R.Puthunainar
Alhithan Vs. P.H. Pandian & Ors [1996] INSC 461 (26 March 1996)
Ramaswamy,
K.Ramaswamy, K.Bharucha S.P. (J) Paripoornan, K.S.(J)
CITATION:
1996 AIR 1599 1996 SCC (3) 624 JT 1996 (4) 146 1996 SCALE (3)317
ACT:
HEAD NOTE:
WITH CIVIL
APPEAL NO.2649 OF 1994
O R D
E R
These
two appeals, one by the returned candidate whose election was set aside and the
connected appeal by the unsuccessful candidate whose evidence in respect of
other issues was not accepted by the High Court arise from judgment of Madras
High Court made on January
31, 1994 in Election
Petition No. 1 of 1991. At an election to the Tamil Nadu Legislative Assembly
held on June 15, 1991 from Assembly Constituency No.220, Cheranmahadevi
Constituency, the appellant was declared to have been elected. His election was
challenged by the first respondent unsuccessful candidate. Several averments
were made under Section 123 of the Representation of People Act; 1951 (for
short, the 'Act') imputing corrupt practices committed by the respondent in the
said election. The High Court found that the appellant had declared in his
return, the election expenditure as Rs.36,350/- wherein he had admitted that he
had used the vehicle bearing registration No.TN-72 1909 and had incurred an
expenditure towards the running of that vehicle during the election campaign of
Rs.15,875/-. He has also admitted in his written statement that he had used
another vehicle, bearing registration No.TNH-555. He did not account for the
expenditure incurred in that behalf. Had he shown the true account of
expenditure, it would have been proved that he had exceeded the limit
prescribed under Section 77 of the Act. Therefore, it was found that he had
committed corrupt practice under Section 123(6) of the Act and his election was
declared as void.
Shri
D.D. Thakur, learned senior counsel appearing for the appellant, contended that
the appellant had in his expenditure return specifically stated that he had
used one vehicle bearing registration No.TN 72 1909. In his written statement,
he had stated that he had used another vehicle. in his pleading, he had not
made any admission that he had used more 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 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 or probabilities
does not apply to prove corrupt practice. The burden like a trial of the
criminal case rests always on the election petitioner to prove the case beyond
reasonable 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 counsel for the respondent, contended that
after the written statement filed by the appellant, a rejoinder had 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 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. Only the nature of the vehicle was put
in cross-examination, i.e., whether it is a taxi or a tourist 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
555, the High Court rightly concluded that the respondent had proved that the
appellant had used two vehicles. In the absence of any contra-evidence given by
the 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.
The
fact that he did not mention that he used two vehicles in the expenditure
statement submitted to the District Collector under the Act clearly establishes
that he had suppressed the relevant material fact. From his said conduct, it
could be inferred that the appellant has incurred expenditure in excess of the
limit prescribed under Section 77 of the Act.
In
view of the respective contentions, the question that arises for consideration
is: whether the finding of the High Court that the appellant had committed
corrupt practice under Section 123 (6) of the Act is sustainable in law?
Section 77 of the Act envisages that:
"Every
candidate at an election shall, 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 which he has been nominated and the date of
declaration of the result thereof, both dates inclusive." 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 authorizing
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 mention 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 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 a 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
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 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 with held
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.
Section
3 of the Evidence Act provides that fact a fact is said to be "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 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 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 the probable as
a prodent 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 vs. K.S 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 or speculation. The mind is prone to take
pleasure to adapt circumstances to one another and even in straining them a
little to force them to form parts of one connected whole. 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 other facts can be inferred, as much as
if practical, as if they had been actually observed.
In
other cases the inferences do not go beyond reasonable probability . If there
are no positive proved facts oral, documentary or 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 material facts or circumstances from which such an inference could be
drawn. The standard of 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.
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.
Under
these circumstances, the necessary conclusion would be that he had also 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 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 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 had proved the corrupt practices 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.
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