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PETITIONER: R.PUTHUNAINAR ALHITHAN ETC.

       Vs.

RESPONDENT: P.H. PANDIAN & ORS. ETC.

DATE OF JUDGMENT:       26/03/1996

BENCH: RAMASWAMY, K. BENCH: 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:

HEADNOTE:

JUDGMENT:                             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

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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

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    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

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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

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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.