R PUTHUNAINARALHITHAN Vs. PH PANDIAN

JUDGEMENT

(1.) 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 the 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 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.

(2.) 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 has 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 of 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.

(3.) 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. P.W. 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 P.W. 9 that he had sued 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 established that he had suppressed the relevant material facts. 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.