IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 1ST JULY 2010 / 10TH ASHADHA 1932 CRP.No. 51 of 2010() -------------------- AS.61/2009 of DISTRICT COURT,THODUPUZHA EP.9/2005 of MUNISIFF MAGISTRATE COURT, DEVICOLAM .................... REVN. PETITIONER/ APPELLANT/RESPONDENT: ----------------------------------------- SMT.JAYANTHI RAJAIAH, W/O.RAJAIAH, RESIDING AT NAGAMALLA DIVISION, UPPER SURIANELLY ESTATE, UDUMBANCHOLA TALUK. BY ADV. SRI.SIBY MATHEW SMT.ANEY PAUL SRI.PHILIP J.VETTICKATTU SRI.B.PREMNATH (E) RESPONDENTS/ RESPONDENTS/PETITIONERS -------------------------------------- 1. SMT.SREEDEVI ANPURAJ, W/O.ANPURAJ, RESIDING AT UPPER SURIANELLY KARA, SURIANELLY P.O., CHINNAKANAL VILLAGE OF UDUMBANCHOLA TALUK. 2. SMT.ANTHONIAMMAL, AGED ABOUT 38 YEARS, RESIDING AT NAGAMALA DIVISION, W/O.SAMUTHRAPANDY, -DO- -DO- ADV. SRI.TITUS MANI FOR R1 SRI.P.M.JOHNY FOR R1 SRI.T.G.RAGESH FOR R2 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- C.R.P.No.51 of 2010 --------------------------------------- Dated this 01st day of July, 2010 ORDER Petitioner and respondent Nos.1 and 2 contested election from ward No.5 of Chinnakkanal Grama Panchayath in Idukki district held on 24-09-2005. Petitioner got 281 votes while respondent No.1 got 279 votes. Respondent No.2 got 120 votes. 16 votes were declared invalid. Petitioner was declared elected, as against his nearest rival, respondent No.1. Respondent No.1 filed O.P.(El.) No.9 of 2005 in the court of learned Munsiff, Devicolam challenging election of petitioner on various grounds including that the published voters list is in violation of Sections 18 to 21 of the Kerala Panchayath Raj Act (for short, “the Act”), six electors were disqualified to vote in the election and that five electors voted in two wards, those votes went in favour of petitioner and that has materially affected result of the election. Learned Munsiff held that Pws.3 and 6 to 9 were engaged in double voting, those votes are to be excluded and thereon respondent No.1 secured 2 votes more than petitioner and accordingly respondent No.1 was declared elected. Learned District Judge has confirmed that decision. Hence this revision. 2. It is contended by learned counsel for petitioner that C.R.P.No.51 of 2010 : 2 : the vote of PW7 who was given up by respondent No.1 could not have been reckoned. Except PW3, none of the other witnesses (PWs.6, 8 and 9) have admitted that they have voted in 2 wards and what remained is only comparison of their disputed signature by the courts below which alone is not sufficient to find in favour of double voting. Learned counsel has argued that comparison of the disputed signature by the court is not a safe method and the finding based on such comparison is not acceptable. Reliance is placed on the decision in Thiruvengada Pillai Vs. Navaneethammal (2008(2) KLT 267). Learned counsel contended that the courts below have made much reliance on the evidence of Pws.2 and 10 to find in favour of alleged double voting by PWs.3, 6, 8 and 9. It is also contended by learned counsel that appreciation of evidence made by the courts below is thoroughly wrong in that the fact that Pws.6, 8 and 9 had not admitted double voting was not taken into account. So far as PW.3 is concerned, it is contended that though she admitted that she voted in 2 wards including ward No.5, courts below went wrong in accepting her evidence as such since it came out in evidence that she is an illiterate, poor lady and her husband had close contacts with respondent No.1. In response it is contended by learned counsel for respondent No.1 that this court sitting in revision is not required to re appraise evidence which is the function of appellate C.R.P.No.51 of 2010 : 3 : court and that revisional court need only decide whether there is any illegality or irregularity committed by the courts below or the findings are perverse and reference to the evidence should be for the limited purpose of ascertaining whether judgment/order of the court below suffer from any such illegality, irregularity or perversity. Learned counsel says that evidence of PWs.3, 6, 8 and 9 would unerringly show that they indulged in double voting including in ward No.5. Evidence of PWs.2 to 10 corroborated that version. According to the learned counsel, in election disputes it is well within the power of courts to compare the disputed signature with the admitted one’s and based on the other evidence on record come to appropriate conclusions. It is pointed out that since it involved public interest, the time consuming procedure of obtaining report of an expert on the disputed signature which itself is only advisory in nature is not required to be resorted to. Reliance is placed on the decision of Supreme Court in 1994(1) KLT 887 (Neelalohithadasan Nadar Vs. George Mascrene). 3. Bearing in mind the scope of revision, I shall refer to the evidence of the material witnesses to ascertain whether judgment/order under challenge suffer from any illegality, irregularity or perversity requiring interference by the revisional court. So far as PW7 is concerned, she was given up in the box C.R.P.No.51 of 2010 : 4 : and hence allegation of double voting by her is not established. What remained is the evidence of PWs.3, 6, 8 and 9. 4. It is admitted by PW3 and proved by respondent No.1 that PW3 is a voter in ward Nos.5 and 6 of the same Grama Panchayath. Exts.A7 and A8 are the voters lists for ward Nos.5 and 6, respectively and Ext.A7(a) and A8(a) relate to PW3 as a voter in the said wards. PW3 admitted that she voted in ward Nos.5 and 6 in the election held on 24-09-2005. She stated that she is a resident of ward No.6 and the name of her husband is 'Sakthivel' while her father’s name is 'Mukkayya'. She is known as 'Mariamma' and 'Mariammal'. In Exts.A7(a) relating to ward No.5, serial No.425 is 'Mariammal' and in the column for name of husband/father, what is written is 'Mukkayya'. House name of the elector is given as 'Harison Malayam'. In Ext.A8(a) relating to ward No.6, serial No.279 is 'Mariamma'. It does not give her house name but in the column for name of husband/father, what is written is 'Sakthivel'. Thus identity of PW3 in the voters list for ward Nos.5 and 6 is admitted and proved by documentary evidence. PW3 stated that earlier she was residing in ward No.5. Now she is residing in ward No.6. Her name is included in the voters list for ward No.6. She has voted in ward Nos.5 and 6 (in the election on 24-09-2005). She was taken to the booths assuring that she need not have to face any problem. Her husband and the C.R.P.No.51 of 2010 : 5 : Supervisor (of the place where she works) assured her of all help. Exts.X7 and X8 are the counter foils of ballot papers issued to PW3 in ward Nos.5 and 6. She stated when she was confronted with her signature in the counter foils that she can sign slowly but when she has to sign hurriedly she used to place her thumb impression also. PW10 is the processor of the court of learned Munsiff who served summons on the witnesses including PW3. Ext.A6 is served summons on PW3 and it contains her signature. In Exts.X7 and X8 and in the deposition of PW3 her thumb impression also is given. I stated that PW3 admitted that she voted in two wards. Learned Counsel for petitioner would contend that the said statement of PW3 cannot be taken for its face value since she is a tutored witness as can be revealed from her evidence but, learned Munsiff and learned District Judge (referring to the evidence of PW3) have held that there is no reason to disbelieve PW3. I was also taken through the evidence of PW3. True, she is illiterate but it has come out from her that her husband and the supervisor took her in a jeep to the two booths assuring that she will not have any problem and accordingly she voted in ward No.5 and 6. Evidence of PW3 that she voted in two wards gets corroboration from Exts.A6, A7, A7(a), A8(a), X7 and X8. Courts below accepted that evidence and sitting in revision I do not find reason to interfere. C.R.P.No.51 of 2010 : 6 : 5. Next is PW6 (Anthoniyammal). She admitted that she is an elector in ward No.5. Exts.A1 and A9 are voters lists for ward No.5 and Exts.A1(a) and A9(a) are the relevant entries in the said voters lists concerning PW6. She has admitted her address in Exts.A1 and A9(a). She also figures as an elector in ward No.9, according to the respondent No.1 Ext.A10 is the voters list for ward No.9 and Exts.A10(a) is the entry allegedly relating to PW6 in the said ward. In Exts.A1(a) and A9(a) (relating to ward No.5) serial No.334 is 'Anthoniyammal' and her house name is given as 'Harison Malayalam'. The column for name of husband/parent of the elector remains blank. Ext.A10(a) (for ward No.9) states that serial No.180 is 'Anthoniyammal' and her house name is given as ‘Harison Malayalam’. In the column for name of husband/parent, what is written is 'Gandhi'. PW6 has admitted that her place of birth is Suryanelli in ward No.5. She also admitted that since recently onwards she is residing in ward No.9. Thus, though there is slight difference in the house number and age, reading Exts.A1 (a) and A9(a) along with Ext.A10(a) and taking the admission of PW6 that her place of birth is ward No.5 and since recently onwards she is residing in ward No.9, identity of the voter in Exts.A1(a) and A9(a) with Ext.A10(a) is established as correctly found by the courts below. Both relate to PW6. 6. PW6 admitted that she exercised her franchise in ward C.R.P.No.51 of 2010 : 7 : No.5. Ext.X1 is the counter foil of her ballot paper in ward No.5. PW6 admitted her thumb impression in Exts.X1. Ext.X9 is counter foil of ballot paper issued to the voter bearing serial No.118 as per Ext.A10(a), 'Anthoniammal' in ward No.9. When she was confronted with the thumb impression in Ext.X9 she stated that she does not know whether it is her thumb impression (she has not denied that). She claimed that she is illiterate, cannot read and sign. But it is seen from Ext.X9 that the elector has signed on that counter foil. She denied that signature. She denied voting in ward No.9. 7. Respondent No.1 examined PWs.2 and 10 to prove that PW6 has voted in both the wards. PW2 was the booth agent of a political party in ward No.9. PW2 stated that PW6 is known to him personally and that she is the voter in the serial number shown in Ext.A4(a) (copy of voters list given to PW2, booth agent) for ward No.9 which corresponds to Exts.A10(a). PW2 has given evidence that PW6 exercised her vote in ward No.9. PW6 came with her identity card and exercised her vote in ward No.9. PW2 stated that PW6 is the wife of 'Gandhi' (referred to in the column for name of husband/parent in Exts.A4(a) and A10(a). PW10 is the processor of court of learned Munsiff. Ext.A6 is the served summons on PW6. It contained the signature of PW6 against her name. Courts below compared signature in Ext.X9, counter foil for C.R.P.No.51 of 2010 : 8 : the ballot paper issued to the elector in Exts.A4(a) and A10(a) (which I stated is PW6) with Ext.A6 and came to the conclusion that the signatures tallied. From the above said evidence courts below came to the conclusion that notwithstanding the denial of double voting by PW6, there is evidence to show that she has voted in ward Nos.5 and 9. I find from the judgment/order of the courts below that apart from evidence of PWs.2, 6 and 10 and relevant documents, comparison of disputed signature in Ext.X9 with the admitted signature in Ext.A6 was also done to hold that signature in Ext.X9 (for ward No.9) is that of PW6. It is not shown that courts below have committed any illegality or irregularity in appreciating the evidence of these witnesses in reaching that conclusion. 8. Then came PWs.8 and 9 husband and wife. PW8 is 'Balasubramanian' and PW9 is 'Velammal'. Ext.A1 is voters list of ward No.5 and Ext.A11 is that of ward No.7. Ext.A9 is voters list for ward No.5 containing the mark in red ink as to the persons who exercised votes in ward No.5. In Ext.A9, (for ward No.5) serial No.103 is 'Balasubramanian' and serial No.106 is 'Velammal'. Their house name is given as 'Harison Malayalam'. In Ext.A11 relating to ward No.7, serial No. 24 and 25 are 'Balasubramanian' and 'Velammal' and their house name is given as 'Thideernagar'. In Exts.A9 and A11 as the aforesaid, Balasubramanian is described as C.R.P.No.51 of 2010 : 9 : son of 'Kadakara' and Velammal as wife of 'Balasubramanian'. PW8 stated that he is residing at Nagamala in ward No.5. He state that he owns 10 (ten) cents in Thideernagar which is in ward No.7 and has a store building in the said property. The door number of that store building is '60'. He states that his father’s name is Kadakara. PW8 has admitted his name and address in Exts.A1 and A11 (voters list for ward Nos.5 and 7) under serial Nos.103 and 24, respectively. PW9, it is not disputed is the wife of PW8 and residing with him. It is also seen from serial Nos.103 and 106 in Ext.A1 and serial Nos.24 and 25 in Ext.A9 that 'Balasubramanian' and wife 'Velammal' are residing in the same house. Thus identity of PWs.8 and 9 as voters in ward Nos. 5 and 7 under sl.Nos.103 and 106 of ward No.5 and sl.Nos.24 and 25 of ward No.7 is proved. 9. Now I shall consider the alleged double voting by PW8. Ext.X3 is the counter foil of the ballot paper of ward No.5 issued toPW8. PW8 admitted that he signed Ext.X3 for ward No.5. Ext.X4 is the counter foil of ballot paper for ward No.7 issued to serial number 24 in Ext.A11(Balasubramanian). PW8 has denied signature in Ext.X4. He denied voting in ward No.7. But, when he was confronted with the signature in Ext.X4 (for ward No.7) he had to concede that disputed signature in Ext.X4 appears to be identical with his signature in Ext.X3 (for ward No.5) but of course he would add that the signature in Exts.X3 and X4 are not the C.R.P.No.51 of 2010 : 10 : same. Learned Munsiff and the appellate court have compared the signatures in Exts.X3 and X4 and has come to the conclusion that those signatures are of the same person. Learned District Judge after perusing Exts.X3 and X4 has observed that a mere look at the said signatures show that it is of same person. 10. Now it is PW9, wife of PW8. PW9 at the relevant time was residing with PW8. PW9 also admitted that she is the voter referred to in Ext.A1(b) for ward No.5. She admitted that Ext.A3(b) is (concerning her) in relation to ward No.7. Though she denied her identity as an elector in ward No.5, she admitted that she has voted in ward No.5. Ext.X6 is the counter foil for the ballot paper issued to PW9 in ward No.5. When Ext.X6 was shown to her she stated that she does not remember whether she has affixed her signature or thumb impression in Ext.X6. But in further cross examination she stated that she has affixed her thumb impression in it. She admitted that Ext.X5, counter foil for ballot paper in ward No.7 contained her signature. The plea of ignorance made by PW9 as regards signature in Ext.X6, counter foil for ballot paper of ward No.5 cannot be taken on its face value as she has admitted that she has franchise in ward No.5 and Ext.X6, counter foil of ballot paper was issued to her in that ward and as she has admitted her signature in Ext.X5 relating to ward No.5. Though she stated that she does not remember whether she signed or C.R.P.No.51 of 2010 : 11 : placed thumb impression in Ext.X6, it is seen from her deposition that she has signed the pages and in some pages her thumb impression is also placed. She stated that she does not have the habit of putting her signature. Learned District Judge after referring to the evidence of PW9 stated that her version that she does not remember whether she signed or placed thumb impression (in Ext.X6) is a total falsehood. Thus, it is from the admission of PW9 as to her having voted in ward No.5 and her own admission that she has signed Ext.X6 (counter foil of ballot paper in ward No.7) that the courts below came to the conclusion that PW9 has indulged in double voting. 11. Then the question is whether courts below are justified in comparing the disputed signature with the admitted one's. Learned counsel for petitioner has relied on the decision in Thiruvengada Pillai Vs. Navaneethammal (supra) in support of her argument that court must be slow to take decision merely on comparison of signature. No doubt, Section 73 of the Evidence Act though empowered the court to compare admitted signature/handwriting with the disputed one, decisions on the point say that court must be slow to base its finding based on such comparison alone. I stress the word, “alone”. But that does not mean and as Section 73 also does not prohibit the court from comparing disputed signature/handwriting. In C.R.P.No.51 of 2010 : 12 : Neelalohithadasan Nadar Vs. George Mascrene (supra) in paragraph 15 the Supreme Court, referring to the High Court comparing the signature held: “The High Court finally recorded its satisfaction or otherwise in the case of signatures resulting in double voting and impersonation, and signatures and thumb impression not tallying at all. No meaningful argument on facts in regard thereto was addressed before us except to the approach of employing section 73 of the Evidence Act. It was urged that the High Court should not have become an expert. We, however, are of the view that when larger public interest is served by expeditious disposal of an Election Petition, then the course adopted by the High Court, as suggested from the afore-extraction, is in conformity therewith. Although courts should be slow in resorting to this method, we do not find it faulted, more so when the Courts resort to exercise of such power is approved in two other cases of this court in State (Delhi Administration) Vs. Pali Ram (1979(1) SCR 931) and Murali Lal Vs. State of Madhya Pradesh (1980(2) SCR 249).” 12. Here, public interest is involved in that question involved is purity in election. The term of office of an elected representative is five (5) years. If courts are to insist that there must be expert opinion on disputed signature, it being a time consuming process would result in the case being finally decided C.R.P.No.51 of 2010 : 13 : after the term of office expired and that would make election petition and its trial a mockery. It is well within the power of court to compare the disputed signature but of course decision shall not be based on such comparison alone. In the present case, decision of the courts below rest not merely on comparison of the signature alone but also on the evidence of PWs.2, 3, 6, 8,9 and 10 and the relevant documents which I have referred to. There is nothing illegal in the courts below comparing the signature in the circumstances. Having heard counsel on both sides and going through the evidence and judgment/order of the courts below I do not find any illegality or infirmity in the finding entered by the courts below that Pws.3, 6, 8 and 9 indulged in double voting. 13. Then the next question is whether double voting by Pws.3, 6, 8 and 9 has materially affected result of the election of petitioner. To state that, it is necessary to refer to the votes polled by the candidates. Votes declared by the Presiding Officer Petitioner - 281 Respondent No - 279 Respondent No.2 - 120 Invalid - 16 Petitioner was declared elected by the Presiding Officer by a margin of 2 votes against his nearest rival, respondent No.1. Now C.R.P.No.51 of 2010 : 14 : I shall refer to paragraph 20 of the order of learned Munsiff. After entering necessary finding, learned Munsiff has proceeded to examine the relevant ballot papers (bearing Nos.0020, 0022, 0242, 0237 and 0890). Learned Munsiff has observed that out of the said votes, 4 were cast in favour of petitioner and one was cast in favour of respondent No.2. Learned Munsiff held that the votes of petitioner came down to 277 (281-4), there was no change in the votes secured by respondent No.1 (279) as he did not benefit by the double voting and the votes secured by respondent No.2 came down to 119 from 120 since he also got one of the double votes. 14. I have gone through paragraph 20 of the order of learned Munsiff and note the following. Ballot No. 0020 - Ext.X1 (of PW6) - went in favour of petitioner Ballot No. 0022 - Ext.X2 (of PW7) - excluded from consideration (as PW7 was given up) Ballot No. 0242 - Ext.X3 (of PW8) - in favour of petitioner. Ballot No. 0237 - Ext.X6 (of PW9) - in favour of petitioner. Ballot No. 0020 -Ext.X8 (of PW3) - gone in favour of respondent No.2. 15. Thus, excluding vote of PW7 (Ext.X2) votes of PWs.6, 8 and 9 (Exts.X1, X3 and X6) have gone in favour of petitioner and vote of PW3 (Ext.X8) has gone in favour of respondent No.2. If that be so, votes secured by petitioner by double voting is 3 (three) C.R.P.No.51 of 2010 : 15 : while the number of votes secured by respondent No.2 is 1 (one). If that be so, from the declared votes of 281 of petitioner, 3 votes has to be excluded. Of the declared votes of respondent No.2, one vote has to be excluded. That brings the tally to: Petitioner - 281-3 = 278 Respondent No.1 - 279 (there is no change since none of the votes of Pws.3, 6, 8 and 9 went in his favour) Respondent No.2 - 120-1 = 119 Result of the above is that respondent No.1 has won the election by a margin of one (1) vote. Learned Munsiff was not correct in holding that respondent No.1 has won the election by a margin of two votes. Modification of the judgment/order of courts below is required only to that extent and I do so. However, there is no reason to interfere with the ultimate order passed by the courts below declaring respondent No.1 as elected from ward No.5 of Chinnakkanal Grama Panchayath. Resultantly with the modification referred to in paragraph 15 concerning the votes secured by petitioner and respondent Nos. 1 and 2 this revision petition is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-