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PETITIONER: ELVIN SANGMA

       Vs.

RESPONDENT: PROJENGTON MOMIN & ANR.

DATE OF JUDGMENT21/11/1974

BENCH: ALAGIRISWAMI, A. BENCH: ALAGIRISWAMI, A. SARKARIA, RANJIT SINGH

CITATION:  1975 AIR  425            1975 SCR  (2) 801  1975 SCC  (3) 798

ACT: Election-Distribution of dummy ballot papers, showing  rival candidate’s  election  symbol  wrongly-If  corrupt  practice invalidating the election.

HEADNOTE: On three days before the election to the Meghalaya  Assembly the appellant, who was the successful candidate, distributed dummy  ballot  papers in various places.  The  dummy  ballot papers  contained.  as  the election  symbol  of  the  first respondent,  who was a rival candidate, a  symbol  different from  that allotted to the first respondent by the  Election Commission.  The first respondent successfully challenged in the  High Court the election of the appellant on the  ground that  he was guilty of a corrupt practice under s.123(4)  of the Representation of the People Act, 1951. Dismissing the appeal to this Court, HELD:     In  a  constituency consisting of  more  than  80% illiterate electors the consequences of such distribution of dummy  ballot  papers with wrong symbols would be,  (a)  the voters  who  went  to the polling station  would  have  been confused even if they did not go there with the intention of voting  for the first respondent, (b) people who went  there with the intention of voting for the first respondent  might well  have cast their votes either for the appellant or  for the  other  candidates finding that the  first  respondent’s symbol  was  not  there, or (c) they might  have  gone  away without  voting.   Therefore,  the  distribution  must  have prejudiced the prospects of the first respondent’s election. In a case where a corrupt practice is alleged and proved  it is  not necessary to further show the exact number of  votes which  the  first respondent lost or the  appellant  gained. The  corrupt  practice itself is enough  to  invalidate  the election. [804G-805B]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 441 of 1973. From  the Judgment & Order dated the 12th February, 1973  of the  Assam & Nagaland High Court in Election Petition No.  5 of 1972.

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P.   K.  Chatterjee,  A.  Sharma and  Rathin  Das,  for  the appellant. S.   K. Hom Choudhury and S. K. Nandy, for respondent No. 1. The Judgment of the Court, was delivered by ALAGIRISWAMI,  J.  In  the election held  to  the  Meghalaya Legislative Assembly from Songsak Constituency on 9th  March 1972 the appellant was declared elected having received  819 votes  as against 176 received by the 1st respondent and  98 votes  received by the 2nd respondent.  The appellant was  a candidate  set up by the All Party Hills Leaders  Conference and  the  1st  respondent was supported by  the  Hill  State People’s  Democratic Party (H.S.P.D.P.), though  that  party was not a recognised party.  The symbol allotted to the  1st respondent by the Election Commission was "two leaves".  The 1st  respondent filed an election petition  questioning  the election  of the appellant on the ground that be was  guilty of  a corrupt practice falling under section 123(4)  of  the Representation  of  the  People Act,  1951.   That  election petition  having been allowed and appellant’s  election  set aside  by  the  High Court of  Assam,  Nagaland,  Meghalaya, Manipur  and Tripura this appeal has been filed against  the decision of the High Court. 802 The  allegations in support of the petition were that  on  3 days  before the election, that is on the 25th  of  February 1972,  the 5th of March 1972 and the 7th of March 1972,  the appellant  distributed dummy ballot papers in three  places, Bollonggiri,  Daggal  Bazar and Songsak  respectively.   The dummy ballot papers marked as Ext. 4 in this case  contained a  "boat"  as  the election symbol  of  the  1st  respondent instead of the "two leaves" allotted to him as the  election symbol. The case of the respondent was that this was a false statement  reasonably calculated to prejudice the  prospects of  his election.  The appellant’s case was that  the  dummy ballot  papers  were  got  printed  by  A.  M.  Sangma,  the Secretary  of  the A.P.H.L.C., that he took  the  bundle  of dummy  ballot  papers  from Tura, the  headquarters  of  the A.P.H.L.C.  and  when he was staying at the  rest  house  in Bollonggiri  he found out the mistake that had crept in  the dummy ballot papers, that after consultation with the  Chief Minister of Meghalaya, W.A. Sangma, who has been examined as R.W. 12, he issued a correction statement marked as Ext.  E, that  the  dummy ballot papers were  not  distributed,  that there  was  therefore  no publication and that  it  was  not calculated   to   prejudice  the  prospects   of   the   1st respondent’s  election.  The High Court after a very  close, careful and restrained appreciation of the evidence in  this case has come to the conclusion that the dummy ballot papers were distributed by the appellant at Bollonggiri and  Daggal Bazar and we have also come to the same conclusion. As  we  agree  with the learned Judge we  do  not  think  it necessary to refer in elaborate detail to the evidence.   We shall  refer to the evidence in broad outline and show  that his  conclusion  is  fully justified,  With  regard  to  the distribution of ballot papers like Ext. 4 in Bollonggiri  on the  25th of February, the two witnesses who  gave  evidence are  Willingson  Sangma,  P.W.8 and  Jangnal  Marak,  P.W.4. According to them the appellant distributed the dummy ballot papers  and they produced two ballot papers as  having  been handed over to them.  They further stated that on enquiry as to  how  the dummy papers did not contain the  "two  leaves" symbol  allotted to the 1st respondent the appellant  stated that they were Government papers and the symbol allotted  to the  1st respondent had been cancelled.  The High Court  has held,  and  rightly so, that the alleged  statement  of  the

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appellant  that  they  were  Government  papers  cannot   be admitted  in  evidence  on the ground that  it  was  not  so pleaded  in  the  election petition.  We  cannot  also  help feeling  that in deposing that the appellant told them  that they  were Government papers and the symbol allotted to  the 1st   respondent  had  been  cancelled  P.Ws.8  and  4   are embellishing the story to make their evidence stronger.   In the   election  petition  itself  it  is  stated   that   at Bollonggiri  and Daggal Bazar the appellant had stated  that the  "two  leaves"  election  symbol  allotted  to  the  1st respondent  was  withdrawn  by the  Government  and  he  was nowhere  whereas in the evidence given there is  no  mention about  the  appellant having said that  the  petitioner  was nowhere.   While the election petition does not  state  that the dummy ballot papers were Government papers P.Ws. 4 and 8 say  that  the appellant stated that  they  were  Government papers.   We  therefore conclude that it would be  safe  and reasonable to hold that the evidence of P.Ws. 8 and 4 cannot be accepted in so far as they add any-  803 thing  more  than that the appellant distributed  the  dummy ballot papers.  We shall Presently mention why we think that the  dummy  ballot  papers  like Ext.  4  should  have  been distributed by the appellant. On the 26th of February the 1st respondent filed a complaint Ext.  3  before  the Returning Officer and  along  with  the complaint  he  filed a, dummy ballot paper Ext.  4.  Ext.  4 could  not have become available to him unless it  had  been distributed by the appellant.  We are not    perpared     to accept the contention on behalf of the appellant that  they, should have been pilfered because no evidence to that effect was given.  Nor are we able to accept his evidence and  that of Constant Marak R.W. 8 as to how the mistake in the  dummy ballot   paper  was  found.   It  sounds   too   artificial. Admittedly  the appellant had given a lift to P.Ws’ 8 and  4 on his journey from Tura to Bollonggiri and as admittedly he had  passed  through villages included in  his  constituency during the course of that journey it is quite likely that he distributed   those  dummy  ballot   papers.    Furthermore, according  to  the  appellant  he  had  distributed  another pamphlet  Ext.   E after coming to realise  that  the  dummy ballot  paper  was wrong.  If dummy ballot papers  were  not distributed at all there was no need to distribute pamphlets like Ext.  E. These pamphlets were printed on 29th  February and taken delivery of    on  the  1st  of  March.   The  1st respondent’s case that these pamphlets were not  distributed does  not  seem  to be true because one  of  his  witnesses, P.W.8,  admits  having  seen such  a  pamphlet  and  another witness, P.W. 5, makes an half hearted admission of the same fact.   We,  are, therefore, satisfied that  pamphlets  like Ext.   E  were in fact distributed by the  appellant.   That could  have been done only to counteract the effect  of  the distribution of the dummy ballot papers.  It is not    the appellant’s case that he distributed the dummy ballot papers at  all.   If so there was no need to  distribute  pamphlets like Ext.  E. Quite. possibly realising rather a little late the damage likely to be done to his case the appellant tried to repair the dam-age by the distribution of pamphlets  like Ext.  E. As  regards  the  distribution of  dummy  ballot  papers  in Duggal’   Bazar  the evidence was that of P.Ws. 7, 9 and  10 who  also produced the dummy ballot papers marked  as  Exts. 41, 42 and 43.  According to them the appellant  distributed these  dummy ballot papers and said that the symbol of  "two leaves" bad been cancelled by the Government.  This is  said

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to  have taken place on the 5th of March and on the  6th  of March the 1st respondent filed a criminal complaint against the  appellant and A. M. Sangma, R.W. 2,  complaining  about the publication of the dummy ballot papers.  The  importance of  the  publication  on the 5th March  is  because  if  the distribution of the dummy ballot papers had been only on the 25th  of February it might possibly be argued that  he  ’had not  till  then  seen them and as soon as  be  realised  the mistake he tried to undo the harm by distributing  pamphlets like Ex. E. As Ext.  E is said to have been distributed from It  March onwards, the case of the bona fide mistake in  the printing of the dummy    ballet   papers   would   not    be sustained  if  their  distribution on the 5th  of  March  at Daggal Bazar is proved.  Just an in the case of evidence  of P Ws. 8 and 4, we also think that the evidence of P.Ws. 7. 9 and  10 is exaggerated in so far as they say that  appellant told them that the- 804 1st   respondent’s   symbol  had  been  cancelled   by   the Government.  The learned Judge of the High Court holds  that the distribution of the dummy ballot papers in Daggal  Bazar is  proved  because the appellant is unable to  explain  how P.Ws. 7, 9 and 10 were able to get dummy ballot papers  like Exts.  41, 42 and 43.  It cannot be urged that those  ballot papers  were those obtained when the  appellant  distributed them in Bollonggiri because the appellant’s case is that  he had not distributed them at all.  The appellant produced 497 ballot  papers and stated that 3 ballot papers were  missing and  he  was producing the ,other 497.  But  as  six  ballot papers  have  been produced before the Court and  marked  as Exts. 4, 35, 41 to 43 and Ext.  P.W. 6/1 it is not  possible to accept this explanation.  The question reduces itself  to this  :  Were  these  497  ballot  papers  produced  by  the appellant  got printed later, as was the suggestion  put  to him,  or  did  the 1st respondent get  dummy  ballot  papers printed  and produce them as the six exhibits marked by  the Court  ?  Such a suggestion %,as not put to  him.   We  have already held that we cannot accept the explanation sought to be  put forward on behalf of the appellant before  the  High ,Court that they must have been pilfered.  It is, therefore, reason-able  to  conclude  that the  appellant  should  have distributed at least the six ,;dummy ballot papers exhibited before  the  Court, if not more in which case  the  logical conclusion  would  be  that  the  497  dummy  ballot  papers produced before the Court were merely an attempt to cover up what  the appellant had done and to make it appear  that  no dummy  ballot papers were distributed.  In view of the  fact that the 1st respondent bad filed a complaint on the 26th of February  before  the  Returning  Officer  and  a   criminal complaint  on the 6th of March we would, in  agreement  with the  high  Court, hold that the distribution  of  the  dummy ballot  papers  at Bollonggiri as well as  Daggal  Bazar  is proved.   If the distribution of the dummy ballot papers  in Daggal Bazar is proved then there can be no question of  the printing  of the dummy ballot papers with the  wrong  symbol being  due  to  a  mistake  but  must  be  deliberate.   The appellant  might  have distributed pamphlets  like  Ext.   E realising  at a later stage the mistake he had committed  in distributing  the wrong dummy ballot papers but that  cannot help  him.  In a constituency admittedly consisting of  more than  80  per cent illiterate electors the  consequences  of distribution  of dummy ballot papers with wrong symbols  can well  be imagined.  Voters who went to the polling  stations would have been confused even if they did not go there  with the  intention of voting for the 1st respondent  and  people

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who  went  there with the intention of voting  for  the  1st respondent  might  well have cast their vote either  to  the appellant  or  to the other candidate finding that  the  1st respondent’s symbol was not there or they might have                             805 even  gone  back  home without voting.  In a  case  where  a corrupt  practice is alleged and proved it is not  necessary further  to  show the exact number of votes  which  the  1st respondent  lost  or  the  appellant  gained.   The  corrupt practice itself is enough to invalidate the election. There  is a small matter to which reference may be  made  at this  stage.  The allegation in the election  petition  also was that the 1st respondent’s name had been wrongly  spelled in  the dummy ballot papers distributed by  the appellant. As admittedly the electorate is, 80 per cent illiterate this is  not likely to have any effect and no importance  can  be attached to it. In  the result we uphold the decision of the High Court  and dismiss this appeal, the costs of the 1st respondent to be, paid  by them appellant. V. P. S.                                Appeal dismissed.                             806