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2010 Supreme(SC) 135

2010 (1) Supreme 502
SUPREME COURT OF INDIA
D.K. Jain and P. Sathasivam, JJ.
Tukaram S. Dighole — Appellant
versus
Manikrao Shivaji Kokate — Respondent
Civil Appeal No.2928 of 2008
Decided on : 05-02-2010

Advocates Appeared:
Krishna Venugopal, Sr. Adv., S. Udaya Kumar Sagar, Ms. Bina Madhawan, Shwetank Sailakwal, (for M/s. Lawyer’s Knit & Co.), Advs., with him for the Appellant(s).
K. V. Vishwanathan, Sr. Adv., Sudhanshu S. Chaudhary, Naresh Kumar, Abhishek, Advs., with him for the Respondent(s).

IMPORTANT POINTS
1. It is well settled that tape-records of speeches are “documents” as defined in Section 3 of the Evidence Act and stand on no different footing than photographs.
2. A charge of corrupt practice, envisaged by the Act, is equated with a criminal charge and therefore, standard of proof therefor would not be preponderance of probabilities as in a civil action but proof beyond reasonable doubt as in a criminal trial.

Headnote:Representation of the People Act, 1951- Sections 116-A,123(3) - Election petition filed by appellant, challenging the election of the respondent to House of People (Lok Sabha) from 69, Sinnar Parliamentary Constituency in the State of Maharashtra-Dismissed by Tribunal observing that though the appellant had placed on record a VHS Cassette but had failed to produce any evidence to show that the said cassette was a true reproduction of the original speeches- The Tribunal did not accept the plea of the appellant that since the cassette is a “public document”, as defined in Section 74 of Evidence Act, its mere production was sufficient and no further evidence was required to be adduced to prove as to how the said cassette was obtained by appellant-Appeal-Plea of appellant that Tribunal committed a serious error of law in rejecting the evidence adduced by the appellant, in the form of said cassette- Since appellant had failed to produce even receipt stated to have been issued by Election Commission’s office, Tribunal held that mere production of the cassette with Election Petition would not lead to the inference that it had been produced in evidence and being a public document, it was not required to be proved-Perusal of material on record showed that Tribunal was completely justified in holding that in the absence of any cogent evidence regarding the source and the manner of its acquisition, the authenticity of the cassette was not proved and it could not be read in evidence despite the fact that the cassette is a public document- No relevant material was brought on record to hold that finding by Tribunal was perverse, warranting interference-Apart from that in the instant case appellant miserably failed to prove the authenticity of the cassette as well as the accuracy of the speeches purportedly made by the respondent-Admittedly, the appellant failed to lead any evidence to prove that the cassette produced on record was a true reproduction of the original speeches by respondent or his agent- On a careful consideration of evidence and circumstances of the case, held that appellant failed to prove his case that respondent was guilty of indulging in corrupt practices-Appeal having no merit dismissed (Paras19,20,25,26)
        Election Petition-Charge of corrupt practice-Burden of Proof- A charge of corrupt practice, envisaged by the Act, is equated with a criminal charge and therefore, standard of proof therefor would not be preponderance of probabilities as in a civil action but proof beyond reasonable doubt as in a criminal trial- If a stringent test of proof is not applied, a serious prejudice is likely to be caused to the successful candidate whose election would not only be set aside, he may also incur disqualification to contest an election for a certain period, adversely affecting his political career- Thus, a heavy onus lies on the election petitioner to prove the charge of corrupt practice in the same way as a criminal charge is proved (Para11)
        Tape-records of speeches –Admissibility of in an election petition -It is well settled that tape-records of speeches are “documents” as defined in Section 3 of the Evidence Act and stand on no different footing than photographs- There is also no doubt that the new techniques and devices are the order of the day- Audio and video tape technology has emerged as a powerful medium through which a first hand information about an event can be gathered and in a given situation may prove to be a crucial piece of evidence- At the same time, with fast development in electronic techniques, the tapes/cassettes are more susceptible to tampering and alterations by transposition, excision, etc. which may be difficult to detect and, therefore, such evidence has to be received with caution-To rule out the possibility of any kind of tampering with the tape, the standard of proof about its authenticity and accuracy has to be more stringent as compared to other documentary evidence (Para 20)
       Facts of the Case :
        An Election petition was filed by appellant herein in the instant case challenging the election of the respondent to House of People (Lok Sabha) from 69, Sinnar Parliamentary Constituency in the State of Maharashtra. Said Election petition was Dismissed by Tribunal observing that though the appellant had placed on record a VHS Cassette but had failed to produce any evidence to show that the said cassette was a true reproduction of the original speeches. The Tribunal did not accept the plea of the appellant that since the cassette is a “public document”, as defined in Section 74 of Evidence Act, its mere production was sufficient and no further evidence was required to be adduced to prove as to how the said cassette was obtained by appellant.
        2. Present appeal has been filed against said order of Tribunal. Plea of appellant that Tribunal committed a serious error of law in rejecting the evidence adduced by the appellant, in the form of said cassette.
       Findings of the Court :
        Since appellant had failed to produce even receipt stated to have been issued by Election Commission’s office, Tribunal held that mere production of the cassette with Election Petition would not lead to the inference that it had been produced in evidence and being a public document, it was not required to be proved.Perusal of material on record showed that Tribunal was completely justified in holding that in the absence of any cogent evidence regarding the source and the manner of its acquisition, the authenticity of the cassette was not proved and it could not be read in evidence despite the fact that the cassette is a public document. No relevant material was brought on record to hold that finding by Tribunal was perverse, warranting interference. Apart from that in the instant case appellant miserably failed to prove the authenticity of the cassette as well as the accuracy of the speeches purportedly made by the respondent. Admittedly, the appellant failed to lead any evidence to prove that the cassette produced on record was a true reproduction of the original speeches by respondent or his agent. On a careful consideration of evidence and circumstances of the case, held that appellant failed to prove his case that respondent was guilty of indulging in corrupt practices. Appeal having no merit was dismissed
       Result : Appeal dismissed

JUDGMENT

D.K. Jain, J.

1. This appeal under Section 116-A of the Representation of the People Act, 1951 (for short “the Act”) is directed against the final judgment and order dated 25th January, 2008, rendered by the High Court of Judicature at Bombay in Election Petition No.13 of 2004, whereby the election petition preferred by the appellant, challenging the election of the respondent to the House of People (Lok Sabha) from 69, Sinnar Parliamentary Constituency in the State of Maharashtra has been dismissed.

2. Briefly stated, the material facts giving rise to the present appeal are as under: Election to the said parliamentary constituency was held on 13th October, 2004 and the results were declared on 16th October, 2004. The appellant contested the elections as a candidate of NCP- Congress — R.P.I. alliance, whereas the respondent contested the election as a Shiv Sena — Bharatiya Janta Party alliance candidate. Out of a total of 1,35,063 votes cast in the election, while the respondent secured 67,556 votes, the appellant could manage 47,593 votes. Resultantly, the respondent was declared elected.

3. Not being satisfied with the election result, the appellant preferred an election petition, challenging the election on several grounds and for declaring the said election to be void in terms of Sections 100(1)(b), 100(1)(d)(ii) and 100(1)(d)(iv) of the Act, with consequential relief of declaring the appellant as elected in terms of Section 101(b) of the Act.

4. The election petition was contested by the respondent denying all the allegations. It was pleaded that the election petition was not maintainable inasmuch as it was not in the prescribed format; no details of the communal appeals allegedly made by respondent and his agents were mentioned in the petition; certified copies of the VHS Cassette and its transcript, containing the speeches delivered by the respondent, had not been furnished and even the provisions of Section 86 of the Act had not been complied with.

5. Upon consideration of the pleadings, the High Court (hereinafter referred to as “the Tribunal”) framed the following issues:

“(1) Whether the petitioner proves that the election of the respondent is liable to be quashed and set aside for having made communal appeals in his speeches recorded on the VHS Cassette produced by the petitioner in Court?

(2) Whether the petitioner proves that the election of the respondent is liable to be quashed and set aside under Sections 100(1)(d)(ii) and 100(1)(d)(iv) of the Representation of People Act, 1951 for the reasons set out in paragraphs 9 to 18 of the Election Petition?

(3) Whether the petitioner proves that the respondent had deliberately issued the letter at Exhibit E page 42 dated 28.9.2004 in the name of the petitioner with a view to misguide the voters?

(4) Whether the respondent proves that he has not addressed communal and racial speeches as alleged in VHS Cassette filed by the petitioner?”

6. In support of the case, one of the documents placed on record by the appellant was a VHS Cassette which, according to him, was obtained from the Election Commission of India and contained a true reproduction of the speeches delivered by the respondent and his supporters during the election campaign. Out of the 20 documents produced, only 3 documents viz. FIR dated 12th October, 2004 (Ex. P2), complaint dated 29th October, 2004 (Ex.P3) and a special supplement issued in the newspaper “Gavkari” on 3rd September, 2004 (Ex.P4) were exhibited. No other documents, including the VHS Cassette, were exhibited. The appellant and the respondent examined themselves as witnesses in support of their respective stands. No other witness was examined.

7. Analysing the evidence adduced by the parties on the Issues, the Tribunal answered Issues No.1 to 3 in the negative and in view of answer to Issue No.1, Issue No.4 was not answered. On Issue No.1 the Tribunal observed that though the appellant had placed on record the VHS Cassette but had fail

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2010 Supreme(SC) 135

2010 (1) Supreme 502SUPREME COURT OF INDIAD.K. Jain and P. Sathasivam, JJ.Tukaram S. Dighole — AppellantversusManikrao Shivaji Kokate — RespondentCivil Appeal No.2928 of 2008Decided on : 05-02-2010

Cases Referred (5)

2010 (1) Supreme 502
SUPREME COURT OF INDIA
D.K. Jain and P. Sathasivam, JJ.
Tukaram S. Dighole — Appellant
versus
Manikrao Shivaji Kokate — Respondent
Civil Appeal No.2928 of 2008
Decided on : 05-02-2010