M NARAYANA SWAMY Vs. C MOHAN

JUDGEMENT

(1.) THE petitioner is the unsuccessful candidate at the 12th assembly elections to the Karnataka State Legislature from No.72, Bethamangala (S.C.) Assembly Constituency. THE respondents 1 to 7 are the other contesting respondents and respondent No.3 is successfully declared as elected by margin of 547 votes ahead of the petitioner who had secured next higher number of votes. THE polling and counting of votes for parliamentary and assembly constituencies held simultaneously. THE petitioner after counting of votes, submitted a petition to the Returning Officer objecting the result on the ground that the electronic voting machines sent for polling in parliamentary and assembly elections are wrongly swapped at the time of polling. THE Returning Officer after scrutiny, rejected the petition by order at Ex,P 29.

(2.) THE petitioner in the election petition contends that there is no swapping at the polling stage, but according to his information from the records and counting agents, the control unit Nos.59864 and 58936 were allotted to the polling for the assembly elections for booth Nos 2 and 5 respectively. THE control unit Nos.61398 and 60904 were allotted to the parliamentary elections for booths 2 and 5. But at the stage of counting, the control units of booths 2 and 5 of parliamentary elections have been wrongly counted for the assembly elections and vice-versa. It is further said that the defect at the time of counting could not be noticed because of co-incidence of the fact that for assembly and lok-sabha, there were eight contesting candidates. THE serial number of the petitioner in the ballot paper is at No.7. THE candidate who contested for parliamentary elections at Sl.No.7 in the ballot paper, is not a very popular candidate and he could not have secured 279 votes at Booth No.2 and 252 votes at Booth No.5 in the parliamentary and assembly elections are to be summoned for adjudication. THE votes polled by the candidates at Sl.No.7 for Lok Sabha elections at Booth Nos 2 and 5 should be counted as the votes polled by the petitioner and thus contends that the total number of votes polled by him is higher than the third respondent and accordingly, he should be declared as duly elected candidate for 12th Vidhana Sabha from No.72, Belthamangala (S.C.) Assembly Constituency.

(3.) THE petitioner has examined himself and 7 witnesses. THE petitioner is examined as PW1. THE gist of his evidence only shows that on the basis of documentary evidence produced by him and the version given by his Counting Agents - PWs 2 and 4, he believes that there is swapping of control units at the time of counting. However. PW 1 has not personally and particularly witnessed the first round of counting at table Nos 2 and