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PETITIONER:

N. VIMALA DEVI

Vs.

RESPONDENT:

K. MADHUSUDHANA REDDY

DATE OF JUDGMENT20/12/1974

BENCH:

ALAGIRISWAMI, A.

BENCH:

ALAGIRISWAMI, A.

KRISHNAIYER, V.R.

SARKARIA, RANJIT SINGH

CITATION:

1975 AIR 1135 1975 SCR (3) 128

1975 SCC (4) 385

CITATOR INFO :

R 1984 SC1161 (5)

ACT:

Representation of the People Act, 1951-S. 116A-Allegations

of corrupt practice-Duty of High Court to scrutinise with

care.

HEADNOTE:

In the election to the State Legislative Assembly, the

respondent was declared elected. The appellant who was the

defeated candidate in 'he election, in her election petition

alleged that the respondent had committed a number of

corrupt practices, the most important of which related to

the distribution of a pamphlet defamatory of her, falling

under s. 123(4) of the Representation of the People Act,

1951. The High Court dismissed her petition.

In appeal to this Court it was contended that the High Court

applied one standard in appreciating the evidence of the

appellant's witnesses and an altogether different standard

in appreciating the evidence of the respondent's witnesses.

Allowing the appeal,

HELD : (1) On an examination of the evidence it is

satisfactorily established that the impugned pamphlet was

printed and distributed at the instance of the respondent.

[135H]

(2) Where a corrupt practice is alleged against a returned

candidate it must be scrutinised with considerable care

because a finding to that effect has very serious

consequences. It not merely sets aside the popular verdict

but also subjects the successful candidate to the penalty of

being disqualified for election and even criminal

prosecution. [135 E]

(3) This Court does not normally reappraise the evidence

and come to a contrary conclusion from that of the trial

judge if it is generally acceptable. But it must not be

forgotten that an appeal under s. 116A of the Representation

of the People Act is a first appeal and not one under the

provisions of Art. 136 of' the Constitution and that an

appeal is a rehearing. [135 F]

In the instant case the evidence has been reassessed because

the High Court had rejected the evidence of the appellant's

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witnesses wholesale mainly on the ground of their being

partisan witnesses while no such standard has been applied

to evidence of witnesses on behalf of the respondent except

in two cases. Even in those cases it was done because the

documentary evidence was too strong. The rejection of the

evidence by the High Court in one important instance has led

to a wrong approach in the appreciation of the oral

evidence.

JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 389 of 1973.

From the judgment and order dated the 22nd December, 1972 of

the Andhra Pradesh High Court in Election Petition No. 7 of

1972.

S. V. Gupte, P. P. Rao and G. Narayana Rao, for the

appellant.

P. Ram Reddy, B. Parthasarthi and B. Balamukunda Reddy,

for the respondent.

The Judgment of the Court was delivered by

ALAGIRISWAMI, J.-In the election to the Andhra Pradesh

Legislative Assembly from the Chennur constituency held on

5th March, 1972, the appellant was the official Congress

candidate and the respondent an independent candidate though

both belonged to the Congress Party. The respondent

obtained 25,654 votes as against 23,940

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votes obtained by the appellant and was declared elected.

Thereupon the appellant filed an election petition which was

dismissed by the Andhra Pradesh High Court.This appeal is

against that decision.

Though a number of corrupt practices were alleged in the

election petition the only one pressed before this Court was

that relating to the distribution of a pamphlet defamatory

of the appellant falling under section 123(4). That leaflet

marked Ex.A-1 purports to have been issued by the Yuvajana

Congress, Thorrur. It does not bear the name of the printer

or the publisher. But the allegation in the election

petition was that it was published by the respondent and his

agents throughout the constituency. In Schedule I to the

election petition were given the names of villages where the

distribution was made, the reasons who distributed, the date

of distribution as well as the names persons who received

the pamphlet. Certain other details were also given. It

was further alleged that the appellant received letter,-, in

this regard from some of her supporters in the constituency.

These were marked as Exs. A-2, A-3 and A-4. It was stated

that the President of the Yuvajana Congress, Thorrur was a

man named Uppal Reddy who became a paid clerk of the

respondent. The respondent denied knowledge of the pamphlet

and contended that Exs. A-2 to A-4 are self serving

statements got prepared by the appellant and the persons who

are supposed to have written those letters for the purpose

of the election petition. He claimed that he was not aware

whether Uppal Reddy was President of the Yuvajana Congress.

Thorrur but that he was a strong supporter of the appellant.

The distribution of the pamphlet either by him or his

election agent or his workers with his consent was denied.

The names of workers mentioned in the schedule to the

election petition were stated to be those of the supporters

of the appellant with a view to let in false evidence.

The learned Judge of the High Court after an elaborate

examination of the evidence found that there cannot be any

doubt that the allegations contained in leaflet Ex.A-1 go

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deeply against the personal character and conduct of the

appellant and can be taken as being reasonably calculated to

prejudice her prospects in the election. This does not seem

to have been disputed before the High Court. It was only

contended that neither the respondent nor his election agent

was aware of the existence of those leaflets nor were they

distributed during the election period and even if they were

distributed they were not responsible for it. The learned

Judge further held that it has to be taken that the

allegations made against the appellant in Ex.A-1 were false

and the respondent did not believe them to be true and he

would be guilty of the corrupt practice if the publication

was made by the respondent or his election agent or by

others with the consent of the respondent or his election

agent. He then took up the question whether the respondent

or his election agent or with the consent of either any

other person distributed leaflets like Ex.A-1 during the

election period.

The case for the respondent as suggested in the cross-

examination of the appellant was that she expected her

defeat even when the

10-379 Sup.CI/75

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election was one week ahead and therefore she started

manufacturing all the documents filed by her for the purpose

of the election petition, which even then she decided to

file in case of her defeat. Based on the evidence of P.W.

70, the Secretary of the Zila Parishad, Warangal who was

then the Returning Officer, and P.W.76, the Sub-Collector,

Warangal, the learned Judge found that leaflets like Ex.A-1

were in circulation a few days prior to the date of the

election. He, however came to the conclusion that it was

not possible to say that even before the date of the

election the appellant and her supporters must have thought

that her defeat in the election was a certainty and thought

,of distributing leaflets like Ex.A-1 to prepare for the

election petition. instead of working vigorously for her

success in the election and, therefore, whoever might be

responsible for the distribution of the leaflets it could

not have been the appellant or her supporters but her

enemies only. He finally came to the conclusion that there

is no cogent and reliable evidence to show that the

distribution of the leaflets was made by the respondent or

his election agent or with the consent of either by some

others and it is not possible to hold the respondent

responsible for the, distribution. With regard to Uppal

Reddy he held that there was no satisfactory evidence to

show either that Uppal Reddy was a paid clerk of the

respondent or that he worked for the respondent in the

election and not for the appellant as alleged by the respon-

dent.

As we are in substantial agreement with the learned Judge

regarding 'the nature of the leaflet Ex.A-1 its possible

effect and the impossibility of the appellant or anybody on

her behalf having distributed those pamphlets we do not

think it necessary to discuss those questions or even to set

out the pamphlet itself. These were not seriously disputed

by the respondent. We will therefore confine ourselves to

the question as to who was responsible for their

distribution.

The learned Judge seems to have thought that R.Ws. 32 and

33, the brothers of the appellant's husband, might perhaps

have done it as they were bitterly inimical towards the

appellant and her husband. R.W.32 was the respondent's

polling agent and R.W.33 was an active worker on his behalf.

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There is no evidence as to who had the leaflet printed or

where it was printed. Neither R.W.32 nor R.W.33 accepted

either that they printed the leaflet or that they

distributed it.

Some time before the election and even before the Congress

candidate was selected for this constituency a

representation, Ex A-48, was sent to the Congress

authorities signed among others by the respondent as well as

R.W.33. The main purport of that representation was that

neither the appellant nor her husband should be set up as

the Congress candidate. It suggested certain other persons

as fit to be set up as Congress candidates, but there is no

doubt that it was intended to prevent either the appellant

or her husband being selected as the Congress candidate.

R.W. 33 claimed that it was he that prepared Ex. A-48 and

got the signatures of the persons contained therein. The

first of the signatories is respondent himself. Forty out

of its forty three signatories are his supporters. Though

he pretended not to have known its contents he as well as

R.W. 33 had to admit

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that it was prepared after some discussion. The respondent

had also to admit that he it was who wrote in his own hand

about a copy of the, representation having to go to the

Congress observer for Warangal district. We have no doubt

at all that the main mover behind Ex. A48 is the respondent

himself and R.W. 33 is merely his instrument. This is also

evident from the fact that he decided to stand for the

election himself because only if he stood he could defeat

the appellant. Thus his main motive being to defeat the

appellant is clear beyond doubt. It is not merely the

normal effort of a contesting candidate to defeat his

opponent but something special, something out of the

ordinary. This exhibit has not been discussed at all by the

learned Judge. The importance of Ex. A-48 is because it is

a forerunner of Ex. A-1 and some of the statements found in

Ex. A-1 as well as its main purpose are the same as of Ex.

A-48. We are not impressed by the argument on behalf of the

respondent that Ex. A-5,7, which shows that even in 1970 a

representation of a similar kind was made, shows that there

were many others out to besmirch the name of the appellant.

Ex. A-57 contains many instances which have nothing to do

with the election in 1972 or the setting up of a Congress

candidate in that election. That is the affinity between

Ex. A-48 and Ex. A-1. Nor are we impressed by the argument

on behalf of the respondent that NGOs towards whom the

appellant is said to have behaved rudely might have been

responsible for the printing and distribution of the

pamphlets. The NGOs as a class may not be so much

interested and no suggestion has been put and we have not

been told that any particular NGO had such a strong

grievance against the appellant that, he could go to the

extent of printing clandestinely a pamphlet like Ex. A-1,

meeting the expenditure therefore and for distributing it.

The search ultimately must be confined to R.Ws. 32 and'. 33

on the one hand and the respondent on the other.

It is here that the relevance of the reference to Uppal

Reddy and the Yuvajana Congress, Thorrur becomes important.

The Yuvajana Congress, Thorrur was inaugurated on the 26th

January, 1972. Before that Uppal Reddy had met P.W.66,

Vasantha Nageswara Rao, the President of the State Youth

Congress and a member of the Legislative Assembly from the

Nandigama constituency of Krishna district. He wrote a

letter Ex.A-25 on 6-2-1972 congratulating Uppal Reddy on his

having organised the Yuvajana Congress. Later finding that

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Uppal Reddy was working against the Congress candidate on

behalf of the respondent he was removed from the office and

P.W.68, Vasudeva Reddy was elected President of the Yuvajana

Congress, Thorrur. The removal of Uppal Reddy and the

election of P.W.68 was intimated to P.W.66 by Ex.A-26. The

second letter is Ex.A-28 written by P.W.68 to P.W.66 about

distribution of leaflets by the respondent's associates.

That letter also refers to the pamphlet as having been

printed by the respondent and asks that he be suspended

immediately. Another letter Ex.A-32 written by P.W.66 to

P.W.68 also shows that P.W.66 was invited to tour the

Chennur constituency and he was unable to do so. Exhibits

A-3 1, A-31 (a) and A-31 (b) show that letters were written

to P.W.66 as well as to the President of the Andhra Pradesh

Congress Committee. Exhibit A-29 is a letter by P.W.68

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to P.W.66 inviting him to tour the constituency. Exhibit A-

29(a) is a resolution of the Youth Congress Committee dated

29-2-1972 about Uppal Reddy having been won over by the

respondent and the pamphlet against the appellant being

published and requesting P.W.66 and the President of the

Andhra Pradesh Congress Committee to institute proceedings

against the respondent. Exhibit A-27 is a letter addressed

by P.W.66 to Uppal Reddy apparently on the basis of Ex.A-26

about the complaints that he was working for the respondent

and asking him to show cause why disciplinary action Should

not be taken against him. It also refers to the resolution

of the Youth Congress.

We are unable to share the learned Judge's conclusion that

all these could have been got up in order to support the

election petition. He learned Judge himself recognises that

the appellant would not have had any apprehension that she

would be defeated in the election because she was standing

from Chennur constituency which was the only one among the

many constituencies comprising the Parliamentary seat that

was won by a Congress candidate with a majority of 5000

votes in the previous election though all the other Assembly

seats as well as the Parliament seat went to the non-

Congress candidate. That is why the learned Judge took the

view that the distribution of the pamphlet could not have

been made by the appellant before the date of the election.

It is, therefore, obvious that these documents could not

have been got up before the election nor are we able to

accept the learned Judge's facile conclusion that these

could have been got up by antedating some postal stamps.

One cannot take it that it is so easy to antedate postal

stamps. In fact no such suggestion was put to the appellant

or any of her witnesses. This theory of antedating the

postal stamps has also been relied upon by the learned Judge

in connection with Exs.A-2 to A-4, with which we shall deal

a little later. The only slight reference to anybody

connected with the appellant having anything to do with the

Post Office was in relation to one of the Post Offices

alone. It is not that if no such suggestion was made on

behalf of the respondent about the postal stamps being

antedated it is not permissible to the learned Judge to draw

such a conclusion if the facts justify it but we feel there

are no facts justifying such an inference. We are satisfied

that these various documents are genuine and not got up for

the purpose of the election petition.

The whole case of the respondent was that these documents Is

well as Exs.A-2 to A-4 had been created before the election

though the question put to the appellant's witnesses was in

a form which would enable him to put forward two alternative

pleas (1) of their being prepared before the election, and

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(2) of their being prepared after the election but before

the election petition was filed. We are of the opinion that

tile respondent should not be allowed to draft his pleadings

in a dubious way and try to shape either hi-, evidence or

his arguments to suit either theory. We are unable to

accept the argument on behalf of the respondent that these

documents do not establish that either the respondent or his

election agent distributed the pamphlets. Thew letters and

resolutions sometimes refer to the

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respondent and sometimes to his associates. One of them

refers to the respondent having printed the pamphlet. We do

not think that in assessing the evidentiary value of these

documents the statements contained in them should be

scrutinised as though they were either pleadings before the

Court or a statute to be interpreted. When pamphlets are

said to be distributed by the respondent it does not

necessarily mean that he was physically handing over

those pamphlets to various persons. It includes the

pamphlets. being distributed in his presence or in the

presence of his election agent or at his instance or on his

behalf.. Even if persons working for the respondent were

distributing, in common parlance it would be said that the

respondent was distributing the pamphlets. Interpreted in

the proper perspective the various statements merely mean

that the pamphlets were being distributed at the, instance

of the respondent.

Some criticism was made of these documents on the basis of

the constitution of the All India Youth Congress and that it

does not provide for village Youth Congresses and that

people cannot become members of the Youth Congress unless

they become primary members of the All India Youth Congress.

But it-is obvious from the documents themselves as well as

the evidence of P.W. 66, it was found necessary and

advantageous to have Youth Congress in Thorrur as it would

help the Congress candidate as it was election time. This

question cannot be decided as though we are concerned with

the legality of the establishment of the Youth Congress in

Thorrur. All that it shows is that certain youngmen of the

village decided to start a Youth Congress in the village,

that it had the sanction and the blessings of P.W.66 and

that they hoped to regularise the establishment of Youth

Congress in due course. The criticism that the receipt of

these letters is not entered in the receipt and despatch

book of the State Youth Congress office is not of much

substance. Non-official political Organisations are not run

and do not function as though they were official

administrative offices.

We do not also agree with the view of the learned Judge who

rejected the evidence. of P.W.66 on the ground that he was

merely a Congress member. He is a member of the Legislative

Assembly from another district and he is the chief of the-

State Youth Congress. The fact that he is a Congressman

could not be the sole ground for rejecting his evidence. We

are, therefore, satisfied that these documents produce

contemporaneous evidence, of the fact that the pamphlets

like Ex. A-1 were brought into existence and distributed at

the instance of the respondent. They cover the period from

6-2-1972 to the day before the poll. Their evidentiary

value is, therefore, very high.

The distribution of the pamphlets by the respondent is also

probabilised by Ex. A-16 written by the appellant to the

General Secretary of the Congress in Warangal District and

Ex. A-44 to the Returning Officer.

We shall now refer to Exs. A-2 to A-4. These are three

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letters written by three supporters of the appellant about

the distribution of the pamphlets by either the respondent

or his election agent as well as R.W. 33. 'rho learned

Judge has rejected them among other reasons

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on the ground that postal stamps on them could have been

antedated. The criticism we have made earlier with

reference to this view of the learned Judge when we were

discussing the documents relating to the Yuvajana Congress

of Thorrur applies here also. Four Post Offices, are

involved with reference, to these three documents, the three

different Post Offices in which they were posted and the one

Post Office in which they were received. Only with

reference to one of the Post Offices it was said that the

Postmaster was a relative of the appellant. We think it

impossible that postal stamps from four different Post

Offices could have been antedated so easily. On the other

hand these three documents give us the feeling that they

have been prepared with an eye on an election petition.

People who have been working for the appellant would not

suddenly stop working merely because they saw a pamphlet

like Ex. A-1 and if they do so they would just stop working

and not bother further about waiting to her. It was also

unnatural in such letters for these persons to say that

people were being convinced and that they themselves were

convinced by the pamphlets. If that is so, these letters

must have come into existence before the date of the poll.

If the postal stamps could not have been antedated, how and

why were these letters brought into existence ? This

question has given us considerable anxiety and we think that

the most acceptable explanation is that having come to know

of the distribution of the pamphlets like Ex.A-1 the

appellant got her supporters to write these letters and they

have done it only too well. The tell-tale statements

contained in them give us no option but to reject Exs.-A-2

to A-4.

We do not think it necessary to refer at length to the oral

evidence, in this case about the distribution. A large

volume of evidence hat been let in on behalf of the

appellant regarding the distribution. As already mentioned

the villages in which the distribution was made, the dates

on which the distribution was made, the persons who made the

distribution as well as the persons to whom the distribution

was made are set out in the schedule to the election

petition. The attack made on these in the written statement

filed by 'the respondent is that the names of the supporters

of the appellant were given therein in order to enable them

to give false evidence. The learned Judge has in discussing

the evidence of these witnesses extracted their evidence at

length and rejected them mostly on the ground that they were

the appellant's supporters. But he has not hesitated to

accept the denials by, the respondent and that of his

witnesses and their evidence even though they are as much

partisan as the appellant's witnesses. That is why in

matters of this kind in assessing the oral evidence we have

got to have some reliable test for assessing the reliability

of one version or the other. Much of the criticism made by

the learned Judge of the evidence on behalf of the appellant

is that of very tenuous kind and they can be applied as well

to the evidence on behalf of the respondent and we can see

no justification for the facile way he accepted the denial

by the respondent and his witnesses. The documents

regarding the Youth Congress of Thorrur, which we have

discussed, furnish strong support which one has got to look

for before one can accept oral,

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evidence in matters of this kind. It is easy enough to

accept or reject oral evidence by mentioning one or two

minor contradictions. One should be satisfied that the

broad outline of the evidence given is true and worthy of

acceptance.

We are not impressed with the view of the learned Judge that

either R. W. 32 or R. W. 33 might have been responsible for

bringing into existence the pamphlet Ex-A-1. After all the

person that was standing for election was the respondent and

his attitude of trying to see that neither the appellant nor

her husband was set up as a Congress candidate and being

prepared to stand merely for the purpose of defeating her

shows that it was he that was interested in publishing this

pamphlet. His earlier effort, Ex. A-48 also shows this.

We find it impossible to accept the evidence of R. W. 32 and

R. W. 33 that the appellant and her husband were responsible

for sending a petition against them in regard to a contract

work that they had undertaken or that the appellant wanted a

bribe of Rs. 3000 from them. All this is falsified by the

admission that it was Nookala Ramachandra. Reddy, a former

Minister, that was responsible for the representation

against R.Ws. 3 2 and 3 3 in regard to the contract about

which the Anti-Corruption Department made an enquiry.

We are conscious that where a corrupt practice is alleged

against a returned candidate it must be scrutinised with

considerable care because a finding to that effect has very

serious consequences. It not merely sets aside the popular

verdict but also subjects the successful candidate to the

penalty of being disqualified for election and even criminal

prosecution. We are also conscious that this Court does not

normally reappraise the evidence and come to a contrary

conclusion from that of the trial Judge if it is generally

acceptable. But we must not forget that an appeal under S.

116A of the Representation of the People Act is a first

appeal and not one under the provisions of Art. 136 of the

Constitution and that an appeal is a rehearing. In this

case we have undertaken a reassessment of evidence because

the learned Judge has rejected the evidence of the

appellant's witnesses wholesale mainly on the ground of

their being partisan witnesses while no such standard has

been applied to evidence of witnesses on behalf of the

respondent, except R. W. 3 and R. W. 21. Even there it was

because the documentary evidence was too strong. He has

also not discussed Ex. A-48 and appreciated the evidence in

the background of that document. His rejection of the

evidence regarding the Thorrur Yuvajana Congress has led to

a wrong approach in the appreciation of the oral evidence. ,

We have come to the conclusion that it is satisfactorily

established that these pamphlets were printed and

distributed at the instance of the respondent. The appeal

is allowed and the election of the respondent set aside.

The respondent will pay the appellants costs.

P.B.R. Appeal allowed.

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