R. PUTHUNAINAR ALIHITHAN ETC.

P.H. PANDIAN AND ORS.

MARCH 26, 1996

[K. RAMASWAMY, S.P. BHARUCHA AND

K. S. PARIPOORNAN, JJ.]

Representation of the People Act, 1951.

C Ss.77, 123(6}-Corrnpt practice-Election expenses-Omission to produce correct statement of account-Election petitioner challenging election of retumed candidate on ground that the latter used two vehicles in election campaign and accounted for expenses incurred only on one vehicle and if he had shown expenses incurred on the other vehicle also, the expenses would . have exceeded the limit prescribed under the Act - High Court allowed the D election petition and set aside the election of the returned candidate-Held,

the election petitioner had established that the returned candidate had committed corrupt practice under s.123(6)--iJeclaration of the result of the returned candidate as void is not vitiated by any error of law warranting inteiference.

E Doctrine of preponderance of probabilitielained.

Evidence Act, 1872 :

S.3-Fact proved-To draw a11 inference that a fact in dispute has been F established, there must exist, 011 record some direct material facts or circumsta11ces from which such a11. i11fere11ce could be draw11-The probative value could be gauged from the facts and circumsta11ces i11 a give11 case.

Burden of proof--111 an election petition, when election petitioner has adduced evidence to rove that the returned candidate had committed coTTUpt G practice, the burden shifts 011 the returned candidate to rebut the evidence.

Maharashtra State Board of SecOlldary and High Secondary Education

v. K. S. Gandhi & Ors., [1991] 2 SCC 716, referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 877 of H 1994 Etc. 932

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R.P. ALHITHANv. P.H. PANDIAN 933

. From the Judgment and Orde~ dated 31.1.94 of the Madras High A Court in E.P. No. 1 of 1991.

D.D. Thakur, Anant Palli, Ms. Purnima Bhatt, Atul Sharma, E.C.

Agarwala for th~ Appellants. '

S. Sivasubramanaim, , and R. Mohan, R. Nedumaran, R.A. Perumal, B V.G. Pragasam, A. Mariarputham and Ms. Aruna Mathur, for the Respondents. . • • The following Order of the Court was delivered :

" '.fhese two appeals, one by the returned candidate whose election was C set a5ide and the connected appeal. by the unsuccessful candidate whose evidence in respect of other issues was not accepted by the High Court

rise from judgment of Madras High Court made 011 January 31, 1994 in Election Petition No. 1 of 1991. At an election to the Tamil Nadu Legisliitive Assembly held on June 15, .1991 from Assembly Constituency No. 220 D . . - . ·. . ' ' ., -' .

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Cheninmahadevi Constituency, the appellt was declared to have been

elecid. His election was challnged by the first respondent~ usuccessful candidate, Several averments ere made under Section 123 of the Rpre sentation of People Act, 1951 (for short, the 'Act') imputing corrupt practi;,,, s committed by the respondent in the said election. The High Court . found that the 'appellant had declared i~ his return, the election expendi- E ture as. Rs. 36, 350 wherein he had admitted that he had used the vehicle bearing registration No. TN-72 1909 and, had incur; ed an expenditure

towads the running of that vehicle durhtg the election campaii9i of Rs. 15, ·

875. He has also admitted in his w;.itten statement that he had used another

vebi~Ie,"bearing regist~'ation No. TNH- 555. He did nt account for the expenditure incured .in that behalf. Ha.d lie shown the true account of expenditure, it would have been proved ihat he had , exceedd the limit - J • . . , • - .

prescribed under Section 77 of the Act. Therefore,,, it was found that he had commltted corrupt practice under Section 123( 6) of the '.Act and his election was dclared as void: · ' ,

Shri D.D. Thakur, learned senior counsel appearing 'for the appel: Jani, contendid that the appellant had in his expenditre return specifiCally stated that he had used one vehicle bearing registration No. TN 72 1909.

In , his Written' tatemerit, he had' stated that he had used another vehicl~.

In his pleading, 'he had not made any' admission that he had used more H

A than one vehicle. The High Court, therefore, was wrong in coming to the conclusion that the appellant had used two vehicles and he had not accounted for the expenditure incurred for the second vehicle. The statement must be construed as a whole. If it is so understood, there is no unequivocal admission that he used more than one vehicle. Burden is on B the respondent to establish that the appellant had used more than one vehicle and the expenditure incurred was in excess of the prescribed limit of Rs. 50,000. In the absence of such a proof, the finding recorded by the High Court that he had committed corrupt practice, has not been proved beyond reasonable doubt. The doctrine of preponderance of probabilities does not apply to prove corrupt practice. The burden like a trial of the C criminal case rests always on the election petitioner to prove the case beyond rdsonable doubt, that all the circumstances conclusively establish that the appellant had committed corrupt practice. In this case, such a proof has not been offered by the respondent. The benefit of doubt should, therefore, be given to the appellant.

shri s. Sivasubramaniam, learned senior counsei for the respondent, contended • that after the writteii. statement filed by the appellant, a rejoinder h'ad been filed by the respondent in which it was specifically stated that 'the appellant had used the vehicle bearing registration No. TNH 555 and had incurred the expenditure of Rs. 19,870 for the use of the said E vehicle. PW-9 had also stated that the said vehicle was used during the election campaign. It was not disputed that the vehicle was not used. o,'..1y the nature of the vehicle was put in cross-examination, Le., whether it is a taxi or a tburist vehicle. The expenditure in that behalf was also not

controverted. He also contended that the appellant had an opportunity to get into the 'box and explain the actual expenditure incurred by him. In the absence of such an explanation or production of account of expenditure coupled with his admission in the pleading and the evidence of PW-9 that he had used vehicle bearing registration No. TNH 55S, the High Court rightly concluded that the respondent had provedthat the appellani had used two vehicles. In the absence of any contra-evidence given by the G appellant, it must be construed that the expenditure incurred 'was in excess of the prescribed limit. Had the appellant entered the box and given evidence , it' would have been tested in cross-examination as to the actual expenditure incurred by the appellant. But he deliberately withheld the evidence. Tlie fact that he did not mention that he used two vehicles in the H expenditure 'statement submitted to the District Collector under the Act

R.P. ALHITHAN v. P.H. PANDJAN 935

clearly establishes that he had suppressed the relevant material fact. From A

j his said conduct, it could. be inferred that .the appellant has incurred expenditure in excess of the limit prescribed under Section 7T of the Act.

• , • :

0 ln \ew of the respectivi< cont~tioris, . the question that arises for consideration is : whether the finding of the .High Court that the appellant had c9mmitted corrup_i practice under Sction .123 . .'( 6) of the Ac_t is sustainable in law? Section 77.of.the Act envisages.thai : .

' ' . "Every candidate at an en election shal~ either by himself or by

_his election .agent, keep a separate and . correct . account . of all .

' expenditure in him or. by his .election agent between the date .on C which he has been nominated and the date of declaration of the

.. .. result thereof, both• dates inclusive."

l-'

I .,1.

I f"

" . . _ rt, • ...

Under sub-section -(2) the account shall contain such particulars, as may be prescribed:UndeHub'section (3), the'total of the said expenditure D shall not exceed such arriount•'.as may be prescribed. Admittedly, the prescribed ex'penditure is Rs. 50,000. Under sub-section (6) of Section 123, incurring or authorising of expenditilre in contravention 6f Section 77 shall be 'deemed' to be corrupt p'racticefor the purpose Of the Act.It -is now ari admitted position that in his expenditure return, the appellant had specifi-. cally mentioned that he had used one .vehicle <bearing registration No. E TN-72-1909 and the expenditure for use of'that vehicle was Rs.•15,-875.'In the written statement, he hasadmitted tl\at"he used the vehicle bearing No ..

TNH,555. Aatnittedly, be did not .fuentioniit his electionreturn either the use !Of the said-:vehide . or -the exJienditure incurred for its -use. It\ the rejoiitder affidavit the 'fespoildent has specifically pleaded that the_ said F vehicle.was used and heestimated ihe expenditure at Rs.19, 870.'Though an opportunity was available to the appellant 'to-'get-inio the_ witness box

a.nil ei<plain' the admission of the user of the vehicle bearing "registration no. TNB>555 whether it was by way of a mistake or was by way of substitution for the vehicle bearing registrailon No. TN-72 '1909, as sought to be projected in this Court, he did not deliberately examine himself as a G witness not 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 pilly to the nature of the vehicle, namely,-.whether iUs atax or tourist vehicle. The. user thereof was not questioned. Under. those .circumstances, it stands established that the. appllant .had , used , two , vehicles. From this, H

A 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 infdrred from proved facts.

B 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. Moreover, 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 C 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 D that the respondent had issued a notice to the appellant calling upon him to produce the expenditure account which he did not produce.

Section 3 of the Evidence Act provides that fact a fact is said to be r- "proved" when, after considering the matters before it, the Court either believes it to exist, or consider its existence so probable that a prudent man E 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 matter before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition F that it does not exist; a fact is said to be "not proved" . when it is neither proved nor disproved. Therefore, the Court, after considering the evidence before it, either believes the fact to exist or consider 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.

In Maharashtra State Board of Secondary and Higher Secondary Education v. KS. Gandhi & Ors., [1991] 2 SCC 716 at 748, para 37, this Court had held that "inference from the evidence and circumstances must be carefully distinguished from conjectures of speculation. The mind is H prone to take pleasure to adapt circumstances to one another and even in

R.P. ALHITHAN v. P.H. PAN DIAN 937

straining them a little to force lhcmto form parts of one connected whole. A There must be evidence, direct or circumstantial; to deduce necessary inferences.in proof of the facts in issue. There can be no inferences unless there are objective facts, direct or circumstantial, from which to infer the other fact which it is sought to establish. In some cases the oter facts can be inferred, as much as is practical, as if they had been actually observed.

B In other cases the inferences do not go beyond reasonable probability. If there are no positive proved facts, oral, documentary o'r circumstantial from which the inferences can be made the method of inference fails and what is left is mere speculation or conjecture;" Therefore, we hold that to draw an inference that a fact in dispute has. been established, there must exist, on record, some direct materia.l facts or circum, tances from which C such an inference could be drawn. The standard of proof required cannot be put in a strait-jacket formula. No mathematicai formuia can be laid on the degree of proof. The probative value could he gauged from the facts and circllmstances in a given case.

An inkrence 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 ihe given objective facts, direct or circumstantial. .

" Under these circumstances, the necessary conclusion would be that E he had al'o used that 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 F 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 tr'.al in the criminal case and the burden to prove corrupt practice is on G 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 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. H

A 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 had 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 warranting interference.

The appeal is dismissed. The connected appeal filed by the respondent-unsuccessful candidate is dismissed as not pressed.

R.P.

Appeal dismissed.