N. Vimala Devi Vs. K. Madhusudhana
Reddy  INSC 276 (20 December 1974)
SARKARIA, RANJIT SINGH
CITATION: 1975 AIR 1135 1975 SCR (3) 128 1975
SCC (4) 385
CITATOR INFO :
R 1984 SC1161 (5)
Representation of the People Act, 1951-S.
116A-Allegations of corrupt practice-Duty of High Court to scrutinise with
In the election to the State Legislative
Assembly, the respondent was declared elected. The appellant who was the
defeated candidate in 'he election, in her election petition alleged that the
respondent had committed a number of corrupt practices, the most important of
which related to the distribution of a pamphlet defamatory of her, falling
under s. 123(4) of the Representation of the People Act, 1951. The High Court
dismissed her petition.
In appeal to this Court it was contended that
the High Court applied one standard in appreciating the evidence of the
appellant's witnesses and an altogether different standard in appreciating the
evidence of the respondent's witnesses.
Allowing the appeal,
HELD : (1) On an examination of the evidence
it is satisfactorily established that the impugned pamphlet was printed and
distributed at the instance of the respondent.
[135H] (2) Where a corrupt practice is
alleged against a returned candidate it must be scrutinised with considerable
care because a finding to that effect has very serious consequences. It not
merely sets aside the popular verdict but also subjects the successful
candidate to the penalty of being disqualified for election and even criminal
prosecution. [135 E] (3) This Court does not normally reappraise the evidence
and come to a contrary conclusion from that of the trial judge if it is
generally acceptable. But it must not be forgotten that an appeal under s. 116A
of the Representation of the People Act is a first appeal and not one under the
provisions of Art. 136 of' the Constitution and that an appeal is a rehearing.
[135 F] In the instant case the evidence has been reassessed because the High
Court had rejected the evidence of the appellant's witnesses wholesale mainly
on the ground of their being partisan witnesses while no such standard has been
applied to evidence of witnesses on behalf of the respondent except in two cases.
Even in those cases it was done because the documentary evidence was too
strong. The rejection of the evidence by the High Court in one important
instance has led to a wrong approach in the appreciation of the oral evidence.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 389 of 1973.
From the judgment and order dated the 22nd
December, 1972 of the Andhra Pradesh High Court in Election Petition No. 7 of
S. V. Gupte, P. P. Rao and G. Narayana Rao,
for the appellant.
P. Ram Reddy, B. Parthasarthi and B.
Balamukunda Reddy, for the respondent.
The Judgment of the Court was delivered by
ALAGIRISWAMI, J.-In the election to the Andhra Pradesh Legislative Assembly
from the Chennur constituency held on 5th March, 1972, the appellant was the
official Congress candidate and the respondent an independent candidate though
both belonged to the Congress Party. The respondent obtained 25,654 votes as
against 23,940 129 votes obtained by the appellant and was declared elected.
Thereupon the appellant filed an election
petition which was dismissed by the Andhra Pradesh High Court.This appeal is
against that decision.
Though a number of corrupt practices were
alleged in the election petition the only one pressed before this Court was
that relating to the distribution of a pamphlet defamatory of the appellant
falling under section 123(4). That leaflet marked Ex.A-1 purports to have been
issued by the Yuvajana Congress, Thorrur. It does not bear the name of the
printer or the publisher. But the allegation in the election petition was that
it was published by the respondent and his agents throughout the constituency.
In Schedule I to the election petition were given the names of villages where
the distribution was made, the reasons who distributed, the date of
distribution as well as the names persons who received the pamphlet. Certain
other details were also given. It was further alleged that the appellant
received letter,-, in this regard from some of her supporters in the
These were marked as Exs. A-2, A-3 and A-4.
It was stated that the President of the Yuvajana Congress, Thorrur was a man
named Uppal Reddy who became a paid clerk of the respondent. The respondent
denied knowledge of the pamphlet and contended that Exs. A-2 to A-4 are self
serving statements got prepared by the appellant and the persons who are
supposed to have written those letters for the purpose of the election
petition. He claimed that he was not aware whether Uppal Reddy was President of
the Yuvajana Congress.
Thorrur but that he was a strong supporter of
The distribution of the pamphlet either by
him or his election agent or his workers with his consent was denied.
The names of workers mentioned in the
schedule to the election petition were stated to be those of the supporters of
the appellant with a view to let in false evidence.
The learned Judge of the High Court after an
elaborate examination of the evidence found that there cannot be any doubt that
the allegations contained in leaflet Ex.A-1 go deeply against the personal
character and conduct of the appellant and can be taken as being reasonably
calculated to prejudice her prospects in the election. This does not seem to
have been disputed before the High Court. It was only contended that neither
the respondent nor his election agent was aware of the existence of those
leaflets nor were they distributed during the election period and even if they
were distributed they were not responsible for it. The learned Judge further
held that it has to be taken that the allegations made against the appellant in
Ex.A-1 were false and the respondent did not believe them to be true and he
would be guilty of the corrupt practice if the publication was made by the
respondent or his election agent or by others with the consent of the respondent
or his election agent. He then took up the question whether the respondent or
his election agent or with the consent of either any other person distributed
leaflets like Ex.A-1 during the election period.
The case for the respondent as suggested in the
crossexamination of the appellant was that she expected her defeat even when
the 10-379 Sup.CI/75 130 election was one week ahead and therefore she started
manufacturing all the documents filed by her for the purpose of the election
petition, which even then she decided to file in case of her defeat. Based on
the evidence of P.W.
70, the Secretary of the Zila Parishad,
Warangal who was then the Returning Officer, and P.W.76, the Sub-Collector,
Warangal, the learned Judge found that leaflets like Ex.A-1 were in circulation
a few days prior to the date of the election. He, however came to the
conclusion that it was not possible to say that even before the date of the
election the appellant and her supporters must have thought that her defeat in
the election was a certainty and thought ,of distributing leaflets like Ex.A-1
to prepare for the election petition. instead of working vigorously for her
success in the election and, therefore, whoever might be responsible for the
distribution of the leaflets it could not have been the appellant or her
supporters but her enemies only. He finally came to the conclusion that there
is no cogent and reliable evidence to show that the distribution of the
leaflets was made by the respondent or his election agent or with the consent
of either by some others and it is not possible to hold the respondent
responsible for the, distribution. With regard to Uppal Reddy he held that
there was no satisfactory evidence to show either that Uppal Reddy was a paid
clerk of the respondent or that he worked for the respondent in the election
and not for the appellant as alleged by the respondent.
As we are in substantial agreement with the
learned Judge regarding 'the nature of the leaflet Ex.A-1 its possible effect
and the impossibility of the appellant or anybody on her behalf having
distributed those pamphlets we do not think it necessary to discuss those
questions or even to set out the pamphlet itself. These were not seriously
disputed by the respondent. We will therefore confine ourselves to the question
as to who was responsible for their distribution.
The learned Judge seems to have thought that
R.Ws. 32 and 33, the brothers of the appellant's husband, might perhaps have
done it as they were bitterly inimical towards the appellant and her husband.
R.W.32 was the respondent's polling agent and R.W.33 was an active worker on
There is no evidence as to who had the
leaflet printed or where it was printed. Neither R.W.32 nor R.W.33 accepted
either that they printed the leaflet or that they distributed it.
Some time before the election and even before
the Congress candidate was selected for this constituency a representation, Ex
A-48, was sent to the Congress authorities signed among others by the
respondent as well as R.W.33. The main purport of that representation was that
neither the appellant nor her husband should be set up as the Congress
candidate. It suggested certain other persons as fit to be set up as Congress
candidates, but there is no doubt that it was intended to prevent either the
appellant or her husband being selected as the Congress candidate.
R.W. 33 claimed that it was he that prepared
Ex. A-48 and got the signatures of the persons contained therein. The first of
the signatories is respondent himself. Forty out of its forty three signatories
are his supporters. Though he pretended not to have known its contents he as
well as R.W. 33 had to admit 131 that it was prepared after some discussion.
The respondent had also to admit that he it was who wrote in his own hand about
a copy of the, representation having to go to the Congress observer for
Warangal district. We have no doubt at all that the main mover behind Ex. A48
is the respondent himself and R.W. 33 is merely his instrument. This is also
evident from the fact that he decided to stand for the election himself because
only if he stood he could defeat the appellant. Thus his main motive being to
defeat the appellant is clear beyond doubt. It is not merely the normal effort
of a contesting candidate to defeat his opponent but something special,
something out of the ordinary. This exhibit has not been discussed at all by
the learned Judge. The importance of Ex. A-48 is because it is a forerunner of
Ex. A-1 and some of the statements found in Ex. A-1 as well as its main purpose
are the same as of Ex.
A-48. We are not impressed by the argument on
behalf of the respondent that Ex. A-5,7, which shows that even in 1970 a
representation of a similar kind was made, shows that there were many others
out to besmirch the name of the appellant.
Ex. A-57 contains many instances which have
nothing to do with the election in 1972 or the setting up of a Congress
candidate in that election. That is the affinity between Ex. A-48 and Ex. A-1.
Nor are we impressed by the argument on behalf of the respondent that NGOs
towards whom the appellant is said to have behaved rudely might have been
responsible for the printing and distribution of the pamphlets. The NGOs as a
class may not be so much interested and no suggestion has been put and we have
not been told that any particular NGO had such a strong grievance against the
appellant that, he could go to the extent of printing clandestinely a pamphlet
like Ex. A-1, meeting the expenditure therefore and for distributing it.
The search ultimately must be confined to
R.Ws. 32 and'. 33 on the one hand and the respondent on the other.
It is here that the relevance of the
reference to Uppal Reddy and the Yuvajana Congress, Thorrur becomes important.
The Yuvajana Congress, Thorrur was inaugurated
on the 26th January, 1972. Before that Uppal Reddy had met P.W.66, Vasantha
Nageswara Rao, the President of the State Youth Congress and a member of the
Legislative Assembly from the Nandigama constituency of Krishna district. He
wrote a letter Ex.A-25 on 6-2-1972 congratulating Uppal Reddy on his having
organised the Yuvajana Congress. Later finding that Uppal Reddy was working
against the Congress candidate on behalf of the respondent he was removed from
the office and P.W.68, Vasudeva Reddy was elected President of the Yuvajana
Congress, Thorrur. The removal of Uppal Reddy and the election of P.W.68 was
intimated to P.W.66 by Ex.A-26. The second letter is Ex.A-28 written by P.W.68
to P.W.66 about distribution of leaflets by the respondent's associates.
That letter also refers to the pamphlet as
having been printed by the respondent and asks that he be suspended
immediately. Another letter Ex.A-32 written by P.W.66 to P.W.68 also shows that
P.W.66 was invited to tour the Chennur constituency and he was unable to do so.
Exhibits A-3 1, A-31 (a) and A-31 (b) show that letters were written to P.W.66
as well as to the President of the Andhra Pradesh Congress Committee. Exhibit
A-29 is a letter by P.W.68 132 to P.W.66 inviting him to tour the constituency.
Exhibit A29(a) is a resolution of the Youth Congress Committee dated 29-2-1972
about Uppal Reddy having been won over by the respondent and the pamphlet
against the appellant being published and requesting P.W.66 and the President
of the Andhra Pradesh Congress Committee to institute proceedings against the
respondent. Exhibit A-27 is a letter addressed by P.W.66 to Uppal Reddy
apparently on the basis of Ex.A-26 about the complaints that he was working for
the respondent and asking him to show cause why disciplinary action Should not
be taken against him. It also refers to the resolution of the Youth Congress.
We are unable to share the learned Judge's
conclusion that all these could have been got up in order to support the
election petition. He learned Judge himself recognises that the appellant would
not have had any apprehension that she would be defeated in the election
because she was standing from Chennur constituency which was the only one among
the many constituencies comprising the Parliamentary seat that was won by a
Congress candidate with a majority of 5000 votes in the previous election
though all the other Assembly seats as well as the Parliament seat went to the
non Congress candidate. That is why the learned Judge took the view that the
distribution of the pamphlet could not have been made by the appellant before
the date of the election.
It is, therefore, obvious that these
documents could not have been got up before the election nor are we able to
accept the learned Judge's facile conclusion that these could have been got up
by antedating some postal stamps.
One cannot take it that it is so easy to
antedate postal stamps. In fact no such suggestion was put to the appellant or
any of her witnesses. This theory of antedating the postal stamps has also been
relied upon by the learned Judge in connection with Exs.A-2 to A-4, with which
we shall deal a little later. The only slight reference to anybody connected
with the appellant having anything to do with the Post Office was in relation
to one of the Post Offices alone. It is not that if no such suggestion was made
on behalf of the respondent about the postal stamps being antedated it is not
permissible to the learned Judge to draw such a conclusion if the facts justify
it but we feel there are no facts justifying such an inference. We are
satisfied that these various documents are genuine and not got up for the
purpose of the election petition.
The whole case of the respondent was that
these documents Is well as Exs.A-2 to A-4 had been created before the election
though the question put to the appellant's witnesses was in a form which would
enable him to put forward two alternative pleas (1) of their being prepared
before the election, and (2) of their being prepared after the election but
before the election petition was filed. We are of the opinion that tile
respondent should not be allowed to draft his pleadings in a dubious way and
try to shape either hi-, evidence or his arguments to suit either theory. We
are unable to accept the argument on behalf of the respondent that these
documents do not establish that either the respondent or his election agent
distributed the pamphlets. Thew letters and resolutions sometimes refer to the
13 3 respondent and sometimes to his associates. One of them refers to the
respondent having printed the pamphlet. We do not think that in assessing the
evidentiary value of these documents the statements contained in them should be
scrutinised as though they were either pleadings before the Court or a statute
to be interpreted. When pamphlets are said to be distributed by the respondent
it does not necessarily mean that he was physically handing over those
pamphlets to various persons. It includes the pamphlets. being distributed in
his presence or in the presence of his election agent or at his instance or on
his behalf.. Even if persons working for the respondent were distributing, in
common parlance it would be said that the respondent was distributing the
pamphlets. Interpreted in the proper perspective the various statements merely
mean that the pamphlets were being distributed at the, instance of the
Some criticism was made of these documents on
the basis of the constitution of the All India Youth Congress and that it does
not provide for village Youth Congresses and that people cannot become members
of the Youth Congress unless they become primary members of the All India Youth
But it-is obvious from the documents
themselves as well as the evidence of P.W. 66, it was found necessary and
advantageous to have Youth Congress in Thorrur as it would help the Congress
candidate as it was election time. This question cannot be decided as though we
are concerned with the legality of the establishment of the Youth Congress in
Thorrur. All that it shows is that certain youngmen of the village decided to
start a Youth Congress in the village, that it had the sanction and the
blessings of P.W.66 and that they hoped to regularise the establishment of
Youth Congress in due course. The criticism that the receipt of these letters
is not entered in the receipt and dispatch book of the State Youth Congress
office is not of much substance. Non-official political Organisations are not
run and do not function as though they were official administrative offices.
We do not also agree with the view of the
learned Judge who rejected the evidence. of P.W.66 on the ground that he was
merely a Congress member. He is a member of the Legislative Assembly from
another district and he is the chief of the State Youth Congress. The fact that
he is a Congressman could not be the sole ground for rejecting his evidence. We
are, therefore, satisfied that these documents produce contemporaneous
evidence, of the fact that the pamphlets like Ex. A-1 were brought into
existence and distributed at the instance of the respondent. They cover the
period from 6-2-1972 to the day before the poll. Their evidentiary value is,
therefore, very high.
The distribution of the pamphlets by the
respondent is also probabilised by Ex. A-16 written by the appellant to the
General Secretary of the Congress in Warangal District and Ex. A-44 to the
We shall now refer to Exs. A-2 to A-4. These
are three letters written by three supporters of the appellant about the
distribution of the pamphlets by either the respondent or his election agent as
well as R.W. 33. 'rho learned Judge has rejected them among other reasons 134
on the ground that postal stamps on them could have been antedated. The
criticism we have made earlier with reference to this view of the learned Judge
when we were discussing the documents relating to the Yuvajana Congress of
Thorrur applies here also. Four Post Offices, are involved with reference, to
these three documents, the three different Post Offices in which they were
posted and the one Post Office in which they were received. Only with reference
to one of the Post Offices it was said that the Postmaster was a relative of
the appellant. We think it impossible that postal stamps from four different
Post Offices could have been antedated so easily. On the other hand these three
documents give us the feeling that they have been prepared with an eye on an
People who have been working for the
appellant would not suddenly stop working merely because they saw a pamphlet
like Ex. A-1 and if they do so they would just stop working and not bother
further about waiting to her. It was also unnatural in such letters for these
persons to say that people were being convinced and that they themselves were
convinced by the pamphlets. If that is so, these letters must have come into
existence before the date of the poll.
If the postal stamps could not have been
antedated, how and why were these letters brought into existence ? This
question has given us considerable anxiety and we think that the most
acceptable explanation is that having come to know of the distribution of the
pamphlets like Ex.A-1 the appellant got her supporters to write these letters
and they have done it only too well. The tell-tale statements contained in them
give us no option but to reject Exs.-A-2 to A-4.
We do not think it necessary to refer at
length to the oral evidence, in this case about the distribution. A large
volume of evidence hat been let in on behalf of the appellant regarding the
distribution. As already mentioned the villages in which the distribution was
made, the dates on which the distribution was made, the persons who made the
distribution as well as the persons to whom the distribution was made are set
out in the schedule to the election petition. The attack made on these in the
written statement filed by 'the respondent is that the names of the supporters
of the appellant were given therein in order to enable them to give false
evidence. The learned Judge has in discussing the evidence of these witnesses
extracted their evidence at length and rejected them mostly on the ground that
they were the appellant's supporters. But he has not hesitated to accept the
denials by, the respondent and that of his witnesses and their evidence even
though they are as much partisan as the appellant's witnesses. That is why in
matters of this kind in assessing the oral evidence we have got to have some
reliable test for assessing the reliability of one version or the other. Much
of the criticism made by the learned Judge of the evidence on behalf of the
appellant is that of very tenuous kind and they can be applied as well to the
evidence on behalf of the respondent and we can see no justification for the
facile way he accepted the denial by the respondent and his witnesses. The
documents regarding the Youth Congress of Thorrur, which we have discussed,
furnish strong support which one has got to look for before one can accept
oral, 135 evidence in matters of this kind. It is easy enough to accept or
reject oral evidence by mentioning one or two minor contradictions. One should
be satisfied that the broad outline of the evidence given is true and worthy of
We are not impressed with the view of the
learned Judge that either R. W. 32 or R. W. 33 might have been responsible for
bringing into existence the pamphlet Ex-A-1. After all the person that was
standing for election was the respondent and his attitude of trying to see that
neither the appellant nor her husband was set up as a Congress candidate and
being prepared to stand merely for the purpose of defeating her shows that it
was he that was interested in publishing this pamphlet. His earlier effort, Ex.
A-48 also shows this.
We find it impossible to accept the evidence
of R. W. 32 and R. W. 33 that the appellant and her husband were responsible
for sending a petition against them in regard to a contract work that they had
undertaken or that the appellant wanted a bribe of Rs. 3000 from them. All this
is falsified by the admission that it was Nookala Ramachandra. Reddy, a former
Minister, that was responsible for the representation against R.Ws. 3 2 and 3 3
in regard to the contract about which the Anti-Corruption Department made an
We are conscious that where a corrupt
practice is alleged against a returned candidate it must be scrutinised with
considerable care because a finding to that effect has very serious
consequences. It not merely sets aside the popular verdict but also subjects
the successful candidate to the penalty of being disqualified for election and
even criminal prosecution. We are also conscious that this Court does not
normally reappraise the evidence and come to a contrary conclusion from that of
the trial Judge if it is generally acceptable. But we must not forget that an appeal
116A of the Representation of the People Act
is a first appeal and not one under the provisions of Art. 136 of the
Constitution and that an appeal is a rehearing. In this case we have undertaken
a reassessment of evidence because the learned Judge has rejected the evidence
of the appellant's witnesses wholesale mainly on the ground of their being
partisan witnesses while no such standard has been applied to evidence of
witnesses on behalf of the respondent, except R. W. 3 and R. W. 21. Even there
it was because the documentary evidence was too strong. He has also not
discussed Ex. A-48 and appreciated the evidence in the background of that
document. His rejection of the evidence regarding the Thorrur Yuvajana Congress
has led to a wrong approach in the appreciation of the oral evidence. , We have
come to the conclusion that it is satisfactorily established that these
pamphlets were printed and distributed at the instance of the respondent. The
appeal is allowed and the election of the respondent set aside.
The respondent will pay the appellants costs.
P.B.R. Appeal allowed.