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PETITIONER: THAMPANOOR RAVI

       Vs.

RESPONDENT: CHARUPARA RAVI & ORS.

DATE OF JUDGMENT:       15/09/1999

BENCH: S.R.Babu, R.C.Lahoti

JUDGMENT:

     RAJENDRA BABU, J.  :

     Civil  Appeal Nos.  7395-7396 of 1997 The appellant in these appeals was declared elected to the Kerala Legislative Assembly  from  No.  139, Neyyattinkara constituency  in  an election  held  on April 27, 1996.  Two  election  petitions were filed - one by a voter in that constituency and another by  a  defeated candidate who had secured the  next  highest number of votes to the appellant and in his petition a claim was also made for the declaration that he was duly elected.

     In  the  election  petition  filed by  the  voter  the election  of the appellant was challenged on the ground that he  was  disqualified  for being chosen as a member  of  the Legislative  Assembly  as he was an  undischarged  insolvent within  the meaning of Article 191(1)(c) of the Constitution of  India,  at the time of filing of his nomination, at  the time  of his election and even on the date of the filing  of the  election  petition.   In  the  petition  filed  by  the defeated  candidate, in addition to the aforesaid ground  of disqualification  of the appellant, he also alleged that the appellant  had  indulged  in corrupt  practices  within  the meaning  of Section 123 of the Representation of the  People Act, 1951 [hereinafter referred to as the R.P.Act].

     The  High Court upheld the contention of the  Election Petitioners   that   the   appellant    had   incurred   the disqualification under Article 191(1)(c) of the Constitution and declared his election to the Kerala Legislative Assembly as  void.   The  High Court, however,  decided  against  the Election  Petitioner on the allegation of corrupt practices. Hence  there  are two sets of appeals - two by the  returned candidate  in regard to invalidation of his election to  the Assembly and the other by Election Petitioner with regard to findings recorded as to corrupt practices.

     The  principal  issue  to be decided in this  case  is whether  the appellant is disqualified for being chosen as a member  of the Legislative Assembly on the ground that he is an  undischarged insolvent and whether his election could be declared to be void under Section 100 of the R.P.  Act.  The pleadings  raised in this regard are that the appellant is a partner  of  a  registered firm by name  Kavitha  Printers along  with P.A.Thomas, Smt.  Krishnamma and Gopeendra Nath; that  the said firm borrowed a sum of Rs.3,16,000/- from the

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Kerala  Financial Corporation, Thiruvananthapuram;  that the partners  of the firm did not repay the loan in spite of the repeated  demands;   that the revenue  recovery  proceedings were initiated against the appellant in terms of certificate dated  April  22,  1994 issued by  the  District  Collector, Thiruvananthapuram  and at that time the total liability  of the  partners  of the firm was amounting to  Rs.10,62,000/-; that  the  appellant  failed to settle  his  liability  with Kerala   Financial  Corporation  till   the  filing  of  his nomination  papers and he was unable to pay the debts in the ordinary  course  of business as and when they  became  due; that  the  demand  notice issued by the  Tehsildar  for  the purpose  of revenue recovery also stood returned on  account of  the  closure  of  the business of the  firm;   that  the appellant  absented himself from the office of the firm  and deliberately  avoided service of notice upon him;  that  the appellant  was not in a position to repay anything more than Rs.3  lakhs  on  behalf of the firm and, therefore,  he  was disqualified  from  being  chosen as a member of  the  State Legislature  as  he  was  an  undischarged  insolvent,  that thereby  his  election has become void in terms  of  Article 191(1)(c)  of  the Constitution.  In the written  objections filed,  the appellant admitted that he was a partner of  the firm  along  with  certain others who are mentioned  in  the petition,  but claimed that he retired from the  partnership as  per  the  report  filed  on July  20,  1985  before  the Registrar  of  Firms.  It was contended that having  severed relationship  with  the  firm,  he   had  no  knowledge   or information as to the plea that the partners of the firm did not  repay  the loan in spite of the repeated  demands.   He pleaded that he did not receive any notice under the Revenue Recovery  Act  and  he was not aware of the  fact  that  any revenue  recovery  proceedings were initiated against  other partners of the firm.  The allegation that he was due to pay any  money  to  the  Kerala Financial  Corporation  was  not correct  and  he  did not make any attempt  to  deliberately avoid  service  of any notice upon him nor he  has  departed from  his  usual place of business so as to defeat or  delay repayment  of debts due to the Kerala Financial Corporation. He  claimed  that he was in public life and was a member  of the  Kerala  State Legislature for five years and  thus  his official  as well as residential addresses were known to the Kerala  Financial Corporation.  It was also claimed that  he has  not  incurred any disqualification in terms of  Article 191(1)(c)  of the Constitution and he has denied that he was an  undischarged insolvent.  In the connected petition,  the allegations  raised  were  identical and  the  pleadings  in answer filed by the appellant were also similar.

     On  the  aspect  as  to the  disqualification  of  the returned  candidate, the High Court framed Issue Nos.  2-11. The  High  Court held that the appellant is partner  of  the firm  and although he may have retired at the time of filing the nomination inasmuch as no public notice has been issued, he  was  liable jointly with all other partners for all  the acts  done while he was a partner.  Thus he was a partner at the  time  of filing his nomination for the election to  the Legislative  Assembly  in question.  It was further  noticed that  the appellant continued to be liable for the debts due to  the  Kerala Financial Corporation.  It is held that  the Kerala Financial Corporation has made efforts to realise the debts  by  getting initiated proceedings under  the  Revenue Recovery  Act  but it does not appear that those steps  have been vigorously pursued with.  The High Court also held that the appellant had avoided service of notice issued to him by

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the  Tehsildar,  Revenue  Recovery and although he  had  not absconded  himself  but  he  was   trying  to  get   himself exonerated from liability without offering to repay anything to  the  Kerala  Financial  Corporation  towards  the  large amounts  due  from him and the other partners of  the  firm. The  High  Court went on to examine as to whether any  money had  been  paid  by the firm of which the  appellant  was  a partner  and  came to the conclusion that the appellant  did not  have  the  means to repay the debt due  to  the  Kerala Financial Corporation and held as under :

     On  the  evidence,  it is thus clear that  the  first respondent  was and is, a debtor, that he is a debtor who is unable  and unwilling to pay his debts, that he is not shown to be possessed of assets sufficient to meet his obligations and  consequently, he is an insolvent.  But he has not  been adjudicated  an insolvent thus far under the Insolvency  Act either   on  an  application  by   the  creditor  or  on  an application by himself.

     Thereafter  the  High  Court, in the  absence  of  the definition  of the expression insolvent in the  Provincial Insolvency  Act,  1920  [hereinafter  referred  to  as  the Insolvency  Act]  considered  the   nature  of  proceedings arising  under  the Insolvency Act, went on to  notice  that under Section 2(8) of the Sale of Goods Act, an insolvent is defined  as a person who had ceased to pay his debts in  the ordinary course of business, or cannot pay his debts as they become due, whether he has committed an act of insolvency or not,  and  thereafter referred to various  dictionaries  and concluded as follows :

     Suffice  it  to  say  that as far as  I  can  gather, general  meaning  of  the word insolvent is that he  is  a person  who  is  unable to pay his debts as  and  when  they become  due  or whose assets are not sufficient to meet  his obligations  as  and when they arise.  Looked at  from  that point  of  view and going by the meaning of  the  expression insolvent as referred to above, it is clear that the first respondent was an insolvent on the date of the filing of the nomination  by him, on the date of the election, on the date of  filing of the election petition and even on the date  of his examination in court.

     A  contention  was raised on behalf of  the  appellant before  the  High  Court  that  he  has  not  been  adjudged insolvent  by  any  court  under   the  Insolvency  Act   as applicable  in  the State of Kerala.  So long as he  is  not adjudged  insolvent  the question of his being  undischarged insolvent  would  not  arise  and thereby he  could  not  be disqualified   in   terms  of   Article  191(1)(c)  of   the Constitution.   In substance the contention is that the High Court  could not in deciding an election petition hold  that the  appellant  to  be  an undischarged  insolvent  for  the purposes  of  Article  191(1)(c) of  the  Constitution.   In answer  to  this  contention, the High  Court  examined  the scheme   of  different  clauses  in   Article  191  of   the Constitution.   A  person  who is elected to  a  legislature cannot   carry  on  his   duties  fearlessly  without  being subjected  to Governmental pressure if such a person  enters into a contract with the Government or holds an office which brings  him  remuneration and the Government has a voice  in continuance  of  his contract or office and there  is  every

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likelihood  of  such  person  succumbing to  the  wishes  of Government  and in order to eliminate such a contingency  it would  be  appropriate  to  ensure  that  persons  who  have received   favours  or  benefits   from  the  executive  are disqualified  and  in  the same manner if the  appellant  is indebted to the Kerala Financial Corporation he would not be a  free  person  to  act as a legislator.   The  High  Court considered that this underlying scheme of the Constitutional provisions  and  the  R.P.   Act must be borne  in  mind  in interpreting  the expression undischarged insolvent  under the  R.P.Act.  The High Court proceeded to explain that  the expression  undischarged insolvent was not defined in  the Insolvency  Act and there is no justification for giving the expression  a  technical  meaning as was propounded  by  the appellants  counsel.  The High Court proceeded to give  the expression  undischarged insolvent its natural meaning  so that the disqualification applies to any person who is shown to  be  unable to pay his debts on the relevant  date.   The High  Court  referred  to  the Debates  in  the  Constituent Assembly  and  to the suggestion of Sir Alladi  Krishnaswamy Ayyar  that  the  expression  if   he  is  an  undischarged insolvent  should  be  in  terms  of  Section  73  of   the Insolvency  Act  but  was not accepted  by  the  Constituent Assembly  and held that the framers of the Constitution  did not  want  to confine the operation of the  disqualification only to cases where a person is adjudged insolvent under the Insolvency  Act.   The  High Court ultimately held  that  it would   be   appropriate  to   understand   the   expression undischarged  insolvent  in  its broad and  general  sense rather  than  in  the  technical  sense  of  the  insolvency legislation.   The  High Court then proceeded to  hold  that even  if  a  returning officer may not be in a  position  to accept  an  objection in a case where the objection  is  not backed  by  an order of adjudication by the court, there  is nothing  standing in the way of the Court to examine such  a question.    The  High  Court,   therefore,   accepted   the submission  that the pre-adjudication by an insolvency court is  not required and observed that a candidate who is  found to be an insolvent by the court trying the election petition and  a candidate who had already been adjudicated  insolvent by  the  Insolvency Court but who has not obtained an  order for  discharge are both covered by Article 191(1)(c) of  the Constitution.   As  this  question goes to the root  of  the matter, we shall examine this aspect first.  Before us it is urged  on behalf of the appellant that the High Court  could not,  in  deciding an election petition under  the  R.P.Act, examine   the   question  whether   the  appellant   is   an undischarged  insolvent or not.  The learned counsel for the respondents  supported  the view taken by the High Court  by relying   upon  the  decision  in  Bhagwati   Prasad   Dixit Ghorewala vs.  Rajeev Gandhi, 1985 All Weekly Cases 682.

     In  State of Kerala, the Provincial Insolvency Act  is applicable.   Under  Section  3 of the Insolvency  Act,  the District  Court shall be the court having jurisdiction under the Act unless by a notification in the official gazette any court  subordinate  to the district court is  invested  with such  jurisdiction and it shall have concurrent jurisdiction with the District court and a court of small causes shall be deemed  to  be  subordinate to the district  court  for  the purposes of this Section.  Under Section 4 of the Insolvency Act, the court shall have full power to decide all questions whether  of  title or property or of any nature  whatsoever, and  whether involving matters of law or of fact, which  may arise in any case of insolvency coming within the cognizance

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of  the  court, or which the court may deem it expedient  or necessary  to  decide  for  the purpose  of  doing  complete justice of making a complete distribution of property in any such  case.   Under  Section  7 of  the  Insolvency  Act,  a petition for adjudication could be filed by a creditor or by a  debtor and the court may on such petition adjudge him  an insolvent.   Under  Section 27 of the Insolvency Act  it  is provided that if the court does not dismiss the petition, it shall  make  an order of adjudication that the debtor is  an insolvent, and shall specify in such order the period within which the debtor shall apply for his discharge and the court has  power  to, if sufficient cause is shown, to extend  the period  within  which  the  debtor   shall  apply  for   his discharge,  in which case a notice of the order will have to be  published.   Under  Section 28 of  the  Insolvency  Act, various   consequences  as  an  effect   of  an   order   of adjudication   are  provided.   Under   Section  41  of  the Insolvency  Act,  it is provided that a debtor may,  at  any time  after  the  order of adjudication, within  the  period specified  by the court, apply to the court for an order  of discharge,   and  the  court   may,  after  considering  the objections  of  any creditor and, where a receiver has  been appointed,  on  the  report of the receiver - [a]  grant  or refuse  an absolute order of discharge;  or [b] suspend  the operation  of the order for a specified time;  or [c]  grant an order of discharge subject to any conditions with respect to any earnings or income which may afterwards become due to the  insolvent,  or  with  respect to  his  after-  acquired property.   Effect  of an order of discharge is  dealt  with under  Section 44 of the Insolvency Act.  Except as provided under  sub-Section (1) of Section 44 of the Insolvency  Act, an  order of discharge shall release the insolvent from  all debts  provable under the Insolvency Act.  For the  purposes of  Section 73 of the Insolvency Act an order of  insolvency has  been  considered as a disqualification to hold  certain elective  offices.  An order of discharge, however, restores the  original status of an insolvent.  So long as the debtor remains  undischarged  he suffers from several  disabilities under  the Insolvency Act.  The Insolvency Act is a complete code and determination of all questions regarding insolvency including  a  question  as  to whether (1) a  person  is  an insolvent  or not, or (2) an insolvent be discharged or  not and  subject to what conditions, can be decided by the court constituted  under  that  Act  alone.    It  is  only   when exceptions  are carved out as is done in the case of Section 2(8)  of the Sale of Goods Act any other court or  authority can  decide  such  questions.  Under Article 329(b)  of  the Constitution no election to a legislature shall be called in question  except  by an election petition presented to  such authority  and in such manner as may be provided by or  made by  the  appropriate legislature.  Under Section 80A of  the R.P.Act,  the forum for adjudication of an election petition is  the  High  Court.   The   scope  of  this  provision  is considered  by this Court in Upadhyaya Hargovind  Devshanker v.   Dhirendrasinh Virbhadrasinhji Solanki & Ors., AIR  1988 SC 915.  In that decision, the question was whether an order made on interlocutory application in election petition could be  the subject of a Letters Patent Appeal.  It was observed in  that decision that conferment of power under R.P.Act  to try  an election petition does not amount to enlargement  of existing  jurisdiction of the High Court.  The  jurisdiction exercisable  under  the  R.P.Act is a  special  jurisdiction conferred  on the High Court by virtue of Article 329(b)  of the Constitution.  Therefore, even though the High Court may otherwise  exercise ordinary and extraordinary  jurisdiction

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it  would  be difficult to envisage a situation  that  while trying  an election petition in exercise of the jurisdiction conferred by the R.P.Act it can adjudicate upon vires of the R.P.Act  or  any  rule  or order  made  thereunder  and  the election  petition  has to be tried in accordance  with  the provisions  of  the  R.P.Act  and   thus  the  court  cannot entertain  and  pronounce  upon matters which  do  not  fall within  the  ambit of Section 100 of the R.P.Act.   Even  an ordinary  civil  court will not have jurisdiction to  decide questions  arising under insolvency enactments;  much less a special  Authority  like  the  High Court  when  it  is  not invested  with  such power under the Insolvency  Act.   This Court  in  Bhagwati  Prasad Dixit  Ghorewala  vs.   Rajeev Gandhi,  1986  (2) SCR 823, reversed the view taken in  1985 All  Weekly  Cases  682  on which  reliance  was  placed  by respondent  that the High Court can decide whether a  person has  acquired citizenship or lost citizenship.  In that case a  question arose as to whether in an election petition  the High  Court had jurisdiction to determine the citizenship of a   person.   The  High  Court   had  taken  the  view  that notwithstanding  the statutory bar contained in Section 9(2) of the Citizenship Act that wherever a question arises as to whether  when and how a person has acquired the  citizenship of  another country it shall be determined by such authority in  the manner prescribed by the rules of evidence as may be prescribed  in that behalf;  that since by virtue of Article 329(b)  of  the  Constitution all questions  arising  in  an election  petition filed under the R.P.Act were  exclusively triable  in  an  election petition, it had  jurisdiction  to decide  the question whether a candidate had ceased to be an Indian  citizen.  This Court took the view that when such  a question  arises  it would be a matter to be decided by  the authority  constituted under the Citizenship Act and when no decision  is  given  by the competent  authority  under  the Citizenship  Act,  the  question whether he ceased to  be  a citizen  of  India could not be adjudicated in  an  election petition.  In the present case, as we have explained earlier the  scheme  of  the provisions of the Insolvency  Act,  the exclusive jurisdiction to deal with any question relating to insolvency  could  be  adjudicated upon only  by  the  court constituted  under that Act.  In such a situation, it  would not  be  possible  to hold that the High  Court  had,  while dealing  with an election petition, jurisdiction to decide a question as to whether a person is an undischarged insolvent or  not.   Admittedly,  in  this  case,  there  is  no  such adjudication.   Hence  the High Court could not declare  the appellant to be an undischarged insolvent.  The contention put  forward before the High Court is that  disqualification contained  in Article 191(1)(c) could be attracted only in a case  where  a  person is adjudged as insolvent as  per  the Insolvency Act and in the absence of such adjudication it is not open to the High Court while trying an election petition to  find that the returned candidate is an insolvent and  he could  be held to be disqualified.  The learned Judge in the High  Court got over this initial hurdle of the jurisdiction of  the  High  Court to decide whether the appellant  is  an undischarged  insolvent by giving that expression a  meaning in  ordinary parlance.  To achieve this result, the  learned Judge  adopted  strained and strange logic or  reasoning  to which  we  have  referred  to in the earlier  part  of  this judgment.  We shall now consider each of those reasons.  The learned Judge referred to the scheme of different clauses of Article  191(1)  of  the Constitution and that  such  scheme would  indicate that if a member has any pecuniary  interest in  any governmental or quasi-governmental body such  member

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may  not be in a position to perform his duties  impartially with  free mind inasmuch as he can be under pressure of  the financial  institution  which has extended finances to  him. Therefore,  he was of the view that the policy of law should be  borne  in  mind  in  interpreting  the  meaning  of  the expression    undischarged    insolvent.     Under    what circumstances and subject to what limitations a person could be declared to have incurred disqualification is a matter of policy  of  law and the courts have cautioned themselves  by stating  that  right to vote, right to elect or  contest  an election  is a creature of statute and circumscribed by  the limitations  contained  therein.  Therefore, as long as  the Constitution  or the R.P.Act indicates in clear terms as  to what  its  policy  is, it would not be open to  a  court  to interpret  such  a provision by trying to find out what  the intent  could  be by ignoring the actual  expressions  used. Therefore,  the supposed scheme of the provisions would  not afford  sufficient  guidance  to  take  the  view  that  the expression  undischarged insolvent should be understood as meaning  an insolvent who is a person who is in  impecunious circumstances  as is unable to repay the debt.  The  learned Judge  noticed that under Article 191(1)(b) while  providing for  disqualification on the ground of unsound mind it  is made  clear that a person is of unsound mind if so  declared by a competent court and such declaration is not required in the case of an insolvent.  The extended logic applied by the learned  Judge  in the case of interpreting  the  expression undischarged  insolvent is that even when such declaration has  not  been  formally  made  by  a  court  of   competent jurisdiction  still  the  Election Court can decide  such  a question.   Even  though Article 191(1) of the  Constitution does  not include declaration by an insolvency court, but by reason  of  expression  used  that he  is  an  undischarged insolvent  it  clearly  indicates   that  he  could  become discharged  only  in  terms  of   the  provisions  of  the insolvency  Acts  and not otherwise.  It is implicit in  the expression  undischarged insolvent that a person does  not become  so unless he has been adjudged insolvent and is  not discharged  by  the  court under the insolvency  Acts.   The expression   undischarged   insolvent   has   acquired   a particular  legal connotation and such expression cannot  be used  otherwise than in terms of the insolvency  enactments. The  learned  Judge,  in  this   context,  referred  to  the statement  made  by  Sir Alladi Krishnaswamy  Ayyar  in  the course of the debates in the Constituent Assembly wherein he tried  to  impress upon the Assembly that similar  words  as contained in Section 73 of the Insolvency Act should be used and  disqualification  should  be removed and  cease  to  be effective  if  adjudication is annulled or if  an  insolvent obtains  a discharge with certificate that it was caused  by misfortune  and not by mis-conduct.  Reliance upon this part of  the  debate  by the learned Judge, in  our  opinion,  is misplaced.   The  reference made by Sir Alladi  Krishnaswamy Ayyar is to reduce the rigour of the disqualification in the event  the  adjudication  is  annulled or  if  an  insolvent obtains  a discharge with the certificate that it was caused by  misfortune  and not by mis-conduct.  Merely because  the suggestion  made  by Sir Alladi KrishnasSwamy Ayyar  is  not accepted  by the Constituent Assembly it does not mean  that the expression used in Article 191(1)(c) as to undischarged insolvent  will  be different from what is contained  under the insolvency enactments.  The reference to Section 73 made by Sir Alladi Krishnaswamy Ayyar is in the background stated above and, therefore, has no effect on the interpretation of the meaning of the expression undischarged insolvent.  The

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learned  Judge noticed that if a person is not to be held an insolvent  as  in  ordinary  parlance  it  would  result  in non-application  of  disqualification even if the  court  is satisfied  that the returned candidate is not in a  position to  repay  debts  and  could be adjudged  to  be  insolvent. Article  191(1)(c) does not contemplate mere  impecuniousity or incapacity of a person to repay ones debts but he should not only be adjudged insolvent but also remain undischarged. Such  a  contingency could only arise under insolvency  law. Article  191(1)(c)  refers to disqualifications of a  person from  getting elected to State Legislature.  The  conditions for  disqualification cannot be enlarged by importing to  it any  meaning other than permissible on strict interpretation of  expressions used therein for what we are dealing with is a  case of disqualification.  Whenever any  disqualification is  imposed naturally the right of a citizen is cut down and in   that  event  a   narrow  interpretation  is   required. Therefore,  the  liberal view taken by the learned Judge  to the  contrary does not appear to be correct.  Under the Sale of  Goods  Act,  a  special  definition  of  the  expression insolvent  had to be given to the effect that a person  is said  to  be insolvent who has ceased to pay his debts  in the  ordinary course of business, or cannot pay his debts as they  become  due,  whether  he  has  committed  an  act  of insolvency  or  not,  and the definition is  declaratory  in character.   Question  of  insolvency  of   a  buyer  is  of considerable importance in the context of the sellers lien. It  is  in  special  context  a  meaning  is  given  to  the expression  insolvent  even though a person had  not  been adjudged  an insolvent in the Insolvency Act to be insolvent for  the  purposes  of the Act.  That definition  cannot  be imported  into  the R.P.Act.  The learned Judge goes  on  to observe that an insolvent is a person who is unable to repay his  debts and as long as he remains in that position he  is an  undischarged  insolvent, that is, as long as he has  not discharged  his  debts  he is an  undischarged  insolvent. Redundancy  and  tautology  cannot  be  attributed  to   the Legislature.   When the Legislature has used the  expression undischarged  insolvent that expression must be given  its full  meaning.  A person on being adjudged insolvent remains so  unless discharged in terms of the provisions of  Section 41   of   the   Insolvency   Act,   either   absolutely   or conditionally,  or in the absence of annulment as  contained in  Section  35 of the Insolvency Act.  In ascertaining  the meaning  of  an expression used in a statute, certain  norms are  adopted.   If  the legislature has used  an  expression which  has acquired a technical meaning and such  expression is  used ordinarily in the context of a particular branch of law, it must be assumed that because of its constant use the legislature must be deemed to have used such expression in a particular  sense as is understood when used in the  similar context.    If   an  expression   has  acquired  a   special connotation  in law, dictionary or general meaning ceases to be  helpful in interpreting such a word.  Such an expression must  be  given  its  legal sense and  no  other.   In  this context,  we  may  refer to the weighty observation  in  the decision  of  this Court in the State of Madras vs.   Gannon Dunkerley & Co.  (Madras) Ltd., 1959 SCR 379, that a term of well recognised import in the general law should be accepted as  confining the meaning in interpreting the  Constitution. If  the  expression undischarged insolvent has acquired  a special  meaning  under  the  law  of  insolvency,  we  must understand  that  that is the meaning that is sought  to  be attributed  to  the expression used in Article 191(1)(c)  of the  Constitution.  We are, therefore, of the view that  the

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High  Court was not justified in holding that the expression undischarged  insolvent  should be understood de hors  the Insolvency Act in a general sense.

     Civil Appeal No.  8361 of 1997

     In this appeal preferred by the unsuccessful candidate who  contested  the  election contention is that  there  are various  corrupt  practices  alleged  against  the  returned candidate and they have been established by producing proper evidence  which should have been accepted by the High  Court and in rejecting the same, it is submitted, it has erred.

     The  allegation  is  that   the  appellant  using  his position and status secured 450 bottles of rum from Military Canteen, Pangode, Thiruvananthapuram and supplied in certain Harijan colonies of the constituency on 24, 25 and 26 April, 1996.  K.S.  Subramaniya Pillai saw K.  Krishnankutty who is an  employee  of military camp, taking a number of cases  of rum  to an ambassador car bearing Reg.  No.  KL-01-F1098 and on enquiries K.  Krishnankutty told K.S.  Subramaniya Pillai that  this  rum  were  purchased by  workers  of  the  first respondent.  The Harijan colonies where rum was supplied are Vengode  and  Manathottam  and rum was supplied  through  R. Gopalakrishnan Nair, Vice President, Vellarada Panchayat and V.   Sudhakaran,  Member  Vellarada Panchayat by  the  first respondent  for  bribing  the voters to secure  votes.   The evidence  adduced  before  the court was only that  of  K.S. Subramaniya  Pillai  and  G.   Suresh.    So  far  as   K.S. Subramaniya  Pillai  is concerned, he does not seem to  have personal  knowledge of the bottles being carried and he came to  know from K.  Krishnankutty.  K.  Krishnankutty has  not been  examined in the case.  K.S.  Subramaniya Pillai  (P.W. 12)  stated that he did not see any bottles and came to know that  there were liquor bottles kept in the card board boxes from  K.   Krishnankutty.  The bottles were squarely  closed and  the distance from him where he stood to the place where the   loading  took  place  was  50  yards.   He  asked   K. Krishnankutty  as  to what was happening and that it was  he who  told  him  that it was liquor for distribution  in  the Neyyattinkara constituency.  So far as G.  Suresh (P.W.  15) is  concerned, his evidence is to the effect that liquor was taken  to  various areas for distribution.  He  saw  bottles being  loaded in a car and he approached the panshopwala and asked him and two or three persons present there as to where these  bottles  were being taken to and they told  him  that they  were  being  taken to Neyyathinkara and  those  people standing there also told him that the liquor was being taken for  distribution  in Neyyattinkara constituency to  further the  prospects of the appellant.  He noted the number of the car.  In the absence of examination of K.  Krishnankutty the evidence  adduced  is vague and not clear and definite  much less  reliable  and, therefore, the High Court rightly  held that  there  is no acceptable evidence which can  bring  the case   against  the  appellant   within  the  expression  of bribery  under  Section 123 of the R.P.  Act.   The  other acts  of undue influence or that the returned candidate  has made  an appeal in the name of religion or that he has  made any  statement  with  a  false  reference  to  the  personal character and conduct of the candidate were not established. The  trial Judge has given cogent reasons in this regard and the  learned  counsel for the appellant in this case is  not able  to dislodge this conclusion by any material placed  on record.  The contention that the returned candidate indulged in  corrupt  practice by incurring expenditure in excess  of

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the  amount permitted in contravention of Section 77 of  the Act  was  also rejected by the learned Judge.  The  evidence adduced  before the court was only in the shape of something conjectural  and imaginary through P.W.  16 who stated  that substantial  expenditure  had been incurred by the  returned candidate.   It  is  not  made clear as to  who  might  have incurred  this expenditure and the evidence was not  adduced to  show  that the contractors used for the erection of  the stage  or  platform were examined to indicate  the  payments having  been made by the returned candidate.  Therefore, the view taken by the learned Judge in this regard appears to us to  be correct.  The issue relating to whether the  returned candidate  had  obtained  or  procured  assistance  for  the furtherance of the prospects of his election from any person in  service of the government and whether he had misused his official  position  also to such effect, it is  stated  that there  was no clear evidence in this regard.  The allegation that  he utilised the services of the Sub-Inspector  Vincent and  the acts attributed to him were done at all, much  less at  the  instance  of  the returned  candidate.   Again  the allegation  made  is  in respect of taking  assistance  from Antony,  Block  Development  Officer   (B.D.O.),  that   the returned  candidate used his official jeep for  distributing propaganda  material.  Though this aspect was deposed to  by P.W.   16, the learned Judge felt that he could not act upon the  evidence of P.W.  16 alone.  He noticed that there  was hardly  any  evidence to show that the B.D.O.  acted at  the instance  of  the returned candidate or he was requested  by him.   His evidence is that on that day Shri Karunakaran was to address a meeting.  The B.D.O.  told the Congress workers that  such  thin  attendance would not do when  a  prominent leader  who  was  a Minister in the Central  Government  was going  to address the meeting.  On hearing this the Congress workers  got  into  the vehicle fitted with  mike  and  went around exhorting people to come to the meeting.  The learned Judge  held that the allegation made by the witness that the jeep  meant for government officer was used by the  Congress workers is not established as having been done at the behest of  the  returned  candidate.  Therefore, this view  of  the learned  Judge  has got to be upheld.  He also noticed  that there  was  no  clear or direct evidence to prove  that  the first  respondent  has  misused his official position  as  a sitting  member of the Legislative Assembly.  We agree.   In the  result,  we allow the appeals [C.A.Nos.   7395-7396/97] filed  by  the  returned candidate and set aside  the  order passed  by  the learned Judge declaring his election  to  be void   on  the  ground  that   he  has  incurred   necessary disqualification  as  provided under Article  191(1)(c)  for being chosen to the Assembly as Member thereof on account of the fact that he was an undischarged insolvent.  So far as the  appeal  [C.A.No.   8361/97] filed by  the  unsuccessful contesting candidate is concerned, the same has to be and is dismissed.  However, there shall be no order as to costs.