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PETITIONER:

THAMPANOOR RAVI

Vs.

RESPONDENT:

CHARUPARA RAVI & ORS.

DATE OF JUDGMENT: 15/09/1999

BENCH:

S.R.Babu, R.C.Lahoti

JUDGMENT:

RAJENDRA BABU, J. :

Civil Appeal Nos. 7395-7396 of 1997 The appellant in

these appeals was declared elected to the Kerala Legislative

Assembly from No. 139, Neyyattinkara constituency in an

election held on April 27, 1996. Two election petitions

were filed - one by a voter in that constituency and another

by a defeated candidate who had secured the next highest

number of votes to the appellant and in his petition a claim

was also made for the declaration that he was duly elected.

In the election petition filed by the voter the

election of the appellant was challenged on the ground that

he was disqualified for being chosen as a member of the

Legislative Assembly as he was an undischarged insolvent

within the meaning of Article 191(1)(c) of the Constitution

of India, at the time of filing of his nomination, at the

time of his election and even on the date of the filing of

the election petition. In the petition filed by the

defeated candidate, in addition to the aforesaid ground of

disqualification of the appellant, he also alleged that the

appellant had indulged in corrupt practices within the

meaning of Section 123 of the Representation of the People

Act, 1951 [hereinafter referred to as the R.P.Act].

The High Court upheld the contention of the Election

Petitioners that the appellant had incurred the

disqualification under Article 191(1)(c) of the Constitution

and declared his election to the Kerala Legislative Assembly

as void. The High Court, however, decided against the

Election Petitioner on the allegation of corrupt practices.

Hence there are two sets of appeals - two by the returned

candidate in regard to invalidation of his election to the

Assembly and the other by Election Petitioner with regard to

findings recorded as to corrupt practices.

The principal issue to be decided in this case is

whether the appellant is disqualified for being chosen as a

member of the Legislative Assembly on the ground that he is

an undischarged insolvent and whether his election could be

declared to be void under Section 100 of the R.P. Act. The

pleadings raised in this regard are that the appellant is a

partner of a registered firm by name Kavitha Printers

along with P.A.Thomas, Smt. Krishnamma and Gopeendra Nath;

that the said firm borrowed a sum of Rs.3,16,000/- from the

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Kerala Financial Corporation, Thiruvananthapuram; that the

partners of the firm did not repay the loan in spite of the

repeated demands; that the revenue recovery proceedings

were initiated against the appellant in terms of certificate

dated April 22, 1994 issued by the District Collector,

Thiruvananthapuram and at that time the total liability of

the partners of the firm was amounting to Rs.10,62,000/-;

that the appellant failed to settle his liability with

Kerala Financial Corporation till the filing of his

nomination papers and he was unable to pay the debts in the

ordinary course of business as and when they became due;

that the demand notice issued by the Tehsildar for the

purpose of revenue recovery also stood returned on account

of the closure of the business of the firm; that the

appellant absented himself from the office of the firm and

deliberately avoided service of notice upon him; that the

appellant was not in a position to repay anything more than

Rs.3 lakhs on behalf of the firm and, therefore, he was

disqualified from being chosen as a member of the State

Legislature as he was an undischarged insolvent, that

thereby his election has become void in terms of Article

191(1)(c) of the Constitution. In the written objections

filed, the appellant admitted that he was a partner of the

firm along with certain others who are mentioned in the

petition, but claimed that he retired from the partnership

as per the report filed on July 20, 1985 before the

Registrar of Firms. It was contended that having severed

relationship with the firm, he had no knowledge or

information as to the plea that the partners of the firm did

not repay the loan in spite of the repeated demands. He

pleaded that he did not receive any notice under the Revenue

Recovery Act and he was not aware of the fact that any

revenue recovery proceedings were initiated against other

partners of the firm. The allegation that he was due to pay

any money to the Kerala Financial Corporation was not

correct and he did not make any attempt to deliberately

avoid service of any notice upon him nor he has departed

from his usual place of business so as to defeat or delay

repayment of debts due to the Kerala Financial Corporation.

He claimed that he was in public life and was a member of

the Kerala State Legislature for five years and thus his

official as well as residential addresses were known to the

Kerala Financial Corporation. It was also claimed that he

has not incurred any disqualification in terms of Article

191(1)(c) of the Constitution and he has denied that he was

an undischarged insolvent. In the connected petition, the

allegations raised were identical and the pleadings in

answer filed by the appellant were also similar.

On the aspect as to the disqualification of the

returned candidate, the High Court framed Issue Nos. 2-11.

The High Court held that the appellant is partner of the

firm and although he may have retired at the time of filing

the nomination inasmuch as no public notice has been issued,

he was liable jointly with all other partners for all the

acts done while he was a partner. Thus he was a partner at

the time of filing his nomination for the election to the

Legislative Assembly in question. It was further noticed

that the appellant continued to be liable for the debts due

to the Kerala Financial Corporation. It is held that the

Kerala Financial Corporation has made efforts to realise the

debts by getting initiated proceedings under the Revenue

Recovery Act but it does not appear that those steps have

been vigorously pursued with. The High Court also held that

the appellant had avoided service of notice issued to him by

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the Tehsildar, Revenue Recovery and although he had not

absconded himself but he was trying to get himself

exonerated from liability without offering to repay anything

to the Kerala Financial Corporation towards the large

amounts due from him and the other partners of the firm.

The High Court went on to examine as to whether any money

had been paid by the firm of which the appellant was a

partner and came to the conclusion that the appellant did

not have the means to repay the debt due to the Kerala

Financial Corporation and held as under :

On the evidence, it is thus clear that the first

respondent was and is, a debtor, that he is a debtor who is

unable and unwilling to pay his debts, that he is not shown

to be possessed of assets sufficient to meet his obligations

and consequently, he is an insolvent. But he has not been

adjudicated an insolvent thus far under the Insolvency Act

either on an application by the creditor or on an

application by himself.

Thereafter the High Court, in the absence of the

definition of the expression insolvent in the Provincial

Insolvency Act, 1920 [hereinafter referred to as the

Insolvency Act] considered the nature of proceedings

arising under the Insolvency Act, went on to notice that

under Section 2(8) of the Sale of Goods Act, an insolvent is

defined as a person who had ceased to pay his debts in the

ordinary course of business, or cannot pay his debts as they

become due, whether he has committed an act of insolvency or

not, and thereafter referred to various dictionaries and

concluded as follows :

Suffice it to say that as far as I can gather,

general meaning of the word insolvent is that he is a

person who is unable to pay his debts as and when they

become due or whose assets are not sufficient to meet his

obligations as and when they arise. Looked at from that

point of view and going by the meaning of the expression

insolvent as referred to above, it is clear that the first

respondent was an insolvent on the date of the filing of the

nomination by him, on the date of the election, on the date

of filing of the election petition and even on the date of

his examination in court.

A contention was raised on behalf of the appellant

before the High Court that he has not been adjudged

insolvent by any court under the Insolvency Act as

applicable in the State of Kerala. So long as he is not

adjudged insolvent the question of his being undischarged

insolvent would not arise and thereby he could not be

disqualified in terms of Article 191(1)(c) of the

Constitution. In substance the contention is that the High

Court could not in deciding an election petition hold that

the appellant to be an undischarged insolvent for the

purposes of Article 191(1)(c) of the Constitution. In

answer to this contention, the High Court examined the

scheme of different clauses in Article 191 of the

Constitution. A person who is elected to a legislature

cannot carry on his duties fearlessly without being

subjected to Governmental pressure if such a person enters

into a contract with the Government or holds an office which

brings him remuneration and the Government has a voice in

continuance of his contract or office and there is every

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likelihood of such person succumbing to the wishes of

Government and in order to eliminate such a contingency it

would be appropriate to ensure that persons who have

received favours or benefits from the executive are

disqualified and in the same manner if the appellant is

indebted to the Kerala Financial Corporation he would not be

a free person to act as a legislator. The High Court

considered that this underlying scheme of the Constitutional

provisions and the R.P. Act must be borne in mind in

interpreting the expression undischarged insolvent under

the R.P.Act. The High Court proceeded to explain that the

expression undischarged insolvent was not defined in the

Insolvency Act and there is no justification for giving the

expression a technical meaning as was propounded by the

appellants counsel. The High Court proceeded to give the

expression undischarged insolvent its natural meaning so

that the disqualification applies to any person who is shown

to be unable to pay his debts on the relevant date. The

High Court referred to the Debates in the Constituent

Assembly and to the suggestion of Sir Alladi Krishnaswamy

Ayyar that the expression if he is an undischarged

insolvent should be in terms of Section 73 of the

Insolvency Act but was not accepted by the Constituent

Assembly and held that the framers of the Constitution did

not want to confine the operation of the disqualification

only to cases where a person is adjudged insolvent under the

Insolvency Act. The High Court ultimately held that it

would be appropriate to understand the expression

undischarged insolvent in its broad and general sense

rather than in the technical sense of the insolvency

legislation. The High Court then proceeded to hold that

even if a returning officer may not be in a position to

accept an objection in a case where the objection is not

backed by an order of adjudication by the court, there is

nothing standing in the way of the Court to examine such a

question. The High Court, therefore, accepted the

submission that the pre-adjudication by an insolvency court

is not required and observed that a candidate who is found

to be an insolvent by the court trying the election petition

and a candidate who had already been adjudicated insolvent

by the Insolvency Court but who has not obtained an order

for discharge are both covered by Article 191(1)(c) of the

Constitution. As this question goes to the root of the

matter, we shall examine this aspect first. Before us it is

urged on behalf of the appellant that the High Court could

not, in deciding an election petition under the R.P.Act,

examine the question whether the appellant is an

undischarged insolvent or not. The learned counsel for the

respondents supported the view taken by the High Court by

relying upon the decision in Bhagwati Prasad Dixit

Ghorewala vs. Rajeev Gandhi, 1985 All Weekly Cases 682.

In State of Kerala, the Provincial Insolvency Act is

applicable. Under Section 3 of the Insolvency Act, the

District Court shall be the court having jurisdiction under

the Act unless by a notification in the official gazette any

court subordinate to the district court is invested with

such jurisdiction and it shall have concurrent jurisdiction

with the District court and a court of small causes shall be

deemed to be subordinate to the district court for the

purposes of this Section. Under Section 4 of the Insolvency

Act, the court shall have full power to decide all questions

whether of title or property or of any nature whatsoever,

and whether involving matters of law or of fact, which may

arise in any case of insolvency coming within the cognizance

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of the court, or which the court may deem it expedient or

necessary to decide for the purpose of doing complete

justice of making a complete distribution of property in any

such case. Under Section 7 of the Insolvency Act, a

petition for adjudication could be filed by a creditor or by

a debtor and the court may on such petition adjudge him an

insolvent. Under Section 27 of the Insolvency Act it is

provided that if the court does not dismiss the petition, it

shall make an order of adjudication that the debtor is an

insolvent, and shall specify in such order the period within

which the debtor shall apply for his discharge and the court

has power to, if sufficient cause is shown, to extend the

period within which the debtor shall apply for his

discharge, in which case a notice of the order will have to

be published. Under Section 28 of the Insolvency Act,

various consequences as an effect of an order of

adjudication are provided. Under Section 41 of the

Insolvency Act, it is provided that a debtor may, at any

time after the order of adjudication, within the period

specified by the court, apply to the court for an order of

discharge, and the court may, after considering the

objections of any creditor and, where a receiver has been

appointed, on the report of the receiver - [a] grant or

refuse an absolute order of discharge; or [b] suspend the

operation of the order for a specified time; or [c] grant

an order of discharge subject to any conditions with respect

to any earnings or income which may afterwards become due to

the insolvent, or with respect to his after- acquired

property. Effect of an order of discharge is dealt with

under Section 44 of the Insolvency Act. Except as provided

under sub-Section (1) of Section 44 of the Insolvency Act,

an order of discharge shall release the insolvent from all

debts provable under the Insolvency Act. For the purposes

of Section 73 of the Insolvency Act an order of insolvency

has been considered as a disqualification to hold certain

elective offices. An order of discharge, however, restores

the original status of an insolvent. So long as the debtor

remains undischarged he suffers from several disabilities

under the Insolvency Act. The Insolvency Act is a complete

code and determination of all questions regarding insolvency

including a question as to whether (1) a person is an

insolvent or not, or (2) an insolvent be discharged or not

and subject to what conditions, can be decided by the court

constituted under that Act alone. It is only when

exceptions are carved out as is done in the case of Section

2(8) of the Sale of Goods Act any other court or authority

can decide such questions. Under Article 329(b) of the

Constitution no election to a legislature shall be called in

question except by an election petition presented to such

authority and in such manner as may be provided by or made

by the appropriate legislature. Under Section 80A of the

R.P.Act, the forum for adjudication of an election petition

is the High Court. The scope of this provision is

considered by this Court in Upadhyaya Hargovind Devshanker

v. Dhirendrasinh Virbhadrasinhji Solanki & Ors., AIR 1988

SC 915. In that decision, the question was whether an order

made on interlocutory application in election petition could

be the subject of a Letters Patent Appeal. It was observed

in that decision that conferment of power under R.P.Act to

try an election petition does not amount to enlargement of

existing jurisdiction of the High Court. The jurisdiction

exercisable under the R.P.Act is a special jurisdiction

conferred on the High Court by virtue of Article 329(b) of

the Constitution. Therefore, even though the High Court may

otherwise exercise ordinary and extraordinary jurisdiction

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it would be difficult to envisage a situation that while

trying an election petition in exercise of the jurisdiction

conferred by the R.P.Act it can adjudicate upon vires of the

R.P.Act or any rule or order made thereunder and the

election petition has to be tried in accordance with the

provisions of the R.P.Act and thus the court cannot

entertain and pronounce upon matters which do not fall

within the ambit of Section 100 of the R.P.Act. Even an

ordinary civil court will not have jurisdiction to decide

questions arising under insolvency enactments; much less a

special Authority like the High Court when it is not

invested with such power under the Insolvency Act. This

Court in Bhagwati Prasad Dixit Ghorewala vs. Rajeev

Gandhi, 1986 (2) SCR 823, reversed the view taken in 1985

All Weekly Cases 682 on which reliance was placed by

respondent that the High Court can decide whether a person

has acquired citizenship or lost citizenship. In that case

a question arose as to whether in an election petition the

High Court had jurisdiction to determine the citizenship of

a person. The High Court had taken the view that

notwithstanding the statutory bar contained in Section 9(2)

of the Citizenship Act that wherever a question arises as to

whether when and how a person has acquired the citizenship

of another country it shall be determined by such authority

in the manner prescribed by the rules of evidence as may be

prescribed in that behalf; that since by virtue of Article

329(b) of the Constitution all questions arising in an

election petition filed under the R.P.Act were exclusively

triable in an election petition, it had jurisdiction to

decide the question whether a candidate had ceased to be an

Indian citizen. This Court took the view that when such a

question arises it would be a matter to be decided by the

authority constituted under the Citizenship Act and when no

decision is given by the competent authority under the

Citizenship Act, the question whether he ceased to be a

citizen of India could not be adjudicated in an election

petition. In the present case, as we have explained earlier

the scheme of the provisions of the Insolvency Act, the

exclusive jurisdiction to deal with any question relating to

insolvency could be adjudicated upon only by the court

constituted under that Act. In such a situation, it would

not be possible to hold that the High Court had, while

dealing with an election petition, jurisdiction to decide a

question as to whether a person is an undischarged insolvent

or not. Admittedly, in this case, there is no such

adjudication. Hence the High Court could not declare the

appellant to be an undischarged insolvent. The contention

put forward before the High Court is that disqualification

contained in Article 191(1)(c) could be attracted only in a

case where a person is adjudged as insolvent as per the

Insolvency Act and in the absence of such adjudication it is

not open to the High Court while trying an election petition

to find that the returned candidate is an insolvent and he

could be held to be disqualified. The learned Judge in the

High Court got over this initial hurdle of the jurisdiction

of the High Court to decide whether the appellant is an

undischarged insolvent by giving that expression a meaning

in ordinary parlance. To achieve this result, the learned

Judge adopted strained and strange logic or reasoning to

which we have referred to in the earlier part of this

judgment. We shall now consider each of those reasons. The

learned Judge referred to the scheme of different clauses of

Article 191(1) of the Constitution and that such scheme

would indicate that if a member has any pecuniary interest

in any governmental or quasi-governmental body such member

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may not be in a position to perform his duties impartially

with free mind inasmuch as he can be under pressure of the

financial institution which has extended finances to him.

Therefore, he was of the view that the policy of law should

be borne in mind in interpreting the meaning of the

expression undischarged insolvent. Under what

circumstances and subject to what limitations a person could

be declared to have incurred disqualification is a matter of

policy of law and the courts have cautioned themselves by

stating that right to vote, right to elect or contest an

election is a creature of statute and circumscribed by the

limitations contained therein. Therefore, as long as the

Constitution or the R.P.Act indicates in clear terms as to

what its policy is, it would not be open to a court to

interpret such a provision by trying to find out what the

intent could be by ignoring the actual expressions used.

Therefore, the supposed scheme of the provisions would not

afford sufficient guidance to take the view that the

expression undischarged insolvent should be understood as

meaning an insolvent who is a person who is in impecunious

circumstances as is unable to repay the debt. The learned

Judge noticed that under Article 191(1)(b) while providing

for disqualification on the ground of unsound mind it is

made clear that a person is of unsound mind if so declared

by a competent court and such declaration is not required in

the case of an insolvent. The extended logic applied by the

learned Judge in the case of interpreting the expression

undischarged insolvent is that even when such declaration

has not been formally made by a court of competent

jurisdiction still the Election Court can decide such a

question. Even though Article 191(1) of the Constitution

does not include declaration by an insolvency court, but by

reason of expression used that he is an undischarged

insolvent it clearly indicates that he could become

discharged only in terms of the provisions of the

insolvency Acts and not otherwise. It is implicit in the

expression undischarged insolvent that a person does not

become so unless he has been adjudged insolvent and is not

discharged by the court under the insolvency Acts. The

expression undischarged insolvent has acquired a

particular legal connotation and such expression cannot be

used otherwise than in terms of the insolvency enactments.

The learned Judge, in this context, referred to the

statement made by Sir Alladi Krishnaswamy Ayyar in the

course of the debates in the Constituent Assembly wherein he

tried to impress upon the Assembly that similar words as

contained in Section 73 of the Insolvency Act should be used

and disqualification should be removed and cease to be

effective if adjudication is annulled or if an insolvent

obtains a discharge with certificate that it was caused by

misfortune and not by mis-conduct. Reliance upon this part

of the debate by the learned Judge, in our opinion, is

misplaced. The reference made by Sir Alladi Krishnaswamy

Ayyar is to reduce the rigour of the disqualification in the

event the adjudication is annulled or if an insolvent

obtains a discharge with the certificate that it was caused

by misfortune and not by mis-conduct. Merely because the

suggestion made by Sir Alladi KrishnasSwamy Ayyar is not

accepted by the Constituent Assembly it does not mean that

the expression used in Article 191(1)(c) as to undischarged

insolvent will be different from what is contained under

the insolvency enactments. The reference to Section 73 made

by Sir Alladi Krishnaswamy Ayyar is in the background stated

above and, therefore, has no effect on the interpretation of

the meaning of the expression undischarged insolvent. The

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learned Judge noticed that if a person is not to be held an

insolvent as in ordinary parlance it would result in

non-application of disqualification even if the court is

satisfied that the returned candidate is not in a position

to repay debts and could be adjudged to be insolvent.

Article 191(1)(c) does not contemplate mere impecuniousity

or incapacity of a person to repay ones debts but he should

not only be adjudged insolvent but also remain undischarged.

Such a contingency could only arise under insolvency law.

Article 191(1)(c) refers to disqualifications of a person

from getting elected to State Legislature. The conditions

for disqualification cannot be enlarged by importing to it

any meaning other than permissible on strict interpretation

of expressions used therein for what we are dealing with is

a case of disqualification. Whenever any disqualification

is imposed naturally the right of a citizen is cut down and

in that event a narrow interpretation is required.

Therefore, the liberal view taken by the learned Judge to

the contrary does not appear to be correct. Under the Sale

of Goods Act, a special definition of the expression

insolvent had to be given to the effect that a person is

said to be insolvent who has ceased to pay his debts in

the ordinary course of business, or cannot pay his debts as

they become due, whether he has committed an act of

insolvency or not, and the definition is declaratory in

character. Question of insolvency of a buyer is of

considerable importance in the context of the sellers lien.

It is in special context a meaning is given to the

expression insolvent even though a person had not been

adjudged an insolvent in the Insolvency Act to be insolvent

for the purposes of the Act. That definition cannot be

imported into the R.P.Act. The learned Judge goes on to

observe that an insolvent is a person who is unable to repay

his debts and as long as he remains in that position he is

an undischarged insolvent, that is, as long as he has not

discharged his debts he is an undischarged insolvent.

Redundancy and tautology cannot be attributed to the

Legislature. When the Legislature has used the expression

undischarged insolvent that expression must be given its

full meaning. A person on being adjudged insolvent remains

so unless discharged in terms of the provisions of Section

41 of the Insolvency Act, either absolutely or

conditionally, or in the absence of annulment as contained

in Section 35 of the Insolvency Act. In ascertaining the

meaning of an expression used in a statute, certain norms

are adopted. If the legislature has used an expression

which has acquired a technical meaning and such expression

is used ordinarily in the context of a particular branch of

law, it must be assumed that because of its constant use the

legislature must be deemed to have used such expression in a

particular sense as is understood when used in the similar

context. If an expression has acquired a special

connotation in law, dictionary or general meaning ceases to

be helpful in interpreting such a word. Such an expression

must be given its legal sense and no other. In this

context, we may refer to the weighty observation in the

decision of this Court in the State of Madras vs. Gannon

Dunkerley & Co. (Madras) Ltd., 1959 SCR 379, that a term of

well recognised import in the general law should be accepted

as confining the meaning in interpreting the Constitution.

If the expression undischarged insolvent has acquired a

special meaning under the law of insolvency, we must

understand that that is the meaning that is sought to be

attributed to the expression used in Article 191(1)(c) of

the Constitution. We are, therefore, of the view that the

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High Court was not justified in holding that the expression

undischarged insolvent should be understood de hors the

Insolvency Act in a general sense.

Civil Appeal No. 8361 of 1997

In this appeal preferred by the unsuccessful candidate

who contested the election contention is that there are

various corrupt practices alleged against the returned

candidate and they have been established by producing proper

evidence which should have been accepted by the High Court

and in rejecting the same, it is submitted, it has erred.

The allegation is that the appellant using his

position and status secured 450 bottles of rum from Military

Canteen, Pangode, Thiruvananthapuram and supplied in certain

Harijan colonies of the constituency on 24, 25 and 26 April,

1996. K.S. Subramaniya Pillai saw K. Krishnankutty who is

an employee of military camp, taking a number of cases of

rum to an ambassador car bearing Reg. No. KL-01-F1098 and

on enquiries K. Krishnankutty told K.S. Subramaniya Pillai

that this rum were purchased by workers of the first

respondent. The Harijan colonies where rum was supplied are

Vengode and Manathottam and rum was supplied through R.

Gopalakrishnan Nair, Vice President, Vellarada Panchayat and

V. Sudhakaran, Member Vellarada Panchayat by the first

respondent for bribing the voters to secure votes. The

evidence adduced before the court was only that of K.S.

Subramaniya Pillai and G. Suresh. So far as K.S.

Subramaniya Pillai is concerned, he does not seem to have

personal knowledge of the bottles being carried and he came

to know from K. Krishnankutty. K. Krishnankutty has not

been examined in the case. K.S. Subramaniya Pillai (P.W.

12) stated that he did not see any bottles and came to know

that there were liquor bottles kept in the card board boxes

from K. Krishnankutty. The bottles were squarely closed

and the distance from him where he stood to the place where

the loading took place was 50 yards. He asked K.

Krishnankutty as to what was happening and that it was he

who told him that it was liquor for distribution in the

Neyyattinkara constituency. So far as G. Suresh (P.W. 15)

is concerned, his evidence is to the effect that liquor was

taken to various areas for distribution. He saw bottles

being loaded in a car and he approached the panshopwala and

asked him and two or three persons present there as to where

these bottles were being taken to and they told him that

they were being taken to Neyyathinkara and those people

standing there also told him that the liquor was being taken

for distribution in Neyyattinkara constituency to further

the prospects of the appellant. He noted the number of the

car. In the absence of examination of K. Krishnankutty the

evidence adduced is vague and not clear and definite much

less reliable and, therefore, the High Court rightly held

that there is no acceptable evidence which can bring the

case against the appellant within the expression of

bribery under Section 123 of the R.P. Act. The other

acts of undue influence or that the returned candidate has

made an appeal in the name of religion or that he has made

any statement with a false reference to the personal

character and conduct of the candidate were not established.

The trial Judge has given cogent reasons in this regard and

the learned counsel for the appellant in this case is not

able to dislodge this conclusion by any material placed on

record. The contention that the returned candidate indulged

in corrupt practice by incurring expenditure in excess of

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the amount permitted in contravention of Section 77 of the

Act was also rejected by the learned Judge. The evidence

adduced before the court was only in the shape of something

conjectural and imaginary through P.W. 16 who stated that

substantial expenditure had been incurred by the returned

candidate. It is not made clear as to who might have

incurred this expenditure and the evidence was not adduced

to show that the contractors used for the erection of the

stage or platform were examined to indicate the payments

having been made by the returned candidate. Therefore, the

view taken by the learned Judge in this regard appears to us

to be correct. The issue relating to whether the returned

candidate had obtained or procured assistance for the

furtherance of the prospects of his election from any person

in service of the government and whether he had misused his

official position also to such effect, it is stated that

there was no clear evidence in this regard. The allegation

that he utilised the services of the Sub-Inspector Vincent

and the acts attributed to him were done at all, much less

at the instance of the returned candidate. Again the

allegation made is in respect of taking assistance from

Antony, Block Development Officer (B.D.O.), that the

returned candidate used his official jeep for distributing

propaganda material. Though this aspect was deposed to by

P.W. 16, the learned Judge felt that he could not act upon

the evidence of P.W. 16 alone. He noticed that there was

hardly any evidence to show that the B.D.O. acted at the

instance of the returned candidate or he was requested by

him. His evidence is that on that day Shri Karunakaran was

to address a meeting. The B.D.O. told the Congress workers

that such thin attendance would not do when a prominent

leader who was a Minister in the Central Government was

going to address the meeting. On hearing this the Congress

workers got into the vehicle fitted with mike and went

around exhorting people to come to the meeting. The learned

Judge held that the allegation made by the witness that the

jeep meant for government officer was used by the Congress

workers is not established as having been done at the behest

of the returned candidate. Therefore, this view of the

learned Judge has got to be upheld. He also noticed that

there was no clear or direct evidence to prove that the

first respondent has misused his official position as a

sitting member of the Legislative Assembly. We agree. In

the result, we allow the appeals [C.A.Nos. 7395-7396/97]

filed by the returned candidate and set aside the order

passed by the learned Judge declaring his election to be

void on the ground that he has incurred necessary

disqualification as provided under Article 191(1)(c) for

being chosen to the Assembly as Member thereof on account of

the fact that he was an undischarged insolvent. So far as

the appeal [C.A.No. 8361/97] filed by the unsuccessful

contesting candidate is concerned, the same has to be and is

dismissed. However, there shall be no order as to costs.