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2011 (3) ALT 263
High Court of Andhra Pradesh
MR. JUSTICE K.C. BHANU
Putta Madhukar
Versus
Duddilla Sridhar @ Duddilla Sridhar Babu & Others
ELECTION PETITION NO. 12 OF 2009
Decided on : 24-12-2010
B) CIVIL PROCEDURE CODE, 1908,Order 6 Rule 15:- A mere defect in the verification is not so fatal as to dismiss the plaint. It is only a curable defect which can be cured by filing an affidavit in support of the material particulars mentioned in the election petition as per the new sub-rule (4) as amended by the Civil Procedure Code Amendment Act, 1995. (Para 19)
C) REPRESENTATION OF THE PEOPLE ACT, 1951, Section 83 (1)(c) proviso Conduct of Election Rules, 1961, Rule 94-A:- Affidavit filed in support of the pleadings in election petition shall be verified before First Class Magistrate or Notary. (Para 22)
D) CIVIL PROCEDURE CODE, 1908, Order 19 Rule 3 and Order 18 Rule 4 (as amended by Act of 2002) - General Clauses Act, 1987, Section 3 (3) - A.P. Civil Rules of Practice and Circular Orders, 1980, Rules 38 and 39 – The affidavit in lieu of chief examination duly attested before an advocate other than the advocate appearing for the election petitioner is in due form and the contention of the advocate to eschew the evidence as it is duly attested is rejected. (Para 32)
E) ELECTION PETITION – The standard of proof required in case of a corrupt practice in election petition is proof beyond reasonable ground. The onus lies on the petition to prove his charge of corrupt practice and the evidence shall be cogent and reasonable. (Para 33)
F) REPRESENTATION OF THE PEOPLE ACT, 1951, Sections 123 (6) and 77:- Where the election petitioner could only plead and prove that the election campaign material seized by the police and returned to the Mandal president of congress party candidate by the court was used by the elected candidate, but he failed to prove that the congress election material was exclusively used in his constituency only or that the cost of material so used exceeded the permissible level of expenditure of Rs.10 lakhs, the returned candidate cannot be said to be guilty of the corrupt practice. Unless there is a specific challenge as to correctness or otherwise of Ex.R-7 in the first instance, any amount of evidence with regard to incorrect or false account of expenditure statement is valueless. Hence the charge of corrupt practice pleaded does not succeed against the returned candidate. Election petition was dismissed.
G) REPRESENTATION OF THE PEOPLE ACT, 1951, Section 82 - Conduct of 10 Election Rules, 1961, Rule 85- It is not proper to d is miss the election petition merely on the ground that the name of the elected candidate was wrongly described in the cause title so far as the there is no confusion with regard to identity of the candidate. (Paras 78 and 79)
H) EVIDENCE ACT, 1872, Section 114 (g):- Plea of the election petitioner that the court shall adverse inference against the returned candidate had not put in evidence to show as to how the election campaign material seized and released in the criminal case was explained to the effect that it was exclusively used in his constituency is rejected because the onus of disprove the corrupt practice lies on the petitioner but not on the returned candidate. Moreover the election petitioner failed to show as to how the evidence of three witnesses who were not produced by the returned candidates would have disclose the data he want to prove against the elected candidate. So, in these circumstances, the contention of the learned senior counsel appearing for the petitioner that the presumption under Section 114 (g) of the Indian Evidence Act, 1872, can be drawn is wholly devoid of merit and untenable. (Para 76)
I) EVIDENCE ACT, 1872, Section 106”- This provision requiring the elected candidate to disclose facts within his exclusive knowledge does not come into operation when the election petitioner had himself failed to his allegations against the elected andidate beyond reasonable doubt. (Para 77)
1. This Election Petition is filed under Sections 81 read with 77, 100 (1) (b) (d) (ii) and 123 (1) (A) of the Representation of the People Act, 1951 (for short, RP Act, 1951) praying (i) to declare election of the first respondent to the 24 Manthani Assembly Constituency as null and void and set aside the same; (ii) to declare the petitioner as duly elected as member of the 24 Manthani Assembly Constituency, under Section 84 of the RP Act, 1951 and (iii) to award costs of the Election Petition.
2. The averments of the Election Petition, in brief, may be delineated as follows:
The petitioner is one of the contesting candidates of 24 Manthani Assembly Constituency in the general elections held on 16.4.2009. The petitioner was fielded from Praja Rajyam Party whereas the first respondent was fielded from Indian National Congress party. In the results declared on 16.5.2009, the first respondent was declared elected as member of said constituency having polled 63,770 votes, and the petitioner stood second having polled 50,561 votes. Father of the first respondent also belonged to Indian National Congress party and he represented from Manthani Assembly Constituency to the Legislative Assembly and held the post of Speaker of the Legislative Assembly. After demise of his father, the first respondent contested from the said Assembly Constituency from the same party and was elected in the general elections held in the years 1999 and 2004. As was done earlier also, the first respondent got his photograph and the photograph of his father prominently printed in all the material published and used by him viz. banners, posters, pamphlets, door stickers, badges, etc., during the 2009 elections. In the letter addressed to voters of the constituency and also on the tilak sheet used by women, the first respondent used his father’s name and photograph respectively, and no other candidate fielded from the said constituency used name or photograph of father of the first respondent.
The first respondent got elected from the said constituency by using and indulging in corrupt practices, and made expenditure much over and above the upper limit of the election expenditure fixed by the Ministry of Law & Justice (Legislative Department), Government of India Notification No.H-11-19 (6)/2003, dated 24.10.2003, which is Rs.10,00,000/- for an Assembly Constituency in Andhra Pradesh State. As per the initial estimate of the petitioner, the material printed and used by the first respondent and upon the material seized by the police from either the custody of the first respondent or his election agents or his supporters or members of his political party, the expenditure incurred by the first respondent exceeded Rs.35,00,000/-. As per Section 77 of the RP Act, 1951, every candidate in an election shall keep a separate and correct account of all expenditure in connection the election incurred or authorized by him or by his election agent. The first respondent exceeded the maximum limit of election expenses basing on the suggested rates for election related items of expenditure issued by the District Election Officer/District Collector, Karimnagar. The materials used by the first respondent during election campaign are banners, cotton flags, flexis, caps, wall posters, hand bills, pamphlets, face masks, door stickers and badges, and other material prepared by him for the purpose of using in the said election as gifts to voters includes cricket kits, T-shirts and Drums. On most of the material used by the first respondent, either photograph of the first respondent or his father, or name of the first respondent was printed.
On 5.4.2009, Manthani police seized an Eicher van bearing no.AP 23T 9440 carrying Congress-I party canvassing material and registered crime no.53 of 2009 against the driver Challoji Ravi, s/o. Mallesam, and a panchanama was conducted whereunder the election material was seized containing photographs of first respondent and his father
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