1996 Supreme(SC) 675

1996(3) Supreme 476
SUPREME COURT OF INDIA
K. Ramaswamy, S.P. Bharucha & K.S. Paripoornan, JJ.
R, Puthunainar Alhithan etc. -Appellants
versus
P,H..Pandian & Ors. etc. -Respondents
Civil Appeal No.877 of 1994
with
Civil Appeal No.2649 of l994
Decided on 26-3-1996

IMPORTANT POINT
In an election petition when the election petitioner has adduced evidence to prove that the returned candidate has committed corrupt practice, the burden shifts on the returned candidate to rebut the evidence and after its consideration, it is for the Court to consider whether the election petitioner had proved the corrupt practice as alleged against the returned candidate.

Headnote:Representation of People Act, 1951-Sections 77 & 123(6)-Corrupt Practice-Election challenged on ground that appellant had used two vehicles and he had not accounted for expenditure incurred for second vehicle-Onus of proof-Standard of proof -Appellant specifically mentioned that he had used one vehicle-In written statement, he admitted that he used another vehicle-He did not in his election return either the use of the said vehicle or expenditure incurred for its use-In rejoinder affidavit respondent has specifically pleaded that said vehicle was used and he estimated the expenditure- Appellant produced no evidence to explain admission of user of that vehicle.He deliberately suppressed material fact of user of vehicle and expenditure incurred for its use- Conclusion that expenditure would have been in excess of the limit prescribed under Act-Adverse inference drawn from omission to produce account. that appellant committed corrupt practice u/s. 123(6).

       Held: 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 used and 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. NH 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. Morsover, even though notice was issued to produce his account, he deliberately withheld 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. (Para 5)

       Further held: 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. (Para 8)

       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 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 practice 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. (Para 9)

       (ii) Evidence Act. 1872-Section 3-A fact4s "aid to be Proved when.

       Held -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. (Para 7)