.15.The Learned Senior Counsel for the 1st Respondent points out that the 1st Respondent in his counter at paragraph 27 had denied that he or his party functionaries with his consent or otherwise distributed cash of Rs.500/- per vote to the voters of Kolathur Constituency. Also, the 1st Respondent had denied that the payment of Rs.500/- was increased to Rs.1000/- on 10.04.2011 and Rs.5000/- on 11.04.2011 and in fact, the Petitioner had not lodged any complaint with the Chief Electoral Officer or other election officials in this regard.
61.16.The Learned Senior Counsel for the 1st Respondent refers to the counter of the 1st Respondent wherein he had denied that the police officials rendered assistance to him to make payment freely to the voters without taking proper action. Further, it is the stand of the 1st Respondent that the Petitioner had not furnished in his Election Petition as to the date on which the money was allegedly distributed, who distributed Rs.60 Crores, to whom, in whose presence, the time and place of the alleged incident etc. That apart, it is projected on the side of the 1st Respondent that the Police Department of the Kolathur Constituency functioned under the control of Election Commission of India.
61.17.The Learned Senior Counsel for the 1st Respondent contends that the 1st Respondent had denied that the averment of the Petitioner that due to the alleged help provided by the the Police or other officials on 24.03.2011, 06.04.2011 and 07.04.2011, they had not taken any action against him and his party functionaries or workers and even assuming, while denying that some persons had distributed money to the voters, the 1st Respondent or his agent had nothing to do with the same, since the same was not done with his consent or knowledge or that of his agent.
61.18.The Learned Senior Counsel for the 1st Respondent submits that even assuming while denying that the CDs can be considered as evidence, the said CDs do not point out that the 1st Respondent or his agent were engaged in corrupt practices.
62.Appraisal:
62.1.In regard to the averment of the Petitioner that the 1st Respondent had procured the official assistance, in this regard this Court points out that there must be convincing evidence beyond reasonable doubt that the candidate or his agent or any other person with the consent of candidate or his agent had procured or endeavoured to secure the assistance from the stated persons in the Section 129 of the Representation of the People Act, 1951 which assistance ought to have a direct connection to further the prospects of Election.
62.2.In regard to the purported corrupt practice relating to the assistance obtained from a Government Servant, the Petitioner must furnish: (a) the name of the person(s) from whom the assistance was actually obtained; (b) kind or form of the assistance secured; (c) the manner in which the assistance was obtained or endeavoured to be obtained or procured; (d) the date and time of assistance; (e) more importantly, the manner in which the prospect of the election was furthered by rendering such assistance.
62.3.It is to be pointed out that the word 'obtain' in Section 123(7) of the Representation of the People Act, 1951 also connotes the purpose or offer behind the action of a candidate. The said word is not employed in the sub-section in the sense of a mere passive receipt of assistance without candidate being even conscious of the fact that the assistance has been rendered.
62.4.In reality, Section 123(7) of the Act does not purport to place any disability on the right of a citizen, who may be in the service of Government to persuade his friends of his own volition to vote for one of the candidates, as per decision Ram Phal V. Brahma Prakash, ILR (1961) 1 Punjab 600. Also, in the decision Chandra Shekar Singh V. Sarju Prasad Singh, 22 ELR 206, it is observed that 'a candidate is not guilty of corrupt practice under Section 123(7) just because his son was a Sub Inspector of Police on leave, drove a Jeep, in which important members of the Government who were all the leaders of the party to which the candidate belonged, were travelling during the election period'. In regard to corrupt practice, it is illiterate by this Court that prove 'beyond reasonable doubt' in this regard is very much required.
62.5.Further, it is to be pointed out that the evidence creating some suspicion or cloud or shroud or midst is not good enough to establish the allegations of misuse of official power by the 1st Respondent either by himself or with the assistance of other persons/ officials as the case may be.
62.6.At this stage, this Court worth recalls and recollects the following decisions of the Hon'ble Supreme Court:
(i)In Pampakavi Rayappa Belagali V. B.D.Jatti and others, AIR 1971 Supreme Court 1348 at special page 1349, it is held as follows:
Free and fair elections are the very foundation of democratic institutions and just as it is said that justice must not only be done must also seen to be done; similarly elections should not only be fairly and properly held but should also seem to be so conducted as to inspire the confidence in the minds of the electors that everything has been above board and has been done to ensure free elections. The police and the Government officers should not create even an impression that they are interfering for the benefit of one or the other candidate. This is particularly so if a candidate is holding an important position or assignment like a Minister in the State.
(ii)In Narendra Madivalapa Kheni V. Manikrao Patil and others, reported in AIR 1977 Supreme Court 2171 at Special Page 2182, at paragraph 29, it is, among other things, observed as follows:
29. We part with this case with an uneasy mind. There is a finding by the High Court that an influential candidate had interfered with officials to adulterate an electoral roll. We have vacated the finding but must warn that the civil services have a high commitment to the rule of law, regardless of covert commands and indirect importunities of bosses inside and outside government. Lord Chesham said in the House of Lords in 1958: He is answerable to law alone and not to any public authority. A suppliant, obsequious, satellite public service or one that responds to allurements, promotional or pecuniaryis a danger to a democratic polity and to the supremacy of the rule of law. The courage and probity of the hierarchical election machinery and its engineers, even when handsome temptation entices or huffy higher power brow-beats, is the guarantee of electoral purity. .... Disposition:
63.On a careful consideration of the respective contentions advanced, in regard to the aspect of 'Misuse of Official Powers' by the 1st Respondent, by using his officials, his party men, using the assistance of former Mayor of Chennai Corporation Ma.Subramaniam [as Main Election Manager] and that the Corporation employees being the supporters of DMK party literally prevented the Election Commission of India Directives being implemented at the ground level of Kolathur Constituency etc., this Court, taking into consideration of the evidence of R.W.3 (1st Respondent): (i) that he demitted his office on 01.03.2011; (ii) that Election Model Code of Conduct came into force on the said date viz., on 01.03.2011; and (iii) when Election Commission of India was in total control of the Administration and when the 1st Respondent had no role or control over the officials of Chennai Corporation and other officials like, Police, Flying Squad, Returning Officer [who will be working under the Chief Electoral Officer of Tamil Nadu] and added further, the concerned officials would not in any manner report to him as Deputy Chief Minister and when it is the presumption of Law that the officials would work within the ambit of Model Code of Conduct during 2011 Kolathur Assembly Elections, is of the considered view that the 'onus of proof' [being a quasi criminal in character] which is heavy on the Petitioner to establish his allegations levelled against the 1st Respondent have not been discharged on his part and consequently, the said allegations were not proved beyond reasonable doubt by means of a clear-cut, precise and by means of the evidence of a conclusive nature, to the subjective satisfaction of this Court.
(b) Booth Slips:
64.Contentions of the Petitioner:
64.1.The Learned Senior Counsel for the Petitioner refers to the averments of the Petitioner in his Election Petition at paragraphs 97 to 104, which pertains to the aspect of the 1st Respondent's party workers printed booth slips containing the symbol 'Rising Sun' and distributing the same to the voters of Kolathur Constituency; the 1st Respondent using his official power even prevented the Petitioner's party workers to give booth slips to the voters in order to see that the polling percentage is increased; filing of case against the Petitioner's party worker Mr.Nazir Ahamed alleging distribution of booth slip, the filing of complaint against the AIADMK party men by name Mr.Rajesh; the inaction of the Returning Officer and the Chennai Corporation Officials in not acting as per Directives of the Election Commission of India; the allegation of the Returning Officer and the Officials of Corporation of Chennai were stated to have been deployed for booth slips delivery, virtually allowed the 1st Respondent to issue DMK party booth slips; the Petitioner's representation dated 12.04.2011 mentioning that the majority of the voters of Kolathur Constituency had not received official booth slips; the non furnishing of details by the Returning Officer and the failure of the Returning Officer to take necessary steps in preventing the 1st Respondent and his party workers from disobeying the Directives of the Election Commission of India by initiating appropriate proceedings.
64.2.The Learned Senior Counsel for the Petitioner points out that P.W.1 in his evidence had deposed that in this election, the Election Commission announced that it would distribute the booth slips and take appropriate measures and further that, the major benefit to the voters was that if they had the booth slips issued by the Election Commission, they need not have the voters ID card or other 13 documents authorised by the Election Commission. Further, P.W.1 had stated in his evidence that out of the four thousand people engaged in distributing booth slips, each constituency would have 250 people engaged to distribute the same and the booth slips of the Election Commission were not distributed in his constituency by the people engaged by the Election Commission and that they complained to the election officers through phone that the booth slips were not distributed and after this, booth slips were distributed by the conservancy workers who are illiterate and since till the 5th April 2011, not even 10 percent of the voters had received the booth slips and his election agent Mr.Sundar made a complaint to the Election Commission about the same.
64.3.The Learned Senior Counsel for the Petitioner refers to the evidence of P.W.1, who had stated that after making complaint, on 06.04.2011, the Election Commission sent an e-mail to the Electoral Officer, Chennai in this regard and in the said e-mail, the Election Commission had instructed the Electoral Officer, Chennai that after proper announcements, the booth slips should be distributed to the voters on 10.04.2011 between 10.00 a.m. to 5.00 p.m. and that the Electoral Officer, Chennai had not taken action on the aforesaid e-mail and that misused his power.
64.4.Moreover, it is the evidence of P.W.1 that on 12.04.2011 he went in person to the Returning Officer and gave a written complaint and although the Returning Officer promised to give the details within an hour in regard to the number of people to whom the booth slips were distributed, he received the reply to his written complaint on 25.05.2011 and it was a handwritten letter addressed to him wherein it was stated that by 6th April 2011 almost all the voters were distributed with booth slips except for about 9000 voters and that he was unsuccessful in the election only because the booth slips were not distributed properly and this is one of the reasons for his defeat in the election.
64.5.The Learned Senior Counsel for the Petitioner refers to the evidence of P.W.1, who had stated that DMK cadres distributed booth slips bearing their party symbol 'Rising Sun' with the help of the police and when the Returning Officer was informed that the DMK cadres were thus distributing booth slips, they told them that they can also do the same and when they printed the booth slips and after removal of the symbol the booth slips were given to the voters, their cadres were arrested and this incident was videographed and that when the election officials recorded the DMK cadres distributing booth slips, they recorded it in such a way that their party symbol was not seen and that their party cadres, Rajesh and Nazir Ahamed were arrested and kept in Prison for the entire day, when they distributed their party's booth slips and if only the booth slips were distributed properly, about 15 to 16 percent of voters would have cast their votes in the Election and if the aforesaid 15 to 16 percent had voted, he would have won the Election with a margin of several thousands of votes. Moreover, it is the evidence of P.W.1 that the 1st Respondent created such obstacles and went against the rules and regulations thus ensuring that their party men was not able to distribute the booth slips properly and only 68 percent of the voters voted in the Election.
64.6.The Learned Senior Counsel for the Petitioner points out that P.W.1 in his evidence (in cross examination) had stated that an information given by his party functionaries that in each division about 40 to 200 voters were unable to vote in the Election due to non distribution of booth slips to them and that was the basis for his deposition that 15 to 16 percent of votes would have been polled more leading to his victory.
64.7.The Learned Senior Counsel for the Petitioner refers to the evidence of P.W.1, who had stated that the details furnished by the Returning Officer in regard to the non distribution of booth slips to the voters is part of the record viz., Ex.P7 and further, more than 50% of the voters had not received the booth slips from the Returning Officer.
64.8.The Learned Senior Counsel for the Petitioner points out that P.W.1, (Election Petitioner) in his cross examination, had stated that a voter who takes the Election Commission's voters slip need not carry any other identification to vote and further that, a voter who has the voter who has the Election Commission's voters ID card can vote without the voters slip. Also, the Learned Senior Counsel for the Petitioner points out that P.W.1 in his evidence had sated that his party cadres had captured some booth slips issued by DMK cadres and the same is Ex.P16.
64.9.The Learned Senior Counsel for the Petitioner refers to the evidence of P.W.1, who had deposed in his cross examination that Ex.P41 is the F.I.R. being an example as piece of evidence to demonstrate that the then ruling party filed false complaint against his party cadre to stop them from distributing booth slips to voters. Further, he had admitted that he had filed Ex.P41 not on personal knowledge but on the information given by his party functionaries. Also, the grievance of the Petitioner is that DMK party cadre distributed booth slips with their party symbol but his party cadres were stopped from distributing their booth slips by the police and further stated that Ex.P16 does not contain any information where it was printed.
64.10.The Learned Senior Counsel for the Petitioner points out that P.W.1 in his evidence had deposed that Ex.P29 is the complaint given by him in regard to the distribution of voters slip wherein P.W.1 had made a request to the department to immediately issue the voters slip to the remaining voters before 12.04.2011 evening. In Ex.P29, P.W.1 had stated that it was reported that most of the voters have not received the voters slip and by virtue of it, there was a wide gap in distributing the voters slip.
64.11.The Learned Senior Counsel for the Petitioner refers to the evidence of P.W.2, who had deposed that although he was engaged to distribute vote slips, he had not done so because of the happening of incident at Eswari Hospital on the day of nomination itself and further, nobody had engaged him to distribute the vote slips.
65.Reply Submissions of the 1st Respondent:
65.1.The Learned Senior Counsel for the 1st Respondent submits that the 1st Respondent, in his counter at paragraph 66, had denied that his party workers started to distribute booth slips containing the symbol of 'Rising Sun' to Kolathur Constituency voters and further, at paragraph 67 of the counter, the 1st Respondent had proceeded to add that he denied that in Kolathur Constituency Corporation officials or other officials were engaged by the Returning Officer had not given booth slips. Moreover, the 1st Respondent had denied using his official powers are prevented the Petitioner's party workers from giving booth slips to the voters.
65.2.The Learned Senior Counsel for the 1st Respondent points out that the 1st Respondent, in his counter at para 68, had stated that neither he nor his agent printed or consented to the printing of any booth slips with their party symbol and as such, the question of distributing the same among the voters does not arise. Also, the same breadth, it was pointed out on behalf of the 1st Respondent that question of one Mr.Albert of Mr.T.Moorthy, taking any action against the 1st Respondent's party workers does not arise. That apart, the 1st Respondent had also denied that even on 03.04.2011 the party workers had distributed booth slips with his party symbol of 'Rising Sun' to the voters.
65.3.The Learned Senior Counsel for the 1st Respondent submits that the 1st Respondent had averred, at para 68 of his counter, that since the Petitioner and his party men printed and distributed booth slips with AIADMK party symbol, two F.I.Rs. were registered by the Special S.I. of Police, Mr.Albert against the Petitioner's party men, who are distributed the booth slips. In this connection, it is projected on the side of the 1st Respondent that the said Special S.I. of Police Mr.Albert who caught the perpetrators committed the offence and not on the basis of any complaint lodged by the 1st Respondent's workers.
66.Discussions and Finding:
66.1.It is to be pointed out that a mere averment/allegation of non consideration of complaint of a candidate that several persons unauthorisedly acted as the counting agent and that it amounted to Returning Officer's failure to perform his duty does not make out a case of corrupt practice under Section 123(7) of the Representation of the People Act, 1951.
66.2.In this connection, this Court points out that R.W.3, in his evidence, had deposed that he does not know for what reason Ex.P5 Letter dated 06.04.2011 of the Chief Electoral Officer and Principal Secretary to Government [on the issue of voter's slips to electors on 10.04.2011 at the respective polling stations] was addressed to all the District Election Officers and further that, an Annexure of Ex.P5 dated 19.03.2011 was signed by Sumit Mukherjee, Under Secretary to the Election Commission of India and also he had admitted, in his evidence, that it was correct to state that the Election Commission of India had notified that for the Kolathur Assembly Constituency 2011 Elections, the District Administration would distribute printed voter slips containing photo and address of voters as per Ex.P5.
66.3.It is to be noted that Ex.P1 'Model Code of Conduct for the Guidance of the Political Parties and Candidates, on the caption Polling in Serial No.IV, at paragraph 3' had stated that All Political parties and candidates shall agree that the identity slips supplied by them to voters shall be on plain (white) paper and shall not contain any symbol, name of the candidate or the name of the Party.
66.4.At this juncture, this Court, on perusal of Ex.P16, finds that it is the Booth Slips of the 1st Respondent's DMK party with its 'Rising Sun' symbol where the 1st Respondent name is mentioned as a candidate. Further, Ex.P16 satisfies the name of the voter, address, polling booth etc. but Ex.P.16 does not contain a details like (i) as who had issued the same; (ii) as to who printed the same; (iii) on what time, on what date and on whose instructions, it was distributed to the voters; and where it was printed [in which printing press]. When the Ex.P1 Model Code of Conduct, Serial No.IV on the subject of 'Polling' specifically mentions that 'All Political parties and candidates shall agree that the identity slips supplied by them to voters shall be on plain (white) paper and shall not contain any symbol, name of the candidate or the name of the Party' and also, R.W.3 (1st Respondent), in his evidence, had denied that his DMK party neither printed booth slips nor distributed among the voters and more so, when he had denied that his party had printed booth slips with the party symbol as shown in Ex.P16, then, the burden of establishing that the Ex.P16 Captured Booth Slips/Voters Slip was printed by the DMK party men either with the consent of the 1st Respondent or other members of the said party etc. and the same was distributed to the voters by them.
66.5.Moreover, it is the evidence of P.W.1 that when the DMK party cadres were distributing booth slips bearing the symbol Rising Sun and the same was videographed by the election officials, his party cadres captured some booth slips viz., Ex.P16.
66.6.Although Ex.P16 Captured Booth Slips/Voters Slips do contain the 1st Respondent's party symbol with his name etc., it is not proved on the side of the Petitioner that the said booth slip Ex.P16 was printed with the consent and approval of the 1st Respondent or any member of his party or men. Even though the Petitioner has filed Ex.P16 to the effect that some of his party cadre captured some booth slips belonging to that of DMK party with symbol of 'Rising Sun' [including the name of 1st Respondent] and notwithstanding the fact that as per Ex.P1 - Model Code of Conduct, 'all political parties and candidates had agreed that the identity slips supplied by them to voters shall be on plain (white) paper and shall not contain any symbol, name of the candidate or the name of the Party' and in this regard, the stand of the Petitioner is that Ex.P16 (captured Booth Slips/voters Slip) is contrary to Ex.P1, it cannot be said by any means that it is a ground for declaring the Election of the 1st Respondent is void one or to set aside the same and apart from that, it has materially affected the Petitioner's Election.
66.7.Further, a mere running of the eye of Ex.P1 Model Code of Conduct does not expressly spell out when a booth slip is printed by a political party, who had fielded a candidate [who is contesting the Election], it is either an offence or a corrupt practice or illegality, in the eye of Law.
66.8.Moreover, it is not shown before this Court that the 1st Respondent (R.W.3) took part in printing or distribution of Pamphlet Ex.P27 or the same was done by his election agent or by any one else with his consent, owning up the responsibility for the same cannot be placed on the Returned Candidate, in the considered opinion of this Court. That apart, even an implied consent in the present case could not be drawn for the publication of Ex.P27 Pamphlet within the knowledge of the Returned Candidate (1st Respondent) etc. 66.9.As regards the allegation of the Petitioner that A.E.R.O. had given a false Handwritten Statement dated 25.05.2011 (not as stated by the Petitioner on 22.05.2011) Ex.P7 as if 1,97,961 booth slips were issued on 05.04.2011 and 06.04.2011 by itself and only 9925 booth slips remained undelivered and therefore, the non issuance of 9925 booth slips, as per Ex.P7 Statement shows that the Returning Officer had not conducted the election in a fair manner in accordance with the directions of the Election Commission of India and acted in furtherance of the success of the 1st Respondent and resultantly failed to take necessary steps to prevent the 1st Respondent and his party workers from disobeying the Directives of the Election Commission of India etc., this Court pertinently points out that the Returning Officer is not before this Court to answer the Petitioner's allegation either to repudiate or to confirm the same and in the absence of Returning Officer, being a party to the Election Petition, the averments levelled against 1st Respondent by the Petitioner remain unsubstantiated.
66.10.Coming to the other allegation of the Petitioner that by virtue of not issuing official booth slips to the voters of Kolathur Constituency, voters have been prevented from voting on 13.04.2011, the same has not been established on the side on the Petitioner to the subjective satisfaction of this Court, because of the reason that he lost only a margin of 2423 votes.
(c)False Statement and Character Assassination:
67.Petitioner's Contentions:
67.1.In regard to the character assassination levelled by the Petitioner against the 1st Respondent, the Learned Senior Counsel for the Petitioner refers to paragraph 67 of the main Election Petition, wherein the Petitioner had stated that when the election campaign was in peak etc. suddenly a baseless and frivolous news item against the Petitioner appeared in Tamil Murasu Newspaper dated 08.04.2011 and other Newspapers Murasoli and Dinakaran supporting the DMK party about a complaint purported to have been made by one Kumudha of Kancheepuram District.
67.2.The Learned Senior Counsel for the Petitioner contends that according to the Petitioner, the said news item published in Tamil Murasu on 08.04.2011 (Ex.P45) is a false one and also that, it is the handwork of the 1st Respondent and his election agent Mr.V.S.Ravi.
67.3.In this connection, the Learned Senior Counsel for the Petitioner projects an argument that the 1st Respondent and its party workers had indulged in a character assassination of the Petitioner with a view to dislodge his reputation and winning prospects.
67.4.The Learned Senior Counsel for the Petitioner takes a stand that the act of the 1st Respondent, his party workers and one Mrs.Kumudha spreading false news about the Petitioner among the voters on the eve of the nearing polling date, would amount to an act of corrupt practice to influence the voters' mind to get the votes polled in his favour.
67.5.Also, it is the contention of the Learned Senior Counsel for the Petitioner that xerox copies of Ex.P45 (the news item in Tamil Murasu Paper dated 08.04.2011) relating to encroachment of public road by the Petitioner and a complaint made by Kumudha of Kancheepuram based on which a direction was issued by the High Court to the Collector were circulated as 'Bit Notices' in the name of Kumudha in all the wards of Kolathur Constituency area and that the Petitioner issued a statement through Jaya T.V. new work channel refuting the false allegations levelled against him.
67.6.The core contention of the Learned Senior Counsel for the Petitioner is that the 1st Respondent and his election agent V.S.Ravi with his consent through his party workers circulated Ex.P27 Bit Notice dated 08.04.2011 (Tamil Murasu news item against the Petitioner), which contained a false and defamatory statement made in relation to the Petitioner's character, issued reasonably with calculated intention to prejudice the prospects of his election. Further, the plea of the Petitioner is that the action of the 1st Respondent in assassinating the character of the Petitioner in an unethical way would amount to an act of corrupt practice and consequently, the result of his election materially affected.
67.7.The Learned Senior Counsel for the Petitioner points out that the Petitioner at para 77 of his Election Petition had averred that the 1st Respondent's family owned T.V. channel 'Kalaignar T.V.' aired the news item (Ex.P45) published in Tamil Murasu dated 08.04.2011, on 08.04.2011 night constantly as if this Court had directed the Collector of Kancheepuram to consider an alleged complaint of Mrs.Kumudha in a manner of assassinating the character of the Petitioner and to reduce his chances of success of winning the election.
67.8.The Learned Senior Counsel for the Petitioner proceeds to state that the Petitioner was shocked to note that the 1st Respondent through his family channel 'Kalaignar T.V.' on 11.04.2011 again aired another news item about a direction purported to have been given by High Court to register a case against the Petitioner based on the complaint stated to have been given by the same individual Mrs.Kumudha.
67.9.The Learned Senior Counsel for the Petitioner puts forward a plea that according to the Petitioner that the 1st Respondent with his consent allowed his family channel 'Kalaignar T.V.' to telecast a false news item without any verification on 08.04.2011, 11.04.2011 and circulating notices referring the news item published in Tamil Murasu dated 08.04.2011 would amount to an act of corrupt practice and that the 1st Respondent with the help of his party workers indulged in the aforesaid acts, so as to create a ripple effect in the minds of voters of Kolathur Constituency and effect his prospects of the election from Kolathur Constituency.
67.10.The Learned Senior Counsel for the Petitioner refers to the evidence of P.W.1 (Election Petitioner) to the effect that in the evening edition of Tamil Murasu dated 08.04.2011, there was a news item that he had encroached a public road that a lady had filed a case against him and the High Court had directed the Collector to submit a report in this regard and further that, he was not aware that a case was filed against him and that he did not receive any notice in this regard.
67.11.The Learned Senior Counsel for the Petitioner by referring to the evidence of P.W.1 points out that the Petitioner (P.W.1), on the basis of news item published, made enquiries from the Court and that he was informed that one Dayanidhi, husband of Kumudha had filed a petition based on a complaint sent to five or six people and his name was not figured in the said complaint and that his name however was impleaded as the 7th Respondent in the petition filed before this Court (in W.P.No.9019 of 2011 Ex.P24) and the typed set of papers therein is Ex.P25.
67.12.Continuing further, the Learned Senior Counsel for the Petitioner refers to the evidence of P.W.1 wherein he had averred that Crl.O.P.No.8956 of 2011 (Ex.P26) was filed before this Court at the instance of Kumudha and further that, he does not have any property at Kilambakkam, Urapakkam, Kancheepuram District and that apart, the statement that he has a property through a binami at Kilambamkkam was a false one and in fact, there is no reference to him in the complaints filed by the aforesaid Kumudha.
67.13.The Learned Senior Counsel for the Petitioner contends that it is the stand of the Petitioner that the Court Order dated 08.04.2011 in W.P.No.9019 of 2011 (Ex.P23) (on the writ petition filed by Ta.Kumudha wherein the Election Petitioner is arrayed as 7th Respondent) was misinterpreted and a telecast was made only in 'Kalaignar T.V.' and Sun News and other family newspapers of the 1st Respondent that the Petitioner had encroached the land, the Court had ordered for an F.I.R. to be registered and because of the false propaganda, the voters who wanted to vote for him had abstained from voting and some of the voters had not voted for him and as a result, he was announced to have lost the election by a thin margin.
67.14.The Learned Senior Counsel for the Petitioner adverts to the evidence of P.W.1 (Election Petitioner) during his cross examination wherein he had deposed that Ex.P44 was the letter addressed by him to the Chief Election Commissioner, New Delhi and three others wherein he had made a request for issuance of necessary orders to DMK functionaries to stop telecasting false news in Sun TV and Kalaignar TV and Newspapers.
67.15.The Learned Senior Counsel for the Petitioner referred to the evidence of P.W.1, who had stated that Ex.P27 is a Pamphlet in Tamil based on the newspaper Article published in Tamil Murasu (Tamil Daily on 08.04.2011) deliberately distributed under the head of the 1st Respondent and further, from the documents filed by Kumudha in the Writ Petition and Criminal Original Petition into Court, it would clear that there was no complaint or allegations against the Petitioner in the three complaints made by her on 01.01.2011, 22.01.2011 and 11.02.2011 and that Kumudha and S.R.K. Builders had continuous disputes from 2010 and that the said Kumudha was occupying a poramboke land and S.R.K. Builders were in occupation of patta land and none of the complaints filed by Kumudha, the Petitioner's name finds a place and therefore, the complaint by Kumudha referred to in Ex.P27 and Ex.P45 is a planned conspiracy to defame his reputation.
67.16.The Learned Senior Counsel for the Petitioner places reliance on the evidence of P.W.1, who had stated that what was ordered by the Court in the Writ Petition and the Criminal Original Petition by Kumudha was different from what was published in newspaper and on T.V. and that the 1st Respondent has used Kumudha to lodge a false complaint against him and published the subject matter differently in their family newspapers viz., Dinakaran, Murasoli, Kalaignar T.V. and Sun T.V. and that no other newspapers or T.V, Channels published the news.
67.17.The Learned Senior Counsel for the Petitioner points out that P.W.1 in his evidence (in cross examination) had deposed that the letter dated 11.01.2011 sent by Kumudha to General Secretary of AIADMK (filed into Court as Ex.P25 in W.P.No.9019 of 2011) is a forged document, created at the instance of the 1st Respondent to defame his reputation by conspiring against him and further, till date he had not seen Kumudha.
67.18.The Learned Senior Counsel for the Petitioner also points out that P.W.1 in his evidence had stated that the 1st Respondent and his agents with a bad intention to defame him and win the election had tried to defame his name with the public and the first reason is that W.P.No.9019 of 2011 was based on the complaint dated 21.02.2011 in which his name does not find a place. That apart, it is the evidence of P.W.1 that the second reason is that the Criminal Original Petition filed on 09.04.2011 was based on the complaint dated 08.04.2011 (prepared in the evening of 08.04.2011 and registered on 09.04.2011 itself) and the third reason was that the Court had only ordered that an F.I.R. was to be registered only if a cognizable offence was found against him and therefore, he states that the 1st Respondent (who was the then Deputy Chief Minister) had abused his office and indulged in several irregularities with a view to bring disrepute to his reputation and ensure him defeat in the election.
68.1st Respondent's Submissions:
68.1.By means of Reply, the Learned Senior Counsel for the 1st Respondent submits that the 1st Respondent, in his counter at paragraph 58, had averred that the Petitioner and his goondas had assaulted one Kumudha of Kancheepuram District and she lodged a complaint to the District Collector against him and his hoodlums and since no action was taken by the District Collector, the said Kumudha filed W.P.No.9019 of 2011 before this Court, in which, orders passed on 08.04.2011 directing the District Collector (2nd Respondent therein) to take appropriate action against him and further, it is represented on behalf of the 1st Respondent that the said Kumudha filed another Crl.O.P.No.8956 of 2011 against the Petitioner seeking for a direction against the police to register a case and this Court on 11.04.2011 had passed an order directing that in the event of the respondents (therein) finding that cognizable offence stands made out, they shall register a case and provide due protection to her, his family members as also to property as may be necessary and that on 27.04.2011, the Police registered F.I.R. against the Petitioner in respect of the offences under Sections 371, 427 & 506(ii) I.P.C.
68.2.The Learned Senior Counsel for the 1st Respondent contends that the 1st Respondent had denied at para 61 of his counter that his Chief Election Agent Mr.Ravi distributed xerox copies of the news item which appeared in the dailies on 08.04.2011 about the incident relating to the Petitioner assaulting the said Kumudha and further, the 1st Respondent had denied that he consented to his party workers to circulate the said notice or engaged in corrupt practices and in any event, even assuming while denying that the 1st Respondent's party men distributed the said newspaper reports to the voters as averred by the Petitioner, the same does not constitute any corrupt practice, by any stretch of imagination.
68.3.The Learned Senior Counsel for the 1st Respondent points out that the Kalaignar T.V. and Sun T.V. were well within their rights to air news and the video about the complaint lodged by the said Kumudha and the orders passed by this Court and as such, the question of any character assassination by him on the Petitioner does not arise. Also, it is the plea of the 1st Respondent that the Petitioner had not cared to initiate any legal action against Kalaignar T.V. or Sun T.V. which he would have taken so if news and video aired by them were a false one.
68.4.In this connection, the Learned Senior Counsel for the 1st Respondent refers to the evidence of R.W.3 (1st Respondent) to the effect that he had never seen Kumudha and that he does not have any necessity to use her to defame the Election Petitioner and in short, he had completely denied this allegation.
68.5.The Learned Senior Counsel for the 1st Respondent draws the attention of this Court to the decision of the Hon'ble Supreme Court in Shivajirao B.Patil Kawekar V. Vilasrao D.Deshmukh reported in (2000) 1 Supreme Court Cases 398 at special page 412, wherein at paragraph 38, it is observed and held as under:
38.It is clear from the evaluation of the evidence adduced by the parties that the contents of the news item were substantially correct. They were based on the information collected by M.B.Pathan from the various witnesses specially members of the Bagwan family. The version of the witness M.B.Pathan that the reporting was based on the information gathered from the talks which were going on in the office of the Janata Dal whereat the appellant was also present does not appear to be correct. Such evidence is also liable to be excluded from consideration because such is not the case set out in the election petition. The incident had formed the subject-matter of a criminal prosecution. The complainant had set out his version in the criminal complaint filed before a criminal court and the contents of the news item were substantially the same as set out in the criminal complaint. Neither has the respondent stated in his deposition nor was it suggested to the appellant during his cross-examination that the contents of the publication were false and believed to be false or not believed to be true by the appellant. The ingredients of sub-section (4) of Section 123 of RPA were therefore not satisfied. Though truth is no defence under sub-section (2-A) of Section 123 if the impugned activity has the requisite consequence as its result, but Prof. M.B.Pathan is not proved to have made the publication with the consent of the appellant or his election agent.
69.Analysis and Findings:
69.1.At this juncture, this Court aptly points out that the term 'corrupt' or 'illegal practice' is equivalent to 'corrupt practice' or 'illegal practice'. The term 'practice' applies even to a solitary act and is not confined to habitual repetition of an action. A single act of the nature mentioned in Section 123 of the Act would be 'corrupt practice', as opined by this Court.
69.2.It is to be relevantly pointed out that in the absence of existence of even implied consent of returned candidate in the publication of news item which was allegedly intended to lower down the character of the Petitioner, a charge of corrupt practice fails, as per decision Shivarajirao B.Patil Kawekar V. Vilasorao D.Deshmukh, AIR 2000 Supreme Court 341. Further, in the aforesaid decision, it is observed that in the absence of any evidence to show that the publication of alleged article in a newspaper was with returned candidate's consent, purpose of corrupt practice not sustainable.
69.3.It is to be borne in mind that the commission of a corrupt practice results in disasters penal consequences. It not only vitiates the election of the candidate concerned, but also disqualifies from taking part in elections for a long period. Therefore, the trial of Election Petition (being in the nature of an accusation) is a quasi criminal action and therefore, the 'onus of proof' is the same as in criminal case. A charge of corrupt practice is to be proved beyond all reasonable doubt.
69.4.Further, the burden to establish the essential ingredients of Section 123(4) of the Representation of the People Act, 1951 is on the Petitioner who alleges publication of false statements of fact. The Election Petitioner has to prove that the news item (Ex.P45 and in Ex.P.27 Bit Notice of the same subject matter) was published by the 1st Respondent (Returned Candidate) or his election agent. Apart from that, the Petitioner is to exhibit that the impugned contents of Ex.P27 and Ex.P45 are false and that the candidate either believed that the statement to be false or did not believe it to be true. In addition, he is to establish among other things that Ex.P27 and Ex.P45 pertain to his personal character or conduct. Finally, it is to be shown that the publication was reasonably calculated to prejudice the prospects of the Petitioner (complaining party).
69.5.As a matter of fact, the prime onus is on the Election Petitioner under Section 123(4) of the Representation of the People Act, 1951 to show that a statement of fact was published by a candidate or his agent or by any other person with the consent of the candidate or his election agent and also to show that such news item/ statement was false and related to his personal character or conduct. When once that burden is proved, then, the onus shifts to the candidate making the false statement of fact to show that what is belief was. In fact, the 'issue as to prejudice' to the prospects of election is generally a matter of inference to be arrived at by the Designated Election Court, of course, based on the facts and circumstances of a given case. A Court of Law is not to hold that a 'corrupt practice' is established merely on preponderance of probability.
69.6.A reading of Section 123 (4) of the Representation of the People Act, 1951, without any ambiguity, points out that in order to bring the case under the sub-section, the Petitioner is to establish: (a) that there was a publication by a candidate or his agent or by any other person with the consent of the candidate or his election agent, of any statement of fact which is false, and which he either believes to be false or does not believe to be true; (b) that the false statement is in relation to the personal character or conduct of any candidate, or in relation to the candidature or withdrawal of any candidate; and (c) that it is a statement reasonably calculated to prejudice the prospects of that candidate's election.
69.7.One cannot brush aside an important fact that the language of Section 123(4) of the Representation of the People Act, 1951, is 'any statement of fact which is false' and that language must be employed in contrast to a false statement of opinion. The language employed is not merely a 'false statement' but a 'statement of fact which is false'. The statement in question must be related to the personal character or conduct of a candidate, which means false statement of fact bearing on the personal character or conduct of a candidate. In fact, one of the ingredients of corrupt practice under Section 123(4) of the Representation of the People Act, 1951 is that the statement/news item complained of, must be one reasonably calculated to prejudice the prospects of the election of the individual against whom it is made. The said Section does not merely say 'being a statement calculated to prejudice the prospects of the candidate's election. Per contra, it points out that 'being a statement reasonably calculated to prejudice the prospects of that candidate's election'.
69.8.There is no two opinion of a pivotal fact that simple accusations which do not affect the personal character or conduct of the candidate cannot be taken note of by the Election Law. In this connection, this Court worth recalls and recollects the decision of the Hon'ble Supreme Court in Guruji Shrihari Baliram Jivatode V. Vithalrao reported in AIR 1970 SC 1841, whereby and whereunder, it is observed and held as follows:
Section 123 (4) is designed to achieve the dual purpose of protecting freedom of speech and prevention of malicious attack on the personal character and conduct of rivals. A statement which reflects on the mental or moral character of a person is one relating to his personal character or conduct whereas any criticism of a person's political or public activities and policies is outside it. Section 123 (4) further requires that the candidate who made a false statement should have believed it to be false or did not believe it to be true and lastly, it should be a statement reasonably calculated to prejudice the prospects of the election of the candidate against whom it was made. The word 'calculated' means designed: it denotes more than mere likelihood and imports a design to affect voters. AIR 1965 SC 677, Rel. on (Para 5) Every false allegation does not come within the mischief of section 123 (4). When any false allegation of fact pierce the politician and touches the person of the candidate then S. 123 (4) is contravened. (Para 6) The expression 'being a statement reasonably calculated to prejudice the prospects of that candidate's election' means that the publication of false statement of fact relating to the personal character or conduct must be such as would, in the estimation of the Court, having regard to the nature of the publication, the evidence tendered in Court and the surrounding circumstances have its natural and probable consequence of prejudicing the prospects of the candidate relating to whose personal character or conduct the publication has been made. So far as the last limb of section 123 (4) is concerned, the emphasis is not so much on the intention of the publisher but on the probable effect on the election of the candidate against whom those statements are directed. (1960) 22 ELR 261 (SC) and (1901) 5 O.'M. & H. 155 & AIR 1964 Bom. 244, Rel. on. 69.9.Generally speaking, the responsibility of candidate for publication arises, if he publishes a thing himself. Further, he is equally responsible for the publication in issue, if it is published by his agent. That apart, he is also responsible where the thing is published by any other individual, but with his consent or his election agent. In a give case, where a candidate had no knowledge at all about the publication, then, the allegation against him in this regard fails.
69.10.It is to be noted that in regard to the allegation of corrupt practice as per Section 123(4) about the publication and distribution of pamphlets containing false statement, there must be a categorical averment that the publication was effected either with the consent or knowledge of the Returned Candidate. As a matter of fact, the offending paragraphs of the pamphlet must be quoted with facts like, (i) to whom the Returned Candidate gave a consent; (ii) how and in what manner, he gave consent; (iii) when and whose presence the consent was given to distribute the pamphlets in the locality or constituency, in which the distribution had taken place; (iv) to whom the published material was distributed and if so the date on which, it was disputed. All these things should be described in the Election Petition as material facts/particulars.
69.11.It is to be relevantly pointed out that in the decision C.S.Chaturvadey V. Rajesh Nandan reported in AIR 2000 M.P. 156, it is observed and held that 'for want of positive evidence to show that the candidate or his agent had printed the pamphlets and posters wherein the name of printer or publisher was mentioned, the provisions of Section 127(A) of the Representation of the People Act, 1951 has not been violated'. Therefore, the result of the Returned Candidate is not affected.
69.12.In the instant case, Ex.P24 is the Petition and Affidavit filed by one Kumudha in W.P.No.9019 of 2011. A perusal of Ex.P24 Petition shows that the Election Petitioner is arrayed as 7th Respondent. In fact, the Writ Petitioner (Kumudha) in Ex.P24 (W.P.No.9019 of 2011) had prayed for issuance of writ of mandamus directing the Respondents 1 & 2 therein to take action on her representation dated 22.01.2011 and to forbear the Respondents 5 to 7 from interfering with her usage and enjoyment of 24 feet Panchayat Road (off Kilambakkam Railway Gate Road), Killambakkam, Urapakkam Panchayat, Chengalpet Taluk, Kancheepuram District. In Ex.P25 Typed set in W.P.No.9019 of 2011, the said Kumudha along with her daughter had addressed a Mercy Petition to the AIADMK General Secretary on 11.01.2011 with a copy being marked to the Election Petitioner. In the said Mercy Petition, Kumudha had prayed for protecting them, nearby residents, her husband and son from the Election Petitioner and his men. Also that, Kumudha's daughter Priya had also addressed a letter to the Hon'ble Chief Minister of Tamil Nadu on 13.01.2011. Apart from that, Ex.P23 is the Order dated 08.04.2011 in W.P.No.9019 of 2011 [filed by Kumudha against the 1st Respondent/Home Secretary, Government of Tamil Nadu, Chennai and others and the 7th Respondent therein was the Election Petitioner], whereby and whereunder at paragraph 4, it is observed as under:
4.Considering the facts and circumstance of the case, without expressing any opinion on merits, the second respondent is directed to consider the representation dated 22.01.2011 of the Petitioner and pass appropriate orders on merits and in accordance with law, after hearing the petitioner as well as the respondents 5 to 7. Such order shall be passed by the second respondent within a period of twelve weeks from the date of receipt of a copy of this order. If the petitioner makes any further representation, the second respondent shall also consider it and give notice to the persons against whom the petitioner makes any complaint in the further representation. 69.13.It is to be pointed out by this Court that it cannot be denied that one Kumudha filed W.P.No.9019 of 2011 before this Court against the Respondents 1 to 6 therein and also against the 7th Respondent therein (Election Petitioner) and obtained necessary orders. Likewise, she also filed Crl.O.P.No.8956 of 2011 before this Court seeking a direction to the 2nd Respondent (Inspector of Police, Guduvancheery Police Station, Kancheepuram District) to register an F.I.R. on the basis of her complaint dated 11.02.2011, which was forwarded by the Superintendent of Police, Kancheepuram District (1st Respondent) and the complaint dated 08.04.2011 forthwith and to investigate the same. In the said Crl.O.P., an order was passed by this Court on 11.04.2011 (Ex.P26) to register a case if the respondents thereto find a cognizable offence being made out and provide protection to her, his family members etc. 69.14.As regards Ex.P26 order passed by this Court on 11.04.2011 in Crl.O.P.No.8956 of 2011 filed by Kumudha (Petitioner therein), this Court had only passed orders in issuing directions to the Respondents therein that '... in the event of the respondents finding that cognizable offence stands made out, they shall register a case and provide the protection to the Petitioner, her family members as also to property as may be necessary' and the said Judicial Order cannot be denied and this order also does not simpliciter make any reflection on the moral or mental qualities of the Petitioner.
69.15.Although it is the stand of the Petitioner that the order of this Court in W.P.No.9019 of 2011 dated 08.04.2011 viz., Ex.P23 was misinterpreted in the Newspapers and the photocopies of the same was distributed as Pamphlets to each and every house of Kolathur Constituency and Ex.P27 is the aforesaid news item distributed as a Pamphlet, the same being said to be a false one and that it is the handwork of the 1st Respondent and his election agent V.S.Ravi, this Court, at this stage, refers to the evidence of R.W.3 (1st Respondent), who had deposed that there is no necessity for him to defame the Election Petitioner (P.W.1) by using the Writ Petitioner (Kumudha) and also he had stated that he had not seen the said Kumudha.
69.16.Further, Ex.P27 (news item published in Tamil Murasu newspaper dated 08.04.2011) mentions the name of Ta.Kumudha of Kancheepuram District. In Ex.P27, the name of the Printer was mentioned as 'Shree Balaji Printers Pvt. Ltd., Chennai 83'. As a matter of fact, the Proprietor of the said Printer was not examined before this Court. Even the said Kumudha (Writ Petitioner in W.P.No.9019 of 2011) was also not examined before this Court even as a Court witness to show that Ex.P27 Pamphlet containing news item of 08.04.0211 Tamil Newspaper Murasu (Ex.P45) was issued/ distributed by her that too with her consent, her knowledge with a reasonably calculated objective/purpose to prejudice the prospects of the Petitioner's Election.
69.17.In regard to Ex.P27 and Ex.P45 News item published on 08.04.2011, this Court is of the considered view that the order passed by this Court in W.P.No.9019 of 2011 dated 08.04.2011 directing the District Collector (2nd Respondent therein) to consider the representation of the Petitioner dated 22.02.2011 and to pass appropriate orders on merits and in accordance with law etc. cannot be denied. In fact, the order passed by this Court at para 4 of W.P.No.9019 of 2011 are true one and not an exaggerated one. Further, in the said order, the High Court has only directed the 2nd Respondent to pass appropriate orders on the Writ Petitioner's representation dated 22.02.2011, after hearing the Petitioner therein as well as the Respondents 5 to 7 (7th Respondent therein is the Election Petitioner). As such, the order (Ex.P23) passed by this Court [published in Ex.P27 and Ex.P45] cannot by any means said to be an one reflecting either the personal character or conduct of the Petitioner or his moral or mental qualities.
69.18.Even though the Petitioner has come out with a plea that Ex.P45 News item published in Tamil Murasu dated 08.04.0211 was a false one and it is the handwork of the 1st Respondent and his election agent V.S.Ravi, this Court holds that the Petitioner has not established to the subjective satisfaction of this Court that the said news item, which was published, is the handwork of the 1st Respondent or his election agent. That apart, the Petitioner had not proved before this Court that the 1st Respondent or his election agent given his consent either overtly or covertly or tacitly that primarily they were responsible for publication of the news item (Ex.P45).
69.19.In regard to the allegation of the Petitioner that the 1st Respondent or his election agent V.S.Ravi committed an illegal act of circulating Xerox copies of such news item appeared in daily dated 08.04.0211 as of bit notices (Ex.P27 Pamphlet) in the name of the said Kumudha in all the wards of Kolathur Constituency area, this Court holds that the Petitioner had not established to the subjective satisfaction of this Court that the so-called Ex.P27 Pamphlet was distributed by the 1st Respondent or his agent and further, it was also not proved on behalf of the Petitioner that the 1st Respondent had given his consent to DMK party workers to circulate the said notice in an unethical manner.
69.20.Dealing with the aspect of the 1st Respondent's family owned T.V. channel 'Kalaingar T.V.' aired the news item published on 08.04.2011 in Tamil Murasu, on 08.04.2011 night constantly as if this Court directed the Collector of Kancheepuram to consider an alleged complaint of Mrs.Kumudha in the manner of assassinating the character of the Petitioner and to reduce his chances of success of winning the election and further, the 1st Respondent through 'Kalaignar T.V.' on 11.04.2011 again aired another news item about a direction purported to have been given by this Court to register the case against the Petitioner based on the complaint said to have been given by Mrs.Kumudha, this Court holds that it is not established on the side of the Petitioner that the 1st Respondent was responsible or gave his consent or with his knowledge for the said news channel Kalaingar T.V. to air the news item published (relating to the complaint of Kumudha) in Tamil Murasu dated 08.04.2011 and suddenly on 11.04.2011 to air another news item in regard to the direction issued by this Court to register a case against the Petitioner based on the purported complaint given by Kumudha.
69.21.That apart, in the instant case, no evidence was let in on the side of the Petitioner to show that the names of alleged workers of the DMK party, who purportedly distributed the Leaflets/Pamphlets. Even otherwise, the pamphlets/leaflets - Ex.P27 (the same being published in Ex.P45) containing the news item so published are not adequate enough to make out a case of use of 'corrupt practice' under Section 123 of the Representation of the People Act, 1951, in the considered opinion of this Court.
(d) Counting:
70.Petitioner's Contentions:
70.1.Dealing with subject of Counting, the Learned Senior Counsel for the Petitioner refers to the evidence of P.W.1 (Election Petitioner) that after the votes were cast, the EVMs of each election booth were taken to the counting centre at Loyola College and that the counting for Kolathur Constituency took place at Loyola College on 13.05.2011 and he was present at the said college and that all the people who were engaged in election work were given training and pamphlets containing guidelines given by the Election Commission were distributed to them and Ex.P19 (37 pages) are the statements and details about the rounds of counting and Form 20.
70.2.The Learned Senior Counsel for the Petitioner proceeds to advert to the evidence of P.W.1, who had deposed that at the end of each round, the votes obtained by each candidate in each table would be given to the Returning Officer and he would total all the votes obtained by each candidate in all the tables and would display the results for each round on a blackboard and when the 9th round of votes were counted for Kolathur Constituency, two EVMs on opening displayed 'invalid' and immediately, his agent informed that the EVM displayed 'invalid' and he in turn immediately informed the election observer that two of the EVMs had displayed 'invalid' and told him that he had to take action as per Election Commission's rules and regulations.
70.3.Further, the Learned Senior Counsel for the Petitioner refers to the evidence of P.W.1, who stated that since he spoke in Tamil, he does not know whether the election observer understood what he told him and that in a case where, an EVM does not work they had to take action as per the rules and regulations of the Election Commission and only then continue with the counting. Moreover, the Petitioner had asked them to bring in the person who would repair the EVM, but they had not heeded to his request and instead they took the next EVM to the table and continued with the counting and Ex.P20 series are the results for table Nos.3 and 5 for Round 9 of counting of Kolathur Constituency.
70.4.The Learned Senior Counsel for the Petitioner points out that Ex.P21 is the results for table No.9 for Round 16 of Kolathur Constituency. Ex.P22 series are the results for table Nos.2 and 4 for Round 19 of Kolathur Constituency and after the 19th round were completed, 5 EVMs were counted as supplementary and which is in violation of the Election Commission's rules and regulations and that counting for the 5 EVMs were not recorded properly and correctly and that the serial numbers of the EVMs used for supplementary counting were 52-A(W), 53-A(W), 105-M, 123-A(W) and 125-M and that the supplementary counting was the process invented for Kolathur Constituency and that as per the Election Commission's rules only 19 rounds were supposed to be counted and there is no such provision as supplementary counting in the electoral rules and since he was not present and therefore, he does not know whether the EVMs were opened and votes were counted in the supplementary counting and further, he does not know whether the Returning Officer has got powers to order supplementary counting, but he enquired about the same, he was informed that there was no such provision in the electoral rules and as per the electoral rules, in case of an EVM dysfunction, counting should progress only after a technical expert repairs the same. But, in this case, counting progressed in violation of the electoral rules.
70.5.The Learned Senior Counsel for the Petitioner refers to the evidence of P.W.1, who had deposed that even though he had insisted continuously that the counting of votes in 9th, 14th and 19th rounds were not proper, the counting continued in violation of the rules and regulations of the Election Commission and that as per the rules and regulations of the Election Commission, only after the counting of each round was completed, the next round should be started and further, in the 14th round, there was difference between the number on the EVM box and the number of the EVM stuck on the table for counting and since there was differences in numbers on the EVMs and the number stuck on the table and also because some EVMs showed display as 'invalid' almost all the parties except the DMK raised objection and that the Returning Officer was only keen on completing the counting of votes but was not interested in listening to the requests made by them or to find solutions for the same and that no action was taken by the Returning Officer on the request made by their lawyers asking for the counting to be stopped or to set right the dysfunctional EVMs etc. 70.6.The Learned Senior Counsel for the Petitioner points out to the evidence of P.W.1, who had stated that the Election Commission's assurance that each vote cast in the EVMs would be counted and that the entire counting process would be video graphed was not followed is clear from the CD obtained from the Election Commission (Exs.C13 & C14 marked through C.W.2) and further that, the video does not contain as to how the dysfunctional EVMs were repaired and how the votes cast in them were counted and that the election officials at the counting centre acted in favour of the then Deputy Chief Minister (1st Respondent) by violating the rules and regulations to ensure his success.
70.7.The Learned Senior Counsel for the Petitioner refers to the evidence of P.W.1, who had deposed that he had written a letter dated 13.05.2011 (Ex.P32) addressed to the Chief Electoral Officer, Election Observer and Returning Officer to stop the counting of votes and in the said letter, he had explained the reasons as to why the counting should be stopped but the counting was not stopped and that in Ex.P14, the Election Officer gave the following answers to his questions in column No.3 that there were 11 EVMs for each round; 19 rounds in total and that the total number of EVMs were 203 and in Page No.3 of Ex.P14, in column No.8, it is indicated that 'the copy of the order of the request of Mr.Saidai R.Duraisamy seeking re-count of votes in Kolathur Assembly Constituency and the answer for which was given as 'no such request for re-counting of votes was received'.
70.8.The Learned Senior Counsel for the Petitioner adverts to the evidence of P.W.1, who had deposed that it is correct to state that in eleventh item in the letter dated 25.06.2011 send by him to the Chief Election Officer (Ex.P8) and the CDs referred to in Ex.P14 are one and the same and further in Ex.P8, he had asked for the CDs recorded during the counting process but the CDs referred in para 7 of Ex.P10 are for each counting table etc. 71.1st Respondent's Reply Submissions:
71.1.The Learned Senior Counsel for the 1st Respondent refers to paragraphs 24 & 25 of the counter of the 1st Respondent (R.W.3) and points out that the 1st Respondent had averred that since the Petitioner's objections before the Returning Officer on 13.05.2011 to stop the process of counting and order re-poll in certain wards was against the directives and rules of the Election Commission, it was rightly denied by the Returning Officer and further that, there was no supplementary counting that took place in Kolathur Constituency.
71.2.Further, it is projected on the side of the 1st Respondent that at para 25 of the counter, the 1st Respondent, had, among other things, mentioned that there were in all 203 EVMs fro Kolathur Constituency and that the counting was done in 19 rounds and in the first 18 rounds, 11 EVMs were counted in each round and in the 19th round, the balance 5 EVMs were counted and further, on completion of 18th round, he was leading by 2100 votes as compared to the Petitioner etc. Also, the 1st Respondent had averred at para 25 of his counter, that the Petitioner made a false complaint (Ex.P32) before the Returning Officer stating that the three disputed EVMs were not to be counted and asked for re-poll for booths 52(W), 53(W) and 105(AW) and that the disputed three EVMs along with the two undisputed EVMs were counted at about 9.00 p.m. on 13.05.2011 and after taking into account the votes cast in the said three EVMs, it was found that the Petitioner had lost the election by a margin of 2423 votes and not by a margin of 2739 votes.
71.3.Apart from the above, the Learned Senior Counsel for the 1st Respondent takes a stand that at para 74 of the counter, the 1st Respondent had averred, among other things, that the Petitioner received a reply for his R.T.I. Application dated 26.05.2011 and the Returning Officer, in his reply to question No.3, in his letter dated 14.06.2011, had answered that none of the EVMs were faulty on the day of counting.
71.4.The Learned Senior Counsel for the 1st Respondent submits that the 1st Respondent, in his counter at para 79, had denied in so far as the averment of the Petitioner that the Returning Officer or the officials allegedly deployed from Corporation of Chennai acted in an unfair manner or completed the three rounds of counting from 16th to 19th rounds in the absence of the Petitioner or that any supplementary counting took place in the absence of the Petitioner.
71.5.The Learned Senior Counsel for the 1st Respondent cites the decision of the Hon'ble Supreme Court in Baldev Singh V. Shinder Pal Singh and another, (2007) 1 SCC 341, wherein it is held that 're-counting of votes should not ordinarily be directed'.
72.Analysis:
72.1.At the outset, it is to be pointed out that it is for the Petitioner to prove by positive means or even reasonably that the poll would have turned against the Returned Candidate, if the violations had not taken place. In fact, in an Election Petition, the real contest is between the constituency on the one side and the Complaining Party on the other side.
72.2.In a 'Parliamentary Democracy' in regard to the Conduct of Election, it is to be ensured that the candidate does not obtain the precious votes of the voters by committing/indulging an act of 'Bribery', 'Undue Influence', 'Fraud', 'Communal Propaganda' etc., as contemplated under the Representation of the People Act, 1951.
72.3.It is to be borne in mind that a mere 'Hope of Votes' to be polled in favour of the Petitioner cannot form a cementing platform for rendering the election of Returned Candidate be declared void.
73.4.At this juncture, this Court aptly points out the decision of the Hon'ble Supreme Court in Beliram Bhalaik V. Jai Behari Lal Khachi and another, AIR 1975 Supreme Court 283, it is observed as follows:
Since an order for recount touches upon the secretary of the ballot, it should not be made lightly or as a matter of course. The court would be justified in ordering a recount or permitting inspection of the ballot papers only where all the material facts on which the allegations of irregularity or illegality in counting are founded, pleaded adequately in the election petition, and the court trying the petition is prima facie satisfied that the making of such an order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties. Mere allegations that the petitioner suspects or believes that there has been improper reception, refusal or rejection of votes or there have been irregularities in the counting of ballot papers will not be sufficient to support an order of recount and inspection (1964) 6 SCR 238; AIR 1966 SC 7873; (1970) 1 SCR 852 and AIR 1973 SC 215, Foll. (Paras 45, 46) In the instant case the allegations in the petition were not precise. They were mostly general and vague floating on suspicions and beliefs of the petitioner. The High Court was justified in rejecting the request for a recount. 73.5.In the present case, although the Petitioner has levelled allegation that the Returning Officer of Kolathur Constituency acted in a partial and arbitrary manner along with the Chennai Corporation officials counting duty to secure the success of the 1st Respondent declared as Returned Candidate and further plea of the Petitioner that the counting officials had even conducted supplementary counting surreptitiously in respect of 5 EVMs after completion of 19th round without the permission of Election Commission of India etc., this Court is of the considered view that the Returning Officer by means of Ex.P14 had given a reply in serial No.3 to the letter of the Petitioner dated 26.05.2011, stating that none of the voting machines were faulty, on the day of counting viz., 13.05.2011 and further, he had mentioned that booth slips were distributed in all the wards in Kolathur Constituency etc. As such, the contra plea taken on behalf of the Petitioner in this regard is negatived by this Court.
73.6.As regards the plea of supplementary counting surreptitiously conducted by the counting officials in respect of 5 EVMs after completion of 19th round, the 1st Respondent, in his counter at paragraph 25, had, inter alia, mentioned that the Petitioner submitted a false complaint before the Returning Officer stating that the three disputed EVMs were not to be counted and asked for re-poll for booths 52(W), 53(W) and 105(AW) and therefore, the disputed three EVMs along with the two undisputed EVMs were counted at about 9.00 p.m. on 13.05.2011 etc., which is also reiterated by him in his evidence before this Court. Therefore, the allegation of the Petitioner that the Returning Officer and Counting Officials had conducted even a supplementary counting surreptitiously in respect of 5 EVMs after completion of 19th round without the permission of the Election Commission of India, sans merits.
73.7.In so far as the allegation of the Petitioner that the Returning Officer and his officials proceeded with the counting process to the next round contrary to the directions and order passed by the Election Commission of India, the 1st Respondent, in his counter at paragraph 74, had stated that the Chief Election Officer deputed the DEO to the counting centre and after due verification of the EVMs which were carried out by DEO and the Returning Officer in the presence of the Petitioner and his agent, counting was commenced and that the Petitioner left the place after coming to know that none of the EVMs were faulty.
73.8.Dealing with the allegation of the Petitioner that Exs.C13 & C14 - CDs provided by the Election Commission of India relating to the counting process that took place on 13.05.2011 does not reflect the correct recording of the events or appear to be an edited one and further, in regard to the other allegation of the Petitioner that the Returning Officer played fraud on power and acted in an illegal manner to secure the success of the 1st Respondent, this Court, taking note of the fact that the CDs (Exs.C13 & C14) were taken by the officials, who are on duty, [on behalf of the Election Commission of India], based on instructions and that they had performed their solemn and sacred duty in an electoral process [with a view to preserve and maintain the purity and sanctity of an election] and also when the said CDs are produced from lawful source, custody with authenticity and accuracy, the contra allegations in this regard does not hold good and further they remain unsubstantiated.
Disposition:
74.In view of the aforesaid detailed consideration of respective contentions coupled with the discussions, it is held by this Court that the Election Petitioner is not entitled to seek a relief of Declaration that the Election of the 1st Respondent/Returned Candidate is void and further that, he is not entitled to seek a relief of further Declaration that he has been validly elected to the Tamil Nadu Legislative Assembly from No.13, Kolathur Assembly Constituency in the Election held on 13.04.2011 and the points are so answered accordingly.
Result:
75.In fine, the Election Petition is dismissed. Considering the facts and circumstances of the entire conspectus of the present case, this Court, exercising its thinking Judicial discretion, directs the parties to bear their own costs.
76.Before parting with the case, this Court pertinently points that an Election Petition/Dispute should be determined expeditiously. Even in the decision of the Hon'ble Supreme Court in Harish Chandra Bajpai and another V. Triloki Singh and another, AIR 1957 SC 444 at special page 448 (V 44 C 66 May), it is laid down that 'Public interests equally demanded that election disputes should be determined with dispatch. That is the reason why a special jurisdiction is created and Tribunals are constituted for the trial of Election Petitions'.
77.In this connection, this Court worth recalls and recollects the Judgment of the Hon'ble Supreme Court dated 27.12.2015 in C.A.Nos.2538-40 of 2015 (Arising out of SLP(C) Nos.2487-2489 of 2015) [reported in 2015(3) SCALE 107 between Mohd. Akbar V. Ashok Sahu and others] wherein at paragraph 14, it is observed as follows:
14.We therefore deem it desirable that in each High Court dedicated Benches are created by the Chief Justice to deal with the election petitions exclusively. In other words, those judges assigned with the adjudication of election petitions preferably may not be burdened with any other work until the adjudication of the election petitions is completed. An exercise which may not be difficult especially the class of litigation occurs only once in 5 or 6 years and the number of cases would be very limited. We are conscious of the fact that it is not possible for laying down any absolute rules in this regard. Essentially it is for a Chief Justice of the High Court to run the administration and devise ways and means for expeditiously disposing of the cases brought before the High Court. We only gently remind that the kind of delay in the adjudication of election disputes exposes the High Court's unpleasant criticism damaging the credibility of the institution. A situation which is certainly required to be avoided at any cost.
78.In fact, Section 86(2)(3) of the Representation of the People Act, 1951 enjoin as under:
86.Trial of election petitions. -
(2) As soon as may be after an election petition has been presented to the High Court, it shall be referred to the Judge or one of the Judges who has or have been assigned by the Chief Justice for the trial of election petitions under sub-section (2) of Section 80-A. (3) Where more election petitions than one are presented to the High Court in respect of the same election, all of them shall be referred for trial to the same Judge who may, in his discretion, try them separately or in one or more groups.
79.Further, Section 86(6) visualises that 'The trial of an election petition shall, so far as is practicable consistently with the interests of justice in respect of the trial, be continued from day to day until its conclusion, unless the High Court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded'. Moreover, Section 86(7) of the Act deals as under:
(7) Every election petition shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months from the date on which the election petition is presented to the High Court for trial.
80.In this regard, this Court pertinently points out that the Rules of the Madras High Court Election Petitions, 1967 (P.DIS. No.151 of 1967), Rule 1(c) enjoins as follows:
(c) the Judge means the Judge of the High Court assigned by the Chief Justice of the High Court under Section 80-A(2) of the Act, for the trial of Election Petitions.
81.That apart, Rule 12 of the Madras High Court Election Petitions, 1967 runs as under:
R.12. Subject to the foregoing rules and to the extent they are not inconsistent with the provisions of the Act, the Rules of the High court, 1956 (Original Side) shall, as far as practicable, be observed in all Election Petitions and all applications taken in respect of them.
82.It is to be pointed out that listing the Election Petition in regard to the conduct of trial once in a week is not a palatable one, in the considered opinion of this court, since the same will not achieve the desired objective of the ingredient of Section 86(6) of the Representation of the People Act, 1951.
83.Suffice it for this Court to point out that the Rules of this Court on Election Petitions, 1967 are silent as to the conclusion of the trial of the every Election Petition within six months from the date on which the said Election Petition is presented to the High Court for 'conduct of trial'. Therefore, an endeavour in right earnestness must be made to insert a necessary rule, by bringing the Amendment to the Rules of the Madras High Court Election Petitions, 1967, so as to keep in conformity with the Section 86(7) of the Representation of the People Act, 1951; also, a rule similar to the ingredients of Section 86(6) of the Representation of the People Act, 1951 may be inserted and brought in by the High Court in the aforesaid Rules of the Madras High Court Election Petitions, 1967. Viewed in that perspective, this Court opines that only then, the ingredients of the Representation of the People Act, 1951 will become a more effective and efficacious one [rather than to remain as a Black Letter Law] with a view to achieve the desired Aim and Purpose of the Act, 1951, in regard to the complete and comprehensive adjudication of Election Dispute assigned to the concerned designated Judge/Tribunal within the prescribed time, of course, bearing in mind that this type of litigation occurs once in a Blue Moon [thereby rudimentarily not to give room for elongating or precipitating or procrastinating the Election Petition proceedings beyond the specified period under the Representation of People Act, 1951, so as to hang like a 'Damocle sword' and reminding one that an 'Homo Sapien Litigant' is Mortal and 'Litigation' is Immortal in our Processual System of Jurisprudence].
01.06.2017
Speaking Order
Index : Yes
Internet : Yes
Sgl/Ssd
Note :
The Office of the Registry is directed to append
the List of Witnesses examined and the Documents
marked, duly signed by the Court Officer and
the Assistant Registrar II (Elections).
To
1.The Registrar (Judicial)
High Court, Madras.
(For Favour of Information
and necessary action)
2.The Hon'ble Speaker,
Tamil Nadu Legislative Assembly,
Chennai.
[Through Secretary, TN Legislative
Assembly, Chennai 2]
3.The Election Commission of India,
Through its Secretary,
New Delhi.
M.VENUGOPAL,J.
Sgl
PRE DELIVERY ORDER IN
Election Petition No.1 of 2011
01.06.2017
http://www.judis.nic.in