Karnataka High Court
Sri B Suresh Gowda vs Sri D C Gowrishankaraswamy on 30 March, 2023
Bench: S.Sunil Dutt Yadav
1
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF MARCH 2023
BEFORE
THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV
ELECTION PETITION No. 1 OF 2018
Between:-
Sri B. Suresh Gowda,
S/o late Sri Bettaiah,
Aged about 53 years,
Residing at Kempanahalli
Village & Post,
Hutalidurga Hobli,
Kunigal Taluk,
Tumkur District 572 126.
And also at:
No.220, 2nd Main, 3rd Cross
AECS Layout,
Sanjaynagar
Bengaluru 560 094.
... Petitioner
(By: Ms.Nalina Mayegowda, Senior Advocate
for Sri Manjunath Hiral. H, Advocate)
And:
1. Sri D.C.Gowrishankaraswamy
S/o Sri C.Chennigappa
2
Aged about 41 years
Residing at Doddahuchaiahnapalya
Nelamangala Taluk
Bengaluru Rural District 562 123.
2. Sri Rayasandra Ravikumar
S/o Sri Shanmukha Swamy
Aged major
Residing at No.14,
Rayasandra
Machenahalli Post,
Dandinashivara Hobali
Turuvekere Taluk
Tumkur District 572 215.
3. Sri Tajuddin Shariff
S/o Sri Husain Shariff
Aged major
Residing at 1 to 5th Cross,
Housing Board Main Road,
Jaipur,
Tumkur City 572 101.
4. Sri Sunil Yadav
S/o Sri Subramani Raju
Aged major
Residing at No.7, 1st Cross,
7th Main, Jayanagara 3rd Block
Bengaluru 560 041.
5. Sri Anwar
S/o late Sri Ameer Saab
Aged major
Residing at Hirehalli Post
Urdigere Hobali
Tumkur Taluk and District 572 104.
3
6. Sri Arun Gowda H.B.
S/o Sri Byle Gowda
Aged major
Residing at Haydalu
Mylanahalli Post
Nelamangala Taluk 562 123.
7. Sri Guluru Rangaiah Nagaraju
S/o late Sri T.Rangaiah
Aged major
Residing at Guluru, Guluru Post
Tumkur Taluk 572 118.
8. Sri Yoganarasimhamurthy T.H.
S/o Sri Hanumanarasimhaiah
Aged major
Residing at No.323, 1st Main Road
Belgumba Road, N.R.Colony
Tumkur 572 103.
9. Sri Shabeer Ahmed
S/o Sri Azim Khan
Aged major
Residing at 13th Main Road
P.H.Colony
Tumkur 572 101.
10. Sri K.V.Srinivasakalkere
S/o Sri Venkataiah
Aged major
Residing at Kalkere
Hebburu Post
Tumkur Taluk 572 120.
4
11. Sri Siddaramegowda T.B.
S/o Sri Basappa
Aged major
Residing at Tammadihalli
Gulur Hobli, Maskal Post
Tumkur Taluk 572 118.
...Respondents
(By:Sri Ashok Haranahalli, Senior Advocate for
Sri R. Hemanth Raj & Sri K. Raghupathi,
Advocates for R-1;
R2 - Sri Rayasandra Ravikumar, vide Court order
R3 - Sri Tajuddin Shariff, dated 07.12.2018
R4 - Sri Sunil Yadav, served and are
placed ex-parte.
R7 - Sri Guluru Rangaiah Nagaraju
R9 - Sri Shabeer Ahmed
R6 - Sri Arun Gowda H.B - vide court order dated
12.10.2018, service of summons is held sufficient
and placed ex-parte;
Sri Shivayogesha Shivayogimath, Advocate for R-5;
Sri C.M.Mahesh, Advocate for R-8;
R10 - Sri K.V. Srinivaskalkere vide Court order dated
07.09.2018 are placed
R11 - Sri Siddaramegowda ex-parte.
Sri Kashinath J.D, Sri Rameshappa. N, Sri G.Suhan.S and
Smt.Pushpalatha.Y, Advocates for Noticee (Sri
D.C.Venugopal, President, KMSS);
Sri K.Ravishankar and Sri B.M.Halaswamy, Advocates for
Noticee (Sri Krishnegowda and Smt.Sunanda);
5
Sri Parameshwar N. Hegde, Advocate for Noticee
(Sri Palanethraiah. G, Sri Arehalli Manjunath
and Smt.Renukamma);
***
This Election Petition is filed under Sections 80,
81, 100 r/w Section 123 of the Representation of the
People Act, 1951 praying to (i) set aside the election of
respondent No.1 to the 15th Karnataka Legislative
Assembly from 133-Tumkur Rural Assembly
Constituency, (ii) declare petitioner as duly elected to
fill the seat of Karnataka Legislative Assembly from
133-Tumkur Rural Assembly Constituency and (iii) pass
such other order/s as this Hon'ble Court deems fit in
the fact and circumstances of the case and etc.
This Election Petition pertaining to Principal Bench,
Bengaluru having been heard and reserved on
17.02.2023 and coming on for pronouncement of
orders, this day at Kalaburagi Bench through Video
Conference, the Court made the following:
6
ORDER
S. SUNIL DUTT YADAV. J
This order has been divided into the following sections
to facilitate analysis:
PART A - CONSIDERATION OF ISSUE NOS. ii(a) AND ii(b) 17
PART B - CONSIDERATION OF ISSUE NOS. ii(c), ii(d) AND v 25
ISSUANCE OF MEDI ASSIST POLICY ON 26.02.2018 31
ISSUANCE OF MEDI ASSIST POLICY IN THE NAME OF 38
KMSS
CONSENT OF RETURNED CANDIDATE/RESPONDENT NO.1 90
IV ANALYSIS OF PROCEEDINGS UNDER SECTION 99 OF R.P ACT 132
The present Election Petition has been filed under
Sections 80, 81, 100 read with Section 123 of the
Representation of the People Act, 1951 ('R.P. Act') seeking
to set aside the election of respondent No.1 to the 15th
Karnataka Legislative Assembly from Tumkur Rural
Assembly Constituency held during May 2018 and
consequently declare the petitioner as duly elected to fill the
seat of Karnataka Legislative Assembly as regards Tumkur
Rural Assembly Constituency (No.133).
I. BRIEF FACTS:
2. The facts make out that the petitioner and
respondent No.1 had filed nomination seeking election to
the Karnataka Legislative Assembly from Tumkur Rural
Assembly Constituency. The petitioner belongs to the
Bharatiya Janata Party (BJP), while the respondent No.1
belongs to Janata Dal (S) Party [JD(S) Party]. In the
ensuing elections, the petitioner is stated to have obtained
77,100 votes, while the respondent No.1 had secured
82,740 votes and was declared as elected by margin of
5,640 votes and the Returning Officer had issued Form
No.21-C under Section 64 of the R.P. Act declaring the
respondent No.1 as elected.
3. The petitioner has challenged the validity of the
election of respondent No.1 contending that his election was
vitiated by commission of corrupt practices as defined under
Sections 123(1) and 123(2) of the R.P. Act.
4. Amongst the corrupt practices that are stated to
have been resorted to by the respondent No.1 are the
following:-
(i) Payment of Rs.5,00,000/- by the
Kammagondanahalli Sri Maruthi Seva Samithi
[KMSS] which is a Registered Society alleged to
have been controlled by first respondent's father
and having as its office bearers, mother, brother
and members of the extended family, for
renovation of Shanidevaru Temple at
Dasarahalli.
(ii) The promise of 1000 free seats in
Engineering College run by KMSS in the event
the JD(S) Party comes to power.
(iii) The followers of JD(S) Party,
Smt.Gowramma and Sri Anantha were
distributing Medi Assist Cards while canvassing
on 02.04.2018 in order to lure the voters to vote
for the respondent No.1. It is stated that there
was seizure of 56 Medi Assist Bonds from the
house of Smt.Gowramma and Sri Anantha.
(iv) It is further submitted that on 11.05.2018,
the FST-II Squad was visiting Gulur and Hebbur
Hobli and Sri C.Rangadhamappa, Sri Jayaram
C.N. and Sri Devaraju intercepted a Scorpio
vehicle bearing registration number KA-06-N-
2725, coming from the opposite direction and
the said vehicle was abandoned by inmates. The
Medi Assist cards, cash and other materials
along with materials which contained details of
JD(S) Party workers were seized. Subsequently,
the investigation report revealed that the vehicle
belonged to Sri Palanethraiah, who eventually
pleaded guilty for the offence under Section
171E of IPC, who is alleged to be the Counting
Agent of respondent No.1.
(v) That Medi Assist Policy was taken out by
KMSS whereby there would be reimbursement
of the medical expneses incurred by the children
of electors. Pursuant to such Policy, there was
distribution of Medi Assist cards on behalf of
respondent No.1 with his consent to the parents
of the children which was an enticement, with a
request to vote in favour of respondent No.1 in
the 2018 General Elections.
(vi) Upon complaint being made by PW.2 as
regards the issuance of Medi Assist Policy, it is
stated that M/s.New India Assurance Co. Ltd.,
which had issued the policies had cancelled the
said policies with effect from 08.05.2018. It is
further alleged that the factum of cancellation of
Medi Assist Policy was not intimated to the
recipients.
5. It is further submitted that by benefiting from
such corrupt practices, the respondent No.1 was declared
elected and the present Election Petition has been filed
within the time stipulated assailing the validity of the
election on the grounds referred to above.
6. The respondent No.1 upon notice of the petition
filed his written statement denying the allegations made
while asserting that a Non-Governmental Organization
(NGO) by the name 'One Rupee Charity Foundation'
('ORCF') had entered into a Memorandum of Understanding
(MoU) with 'KMSS' and after obtaining the data with regard
to poor students residing in the vicinity had paid the
premium and taken the Medi Assist Policy and issued the
Medi Assist Cards.
7. It was further asserted that the Medi Assist
Policy was issued prior to the Election Notification by the
Election Commission of India. It was specifically contended
that the respondent No.1 resides separately from his
parents and does not have any transaction with his parents
or relatives subsequent to the execution of Release Deed in
the year 2007, and that he is not associated with KMSS.
8. It was also contended that the JD(S) Party had
declared the respondent No.1 as its candidate only by
issuance of 'B' Form on 21.04.2018, while denying the
allegation that the declaration was made by the JD(S) Party
on 18.02.2018 itself.
9. It was specifically asserted that the respondent
No.1 did not have any relationship with Smt.Gowramma
and Sri Anantha, who were neither the official agents nor
authorized agents of respondent No.1.
10. The respondent No.1 has also denied any
connection with the incident of 11.05.2018 where the
Election Squad had intercepted the 'Scorpio' vehicle bearing
registration No.KA-06-N-2725 and made the seizure of
articles.
11. The respondent No.1 has specifically raised the
defence regarding irregularity of verification in light of
requirement under Section 83(1)(c) of R.P. Act and Order
VI Rule 15 of C.P.C; that separate affidavit verifying
averments made in the Election Petition was not filed as
required under Order VI Rule 15(4) of C.P.C., that affidavit
filed by the petitioner in Form-25 at page Nos.30 and 31 do
not meet the requirements of law, that verification of
Annexures are not done in accordance with Section 83(2) of
the R.P. Act.
12. The respondent No.1 has filed I.A.No.1/2018
under Sections 81, 83, and 86 of the R.P. Act read with
Order VII Rule 11 of C.P.C. to dismiss the Election Petition,
I.A.No.2/2018 under Sections 81, 83, 86 and 87 of the R.P.
Act read with Order VI Rule 16 of C.P.C. seeking for an
order to strike out all the sentences of paragraph Nos.3 to
6, 7, 8, 11 to 24, 26 to 30, 32 to 42 and the prayer at
Sl.No(ii) of the Election Petition, I.A.No.1/2019 has been
filed under Section 151 of C.P.C. by the petitioner to permit
him to submit fresh affidavit in Form-25 in compliance with
Section 83(1) and Rule 94-A of the R.P. Act and furnish
affidavit as contemplated under C.P.C.
13. This Court, by order dated 06.12.2019, has
disposed off the abovementioned Interlocutory Applications.
I.A.No.1/2018 and I.A.No.2/2018 have been dismissed and
I.A.No.1/2019 seeking permission to furnish fresh affidavit
has been disposed off as not requiring adjudication in light
of dismissal of I.A.Nos.1/2018 and 2/2018. The said order
was challenged before the Apex Court in SLP (Civil)
No.409/2020 and the same came to be dismissed as
withdrawn bringing finality to the order dated 06.12.2019.
II. ISSUES FRAMED:
14. The following issues have been framed on
24.01.2020 and as per order dated 06.03.2020, Issue No.6
came to be deleted and the Issues as on date stand as
follows:-
"(i) Whether the petitioner has complied with all the
requirements of Section 83 of the Representation of
People Act, 1950 (R.P. Act for brevity)?
(ii) Whether the petitioner proves that the respondent
no.1, his election agents and others with first
respondent's knowledge and consent has committed the
following corrupt practices as defined under the R.P. Act
and hence his election is to be declared as void.-
a) Whether petitioner proves donations were
made to the Shanidevaru Temple at Dasarahalli
through Sri Maruti Seva Samithi in order to
entice the voters to vote in favour of
respondent No.1 ?
b) Whether the petitioner proves respondent no.1
either by himself or through persons associated
with him had promised to distribute free seats
in Engineering College?
c) Whether the petitioner proves that Sri Maruthi
Seva Samithi has taken out insurance policies
on the wards of the voters and distributed the
same at the instance and on behalf of
respondent No.1 and thereby committed
corrupt practice by enticing the voters?
d) Whether the petitioner proves that the Medi
Assist Policies were cancelled on the basis of
complaints?
(iii) Whether the petitioner proves that the
respondent no.1, election agents and the persons
associated or claiming through him have committed
any other corrupt practice as made out in the petition
within the meaning of Section 123 of R.P.Act ?
(iv) Whether all allegations regarding corrupt
practice relate to a period subsequent to the
nomination? If not, whether the other allegations can
be taken note of ?
(v) Does the petitioner prove that respondent no.1
is associated with Sri Maruthi Seva Samithi and if so,
in what manner ?
(vi) Issue deleted vide Order dated 06.03.2020.
(vii) Whether the petitioner is entitled to be declared
as elected in place of the first respondent in terms of
Section 101 of R.P. Act as a consequential relief if the
election of the returned candidate is set aside ?"
III. ANALYSIS:
PART - A
15. Issue Nos.(ii)(a) and (ii)(b) are taken up
together for consideration as relevant facts and evidence
that is considered for disposal of the said issues are
common.
The issues framed are as follows:-
(ii) WHETHER THE PETITIONER PROVES THAT THE
RESPONDENT NO.1, HIS ELECTION AGENTS AND
OTHERS WITH FIRST RESPONDENT'S KNOWLEDGE AND
CONSENT HAS COMMITTED THE FOLLOWING CORRUPT
PRACTICES AS DEFINED UNDER THE R.P.ACT AND
HENCE HIS ELECTION IS TO BE DECLARED AS VOID. -
(a) WHETHER PETITIONER PROVES
DONATIONS WERE MADE TO THE
SHANIDEVARU TEMPLE AT DASARAHALLI
THROUGH SRI MARUTI SEVA SAMITHI IN
ORDER TO ENTICE THE VOTERS TO VOTE IN
FAVOUR OF RESPONDENT NO.1 ?
(b) WHETHER THE PETITIONER PROVES
RESPONDENT NO.1 EITHER BY HIMSELF OR
THROUGH PERSONS ASSOCIATED WITH HIM
HAD PROMISED TO DISTRIBUTE FREE SEATS
IN ENGINEERING COLLEGE?
16. The above issues relate to the assertion of
petitioner that with the consent of respondent No.1, the
persons acting on his behalf have made donations to
Shanidevaru Temple at Dasarahalli Village through KMSS in
order to entice the voters and that further, the respondent
No.1 by himself or through persons associated with him had
promised to distribute free seats in the Engineering College
managed by KMSS.
17. Both the issues are taken up together insofar as
there is commonality regarding the period during which
donation was made to Shanidevaru Temple as well as
promise made to distribute the free seats in Engineering
College.
18(i) The petitioner has asserted that the
respondent No.1 has a 'facebook account1' which is a social
networking platform and in his 'facebook account' he has
posted on 25.03.2018 that respondent No.1 has notified the
public that the Society had paid Rs.5,00,000/- for
renovating Shanidevaru Temple at Dasarahalli Village,
Hebbur Hobli. A screen shot of the photograph posted on
the facebook has been marked as Ex.P8.
18(ii) It is further asserted that a post on the
facebook account of respondent No.1 on 30.03.2018,
wherein public were informed through an interview that the
father of respondent No.1 who was also the President of
Tumkur District JD(S) Party had informed the public that if
JD(S) Party returns to power, he would give 1,000 free
seats in the Engineering College run by the Society. A
Video clip of the said statement had been shared by the
respondent No.1 on his facebook page, which is marked as
Ex.P9.
see ¶18 of Election Petition
18(iii) It is submitted that donation to
Shanidevaru Temple at Dasarahalli and the statement made
by the father of respondent No.1 were made with an
intention of luring the electorate to vote for respondent
No.1 who was declared as the candidate of JD(S) Party.
19(i) In the written statement filed by
respondent No.1, the allegations have been denied. It is
asserted that respondent No.1 did not have any facebook
account and that KMSS had not paid any amount for the
renovation of Shanidevaru Temple at Dasarahalli Village on
25.03.2018.
19(ii) It was specifically asserted that even
otherwise, the date on which the alleged amount is stated
to have been paid is prior to the date of filing of nomination
pursuant to the Notification of election issued by the
Election Commission dated 17.04.2018 and accordingly,
cannot be taken note of2.
see ¶ 21 of the written statement filed by respondent No.1
19(iii) Insofar as the allegation relating to father
of respondent No.1 informing the public through an
interview that if JD(S) Party is returned to power, he would
give 1,000 free seats in the Engineering College run by
KMSS, the said allegation has been specifically denied.
20. It must be noted that the donation by Society to
the Shanidevaru Temple even as per the pleadings is stated
to have been made on 25.03.20183 and insofar as the
statement in a Television channel relating to giving of 1,000
free seats in the Engineering College was also stated to
have been made on 30.03.20184, whereas, the respondent
No.1 is stated to have filed his nomination on 23.04.2018.
21. Insofar as corrupt practice falling within the
scope of Section 123 of R.P. Act, it is clear that the same
must be committed by a candidate. A 'candidate' has been
defined under Section 79(b) of the R.P. Act as "a person
who has been or claims to have been duly nominated as a
candidate at any election." Section 34 of the R.P. Act
see ¶18 of the petition
see ¶19 of the petition
provides that a candidate shall not be deemed to be duly
nominated unless he deposits or causes to be deposited in
case of an election from an Assembly Constituency, a sum
of Rs.10,000/-. It is further specified under Section 34(2)
of R.P. Act that any sum required to be deposited under
sub-section (1) shall not be deemed to have been deposited
unless at the time of delivery of nomination paper, the
candidate has deposited the said amount.
Accordingly, unless a person is a 'candidate' in terms
of Section 34 of R.P. Act, any corrupt practice committed
earlier cannot be taken note of for the purpose of Section
123 of the R.P. Act5.
This is however subject to an exception where the corrupt practice is constituted
by a chain of linked events which may have commenced prior to the date of the
candidate filing his nomination and is linked to other acts subsequent to the
candidate filing his nomination which interpretation has been applied to the
allegation which is a subject matter of issue No.(iii) discussed infra. This
however is an interpretation based on appreciation of evidence. The Apex Court in
the case of Mohan Rawale v. Damodar Tatyaba-(1994) 2 SCC 392) has kept the
question open as regards incident prior to the notified date being admissible and
relevant for other purposes during the subsequent stage
22. The Apex Court has also laid down the law on
this aspect in Subhash Desai v. Sharad J. Rao6. The
observations made are as follows7:
"18. On behalf of the appellant, it was then pointed
out that in election petition, while alleging corrupt
practices, reference has been made in respect of the
speeches and publications, of period prior to 31-1-1990,
which was the date when nomination papers were filed.
The publications and speeches alleged to have been
made prior to 31-1-1990 have to be ignored because
the framers of the Act, required the High Court to judge
the conduct of the candidate, his agent or persons with
the consent of the candidate or his election agent, only
after a person becomes a candidate for the particular
election. A person becomes a candidate for the election
in question only after filing the nomination paper. In
this connection, reference may be made to Section
79(b) of the Act which defines 'candidate' to mean a
person, who has been or claims to have been duly
nominated as a candidate at any election. Section 34 of
the Act says that a candidate shall not be deemed to be
duly nominated for election from a constituency unless
he deposits or causes to be deposited the amounts
AIR 1994 SCC 2277
This observation has been affirmed in Chandrakanta Goyal v. Sohan Singh Jodh
Singh Kohli - (1996) 1 SCC 378 (see para-3) and also in the case of Sri D.T.Sridhar v.
Sri B.K.Sangameshwar and Others - ILR 2012 KAR 1995, a judgment by this Court
(see para-22)
prescribed in the said section. When a person becomes
a candidate, was examined by this Court in the well-
known case of Indira Nehru Gandhi v. Raj Narain [1975
Supp SCC 1] and it was held: (SCC p. 64, para 146)
...
Recently, this Court in the case of Mohan Rawale
v. Damodar Tatyaba alias Dadasaheb, (Special
Leave Petition (Civil) No.5594/1992 disposed of
on August 6 1992,) has said:
"We hold that all the averments in
paragraphs 1 to 20 of the memorandum of
election petition insofar as they refer to a period
prior to 23-4-1991 cannot amount to allegations
of corrupt practice."
This cut-off date 23-4-1991 was fixed with
reference to the date when nomination papers
were filed by the appellant concerned, because
since that date the appellant will be deemed to
have legally acquired the status of a candidate.
According to us, any allegation of corrupt practice
against the appellant, made by the respondent in
respect of the period prior to the filing of
nomination by the appellant on 31-1-1990,
cannot be taken into consideration for judging the
legality or validity of his election."
23. Accordingly, both the alleged corrupt practices
relate to the period prior to respondent No.1 filing his
nomination hence, there arises no other reason for
enquiring into the said aspect any further.
24. Accordingly, the issue Nos.ii(a) and ii(b) are
answered in the negative.
PART - B
25. Issue Nos.-(ii)(c), (ii)(d) and (v) are taken up
together for consideration, as relevant facts and evidence
that are considered for disposal of the said issues are
common.
The issues are as follows:-
(ii) WHETHER THE PETITIONER PROVES THAT THE
RESPONDENT NO.1, HIS ELECTION AGENTS AND OTHERS
WITH FIRST RESPONDENT'S KNOWLEDGE AND CONSENT HAS
COMMITTED THE FOLLOWING CORRUPT PRACTICES AS
DEFINED UNDER THE R.P.ACT AND HENCE HIS ELECTION IS
TO BE DECLARED AS VOID. -
(c) WHETHER THE PETITIONER PROVES THAT SRI
MARUTHI SEVA SAMITHI HAS TAKEN OUT
INSURANCE POLICIES ON THE WARDS OF THE
VOTERS AND DISTRIBUTED THE SAME AT THE
INSTANCE AND ON BEHALF OF RESPONDENT NO.1
AND THEREBY COMMITTED CORRUPT PRACTICE BY
ENTICING THE VOTERS?
(d) WHETHER THE PETITIONER PROVES THAT THE
MEDI ASSIST POLICIES WERE CANCELLED ON THE
BASIS OF COMPLAINTS?
(v) DOES THE PETITIONER PROVE THAT RESPONDENT NO.1
IS ASSOCIATED WITH SRI MARUTHI SEVA SAMITHI AND IF
SO, IN WHAT MANNER ?
26(i) It is the case of the petitioner that KMSS is
a family controlled Society and that the family members of
the respondent No.1 control it by virtue of being the office
bearers, that the Medi Assist Policy was taken out by KMSS,
which would enable the insured who are children studying in
schools to obtain the benefit of reimbursement of medical
expenses upto Rs.10,000/- in the event of treatment and
that there was distribution of the Medi Assist Identity Cards,
which were in a cover containing the photograph of
Sri.H.D.Devegowda, Former Prime Minister,
Sri.H.D.Kumaraswamy, Former Chief Minister and
Sri.C.Chennigappa by Sri Arehalli Manjunath,
Smt.Renukamma, Sri Krishnegowda and Smt.Sunandamma,
who are JD(S) Party workers. It was further alleged that
the distribution of Medi Assist cards was for the purpose of
luring the voters to vote for respondent No.1. It was also
contended that distribution is done to Sri Lakshminarayana
V.N, Sri Gopalaiah, Sri Mahadevaiah, Sri D.R.Ramesh,
Smt.Ramamani, whose children were beneficiaries and have
produced the said Medi Assist cards in their evidence.
26(ii) It was specifically asserted that policies
were taken to benefit the students studying in various
schools i.e., about 50 to 100 schools situated in Tumkur
Rural Assembly Constituency and the students residing in
approximately 200 villages.
26(iii) It is further asserted that the agents of the
respondent No.1 had distributed insurance bonds in
Doddasarangipalya on 26.04.2018, in Virupasandra village
on 27.04.2018, in Mallasandra village on 30.04.2018 and in
Honnudike village on 03.05.2018. That the said issue was
covered by the Media in "Prajavani" Newspaper and Sri
Mahesh, President of JD(S) Yuva Morcha had held a Press
Meet on 11.05.2018, in which it was admitted that 17,000
students had been insured for obtaining the benefit under
the Medi Assist Policy by the respondent No.1 and the said
clarification was covered by the "Prajavani" Newspaper and
also in the local media "Tumkur Varthe".
26(iv) It is asserted that Sri Narasimha Murthy
had intimated the Deputy Commissioner and the Tahsildar,
upon whose information the Flying Squad of Election
Commission conducted a search operation in the house of
Sri Anantha (referred to as Ananthu in deposition by the
parties) and Smt.Gowramma and had recovered 56 Medi
Assist cards issued by M/s.New India Assurance Co. Ltd.,
favouring the students.
26(v) It was specifically asserted that KMSS had
paid a sum of Rs.6.00 lakhs as premium, that the Policy
bearing Number-67210034170500000258 came to be
issued which was valid for the period between 26.02.2018
to 25.02.2019 and that holder of the policy was KMSS.
26(vi) Accordingly it is averred that the
respondent No.1 with the aid of his father had indulged in
corrupt practice falling within the scope of Section 123 of
the R.P. Act.
26(vii) It is further specifically asserted that the
petitioner's brother Sri Ramesh Bettaiah (PW-2), on coming
to know of the said Medi Assist cards on 07.04.2018 had
made out plaints by way of Email to Smt.Jyothi, who is in-
charge of customer care and also to the Vigilance of
Insurance Regulatory and Development Authority of India
(IRDAI).
26(viii) It is asserted that there were various Email
correspondence with the Election Commission and
Insurance Authorities and eventually a communication was
received on 08.05.2018 from the Regional Manager of
M/s.New India Assurance Co. Ltd., that decision was taken
to cancel the Medi Assist policies.
27(i) In the written statement filed by
respondent No.1, it was contended that after receipt of
notice in the present petition, an enquiry was made with the
KMSS and had learnt that an NGO named ORCF which was
registered on 01.07.2013 had entered into an
understanding with KMSS and in terms of the said MoU,
KMSS was to furnish the data with regard to poor students
residing in its jurisdiction to ORCF and thereafter ORCF
would pay the premium for the poor students and issue
Medi Assist Policies to the poor students.
27(ii) It is specifically asserted that the
respondent No.1 is neither a member nor an office bearer of
KMSS and respondent No.1 did not have any relationship
with KMSS. It was asserted that KMSS had not paid
premium for issuance of Medi Assist policies and the
premium was paid by ORCF and policies were taken for the
period from 26.02.2018 to 25.02.2019, and in terms of the
said policy, the date of issuance of policy was prior to the
election notification issued by the Election Commission of
India.
27(iii) It is specifically asserted by respondent
No.1 that he has severed ties with his family by entering
into a Release Deed in the year 2007 and was residing
separately from his parents.
ISSUANCE OF MEDI ASSIST POLICY ON 26.02.2018
28. A legal contention that requires to be considered
is as to whether the issuance of Medi Assist Policy at
Ex.P.80 on 26.02.2018 could be taken note of and finding
recorded regarding commission of corrupt practice relating
to Ex.P.80, while the schedule for the election was
published in the Gazette on 17.04.2018 and the nomination
was stated to have been filed on 23.04.2018. This assumes
importance in light of the settled position that the
commission of a corrupt practice could be taken note of only
after the returned candidate pursuant to his nomination has
made deposit as envisaged under Section 34 of the R.P.
Act. Section 79(B) defines a 'candidate' as a person who
has been duly nominated as a candidate which must be
read in conjunction with Section 34 which provides that the
candidate shall not be deemed to be duly nominated unless
he deposits the sum prescribed.
29. Initially a Medi Assist Policy was taken and
subsequently Medi Assist cards were stated to have been
distributed to the Voters. It must be noted that in the facts
of the present case, the distribution of the Medi Assist cards
is admittedly after the date of nomination of the respondent
No.1. The distribution of the Medi Assist cards by itself
coupled with enticement to vote for the returned candidate
would amount to bribery in terms of Section 123 of the R.P.
Act.
30. However, the fact that the policy at Ex.P.80 was
taken before the respondent No.1 became a candidate
would not have the effect of negativing the corrupt practice
of bribery constituted by distribution of Medi Assist cards
after the date on which respondent No.1 has been declared
a candidate. The issuance and distribution of Medi Assist
cards irrespective of their genuineness would as a matter of
fact still constitute bribery in terms of Section 123 of R.P.
Act, if the said document constituting the Medi Assist card
was held out to be reflective of a Medi Assist Policy and
used to entice the electors to vote for him. The fact that
the validity of the Medi Assist cards even if not proved but
still is construed by the receiver to be a document capable
of enticement is by itself sufficient. The handing over of the
Medi Assist card being a gift/gratification and intended to be
so, would serve the purpose of falling within the mischief
sought to be curbed under Section 123 of the R.P. Act. In
fact, the cancellation of the policy on 08.05.2018, i.e. four
days before polling by the M/s.New India Assurance Co.
Ltd., not having been made known to the recipient has still
served the purpose of acting as enticement and has
influenced the voter to vote in a particular manner. An
example of a coupon being distributed during polling period
to the electorate which is capable of being encashed and
constituting gift/gratification having been accepted and
acted upon and votes are cast on the basis of such
enticement and the subsequent discovery of it being a fake
coupon and could not be encashed, would not have the
effect of not treating such act of distribution of coupon
constituting bribery in terms of Section 123 of the R.P. Act.
31. In the present factual matrix, the issuance of the
Medi Claim Policy at Ex.P.80 was admittedly prior to date of
nomination of respondent No.1. That by itself would not
form an act of corrupt practice. However, where pursuant
to the issuance of policy as per Ex.P.80, Medi Assist cards
were distributed subsequent to the date of nomination with
the purpose of enticement to the electors to vote for the
respondent No.1, such distribution of Medi Assist cards with
enticement, subject to proof, would be a stand alone
corrupt practice. Nevertheless, the taking out of Medi Ass
ist Policy prior to the date of nomination, seizure including
Medi Assist cards as detailed in P.F. No.31/2018 in Crime
No.0073/20188 and acts of distribution of Medi Assist cards
after the cut off date would be circumstances to be taken
note of to come to a conclusion regarding the pattern of
commission of bribery as is made out in the present case.
32. The Apex Court in Mohan Rawale v. Damodar
Tatyaba alias Dadasaheb9 (Mohan Rawale), has
considered the precise question as to whether acts of
alleged corrupt practice though prior to the relevant date
could be made use of for other purposes, has been
commented upon as follows:-
"7. Shri R.F. Nariman for the first respondent found
it difficult to support the view taken by the High Court
as to the time at which appellant's candidature could
be said to have commenced. However, Shri Nariman
endeavoured to contend that even if the allegations in
on 11.05.2018, the FST-II Squad was visiting Gulur and Hebbur Hobli and Sri
C.Rangadhamappa, Sri Jayaram C.N. and Sri Devaraju intercepted a Scorpio
vehicle bearing registration number KA-06-N-2725, coming from the opposite
direction and the said vehicle was abandoned by inmates. The Medi Assist
cards, cash and other materials along with materials which contained details of
JD(S) Party workers were seized. Subsequently, the investigation report
revealed that the vehicle belonged to Sri Palanethraiah, who eventually pleaded
guilty for the offence under Section 171E of IPC, who is alleged to be the
Counting Agent of respondent No.1.
(1994) 2 SCC 392
paragraphs 1 to 20 did not, by themselves, establish
corrupt practice in law by virtue of their commission
prior to the appellant becoming a candidate, these
averments and allegations must be read as parts of
similar transactions pleaded in the later and
subsequent paragraphs of the memorandum of the
election petition. Shri Nariman said that, at all events,
the allegations in paragraphs 1 to 20 cannot be said to
be irrelevant if they can be sustained for the purposes
of probabilising or furnishing "similar-fact" evidence of
the allegations of corrupt practice made in the later
paragraphs of the election petition.
8. We hold that all the averments in paragraphs 1 to
20 of the memorandum of election petition insofar as
they refer to a period prior to April 23, 1991 cannot
amount to allegations of corrupt practice. But on the
question whether they are relevant and admissible for
other purposes for the reasons submitted by Shri
Nariman we abstain from expressing any opinion. This
aspect did not engage the attention of the High Court
and was not considered by it. It is for the High Court
to consider them at the appropriate time. We,
therefore, declare that the allegations in paras 1 to 20
relating to the period anterior to the commencement
of the candidature cannot be relied upon to establish
corrupt practice proprio vigore."
(emphasis supplied)
It is relevant to note that the Apex Court has not
expressed any opinion in light of its observation that "this
aspect did not engage the attention of the High Court and
was not considered by it", in effect, the said aspect has
been kept open and is a matter that could be adjudicated
upon.
33. In light of the discussion made above, this Court
is of the view that though certain acts do not constitute
bribery and corrupt practice in light of the said incident
having occurred prior to the relevant date, however, as in
the present case, it may be taken as a circumstance
constituting a chain of events where subsequent events
alongwith the prior event together reveals a pattern and
design in commission of the corrupt practice. The contention
that other judgments of the Apex Court have not approved
this view may not be correct as the question as noticed in
Mohan Rawale (supra) which was kept open and has not
been overruled and is essentially the matter to be factually
demonstrated. In terms of the discussion infra, such a chain
of events as referred to above is found to be established.
Even otherwise, de hors the reliance on Ex.P.80, the
distribution of Medi Assist cards after the designated date
by themselves constitute bribery and corrupt practice.
ISSUANCE OF MEDI ASSIST POLICY IN THE NAME OF KMSS
34. Ex.P.80 is the policy issued by M/s.New India
Assurance Co. Ltd., wherein the name of the insured is
Kammagondanahalli Sri Maruthi Seva Samithi. The address
relating to the name of the insured is shown as "No.6,
Kammagondanahalli, Abbigere Main Road, Bangalore North
Taluk, Bangalore". Policy Number is
67210034170500000258. The address mentioned in Ex.P80
tallies with the address mentioned in the Bye-laws of KMSS
which is marked as Ex.P5. Both Ex.P80 and Ex.P5 are not
in dispute. Ex.P80 is the best available evidence regarding
the existence of the Medi Assist policy. The policy is
marked through the Regional Manager of M/s. New India
Assurance Co. Ltd., Sri Kittuswamy.A, who was examined
as PW.10. The evidence of PW.10 would also reveal that
upon cancellation of the policy, refund of the premium has
been made to the KMSS as is evidenced from Ex.P90.
35. The voucher at Ex.P90 is dated 25.06.2018 and
the receiver's name is shown as "Kammagondanahalli Sri
Maruthi Seva Samithi, No.6, Kammagondanahalli, Abbigere
Main Road, Bangalore North Taluk, Bangalore- 560064,
Karnataka, India." Policy Number is shown as
67210034170500000258 and refund of Rs.5,29,527/- has
been paid through "Cheque favouring:
KAMMAGONDANAHALLI SRI MARUTHI SEVA SAMITHI® (PO
5778459)". Payment is stated to have been made through
Cheque bearing No.4518.
36. The statement of account of M/s. New India
Assurance Co. Ltd., Disbursement Account is produced and
marked through PW.10 as Ex.P93 and indicates transfer of
funds to KMSS on 27.06.2018 i.e., two days after the
issuance of voucher at Ex.P90 for an amount of
Rs.5,29,527/-. The voucher number is 1819000316, which
tallies with the voucher number of Ex.P90 and Ex.P90(a).
PW.10 has specifically asserted that refund is made to
KMSS. Though it is contended by respondent No.1 that a
fake KMSS account had been created, in light of the refund
voucher in the name of KMSS at Ex.P90, the burden of
proving that it was a fake account was on the respondent
No.1 and no efforts have been made to discharge such
burden.
37. On the basis of the said evidence, it can be stated
that the policy has been issued in the name of KMSS and
upon cancellation, the refund is also made to KMSS.
38. The only serious contention that is taken is that
the premium was paid by ORCF which requires
consideration. The payment of premium however will not
have the effect of altering the terms of Ex.P80 insofar as
policy is undoubtedly issued in the name of KMSS and
accordingly, any contention that the policy must be
construed as having been taken out by ORCF cannot be
looked into.
39. Insofar as the payment of premia, it comes out
from Ex.P80 that the total premia paid is Rs.6,57,406/- and
the receipt number and date is mentioned as
67210081170000006739 dated 05.03.2018. In terms of
Ex.P81 marked through PW.10, the collection number
mentioned is 67210081170000006739 which tallies with the
receipt number in Ex.P80. The amount received shown in
Ex.P81 is Rs.6,57,406/-. The receipt is issued in the name
of "KAMMAGONDANAHALLI SRI MARUTHI SEVA
SAMITHI(R)".
40. As per Exhibits-P82, P83, P84 and P85, advance
premium deposit receipt issued in the name of KMSS refers
to an amount of Rs.1,90,000/- in each of the receipts and
there are three cheque numbers viz., Ex.P82-
Ch.No.555019, Ex.P83-Ch.No.555020, Ex.P84-
Ch.No.555021 and Ex.P85-Ch.No.555022 and the sum total
of these three cheques is Rs.6,60,440/- (1,90,000 x 3 =
5,70,000 + 90,440/-). The payment is stated to have been
made by Sri T.L.Krishnamurthy as per Ex.R2(a) which is
the bank statement that would indicate payment to
M/s.New India Assurance Co. Ltd., in a sum of
Rs.6,60,440/-. The fact that Sri.T.L.Krishnamurthy is the
Founder Trustee of ORCF which comes out from Ex.R13
which is the Trust Deed of ORCF and the payment reflected
in the account statement at Ex.R2(a) could be construed as
payment being made by the Founder Trustee of ORCF.
However, that by itself would not alter the factum of
issuance of Policy in terms of Ex.P80 in the name of KMSS,
as all the receipts for payment of premia viz., Adjustment
Voucher at Ex.P81, Advance Premium Deposit Receipts at
Ex.P82 to Ex.P85 are issued in the name of
"KAMMAGONDANAHALLI SRI MARUTHI SEVA SAMITHI(R)."
41. The specific stand of respondent No.1 in the
written statement was to the effect that ORCF which is a
Trust has entered into a MoU with KMSS, according to which
there was an understanding whereby the KMSS was
required to furnish data to ORCF which would pay premium
for the policy10. However, the said MoU has not been
placed before the Court or summoned from the custody of
the person who is in possession of the same in order to
establish the assertion regarding the MoU and the limited
role of KMSS insofar as the Medi Assist Policy is concerned.
42. As regards the MoU, the respondent No.1 who is
examined as RW.1 was specifically asked and his response
to the same is as follows:
"Question:
Have you seen the Memorandum of
Understanding?
Answer:
They have shown a letter. It is false to state
that I have not seen the Memorandum of
Understanding. I have seen the same."
¶ 4 and 5 of the written statement, which is of relevance are as follows:
"4. As per the information furnished by the Kammagondanahalli Sri Maruti Seva Samithi
to the Respondent No. I in respect of the issue of Medi Assist policies, it is learnt by the
Respondent No. I that, The One Rupee Charity Foundation Trust had entered into an
understanding with the Kammagondanahalli Sri Maruti Seva Samithi and as per the Memorandum
of Understanding, the Kammagondanahalli Sri Maruti Seva Samithi has to furnish the data with
regard to the poor students residing in its jurisdiction to the One Rupee Charity Foundation Trust
and the One Rupee Charity Foundation Trust thereafter pays the premium for the poor students
and issues Medical Health Policy to the poor students .
5. The Respondent No. l further submits that even the NGO named as One Rupee Charity
Foundation Trust had issued the Mediclaim policies after entering into an understanding with
Kammagondanahalli Sri Maruti Seva Samithi prior to the Gazette Notification issued by the
Election Commission of lndia on 27.03.2018 ."
43. It is relevant to notice simultaneously the
evidence of Sri Kishore Varadachari, who was examined as
RW.2 and who is a Trustee of ORCF, has specifically stated
in his examination-in-chief recorded on 04.04.2022 as
follows:-
"The understanding between One Rupee
Charity Foundation and Kammgondanahalli Sri
Maruthi Seva Samithi was in the nature of written
understanding.
The written understanding between the One
Rupee Charity Foundation and Kammgondanahalli Sri
Maruthi Seva Samithi which was in my possession
was handed over to Tumakuru Rural Police Station in
connection with the investigation of the case.
All the documents given by Kammgondanahalli
Sri Maruthi Seva Samithi were handed over to the
police authorities and whatever documents we gave
in the form of proposal, etc., to the
Kammgondanahalli Sri Maruthi Seva Samithi was in
possession of Sri Chennigappa."
44. It is clear from the stand of RW.1 that there was
a Memorandum of Understanding. It is the stand of RW.1
also that it was the understanding that KMSS would furnish
data to ORCF. If it is the case that the role of KMSS insofar
as the policy is concerned was only limited to the furnishing
of data of students to ORCF which would further take steps
to obtain policy, which is also the stand taken by RW.2 and
there was no other role of KMSS, then the best evidence
available to support such assertion was the Memorandum of
Understanding between KMSS and ORCF.
45. As pointed out above, the existence of MoU has
been asserted by RW.1 as well as RW.2. As it is the case
put forward by RW.2 that the copy of MoU had been
submitted to the Police Authorities and in light of specific
assertion by RW.1 in the written statement as well as in his
deposition regarding the MoU, the burden of proving the
scope of MoU rested on RW.1. Further, once Ex.P80 reveals
that policy is taken in the name of KMSS and by way of a
counter it is stated that premium is paid by ORCF and that
limited role of KMSS was only to furnish data to ORCF and
nothing more, the onus shifts on RW.1 to prove such an
assertion as regards the scope of MoU which could be
accomplished only by the production of MoU by taking steps
to have the same produced from the custody of Police
Authorities as stated by RW2. No steps have been taken by
RW.1 to summon the said MoU and it could be concluded
that the onus on RW.1 regarding the assertion of limited
role of KMSS vis-à-vis the Medi Assist policies does not
stand discharged. In fact, not taking appropriate steps for
summoning such documents which would support the case
of respondent No.1 would lead to drawing an adverse
inference as it could be construed that no steps were taken
to summon the MoU, as the said document if produced may
reveal material contrary to their stand.
46. It is also relevant to note that as regards the
scope of MoU stated to have been entered into between
KMSS and ORCF, the non-examination of Sri T.L.
Krishnamurthy who was the Founder Trustee and from
whose account amount asserted to be premia has been
transferred to the M/s. New India Assurance Co. Ltd., calls
for drawing an adverse inference against KMSS and
respondent No.1. The evidence of Sri T.L.Krishnamurthy
would have had the effect of clarifying the issue insofar as
MoU is concerned.
47. Once it is the specific stand of respondent No.1
that there was an understanding that KMSS would share
data with ORCF regarding the students, it would indicate the
willingness of KMSS to collaborate with ORCF as regards
Medi Assist Policy. In the absence of MoU being produced
and eventually policy being issued in the name of KMSS as
per Ex.P80, there can be no doubt regarding the existence
of policy and the respondents have failed to prove their
assertion that the understanding between KMSS and ORCF
was only as regards the limited role of providing data of
school students to facilitate obtaining of policy and not
beyond such limited understanding.
48. However, the payment of premia by third party
other than the insured does not have the effect of altering
the policy holder as the policy depicts the name of the
insured as KMSS and the premium receipts are still issued
in the name of KMSS. Accordingly, it is held that Medi
Assist Policy has been taken in the name of KMSS.
ASSOCIATION OF RESPONDENT NO.1 WITH KMSS
49. A significant contention raised is that the
respondent No.1 had nothing to do with KMSS and even if
KMSS has committed a lapse, he has nothing to do with it.
50. It is the specific defence that the respondent
No.1 had severed ties with the family, that he had executed
Release Deed and was residing separately and had nothing
to do with KMSS, which was allegedly controlled by his
family.
51. What requires to be determined is as to whether
KMSS with the consent of respondent No.1 has acted in a
manner so as to benefit the respondent No.1 in issuance of
Medi Assist Policy.
52. The execution of Release Deed is stated to be of
the year 2007, dated 19.05.2007 and is produced as Ex.R9.
Even if the same is admitted, it would by itself not have any
effect, if otherwise it is demonstrated that KMSS which
admittedly is controlled by the family has acted in a manner
so as to benefit the respondent No.1. An aspect of
relevance would be as to whether the family members
nursed any animosity against respondent No.1 and in the
absence of which, it would be the common course of human
conduct of other members of the family to support
respondent No.1 and enhance his prospects in the election,
if relevant facts are demonstrated which would be a
permissible presumption under Section 114 of the Indian
Evidence Act.
53. The fact that the office bearers of KMSS are
family members of respondent No.1 is not in dispute and
has come out during evidence. RW.1 in his cross-
examination recorded on 25.02.2022 has deposed as
follows:-
"My father's name is found at Sl.No.1 of Ex.P5
which relates to list of office bearers of
Kammagondanahalli Sri Maruthi Seva Samithi ... the
name G.S.Siddagangamma shown at Sl.No.6 is of my
mother ..."
54. The persons at Sl.No.1 Sri C.Chennigappa is the
father; Sl.No.2 Sri D.C.Venugopal is the brother; Sl.No.4
Smt.G.H.Siddagangamma is the mother.
55. Though the Release Deed is stated to have been
executed in 2007, it is a document between respondent
No.1 and other members of the family. The respondent
No.1 (RW.1) states in his cross-examination as follows:-
"there are four houses where I am staying ...
In the other houses in the compound, my mother
and my younger brother stay."
This would indicate that the brother and mother of
respondent No.1 are staying in close vicinity. The above
would indicate that the members of the family are on
cordial terms and there would be a presumption permissible
to be drawn taking note of common course of human
conduct in the absence of any other fact to indicate
animosity amongst them being presented before the Court.
Accordingly, it can be stated that the KMSS has acted to
further the interest of the respondent No.1 in the act of
taking out the Medi Assist Policy.
56. The admitted fact of entering into an
understanding with ORCF by KMSS in order to share data of
students and further understanding that the premia would
be paid by the ORCF even as per the stand of respondent
No.1 in the written statement would indicate that there was
an intention of having Medi Assist Policies to be taken in the
name of students11. It must be noted that KMSS has its
Office situated at Abbigere which is in Bengaluru City, that
predominantly the policies were taken benefiting the
students studying in Tumkur Rural Constituency during the
Para-4 of the written statement reads as follows:-
"4. As per the information furnished by the Kammagondanahalli Sri Maruti Seva Samithi
to the Respondent No. I in respect of the issue of Medi Assist policies, it is learnt by the
Respondent No. I that, The One Rupee Charity Foundation Trust had entered into an
understanding with the Kammagondanahalli Sri Maruti Seva Samithi and as per the Memorandum
of Understanding, the Kammagondanahalli Sri Maruti Seva Samithi has to furnish the data with
regard to the poor students residing in its jurisdiction to the One Rupee Charity Foundation Trust
and the One Rupee Charity Foundation Trust thereafter pays the premium for the poor students
and issues Medical Health Policy to the poor students ."
time coinciding with election to Tumkur Rural Constituency
wherein the respondent No.1 was contesting, and the timing
of such activity and geographical location of the schools as
regards students of which policies were taken; all of such
would lead to a logical deduction that KMSS had taken up
this task of facilitating issuance of Medi Assist Policy to help
the respondent No.1. Even if it is assumed that the
premium of policy was paid by ORCF which would not have
the effect of altering Ex.P80, the whole exercise of taking
Medi Assist Policy in the name of students who were
predominantly belonging to Tumkur Rural Constituency as
would come out from the majority of Medi Assist cards
marked as Ex.P23 series would only indicate that
willingness of KMSS to act in support of the respondent
No.1 so as to promote his election prospects.
57. Accordingly, it is held that respondent No.1 is
associated with KMSS.
58. The aspect as to whether the action of KMSS was
with the consent of respondent No.1 has been considered
separately.
CANCELLATION OF MEDI ASSIST POLICY
59. Insofar as issue No.ii(d) is concerned, the factum
of cancellation of policy is admitted. In terms of Ex.P42,
which is an Email correspondence by Ms.Preetha, an
employee of M/s. New India Assurance Co. Ltd.,
communicating to PW-2, brother of petitioner that Sri
Devendra Prasad, Divisional Manager, had been advised to
issue cancellation notice as per internal guidelines. In
terms of Ex.P87, the policy has been cancelled with effect
from 08.05.2018 and the premium has been refunded. The
said document issued by M/s.New India Assurance Co. Ltd.,
is conclusive of the factum of cancellation and is not in
dispute. The reason assigned for cancellation as
enumerated in Ex.P87 is that the policy was cancelled as
there was "NO INSURABLE INTEREST IN THE STUDENTS
COVERED AS ALSO THE GROUP OF STUDENTS COVERED
DO NOT FALL UNDER THE DEFINITION OF irdai SPECIFIED
HOMOGENOUS GROUP."
60. It is made out from the correspondences
exchanged between employees of M/s. New India Assurance
Co. Ltd., and Sri Ramesh Bettaiah and the PMO that the
Medi Assist Policy was cancelled at the instance of Sri
Ramesh Bettaiah. The correspondence between PW2 and
M/s. New India Assurance Co. Ltd., is marked as Ex.P33 to
Ex.P38. This fact has been spoken to by PW.10 Sri
Kittuswamy, Regional Manager, M/s.New India Assurance
Co. Ltd., who has got marked the Medi Assist Policy
cancellation document as Ex.P87. However, the assertion of
the petitioner regarding its cancellation is not so much the
factum of cancellation, but the reason for such cancellation
which the petitioner seeks to take benefit of by contending
that the policy came to be cancelled only on the ground of it
being capable of misuse during election period.
61. After cancellation of the Medi Assist Policy with
effect from 08.05.2018 in terms of Ex.P90(f), though PW.2
had issued a statement in 'Prajavani' newspaper to the
effect that the Medi Assist Policy was cancelled on the
ground of misuse, however in terms of the media report
covering the statement of Sri Mahesh, President JD(S) Yuva
Morcha, an assertion was made that policy was taken out
keeping in mind the health benefit of the local people and
that many beneficiaries had taken benefit of the same and
were in fact present in the press conference. Copy of which
is marked as Ex.P11(a).
62. No doubt, the content of Exhibits P10(a) and
P11(a) cannot be taken note of as being conclusive proof
regarding the incidents narrated but could be taken note of
only for the purpose of inferring that the issue regarding
cancellation was in public domain as on 09.05.2018
[Ex.P10(a)] and on 11.05.2018 [Ex.P11(a)], both of which
were prior to the date of polling on 12.05.2018. The
contradictory stand taken in Exhibits-P10 and P11 regarding
the cancellation and absence of any clarification by M/s.
New India Assurance Co. Ltd. and KMSS, or any stand by
respondent No.1 distancing himself from the Medi Assist
cards alleged to have been issued with his consent, while
further noticing that no effort was made by M/s. New India
Assurance Co. Ltd. or the Authorities to withdraw the Medi
Assist cards has had the effect of continuance of impression
in the minds of those who had received the Medi Assist
cards regarding its benefits and accordingly its capability of
enticing the voters as on the polling date continued.
Accordingly, though the issue as to whether the Medi
Assist Policy was cancelled on the basis of complaints is
answered in the affirmative, it in fact has no effect insofar
as the capability of Medi Assist cards to act as an object of
enticement.
63. Accordingly, the issue Nos.2(d) and (v) are
answered in the affirmative. As regards issue No.ii(c), a
part of the issue that KMSS has taken out policies on the
wards of the voters, the issue is held in the affirmative.
However, there is no direct evidence of KMSS distributing
the policies directly and the portion of the issue regarding
KMSS having distributed the policies is held in the negative,
though it may have facilitated such distribution as
circumstances are made out as per discussion infra.
PART - C
64. Issue No.(iii) is taken up for consideration and
the issue framed is as follows:
"WHETHER THE PETITIONER PROVES THAT THE
RESPONDENT NO.1, ELECTION AGENTS AND THE
PERSONS ASSOCIATED OR CLAIMING THROUGH HIM HAVE
COMMITTED ANY OTHER CORRUPT PRACTICE AS MADE
OUT IN THE PETITION WITHIN THE MEANING OF SECTION
123 OF R.P. ACT ?"
65. The election of a returned candidate could be
declared to be void by the High Court, if a corrupt practice
has been committed by the returned candidate, his election
agent/any other person with the consent of the returned
candidate in terms of Section 100(1)(b) of the R.P. Act12.
100. Grounds for declaring election to be void.--(1) Subject to the provisions of sub-section
(2) if the High Court is of opinion--
(b) that any corrupt practice has been committed by a returned candidate or his election
agent or by any other person with the consent of a returned candidate or his election
agent;
the High Court shall declare the election of the returned candidate to be void.
66. Section 123 of the R.P. Act provides for what
would constitute corrupt practice and what is of relevance in
the present case is the definition of 'bribery'. The relevant
portion of Section 123 is extracted hereinbelow:-
"123. Corrupt practices.--The following shall be
deemed to be corrupt practices for the purposes of this
Act:--
(1) "Bribery", that is to say--
(A) any gift, offer or promise by a candidate or his
agent or by any other person with the consent of a
candidate or his election agent of any gratification, to
any person whomsoever, with the object, directly or
indirectly of inducing--
(a) xxx
(b) an elector to vote or refrain from voting at an
election, or as a reward to--
(i) xxx
(ii) an elector for having voted or refrained from
voting;"
Accordingly, any gift or offer of gratification to any
person with the object of directly or indirectly inducing the
elector to vote at the election in favour of the candidate
from whom enticement has been made would amount to
bribery.
67. Section 123(1)(B) provides 'bribery' that would
include the receipt of any gratification with the purpose of
directly or indirectly inducing the elector to vote and the
Explanation provides for a wider understanding of
'gratification' and includes all forms of gratifications
'estimable in money'. The relevant portion of Section 123 is
extracted hereinbelow:-
Section 123 - (1) xxx
(A) xxx
(B) the receipt of, or agreement to receive, any
gratification, whether as a motive or a reward--
(a) xxx
(b) by any person whomsoever for himself or any
other person for voting or refraining from voting, or
inducing or attempting to induce any elector to vote
or refrain from voting, or any candidate to withdraw
or not to withdraw his candidature.
Explanation.--For the purposes of this clause the
term "gratification" is not restricted to pecuniary
gratifications or gratifications estimable in money
and it includes all forms of entertainment and all
forms of employment for reward but it does not
include the payment of any expenses bona fide
incurred at, or for the purpose of, any election and
duly entered in the account of election expenses
referred to in section 78."
68. In the present case, the alleged corrupt practice
is the distribution of Medi Assist cards by agents/Party
workers/other persons with the express quid pro quo of the
recipient voting for the returned candidate.
MEDI ASSIST POLICY AND CORRUPT PRACTICE
69. The Medi Assist Policies were designed such that
the expenses upto the limit of Rs.10,000/- relating to
sickness of children is covered under the policy.
70. In terms of the definition of 'bribery', the
delivery of the policy to the parents of the children could be
either: (a) gift or offer of gratification with the object of
inducing the electors to vote. The delivery of Medi Assist
Cards pursuant to the policy would constitute the gift or
offer. (b) It could also constitute gratification estimable in
money, as medical expenses upto Rs.10,000/- of children
was covered under the Medi Assist Policies to be invoked by
the parents who are the electors.
71. Accordingly, the same could fall within the
definition of 'corrupt practice' under Section 123 of the R.P.
Act. It must be noted that the inducement could also be
indirect and could be gathered from circumstances.
72. The aforesaid aspect including the meaning of
'gift' in the context of R.P. Act and manner of proof of
bribery as well as the contention that there must be a
bargain between the returned candidate and the electors
has been adverted to by the Apex Court in
C. Narayanaswamy v. C.K. Jaffer Sharief and Others13
and the observations made by the Apex Court are as
follows:-
"6. The next aspect which needs examination is
as to whether before arranging any such mass
feeding, or in course thereof, the factum of any
negotiation between the electors on one side, and
(1994) Supp.(3) SCC 170
candidate or his agent or any person arranging
such mass feeding on behalf and with the consent
of the candidate or his election agent on the other
side has to be proved. The framers of the Act while
specifying as to what shall be deemed to be
'bribery', did not provide that the negotiation
between the candidate or his agent or any other
person with the consent of such candidate or his
election agent on the one hand and the electors on
the other should be proved. Section 123(1)(A) says
that any gift, offer or promise by a candidate or his
agent or any other person with the consent of such
candidate or his election agent, of any gratification
made to the elector "with the object, directly or
indirectly of inducing" such an elector to vote, shall
be deemed to be 'bribery'. Section 123(1)(A) does
not require the electors to express or convey their
acceptance or assurance that they shall vote for
such candidate. On the material on record, of
course the court has to be satisfied that such gift,
offer or promise of any gratification has been made
to the electors with the object directly or indirectly
to induce the electors to vote in favour of such
candidate. A nexus between the gift, offer or
promise of gratification and the inducement to vote
has to be established. This can be established even
by circumstantial evidence. The election petitioner
is not required to prove any direct negotiation
between the candidate or his agent on the one
hand and the electors on the other.
7. In the case of S.B. Adityan v. S.
Kandaswami [AIR 1958 SC 857 : (1958) 2 MLJ (SC)
187] , it was said:
"The words 'gift, offer or promise by
a candidate or his agent or by any other
person' clearly show that what is
contemplated is the making of a gift. These
words are wholly inappropriate to describe
the acceptance of a gift. The words 'with the
object, directly or indirectly, of inducing'
also indicate that only the making of a gift
is contemplated, for the object is of the
person making the gift, and clearly not of
the person accepting it."
8. ...
9. But before the charge of bribery, as
contemplated in Section 123(1)(A) of the Act, is held
to have been proved, against the candidate
concerned, because of mass feeding arranged by him
or his agent or any other person with his consent or
the consent of his election agent, it must be
established that the object of such mass feeding was
directly or indirectly to induce the electors to vote in
favour of such candidate. In some cases, on material
being produced, this charge can be established
directly if the candidate or his agent or any other
person with the consent of the candidate or his
election agent, at such mass feeding of the electors,
seeks their support and votes at the election in
question. But there may be cases, where the
inducement to vote is not direct but only indirect one.
The candidate or his agent or any other person who
has arranged such mass feedings with the consent of
the candidate or his election agent, may not make a
direct appeal to the electors either before, during or
after the feast."
ALLEGATIONS AGAINST PALANETHRAIAH
73. It has been averred in the Election Petition that
on 11.05.2018, a day prior to the election at 9.00 p.m., the
FST-II Squad had visited Gulur, Hebbur Hobli and when it
was approaching K.Palasandra Village, Scorpio vehicle
bearing registration No.KA-06-N-2725 was intercepted. It
is submitted that the vehicle was abandoned by the inmates
and the Squad was able to seize the following: (a) Scorpio
vehicle bearing registration No.KA-06-N-2725 (b) Note Book
where JD(S) was written; (c) JD(S) Students' indemnity
letter14; (d) xxx (e) Eight pages containing names of Booth
Level workers and their telephone numbers; (f) A bundle of
Rs.500/- notes totaling Rs.50,000/-; (g) One Cheque Book
and (h) one pass book.
74. Accordingly, it is averred that the JD(S) Party
workers were distributing money in connection with the
election and that Mahazar was drawn and FIR was
registered in Crime No.0073/2018 dated 11.05.2018
against four unknown persons.
75. The same position has been reiterated in the
affidavit by way of evidence filed by PW.1 at para-27. It is
further stated in the affidavit that as per the order dated
20.08.2018, accused-Sri Palanethraiah in Crime
No.0073/2018 had pleaded guilty and was convicted and
directed to pay a sum of Rs.1,000/- as fine and has
produced Certified Copy of P.F.No.31/2018 along with other
documents.
can be construed to be Medi Asisst bond which is a contextual interpretation keeping in
mind the facts and circumstances
76. It was specifically averred in the affidavit that Sri
Palanethraiah was the Counting Agent of respondent No.1
and the other three accused were JD(S) Party workers and
agents of respondent No.1.
77. It must be noted that insofar as the proceedings
in Crime No.0073/2018, P.F.No.31/2018 which reflected the
list of seized items was marked as Ex.P26, which indicates
the seizure of the following:--
a) Scorpio vehicle bearing registration
No.KA-06-N-2725;
b) xxxx
c) JD(S) student Indemnity Letter;
d) xxxx
e) Eight pages containing details of Booth
Level workers with telephone numbers;
f) Currency Notes of Rs.500/- denomination
of 100 notes totaling to an amount of
Rs.50,000/-;
g) Cheque Book consisting of 12 empty
cheque leaves of Canara Bank belonging
to Palanethraiah.G S/o Gangappa;
h) Pass Book relating to A/c
No.0474101036881 belonging to
Palanethraiah.G S/o Gangappa;
78. After investigation, charge sheet came to be filed
in Crime No.0073/2018 for the offence under Section 171E
of IPC. The said charge sheet was marked as Ex.P27 by
PW.1. After taking cognizance under Section 190(1)(b) of
Cr.P.C. for the offence under Section 171E of IPC, summons
was issued to the accused. The charges were framed by
the Court as regards to the alleged offence made out from
the material on record, which was read out and the accused
Palanethraiah and accused Nos.2, 3 and 4 pleaded guilty.
The charges framed and proceedings relating to pleading
guilty is extracted as below:-
"DgÉÆæUÀ¼ÁzÀ ¤ÃªÀÅ ¢£ÁAPÀ: 11-05-2018gÀAzÀÄ ¸ÀĪÀiÁgÀÄ
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À ï PÁAiÀÄðPÀvð
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À ÀÄ, zÀÆgÀªÁt ¸ÀASÉå EgÀĪÀ ¸ÀĪÀiÁgÀÄ 5 ¥ÀÄlzÀ PÁUÀzÀ
gÀÆ.500 ªÀÄÄR¨É¯A
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PÀ®A171(E) L.¦.¹ jÃvÁå ²PÁëºð
À C¥ÀgÁzsª
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À ÀÄß ªÀiÁrgÀÄwÛÃj.
DgÉÆæ ºÉýPÉ
1. ¥À±
æ Éß: FUÀ N¢ ºÉýzÀ C¥ÁzÀ£Á ¸ÁgÁA±À ¤ªÀÄUÉ w½¬ÄvÉÃ?
GvÀÛg:À YES
2. ¥À±
æ Éß: FUÀ N¢ ºÉðzÀ D¥ÁzÀ£A
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æ gÀPÉë §AiÀĸÀÄwÛÃgÁ?
GvÀÛg:À PLEADED GUILTY
(F D¥ÁzÀ£A
É iÀÄ£ÀÄß DgÉÆæUÉ w½zÀ ¨sÁµÉAiÀÄ°è N¢ ºÉý,
«ªÀj¹ CªÀjAzÀ GvÀÛgÀ ¥Àqz
É ÀÄ zÁR°¹zÉÝãÉ)."
79. It is clear from the charges framed which are
specific that while the Flying Squad was on rounds, they
intercepted a Scorpio vehicle bearing registration No.
KA-06-N-2725 and that money was being ferried in the
vehicle in order to distribute the same to the voters on
behalf of JD(S) Party during the time the Code of Conduct
was notified by the Election Commission which was in force
and that the accused abandoned the vehicle and ran away
and upon inspection, the material stated in P.F.No.31/2018
referred to above was seized and accordingly, accused had
committed an offence under Section 171E of IPC.
80. As regards such charge, the accused having
pleaded guilty leads to the conclusion that the charges are
proved. Upon conviction for the offence under Section 171E
of IPC, the proceedings in the said case came to be
concluded and records would indicate that Sri Palanethraiah
- accused No.1 had obtained an order for release of his
Scorpio vehicle15 by filing an application under Section 451
r/w 457 of Cr.P.C.
81. The legal consequence that emanates from the
judgment of the trial Court16 in which the accused has
pleaded guilty, when such judgment comes up for
bearing registration No.KA-06-N-2725
C.C.No.3079/2018
consideration in other proceedings would be that the
accused has admitted the contents of the charge made out.
The validity of such judgment cannot be sought to be
reopened in collateral proceedings.
82. The submission that the order passed sentencing
the accused on the basis of his pleading guilty has been
challenged in Criminal Appeal No.15/2023 after a delay of
about five years and only during the pendency of the
present proceedings, would not take away the effect of the
judgment as it stands today, in the absence of any stay of
the judgment and order of sentence passed in
C.C.No.3079/2018.
83. Insofar as the defence relating to the allegation
made against Sri Palanethraiah as being a Counting Agent
of respondent No.1, it is asserted that the Conduct of
Elections Rules, 1961 prescribes the procedure of
appointment of Counting Agents and Form-18 is the
prescribed format, which has not been produced.
84. It must be noted that PW.1 has produced and
marked Ex.P32 (Pages 784 to 791 are collectively marked
as Ex.P32) which is an Endorsement certifying the Counting
Agents for Tumkur Rural Assembly Constituency for the
elections of 2018. The said Endorsement reads as follows:-
75 PART - C
85. The endorsement dated 27.11.2019 is enclosed
alongwith the list of Counting Agents and contains the name
of Sri Palanethraiah. G. The said document is signed on
behalf of Tahsildar and the covering sheet to the list is the
endorsement furnishing the information of Counting Agents
as has been sought for, under Right to Information Act,
2005.
86. The further contention raised at the time of
argument is that Rule 52 of the Conduct of Elections Rules,
1961 deals with the appointment of Counting Agents and
stipulates that appointment can be made in accordance with
Form-18 and accordingly, the petitioner ought to have
produced Form-18.
87. It must be noted that the RTI response issued by
the Tahsildar is clear as regards furnishing of information
consisting of the list of Counting Agents for Tumkur Rural
Assembly Constituency as regards the elections in the year
2018. The covering letter furnishing information is signed
by the Tahsildar, the list enclosed also bears the signature
of Tahsildar. The presumption under Section 114 of the
Indian Evidence Act, 1872 would apply as regards such
documents issued by Public Authority. Illustration (e) to
Section 114 enables raising a presumption that official acts
have been regularly performed. Insofar as the candidate
Sri D.C.Gowrishankar amongst others whose names are
enumerated as Counting Agents, the name of
Sri Palanethraiah. G is found. If Ex.P32 is taken note of
which is clear, it would indicate that Sri Palanethraiah. G
was a Counting Agent of respondent No.1.
88. The mere say that it is a fabricated document is
not sufficient to disbelieve the said document. No doubt,
there may be records that are required to be maintained in
Form-18 containing the list of Counting Agents, but the
non-furnishing of the said Form-18 by itself would be no
ground to disbelieve the response of RTI, produced and
marked at Ex.P32.
89. Once the document bearing the signature of
Tahsildar who is a public official is issued containing the list
of Counting Agents, which list is also signed on behalf of
Tahsildar and bears his seal, there is no reason to doubt the
genuineness of such document, more so, in light of
presumption under Section 114 of the Indian Evidence Act,
1872.
90. Once the petitioner has produced and marked
Ex P.32 which has been appreciated above, the petitioner
has discharged his burden and the onus then shifts on
respondent No.1, who was in a position to establish that
Palanethraiah was not his Counting Agent by taking steps to
produce Form-18 from proper custody and prove his
assertion. In fact, the Apex Court has also noticed the role
of a person contending that no corrupt practice was made
out and steps to be taken, in M. Narayana Rao v. G.
Venkata Reddy17 wherein, it has been observed that the
person cannot keep silent and the relevant extract is as
follows:
(1977) 1 SCC 771
"19. xxx
(1) That the charge of commission of corrupt
practice has to be proved and established beyond
doubt like a criminal charge or a quasi-criminal
charge but not exactly in the manner of
establishment of the guilt in a criminal prosecution
giving the liberty to the accused to keep mum. The
charge has to be proved on appraisal of the evidence
adduced by both sides especially by the election
petitioner."
DISTRIBUTION OF MEDI ASSIST CARDS
91. The stand of the petitioner is that the Medi Assist
cards were distributed to induce the voters to vote for
respondent No.1 and had resulted in respondent No.1
securing large number of votes eventually leading to his
victory and the details of distribution between 25.04.2018
to 11.05.2018 along with the persons involved in such
distribution is detailed in the petition. It is further asserted
that the factum of cancellation of Medi Assist Policies was
never intimated to the public, by which time the inducement
was complete18.
92. It is further asserted that though the Medi Assist
Policy was cancelled, a Press Meet was held by Sri Mahesh,
President Of JD(S) Yuva Morcha on 11.05.2018, who is
stated to have admitted that 17,000 students had been
insured and the said Press Meet was covered by the Media
in 'Prajavani' as well as 'Tumkur Varthe'.
93. The respondent No.1 in his written statement
while disowning the connection with KMSS has specifically
taken a stand as reflected in para-24 of the written
statement regarding the distribution of Medi Assist cards as
follows:-
The relevant portion of paras-33 and 34 of the petition are extracted hereinbelow:-
"33. ...The action of first respondent in distributing the Medi Assist ID cards to each house in
which the students were residing was clearly an act to induce the voters in that particular house to vote
for first respondent. Petitioner believes that the inducement effected by the first respondent worked out
to large extent and large number of voters residing in various villages did vote for first respondent
because of the inducement and that resulted in the first respondent securing large number of votes
leading to his victory in the election. The distribution of Medi Assist ID cards were effected between
25.4.2018 to 11.5.2018 at different times by the following JDS workers...
34. It is submitted that the factum of cancellation of the policies was never intimated to the
public at large and the damage that was sought to be done with the aid of insurance policies and large
scale distribution of Medi assist Cards have already been distributed by the respondent and his agents
who were canvassing for him and luring the public for vote in the elections in favour of 1st respondent,
since their children will be benefited upto Rs.10,000 /- for medical treatment."
"24. ... The NGO named as One Rupee Charity
Foundation after obtaining data from the
Kammagondanahalli Sri Maruti Seva Trust had issued
Medi Assist Card covering health benefit upto Rs.
l0,000/- to the poor students from the period
26.02.2018 to 25.02.2019... Instead, they had
discovered the Medi Assist card in the house of
Gopalaiah in respect of Kum.Nirmala and in the
house of Sri Shivashankar in respect of his daughter
Kum.Likitha after the same was being distributed by
the NGO One Rupee Charity Foundation and
accordingly false allegations were alleged against the
Respondent No.1. Even the documents produced as
Annexure-L and M are not legal and valid documents
and the same do not have any evidential value under
the eye of Law."
94. The above statement in the written statement is
a clear admission as regards the distribution of Medi Assist
cards, though it is the stand that the distribution was done
by ORCF. The last sentence regarding Annexures-'L' and 'M'
(Medi Assist cards) not being legal and valid document and
not having evidentiary value does not have the effect of
watering down the unambiguous admission in the pleading
itself regarding distribution. The said contention regarding
the validity of Medi Assist cards has been considered infra at
paras-103 to 105.
95. Sri Kishore Varadhachari, the Trustee of ORCF
has been examined as RW2, who admits the downloading of
150 Medi Assist cards from the C.D. and he has deposed as
hereunder in the cross-examination:-
"I have received copies of the Medi-Assist
Policies by way of C.D. from Medi-Assist TPA
Services. About 150 cards were downloaded from
the C.D and I could not download any more as
there was an error. I was unable to download other
cards from the C.D., as at the time of downloading
an error appeared."
The further stand in the deposition which may have a
bearing on the aspect of distribution is as follows:-
"Out of 150 cards that were downloaded, about
10 cards relating to Tumakuru were retained by
me and the remaining cards were given to Sri
Narasimhamurthy and Sri Ananthu and I had told
them to keep the said cards with them which
could be distributed after all other cards are
received."
96. It is to be noticed that (a) Sri Lakshminarayana
examined as PW3 has taken the stand that Ex.P52 is the
Medi Assist card issued in the name of his son was given by
Sri Arehalli Manjunath who is a JD(S) Party worker; (b) Sri
Mahadevaiah examined as PW5 has stated that Sri
Krishnegowda and Smt.Renukamma, who were JD(S) Party
workers had come to his house in the month of April 2018
and gathered information regarding his daughter and
subsequently three days prior to the election, Sri
Krishnegowda and Smt.Renukamma had handed over the
bonds and the copy of said Medi Assist Policy was marked
as Ex.P63; (c) Sri D.R. Ramesh examined as PW6, who was
a resident of Doddasarangipalya has produced the Medi
Assist card and stated to have been given by Sri
Krishnegowda and Smt.Renukamma, both belonging to
JD(S) Party and the said document is marked as Ex.P68;
(d) Smt.Ramamani examined as PW.8, has produced the
Medi Assist Policy stated to have been given by Sri Arehalli
Manjunath and Smt.Sunandamma, both belonging to JD(S)
Party and the document is marked as Ex.P76.
97. Each of these witnesses have produced
corroborative material to demonstrate that the School in
which the child was studying and other documents to
demonstrate the correctness of description of the child in
the Medi Assist cards by relying on the other documents.
The following Table would indicate such of the details
referred to above:
NAME OF WITNESS WITNESS EXHIBITS MARKED
EXAMINED AS
Lakshminarayana V.N PW - 3 Ex.P49 and Ex.P50 - Voters List for
the year 2018, 2021
Ex.P51 - Son's Study Certificate
Ex.P52 - Medi Assist Card
Ex.P53 - Aadhar Card
Ex.P54 - Son's Aadhar Card
Mahadevaiah PW - 5 Ex.P60 and Ex.P61 - Voters List for
the year 2018, 2021
Ex.P62 - Daughter's Study Certificate
Ex.P63 - Medi Assist Card
Ex.P64 - Aadhar Card
Ex.P65 - Daughter's Aadhar Card
D.R. Ramesh PW - 6 Ex.P66 - Voter ID
Ex.P67 - Son's Study Certificate
Ex.P68 - Medi Assist Card
Ex.P69 - Aadhar Card
Ex.P70 - Son's Aadhar Card
Ramamani PW - 8 Ex.P73 and Ex.P74 - Voters List
Ex.P75 - Daughter's Study Certificate
Ex.P76 - Medi Assist Card
Ex.P77 - Aadhar Card
Ex.P78 - Daughter's Aadhar Card
98. Though it is contended that these witnesses are
interested witnesses and are brought at the instance of
petitioner, the conclusive finding relating to the distribution
of Medi Assist cards is arrived at after appreciation of
entirety of the evidence and noticing that PW3, PW5, PW6
and PW8 have withstood the cross-examination.
99. The fact of distribution of policies is admitted in
terms of para-24 of the written statement averment of
respondent No.1. This admission if read in conjunction with
evidence of RW2, whose admission is to the extent that
about 150 Medi Assist cards were downloaded from the CDs
and printed and handed over to Sri Narasimha Murthy and
Sri Anantha and the production of the Medi Assist cards by
PW3, PW5, PW6 and PW8 and the names of their children
and the Schools in which they are studying indicating the
correctness of description in the Medi Assist cards, the
withstanding of cross-examination by all the above
mentioned witnesses, the above evidence when evaluated
in its entirety, it could be concluded that the Medi Assist
Policies have been distributed in the villages falling within
Tumkur Rural Constituency. The denials made do not
outweigh the entirety of evidence produced by the
petitioner nor does it lead to any doubt in the version of
petitioner.
100. Curiously RW3 - Sri Rangaswamy has deposed
on behalf of respondent No.1 taking a specific stand that Sri
Narashima Murthy, husband of BJP Zilla Panchayat Member,
had visited his house in the month of March 2018 along with
persons from ORCF and BJP leaders and distributed the
Medi Assist cards including to his two children and the said
documents were marked as Ex.R21 and Ex.R22. This stand
would also indicate unequivocally relating to the distribution
of Medi Assist Policies.
101. Though it is the contention that Sri Narashima
Murthy was a BJP Party worker who had distributed the
Medi Assist Policy, the said assertion has not been raised in
the pleadings. This evidence of RW3 appears to be an
afterthought so as to improve the case of respondent No.1
after having seen the stand and the evidence of petitioner
and accordingly, it cannot be given due credence and is to
be disbelieved. No doubt, RW3 has contended that
distribution is in March 2018, prior to the date of
nomination. However, while appreciating the acts of
distribution of Medi Assist Policies subsequent to the date of
nomination, the act of issuance of Medi Assist Policies on
26.02.2018, and distribution thereafter, i.e. just before
polling date by Noticees as asserted by PW3, PW5, PW6 and
PW8 form an important and inseparable chain of events and
if all these acts referred to are appreciated in its entirety,
the pattern of taking out the policy and its distribution form
a chain of circumstances establishing the commission of
corrupt practice.
102. The aspect as to the role of agents/Party
workers/any other person having obtained and distributed
the Medi Assist cards with the consent of the respondent
No.1 has been dealt with in the discussion infra. In light of
the above, the material on record requires to be looked
into.
MEDI ASSIST CARDS AND ENTICEMENT
103. The Medi Assist cards were stated to have been
issued pursuant to issuance of Medi Assist Policy and the
TPA is stated to have given a C.D. containing e-cards and
from the C.D., about "150 files" are stated to have been
downloaded as per the deposition of RW.2-Kishore
Vardhachari. It is stated that about 150 e-cards were
jointly given to Sri Ananthu and Sri Narasimha Murthy. The
reference to distribution must be construed as distribution
of Medi Assist cards. PW3, PW5, PW6 and PW8 have also
produced the Medi Assist cards and stated to have been
distributed to them.
104. Though the validity of said Medi Assist cards has
been assailed and Sri Devendra Prasad. A (PW.11),
Divisional Manager of M/s.New India Assurance Co. Ltd.,
refuses to vouch with respect to the authenticity of said
Medi Assist cards, what is required to be noted is that the
fact of issuance of Medi Assist Policy is not in doubt. The
Medi Assist Policy contains the details of TPA (Third Party
Administrator). In the policy marked as Ex.P80, the details
of TPA point out that 'Medi Assist Insurance TPA Private
Limited' would service the policy, the details of the same
TPA is found in the Medi Assist cards marked as Ex.P23
series as well as Ex.R15 series.
105. The Medi Assist cards by itself being a document
purporting to reflect the details of Medi Assist Policy which
have been held out by those who have distributed these
e-cards to be a document which would enable enforcement
of the Medi Assist Policy, even if it is not proved that the
Medi Assist cards were issued by the TPA, the document
having the capability of enticing cannot be denied. The
e-cards (Medi Assist cards) being traced back to the Medi
Assist Policy would be sufficient to attribute to it the
objective of enticing the voters and there is no other utility
of the e-cards beyond this.
CONSENT OF RETURNED CANDIDATE/RESPONDENT NO.1:-
106. The consent of returned candidate for the acts
done by persons other than the candidate and other than
the election agent is a prerequisite to hold a returned
candidate liable for corrupt practice.
107. Sections 100 and 123 of the R.P. Act are of
relevance and are extracted hereunder:-
"100. Grounds for declaring election to be void.--
(1) Subject to the provisions of sub-section (2) if the
High Court is of opinion--
(a) xxx
(b) that any corrupt practice has been committed
by a returned candidate or his election agent or by
any other person with the consent of a returned
candidate or his election agent; or
(c) xxx
(d) that the result of the election, in so far as it
concerns a returned candidate, as been materially
affected --
(i) xxx
(ii) by any corrupt practice committed in the
interests of the returned candidate by an
agent other than his election agent, or
(iii) xxx
(iv) xxx
the High Court shall declare the election of the
returned candidate to be void.
(2) If in the opinion of the High Court, a returned
candidate has been guilty by an agent, other than his
election agent, of any corrupt practice but the High
Court is satisfied--
(a) that no such corrupt practice was committed
at the election by the candidate or his election agent,
and every such corrupt practice was committed
contrary to the orders, and without the consent, of
the candidate or his election agent;
(c) that the candidate and his election agent
took all reasonable means for preventing the
commission of corrupt practices at the election; and
(d) that in all other respects the election was
free from any corrupt practice on the part of the
candidate or any of his agents,
then the High Court may decide that the election of
the returned candidate is not void.
123. Corrupt practices.--The following shall be deemed
to be corrupt practices for the purposes of this Act:--
(1) "Bribery", that is to say--
(A) any gift, offer or promise by a candidate or his
agent or by any other person with the consent of a
candidate or his election agent of any gratification, to
any person whomsoever, with the object, directly or
indirectly of inducing--
(a) xxx
(b) an elector to vote or refrain from voting at
an election, or as a reward to--
(i) xxx
(ii) an elector for having voted or refrained
from voting;
(B) the receipt of, or agreement to receive,
any gratification, whether as a motive or a
reward--
(a) xxx
(b) by any person whomsoever for himself
or any other person for voting or refraining
from voting, or inducing or attempting to
induce any elector to vote or refrain from
voting, or any candidate to withdraw or
not to withdraw his candidature.
Explanation.--For the purposes of this clause the
term "gratification" is not restricted to pecuniary
gratifications or gratifications estimable in money
and it includes all forms of entertainment and all
forms of employment for reward but it does not
include the payment of any expenses bona fide
incurred at, or for the purpose of, any election and
duly entered in the account of election expenses
referred to in section 78.
(2) Undue influence, that is to say, any direct
or indirect interference or attempt to interfere on the
part of the candidate or his agent, or of any other
person [with the consent of the candidate or his
election agent], with the free exercise of any
electoral right...."
108. The definition of 'consent' as contained in the
Black's Law Dictionary is as follows:-
"A concurrence of wills. Express consent is that
directly given, either lira voce or in writing. Implied
consent is that manifested by signs, actions, or facts,
or by inaction or silence, which raise a presumption
that the consent has been given. Cowen v. Paddock, 62
Hun, 022, 17 N. Y. Supp. 3SS. Consent in an act of
reason, accompanied with deliberation, the mind
weighing as in a balance the good or evil on each side.
1 Story, Eq. Jur."
109. Thus it is clear that 'consent' can be express or
implied and in essence is an "act of reason accompanied by
deliberation". The 'consent' could be implied by existence of
circumstances indicating approval for action of others, non-
taking of positive action to prohibit commission of acts could
also be one of the circumstances and if the same is taken
note of along with other circumstances, 'consent' could be
inferred.
110. The finding relating to commission of corrupt
practice as made out under Sections 100 and 123 of R.P.
Act by persons on behalf of respondent No.1 requires that
the corrupt practice was committed with his consent.
111. The evidence could be direct or through
circumstantial. The only element of caution that is required
to be exercised while relying on circumstantial evidence is
that the chain of circumstances must not be interrupted.
112. The five golden principles (Panchsheel) that is to
be followed while appreciating the burden of proof while
dealing with the circumstantial evidence is laid down by the
Apex Court in Sharad Birdhichand Sarda v. State of
Maharashtra.19 The observations made are as follows:-
"153. ...
(1) the circumstances from which the conclusion of guilt
is to be drawn should be fully established.
...
(2) the facts so established should be consistent only
with the hypothesis of the guilt of the accused, that is to
say, they should not be explainable on any other
hypothesis except that the accused is guilty,
(3) the circumstances should be of a conclusive nature
and tendency,
(4) they should exclude every possible hypothesis
except the one to be proved, and
(5) there must be a chain of evidence so complete as
not to leave any reasonable ground for the conclusion
consistent with the innocence of the accused and must
show that in all human probability the act must have
been done by the accused."
(1984) 4 SCC 116
113. In the present case, the aspect of consent of
respondent No.1 and the corrupt practice of bribery by Sri
Arehalli Manjunath, Sri Krishnegowda, Smt.Renukamma and
Smt.Sunanda is taken to be proved by circumstantial
evidence and the circumstances are as follows:-
(i) The stand of respondent No.1 is that there was MoU
between ORCF and KMSS whereby KMSS was required to
furnish data of the poor students residing in its
jurisdiction20. Though the MoU is stated to have been seen
by respondent No.1, the same is not produced. The relevant
deposition is as follows:-
"Question:-
Have you seen the Memorandum of
Understanding?
Answer:-
They have shown a letter.
It is false to state that I have not seen the
Memorandum of Understanding. I have seen the
same."
see ¶ 7 of RW1 affidavit and ¶ 4 of written statement filed by respondent No.1.
(ii) Kishore Vardachari - RW2 the Trustee of ORCF in
his deposition recorded on 04.04.2022 has admitted that
there was an understanding between ORCF and KMSS in
the nature of written understanding. It is stated that ORCF
had approached KMSS for the purpose of assistance and in
that regard, they had approached Sri C. Chennigappa,
father of respondent No.1 to whom the proposal was given.
RW.2 had stated that the said document was handed
over to the Police Authorities. No steps were taken to
summon the said MoU from proper custody either by
respondent No.1, KMSS or by RW.2. The said aspect has
been discussed supra at para - 45.
(iii) It is the specific stand of respondent No.1 that
MoU was limited only to the sharing of data. In the
absence of said MoU being produced and Medi Assist Policy
being issued in the name of KMSS as per Ex.P80, the plain
understanding and best evidence is to the effect that Medi
Assist Policy was taken out in the name of KMSS.
The non-production of MoU between KMSS and ORCF
leads to drawing of adverse inference and has the effect of
disbelieving the assertion of respondent No.1 that MoU was
only limited to the sharing of data of students.
(iv) The refund of premium upon cancellation has
been made to KMSS as is evidenced from the refund
voucher at Ex.P90.
(v) KMSS is a family controlled Society as is
evidenced from the Byelaws of KMSS marked as Ex.P5 and
the list containing the Members of the Executive Committee
as per Ex.P6 Sri C. Chennigappa, who was the president of
KMSS at the relevant point of time was also the District
President of JD(S) Party.
(vi) The Medi Assist cards were seized as per
P.F.No.31/2018 in Crime No.0073/2018. The articles were
found in the vehicle belonging to Sri.Palanethraiah with the
materials indicating link with the JD(S) Party.
The F.I.R was lodged at the instance of Sri
C. Rangadhamappa, Officer of the Flying Squad with the
charge framed, which is extracted supra at para-78. Sri
Palanethraiah who was accused No.1 and other accused
have pleaded guilty for the offence punishable under
Section 171E of IPC.
(vii) RW2 - Kishore Varadachari, Trustee of ORCF
admits that he downloaded 150 Medi Assist cards from the
C.D.
(viii) RW3 - Sri Rangaswamy admits that Medi Assist
Policies were distributed by Sri Narasimha Murthy and
though it is alleged that Sri Narasimha Murthy belongs to
BJP Party, the fact remains that there is an admission
relating to the distribution of Medi Assist Policies and such
admission coming from RW.3 could be taken note of.
(ix) The newspaper report at Ex.P10(a) on
09.05.2018, published in 'Prajavani' newspaper contains the
details regarding the complaint by PW2 relating to
malpractice by issuance of Medi Assist Policy.
(x) On 11.05.2018, Sri Mahesh, President of JD(S)
Yuva Morcha, had specifically denied that the said Medi
Assist cards were concocted and the said stand has been
reflected in the report in 'Prajavani' newspaper marked as
Ex.P.11(a). On the same day, another report, Ex.P12 was
published on 12.05.2018 indicating the stand of said Sri
Mahesh that action would be taken for publishing false
information published in 'Tumkur Varthe'.
All the above media reports at Ex.P10(a), Ex.P.11(a)
and Ex.P.12 could not have missed the attention of
respondent No.1, as the dates of publication of Media
reports were a few days preceding the date of polling on
12.05.2018 and that forms an inference is the natural
course of human conduct.
(xi) The distribution of Medi Assist Policies has also
been corroborated by the parents of students who were
examined as PW.3, PW.5, PW.6 and PW.8. The said
witnesses have asserted that there has been distribution by
Sri Arehalli Manjunath, Smt.Renukamma, Smt.Sunanda and
Sri Krishnegowda. The said witnesses have withstood the
cross-examination and also produced the identity cards
such as detailed in the table supra at para-97, which
corroborates the correctness of entry of names of students
in the Medi Assist cards marked as Exhibit P23 series,
Exhibits.P52, P63, P68, and P76.
(xii) The handing over of Medi Assist Policies to the
parents of the children who were voters was an inducement
to ensure that they would vote for the respondent No.1.
114. Accordingly issue No.(iii) is answered in the
affirmative.
PART - D
115. Issue No.(iv) is taken up for consideration and
the issue framed is as follows:-
(iv) WHETHER ALL ALLEGATIONS REGARDING CORRUPT
PRACTICE RELATE TO A PERIOD SUBSEQUENT TO THE
NOMINATION? IF NOT, WHETHER THE OTHER ALLEGATIONS
CAN BE TAKEN NOTE OF ?
116. Insofar as the allegation of corrupt practice
relating to donations made to Shanidevaru Temple at
Dasarahalli through Sri Maruthi Seva Samithi and the
allegation regarding respondent No.1 by himself or through
persons associated with him having promised to distribute
free seats in Engineering College, a detailed consideration
has been made while discussing Issue Nos. - ii(a) and ii(b),
while concluding that the said allegations regarding corrupt
practice are prior to the nomination. The discussion at
Issue Nos. ii(a) and ii(b) are to be referred.
117. Insofar as the allegation relating to insurance
policies being taken out by KMSS on the wards of voters
and distributed at the instance and on behalf of respondent
No.1 and thereby committing corrupt practice, a detailed
analysis is made while answering Issue No.ii(c), which
would throw light on the present issue framed. This by
itself was prior to the date of nomination.
118. In the discussion supra, it has been pointed out
that Ex.P.80 is the Medi Assist Policy taken out prior to the
cut-off date. The distribution of Medi Assist cards was
resorted to after the relevant date by persons on behalf of
respondent No.1 with consent and with enticement to vote
for him are stand alone corrupt practice committed after the
relevant date. Meanwhile, a day before the polling date, i.e.
on 11.05.2015, the vehicle belonging to Sri Palanethraiah
was intercepted and cash and Medi Assist cards were seized
amongst other things. Crime No.0073/2018 came to be
filed and Palanethraiah pleaded guilty for the offence under
Section 171E of IPC.
119. The taking out of the Medi Assist Policy at Ex.P80
prior to the nomination coupled with the incidents of
distribution form a chain of events demonstrating a pattern
of distribution. Except for the above allegations referred to,
there are no other allegations that can be taken note of.
120. According to the discussion made above, some of
the incidents are prior and the remaining incidents of
corrupt practice are subsequent to the date of nomination in
terms of the above discussion.
PART - E
121. Issue No.(vii) is taken up for consideration and
the issue framed is as follows:-
"(vii) WHETHER THE PETITIONER IS ENTITLED TO BE
DECLARED AS ELECTED IN PLACE OF THE FIRST
RESPONDENT IN TERMS OF SECTION101 OF R.P. ACT AS A
CONSEQUENTIAL RELIEF IF THE ELECTION OF THE RETURNED
CANDIDATE IS SET ASIDE ?
122. It must be noted that the number of candidates
who contested were 12 candidates. The details of
candidates and the votes obtained are contained in
Form-21E marked as Ex.P3 and the details are as
hereunder:-
Form-21E
Return of Election
Election to the Legislative Assembly from the 133
Tumkur Rural Constitutency
Return of Election
Sl. Name of Candidate Party affiliation Number of
No. Votes polled
1 D.C.Gowrishankar Janata Dala 82740
(Secular)
2 Rayasandra Ravikumar Indian National 7633
Congress
3 B.Suresh Gowda Bharatiya Janata 77100
Party
India
empowerment
Party
T.H.
123. The question is as to whether on setting aside
the election of respondent No.1 on the ground of having
committed a corrupt practice, whether the petitioner who
had secured next highest number of votes is to be declared
elected?
124. The legal position is detailed by the Constitution
Bench of the Apex Court in Vishwanatha Reddy v.
Konappa Rudrappa Nadgouda and Another21 at para-
12, which is extracted hereinbelow:-
"12. ...When there are only two contesting
candidates, and one of them is under statutory
disqualification, votes cast in favour of the
disqualified candidate may be regarded as thrown
away, irrespective of whether the voters who voted
for him were aware of the disqualification. This is
not to say that where there are more than two
candidates in the field for a single seat, and one
alone is disqualified, on proof of disqualification all
the votes cast in his favour will be discarded and the
candidate securing the next highest number of votes
will be declared elected. In such a case, a question
of notice to the voters may assume significance, for
the voters may not, if aware of disqualification have
voted for the disqualified candidate."
125. The same view has been reiterated in Prakash
Khandre v. Dr.Vijaykumar Khandre and Others22 at
para-14, which is extracted hereinbelow:-
AIR 1969 SC 604
(2002) 5 SCC 568
"14. However, in an election where the elected
candidate is declared to be disqualified to contest
election and there are more than two candidates
contesting election, there is no specific provision under
the Act under which the person who has secured the
next highest number of votes could be declared as
elected. The Act is silent on this point. Further, it cannot
be presumed that the votes secured by the disqualified
elected candidates would have been wasted or would
have been secured by the next candidate who has
secured more votes. If disqualified candidate was not
permitted to contest the election then how the voters
would have voted in favour of the candidate who has
secured more votes than the other remaining
candidates would be a question in the realm of
speculation and unpredictability. In such a situation,
declaring the election of the returned candidate on the
ground of his initial disqualification to contest the
election by itself would not entitle the election petitioner
or any other candidate to be declared elected."
126. It is clear that it cannot be demonstrated that
voters have voted for disqualified candidate knowing he was
disqualified, in which event, the votes of the returned
candidate whose election is set aside would be treated to be
thrown away votes. Further, in the event there were
candidates other than the returned candidate in the fray, it
cannot be second guessed that votes of returned candidate
would have gone only to the candidate having obtained the
second highest votes. Accordingly, in light of the law laid
down by the Apex Court, the question of declaring the
petitioner as returned candidate when there were multiple
contestants does not arise.
127. Accordingly, the Issue No.(vii) is answered in the
negative.
PART - F
128. Issue No.(i) is taken up for consideration.
Issue No.(i) which is framed is as follows:-
(i) WHETHER THE PETITIONER HAS COMPLIED WITH
ALL THE REQUIREMENTS OF SECTION 83 OF THE
REPRESENTATION OF PEOPLE ACT, 1950
(R.P.ACT FOR BREVITY)?
129. Section 83 of the R.P. Act, reads as follows:-
"83. Contents of petition.--(1) An
election petition--
(a) shall contain a concise statement
of the material facts on which the petitioner
relies;
(b) shall set forth full particulars of
any corrupt practice that the petitioner
alleges, including as full a statement as
possible of the names of the parties
alleged to have committed such corrupt
practice and the date and place of the
commission of each such practice; and
Provided that where the petitioner
alleges any corrupt practice, the petition
shall also be accompanied by an affidavit in
the prescribed form in support of the
allegation of such corrupt practice and the
particulars thereof.
(2) Any schedule or annexure to the
petition shall also be signed by the
petitioner and verified in the same manner
as the petition."
130. The contention that has been raised is that the
petition is not in compliance with the requirements of
Section 83 of the R.P. Act insofar as -
(i) full particulars of corrupt practice are not
enumerated as per Section 83(1)(b) of R.P. Act;
(ii) Verification is not in accordance with requirement
of Section 83(1)(c) of R.P. Act, insofar as.-
(a) verification is to be as laid down in CPC
for verification of pleadings as per Section
83(1)(c) of R.P. Act;
(b) where there is an allegation of corrupt
practice, petition is required to be
accompanied by affidavit in prescribed form
in support of the allegation of such corrupt
practice;
(iii) Schedule or Annexure to the petition shall be
signed by the petitioner and verified in the same
manner;
131. At the outset, it must be mentioned that the
respondent No.1 had filed -
(i) I.A.No.1/2018 under Sections 81, 83 and 86 of
the R.P. Act read with Order VII Rule 11 to dismiss the
Election Petition;
(ii) I.A.No.2/2018 filed under Sections 81, 83, 86
and 87 of the R.P. Act read with Order VI Rule 16 seeking
for an order to strike out all the sentences of paragraph
Nos.3 to 6, 7, 8, 11 to 24, 26 to 30, 32 to 42 and the
prayer at Sl.No.2 of the Election Petition.
(iii) I.A.No.1/2019 has been filed under Section 151
of C.P.C. by the petitioner to permit him to submit/furnish
fresh affidavit in Form No.25 in compliance with Section
83(1) and Rule 94-A of the Representation of People Act,
1951 and furnish affidavit as contemplated under the Code
of Civil Procedure.
132. The said interlocutory applications came to be
disposed off by a detailed order dated 06.12.2019, whereby
the applications I.A.Nos.1/2018 and 2/2018 came to be
rejected and the same was taken up before the Apex Court
in SLP (Civil) No.409/2020, came to be withdrawn and
thereby the order dated 06.12.2019 has attained finality.
133. The order on the interlocutory applications
referred to above has dealt with the requirement of full
particulars of corrupt practice, verification of the petition as
also the requirements of verification of Annexures to the
petition.
The order dated 06.12.2019 is extracted
hereinbelow:-
"ORDER ON I.A.Nos.1/2018, 2/2018 & 1/2019
The petitioner is seeking for an appropriate order to set
aside the election of first respondent to the 15th Karnataka
Legislative Assembly from Tumkur Rural Assembly
Constituency and has sought for a consequential
declaration that he be declared elected to fill the seat in the
aforesaid Constituency.
2. The pleadings are complete and the following
interlocutory applications have been filed:-
(i) I.A.No.1/2018 has been filed by respondent No.1
under Sections 81, 83 and 86 of the Representation of
People Act, 1951 ('the R.P.Act' for brevity) read with Order
VII Rule 11 of C.P.C. to dismiss the election petition.
(ii) I.A.No.2/2018 has been filed by respondent No.1
under Sections 81, 83, 86, and 87 of the Representation of
People Act, 1951 read with Order VI Rule 16 of C.P.C. and
is seeking for an order to strike out all the sentences of
paragraph Nos.3 to 6, 7, 8, 11 to 24, 26 to 30, 32 to 42
and the prayer at Sl.No.(ii) of the election petition.
(iii) I.A.No.1/2019 has been filed under Section 151 of
C.P.C. by the petitioner to permit him to submit/furnish
fresh affidavit in Form No.25 in compliance with Section
83(1) and Rule 94-A of the Representation of People Act,
1951 and furnish affidavit as contemplated under the Code
of Civil Procedure.
3. In re.I.A.No.1/2018.-
The respondent No.1 in the application,
I.A.No.1/2018 has stated that the petitioner has failed to
furnish material facts and particulars as required under
Section 83 of the R.P. Act. and the assertions being vague,
he is not in a position to take an appropriate defence.
Further, it is contended that the allegations regarding
corrupt practices stated to have been resorted to in terms
of Sections 123(1) and 123(2) of the R.P. Act do not have
any factual basis and is bereft of necessary particulars and
supporting materials, that the documents produced as
Annexures cannot be looked into due to non-compliance
with Section 65B of the Indian Evidence Act, 1872, that the
acts complained of are attributable to third persons who are
not authorized agents of the respondent, many of the
allegations regarding corrupt practices, including issue of
Medi Assist cards relate to a period prior to the election
notification issued by the Election Commission of India.
It is also contended at the time of arguments on the
applications that the affidavit that has been filed is not in
conformity with Form No.25 of Conduct of Election Rules,
1961 and that the Annexures are not attested in the
requisite manner.
4. Petitioner's objections to I.A.No.1/2018:-
The petitioner has filed objections to the said
application.
The petitioner contends that the application does not
specifically plead as to which part of Order VII Rule 11 of
C.P.C. is sought to be invoked. All material facts and
particulars required under Sections 83(1)(a) and (b) of the
Act which disclose cause of action have been enumerated
and allegations of corruption are substantiated with
necessary supporting documents. Once cause of action has
been made out, the strength and weakness of the case is a
matter to be proved during trial, and it is contended that
the application has been filed only to protract the
proceedings.
5. In re. I.A.No.2/2018.-
The respondent No.1 has contended that the
averments made in various paragraphs of the petition as
detailed in the application are liable to be struck off, as
such of the allegations are vague, irrelevant, are unrelated
and do not give rise to any cause of action for filing of the
present petition. It is further contended that the pleadings
sought to be struck off are scandalous, vexatious, frivolous,
unnecessary and not supported by documents nor
substantiated by evidence. It is further contended that the
allegations made relating to corrupt practices cannot be
treated as material facts in the eye of law and that the
imputations made against Sri Anantha and Smt.Gowramma
and other third parties, are not the respondent No.1's
authorized agents and hence such of the pleadings are
liable to be struck off, as it is abuse of process of court and
also prejudices fair trial.
It is further contended that some of the assertions
contained in the petition, including para-30 relate to
incidents prior to the election notification issued by the
Election Commission of India and hence being irrelevant are
liable to be struck off.
Accordingly, the paragraphs referred to in the
application are liable to be struck off as lacking in material
facts and particulars as required under Section 83 of the
R.P. Act.
6. Petitioner's objections to I.A.No.2/2018
The petitioner has filed objections to the said
application.
It is contended that the application is bald and does
not identify the paragraphs in the petition which are
frivolous or vexatious, that the petition does contain
statement of material facts as required under Section 83 of
the R.P. Act and the documents and grounds relating to
Section 123 of the R.P. Act has been enumerated in detail.
That the respondent No.1 by seeking for striking out 35
paragraphs out of 45 paragraphs contained in the election
petition is seriously prejudicing right of the petitioner to
conduct proceedings in a fair manner. That prayer (ii) is
maintainable under Section 101 of the R.P. Act, where the
court after declaring the election of returned candidate as
void can further declare that the petitioner is duly elected
after looking into the number of votes received by the
petitioner. The requirement of pleadings as per Section 83
of the R.P. Act is complied with and necessary details and
particulars regarding each of the allegations are specified.
7. In re. I.A.No.1/2019.-
The petitioner seeks permission to furnish fresh
affidavit in Form No.25 in compliance with Section 83(1) of
R.P. Act and Rule 94-A of The Conduct of Elections Rules,
1961 and an affidavit as contemplated under the Code of
Civil Procedure.
It is contended by the petitioner that an affidavit has
been filed verifying the election petition and that the said
affidavit is in order. However, in light of respondent filing
I.A.No.1/2018 seeking dismissal of the election petition on
various grounds, including defective verification and in
specific, asserting verification is not in consonance with
Form-25 as a matter of abundant caution, present
application has been filed.
It is submitted that if there is a defect in the
affidavit, the same is curable and cannot be construed to be
fatal. Hence, it is submitted that the petitioner may be
permitted to submit fresh affidavit verifying the election
petition as well as fresh Form No.25 affidavit, if the Court
were to hold that the verification and affidavits filed are not
in order.
8. First Respondent's objections to
I.A.No.1/2019:-
The respondent No.1 has filed objections to the said
application.
It is contended that I.A.No.1/2019 has been filed
belatedly after I.A.Nos.1/2018 and 2/2018 were deliberated
upon and after arguments were concluded. Even
otherwise, the affidavits have been filed after the period of
limitation prescribed under Section 81 of the R.P. Act and
the same is impermissible. It is contended that there are
substantial defects in the affidavits already filed and it is
impermissible to file additional affidavit. It is also
contended that there has been no compliance with the
requirement of Order VI Rule 15 of Code of Civil Procedure
or with the requirement with Form-25 affidavit, and that
the defects noticed are not merely formal, but substantial.
Hence, it is contended that fresh affidavits cannot be filed
without withdrawing earlier affidavit.
9. (A) IN RE. AFFIDAVIT FILED IN FORM NO.25
AS PER RULES AND VERIFICATION BY AFFIDAVIT AS
REQUIRED UNDER THE CODE OF CIVIL PROCEDURE
(a) Source of information:-
The respondents have raised contentions in the
written statement relating to faulty affidavits filed in Form
No.25 as well as affidavit filed as required by the Code of
Civil Procedure (i.e., both affidavits as contemplated under
Section 83 of the Act).
It is the contention of learned counsel for the
respondents that the affidavit is bad in law as the source of
information is not provided.
It must be noted that the Form No.25 affidavit is
required to be filed only where the petitioner alleges
corrupt practice. The affidavit in Form No.25 that is filed in
the present case stipulates that -
(a) Statements in paragraphs 7, 12, 20 & 42 relate to
commission of corrupt practice and are true to his
knowledge;
(b) Particulars of corrupt practice in paragraphs 15, 16, 18,
19, 21 to 24, 26 to 33, 35, 36, 38 to 41 are true to his
information.
The assertion at paras-7 and 12 of the petition are
general in nature. The specific allegation at para-20 relates
to donations and statements made by respondent No.1 and
his father and constitute part of the allegations made in the
other paragraphs relating to donations and statements
made to entice the voters. The source of such information
is also revealed in the other paragraphs where it is
stipulated regarding posts in the facebook account of the
respondent No.1:
https://www.facebook.com/dc.gowrishankar.exmla/ and
https://www.facebook.com/dc.gowrishankar.exmla/
videos/1594041073978583.
The assertion at para-42 relates to taking of
insurance policy by Sri Maruthi Seva Samithi, a Trust stated
to be managed by the father of respondent No.1, as
regards students. While, the other allegation relates to poll
related expenditure. All the above assertions are said to be
as per knowledge and have been verified to be so. The
affidavit containing affirmation is in accordance with the
affidavit in Form No.25.
As regards the affirmation in Form No.25 with respect to
particulars of corrupt practice made in the paragraphs
referred to in the affidavit, are stated to be on the basis of
information. Perusal of the assertions in the said
paragraphs also reveal the source of information as
noticed hereinbelow:-
Sl. Paragraph Particulars Source
No. Nos.
1. 13 to 16 Constitution of the Sri Returns filed before
Maruthi Seva Samithi, which the Registrar of
is stated to be involved in Societies.
activities which constitute
enticement of the voters.
2. 18 Regarding temple donations Facebook posts
3. 19 Offer of free seats in Interview in TV
engineering college to channel.
students run by Society
4. 21 to 24 Distribution of Medi-Assist (a) Information by
Cards. BJP workers, who
have been named.
(b) Recovery of
material by Deputy
Commissioner and
Tahsildar.
5. Paras 26 & Regarding issue of Medi e-mail to Insurance
27 Assist cards. Regulatory and
Development
Authority of India
(IRDA).
6. 39 Regarding seizure of amount FIR, mahazar and
and other material . other proceedings
7. 41 Allegation of previous Earlier proceedings
misconduct. before the criminal
courts.
Accordingly, it is evident that the allegations made on
information with sources are specified in the petition.
It must be noted that on a plain reading of the
affidavit in Form No.25, there is no requirement to mention
the source of information. The requirement of affidavit to
be filed in Form No.25 is only where there is an allegation
regarding corrupt practice and no other requirement needs
to be read into the affidavit. The Apex Court in the case of
F.A.Sapa and others v. Singora and others reported in
(1991) 3 SCC 375 has gone a step further while
considering the validity of the verifying affidavit as follows:
"28. From the text of the relevant provisions of the
R.P. Act, Rule 94-A and Form 25 as well as Order 6 Rule 15
and Order 19 Rule 3 of the Code and the resume of the
case law discussed above it clearly emerges - (i) a defect in
the verification, if any, can be cured (ii) it is not essential
that the verification clause at the foot of the petition or the
affidavit accompanying the same should disclose the
grounds or sources of information in regard to the
averments or allegations which are based on information
believed to be true (iii) if the respondent desires better
particulars in regard to such averments or allegations, he
may call for the same in which case the petitioner may be
required to supply the same.......".
It is no doubt clear as per the discussion made above
with particular reference to the observations made by the
Apex Court in the case of F.A. Sapa (supra) that non-
mentioning of the source of information would not be fatal
to the election petition, while construing the requirement
of an affidavit in Form No.25.
The respondent while contending that the source of
information ought to have been mentioned in the affidavit
and has relied on various judgments, which are considered
as below:-
(a) V.Narayanaswamy v. C.P.Thirunavukkarasu
reported in (2000) 2 SCC 294 - While referring to the
requirement of mentioning the source of information the
Court at para-23 has observed as follows:-
"23. ...He must state which of the allegations are
true to his knowledge and which to his belief on information
received and believed by him to be true...."
Hence, the requirement is only to mention which of
the allegations are based 'on knowledge' and which 'on
information' and nothing more.
(b) R.P.Moidutty v. P.T.Kunju Mohammed and
Another reported in AIR 2000 SC 388.
The affidavit that was filed was verified as being true to
the best of "my knowledge and information". It is in that
context, the Apex Court while upholding the dismissal of
the election petition at para-33 has observed that the
verification was -
"33. .....without specifying which of the allegations
were true to the personal knowledge of the petitioner and
which of the allegations were based on the information of
the petitioner believed by him to be true. Neither the
verification in the petition nor the affidavit gives any
indication of the source of information of the petitioner as
to such facts as were not in his own knowledge."
Once again source is referred to only as regards
mentioning as to whether the averments are true to
knowledge or information. Further, the court notices that
even the petition did not give any indication as to source of
information as referred to above.
(c) L.R.Shivaramegowda v. T.M. Chandrashekar
reported in (1999) 1 SCC 666.
The Apex Court has held as under:-
"....that the statement made in paras 1 to 42 of the
said petition are true to the best of my knowledge and
belief and information and Annexures A to B are true copy
of the original".
The Apex Court while upholding the contention of
defective verification has held at para 16A that the affidavit
-
"....does not disclose the source of information nor
does it set out which part of the election petition was
personally known to the petitioner and which part came to
be known by him on information".
Accordingly, the emphasis in all the judgments is on the
requirement that the verification ought to mention which of
the paragraphs of the petition are based 'on knowledge
and which 'on information.' The reference hence to non-
mentioning of source of information is only in this context
and nothing more.
It is also to be noted that the affidavit filed on
26.06.2018 titled as "affidavit verifying the election
petition" at paragraph 4 states -
"Annexures A, H, J, K, R, S, T, V, W, X, Z and AA are
electronic documents printed from various websites and e-
mail communications for which a certificate under Section
65B of the Evidence Act is separately filed".
Such, an averment could also be construed to be a
declaration of source of information.
However, in the present case, it is clear that the
verification filed in Form 25 does mention as to which of the
paragraphs are based 'on knowledge' and which of the
other paragraphs are based 'on information.' On a closer
examination of the averments of the petition as regards to
averments made on the basis of information, it is clear that
source of information is enumerated as demonstrated by
Table referred to above.
This Court in E.P.No.1/2016 (Sri Doddabasavaraju v.
Sri M. Narayanaswamy and others, dated 24.04.2018)
while considering I.A.Nos.3/2016 and 4/2016 relating to a
similar contention as regards source of information not
being mentioned in the verifying affidavit after a detailed
analysis of the relevant case law has observed at para-
33 as follows:-
"33.........The source of information is also discernable
upon a reading of the election petition, which is from
different sources as narrated in the pleadings in various
paragraphs of the election petition."
By concluding so, the Co-ordinate Bench has refused
to accept the contention that the affidavit filed was bad for
not having mentioned the source of information. It is to be
noted that the said order of the Co-ordinate Bench was
challenged by the way of Special Leave to Appeal (C)
Nos.11343-11344/2018, which has however been
dismissed by order dated 04.07.2018, thereby confirming
the order of the learned Single Judge.
Accordingly, the contention of the respondents as
regards the affidavit being defective for non-mentioning of
source of information is rejected.
(b) Verification of documents:-
Insofar as the assertion of the petitioner regarding
verification of the documents are concerned, it is asserted
by the learned counsel for the respondents that the
documents have not been verified in terms of Section 83(2)
of the R.P. Act. It must be noted that the Apex Court in the
case of F.A. Sapa (supra) has observed in para-28 as
follows:-
"28. ..... similarly the court would have to decide
each individual case whether the schedule or annexure
referred to in Section 83(2) constitutes an integral part of
the election petition or not; different considerations will
follow in the case of the former as compared to those in the
case of the latter".
In this regard, an important distinction is to be borne in
mind while construing whether a given annexure or
schedule is an integral part of the election petition or not.
There is a difference between documents that substantiate
a material fact and documents that serve as evidentiary
value to support the material particulars furnished in the
petition, and it is in the case of the former that documents
constitute an integral part of the election petition.
The Table referred supra reveals that the documents
that have been marked as Annexures are only material in
the form of evidence to substantiate the pleading. In fact,
every assertion of an allegation as found in the second
column of the Table by itself forms ground of corrupt
practice and the proof of the said assertion is by reliance on
documents marked as annexure. If that were to be so, it
cannot be stated that the documents marked as Annexures
are an integral part of the petition and accordingly, the
requirement of verification as regards the petition is not
applicable as regards such of the documents and hence,
verification that is found would be in compliance with the
legal requirement.
(B) REJECTION OF PETITION:-
It is to be noticed that while considering the
application under Order 7 Rule 11, CPC in the specific
context of the assertion that affidavits are faulty, the Apex
Court in the case of G.M. Siddeshwar v. Prasanna
Kumar reported in (2013) 4 SCC 776 while referring to
F.A. Sapa's case (supra) has held that a defective
affidavit may not be fatal to the maintainability of an
election petition. It is also to be noted that Section 86 of
the R.P. Act provides that an election petition will be
dismissed if it does not comply with Sections 81, 82 and
117 of the R.P. Act whereas, the requirement relating to
verification as provided under Section 83 of the R.P.Act
does not come under the purview of Section 86 of the
R.P.Act and hence, the petition cannot be said to be hit by
the mandatory requirement of Section 86 of R.P. Act.
Further, it has been held that the High Court should
ensure compliance before parties go to the trial so that the
returned candidate can meet the allegations and is not
taken by surprise during trial. In light of the same, even if
it were to be held that affidavits are defective, that by itself
would be no ground for rejection of plaint.
It is also to be noted that while construing as to
whether the defect in affidavit would be fatal to the election
petition, the Court needs to strike a fine balance between
the statutory requirements to be complied with vis-à-vis
petitions filed to maintain purity of election process. Too
hyper-technical an approach should not result in defeating
a genuine attempt made by a litigant to maintain purity of
election process.
The dismissal of an application under Order 7 Rule 11
of C.P.C. would have the effect of merely holding that there
is a triable issue and that the case is fit for trial. The Court
while deciding an application under Order 7 Rule 11 of
C.P.C. needs to look at the application by accepting what
the petitioner states to be true and then embark upon
finding out if the case for rejection of the plaint has been
made out. The endeavour of the court is not to find out
whether the petition will eventually succeed on its merits,
for that is a matter for trial. At the stage of considering the
application, the court needs to see if the bare minimum
requirements which could be stated to be pre-conditions for
invoking the jurisdiction are present.
(i) Re.: Faulty Affidavit:
In so far as the contention that in light of affidavit
being faulty, the petititon is liable to be rejected is to
answered in the negative in light of the finding that the
verifying affidavit in Form No.25 as regards the averments
and documents are in compliance with the legal
requirements of verification.
In the present case, having dealt with the contention
regarding the faulty affidavit, it is to be seen as to whether
the petition is liable to be rejected under Order 7 Rule 11 of
C.P.C. as being in violation of Sections 83 and 86 of R.P.
Act.
In so far as the contention regarding petition being
bad for faulty affidavit, even if it were to be accepted that
the affidavit was faulty which is not the case herein, it is
definitely not in violation of Section 86 of R.P. Act in light of
the discussion supra. Further, the observation of the Apex
Court in the case of Ponnala Lakshmaiah v. Kommuri
Pratap Reddy and Others reported in (2012) 7 SCC 788
provides an answer as follows:
"9. We may also gainfully refer to the decision of this
Court in H.D. Revanna v. G. Puttaswamy Gowda [(1999) 2
SCC 217] where this Court held that an election petition
can be dismissed for non-compliance with Sections 81, 82
and 117 of the Representation of the People Act, 1951 but
it may also be dismissed if the matter falls within the scope
of Order 6 Rule 16 or Order 7 Rule 11 CPC. A defect in the
verification of the election petition or the affidavit
accompanying the election petition was held to be curable,
hence, not sufficient to justify dismissal of the election
petition under Order 7 Rule 11 or Order 6 Rule 16 CPC. The
following passage in this regard is instructive: (SCCp.233,
para 14)
"14. ... the relevant provisions in the Act are very
specific. Section 86 provides for dismissal of an election
petition in limine for non-compliance with Sections 81, 82
and 117. Section 81 relates to the presentation of an
election petition. It is not the case of the appellant before
us that the requirements of Section 81 were not complied
with.... Sections 82 and 117 are not relevant in this case.
Significantly, Section 86 does not refer to Section 83 and
non-compliance with Section 83 does not lead to dismissal
under Section 86. This Court has laid down that non-
compliance with Section 83 may lead to dismissal of the
petition if the matter falls within the scope of Order 6 Rule
16 or Order 7 Rule 11 CPC. Defect in verification of the
election petition or the affidavit accompanying the election
petition has been held to be curable and not fatal."
The Constitution Bench of the Apex Court in the case of
Murarka Radhey Sham Ram Kumar v. Roop Singh Rathore
and Others (as per B.P.Singh C.J.I., S.K.Das J., Raghubar
Dayal J., N.Rajagopala Ayyangar J., and J.R.Mudholkar J.)
has held that a defect in the verification would not be fatal
and such lapse could be rectified later. Hence, mere fact
that the affidavit is faulty would be no ground for rejection
of the petition.
(ii) Re. Material facts and material particulars:
"Whether the election petition is liable to be rejected as
pleaded in I.A.No.1/2018, due to lack of material facts and
material particulars of corrupt practice enumerated in the
petition as envisaged under Section 83 of the Act?"
The absence of mentioning of material facts and full
particulars of corrupt practice would result in dismissal of
the petition is not in dispute. However, the true meaning
and purport of the term 'material facts' and 'material
particulars' ought to be looked at keeping in mind the
observations of the Apex Court as made in Harkirat Singh
v. Amrinder Singh reported in (2005) 13 SCC 511 at
paras-48, 51 and 52, which are as follows:
"48. The expression "material facts" has neither
been defined in the Act nor in the Code. According to the
dictionary meaning, "material" means "fundamental",
"vital", "basic", "cardinal", central', 'crucial', 'decisive',
"essential", "pivotal", "indispensable", "elementary" or
"primary". [Burton's Legal Thesaurus, (3rd Edn..) p.349].
The phrase "material facts", therefore, may be said to be
those facts upon which a party relies for his claim or
defence. In other words, "material facts" are facts upon
which the plaintiffs cause of action or the defendant's
defence depends. What particulars could be said to be
"material facts" would depend upon the facts of each case
and no rule of universal application can be laid down. It is,
however, absolutely essential that all basic and primary
facts which must be proved at the trial by the party to
establish the existence of a cause of action or defence are
material facts and must be stated in the pleading by the
party.
51. A distinction between "material facts" and
"particular"', however, must not be overlooked. "Material
facts" are primary or basic facts which must be pleaded by
the plaintiff or by the defendant in support of the case set
up by him either to prove his cause of action or defence.
"Particulars", on the other hand, are details in support of
material facts pleaded by the party. They amplify, refine
and embellish material facts by giving distinctive touch to
the basic contours of a picture already drawn so as to make
it full, more clear and more informative. "Particulars" thus
ensure conduct of fair trial and would not take the opposite
party by surprise.
52. All "material facts" must be pleaded by the
party in support of the case set up by him. Since the object
and purpose is to enable the opposite party to know the
case he has to meet with, in the absence of pleading, a
party cannot be allowed to lead evidence. Failure to state
even a single material fact, hence, will entail dismissal of
the suit or petition. Particulars, on the other hand, are the
details of the case which is in the nature of evidence a
party would be leading at the time of trial."
It would be useful to refer to Halsbury's Laws of
England, (Fourth Edition); Vol.36; para 38, which is as
follows:
"38. The function of particulars is to carry into
operation the overriding principle that the litigation
between the parties, and particularly the trial, should be
conducted fairly, openly and without surprises, and
incidentally to reduce costs. This function has been
variously stated, namely either to limit the generality of the
allegations in the pleadings, or to define the issues which
have to be tried and for which discovery is required. Each
party is entitled to know the case that is intended to be
made against him at the trial, and to have such particulars
of his opponent's case as will prevent him from being taken
by surprise. Particulars enable the other party to decide
what evidence he ought to be prepared with and to prepare
for the trial. A party is bound by the facts included in the
particulars, and he may not rely on any other facts at the
trial without obtaining the leave of the court...."
In light of the above observations, the contents of
the pleadings in the election petition needs to be subjected
to close scrutiny in light of the assertions of non-
compliance. On a perusal of the Table formulated above,
what would come out is the mentioning of the allegation of
corrupt practice and also evidence and material referred to,
to substantiate the said allegation of corrupt practice.
The specific assertions are enumerated below:-
(a) Insofar as the allegation relating to donations
made to entice the ward 'voters', a perusal of para-18
would indicate the specific allegation is that on 25.03.2018
respondent No.1 notified the public at large that through
the Society that a sum of Rs.5.00 lakhs was paid for
renovation of Shanidevaru Temple at Dasarahalli, which is a
material fact. The particulars relate to statements made
through the facebook account and screen shots of the
photographs produced on the facebook page.
(b) The next assertion is regarding taking of
insurance policy by Maruti Seva Samithi managed by father
of respondent No.1, and the assured being the students
studying, whose wards reside in the said constituency. In
substance, the allegation was that the said Samithi had
taken out Medi Assist Policy on the students so as to entice
the guardians of the said students to vote in favour of the
candidate. Such of those assertions are material facts
while, the material particulars that are enumerated relate
to the available evidence and the manner of proof which
includes recovery of 56 number of Medi Assist identification
cards by an official of flying squad of M/s.New India
Assurance Company Limited (para-22 of the petition),
recovery of 56 number of pamphlets alleged to be issued by
JDS party workers (para-22 of the petition), reference to
mahazar, videography of the operation, FIR in Crime
No.0097/2018 in the Court of 1st Additional Civil Judge
(Jr.Dn.) & JMFC, Tumkur, charge sheet filed in the criminal
case, reference to the e-mail communication by the
official of Vigilance of IRDAI (para-27), details in para-33 as
regards distribution of Medi Assist I.D. cards and seizure of
insurance policies as referred to in para-39 on 11.05.2018
by the named official of the flying squad. All of which are
the material particulars that have been enumerated.
(c) As regards the allegation of use of money to
entice voters, the material facts and particulars are
contained in para-39 while, material fact is enumerated to
the effect that the party workers were distributing money in
connection with election, whereas the material particulars
relate to the enumeration of seizure of the said amount by
officials of the squad which is mentioned in para-39.
Thus it becomes clear that material facts as well as
particulars regarding the allegation of corrupt practice has
been mentioned.
It is to be noted that while deciding the question as
to whether material facts and particulars have been
mentioned so as to fulfill the requirements under Section 83
of R.P. Act, what needs to be seen is as to whether there
has been requisite enumeration of the facts and particulars
in the pleading. It is not the task of the court to complete a
full enquiry and arrive at the conclusion at this stage itself
as to whether the allegations made would be proved and
were strong enough to allow the petition. While looking
into the contentions advanced to reject the petition, the
court would not be required to dwell into the strength of the
allegation and probability of it being proved. In the case of
Madiraju Venkata Ramana Raju v. Peddireddigari
Ramachandra Reddy and others reported in AIR 2018
SC 3012, the Apex Court has aptly observed at para-29 as
follows:-
"29. Whether the material facts as asserted by the
appellant can stand the test of trial and whether the
appellant would be able to bring home the grounds for
declaring the election of respondent No.1 to be void, is not
a matter to be debated at this stage. Suffice it to observe
that the averments in the concerned paragraphs of the
election petition, by no standard can be said to be frivolous
and vexatious as such. The High Court committed manifest
error in entering into the tenability of the facts and grounds
urged in support thereof by the appellant on merit, as is
evident from the cogitation in paragraphs 16 to 22 of the
impugned judgment."
It is also to be noted that if the court were to come
to a finding that material facts and particulars of even one
allegation of corrupt practice has been enumerated in the
election petition, that would suffice for the purpose of
holding that the petition would be maintainable.
The court also needs to keep in mind the observation
at para-17 of Ponnala Lakshmaiah (supra), which runs
as follows:
"17. While a successful candidate is entitled to
defend his election and seek dismissal of the petition on
ground legally available to him, the prolongation of
proceedings by prevarication is not conducive to the ends of
justice that can be served only by an early and speedy
disposal of the proceedings. The courts have, therefore, to
guard against such attempts made by parties who often
succeed in dragging the proceedings beyond the term for
which they have been elected. The courts need to be
cautious in dealing with requests for dismissal of petitions
at the threshold and exercise their powers of dismissal only
in cases where even on a plain reading of the petition no
cause of action is disclosed."
It is also to be noted that the statements made in
the election petition must be read in totality and cannot be
taken out and read in isolation. The observations in
Ponnala Lakshmaiah's case (supra) at para-5 requires
to be noticed:
"5. It is equally well settled that while examining
whether a plaint or an election petition discloses a cause of
action, the court has a full and comprehensive view of the
pleading. The averments made in the plaint or petition
cannot be read out of context or in isolation. They must be
taken in totality for a true and proper understanding of the
case set up by the plaintiff."
(C) RE. STRIKING OFF THE PLEADINGS:-
(i) Pleadings related to 'corrupt practices' prior to
the date of nomination
It is the contention of the respondents that the
allegations relating to 'corrupt practices' found at para-
18 (donation for renovating Shanidevaru Temple), para-19
(promise to give 1000 free seats in the Engineering College
run by Society) and para-21 (issuance of Medi Assist
identity cards), relate to a period prior to filing of the
nomination and hence, are liable to be struck off.
Learned counsel for the petitioner relies on the
judgment of the Apex Court in Subhash Desai v. Sharad
J. Rao and Others reported in AIR 1994 SC 2277
(specifically, para-8) and Chandrakanta Goyal v. Sohan
Singh Jodh Singh Kohli reported in (1996) 1 SCC 378
(specifically, para-3) which would indicate that matters
prior to filing of nomination papers cannot be looked into
while passing of a judgment.
It is however to be noted that the observations of the
Apex Court was made in the context of disposal of the
Election Petition after trial. No doubt 'corrupt practice'
anterior to a person being 'duly nominated as a candidate'
cannot be taken note of, however, as the question of
striking of pleadings is being considered at the initial stage,
before trial, such request could be allowed only if such a
conclusion can be arrived at without any admission of
doubt.
The Supreme Court in Raj Narain v. Smt. Indira
Nehru Gandhi and another reported in [(1972) 3 SCC
850] has held that just because a corrupt practice has to
be strictly proved would not mean that a pleading in an
election petition must be strictly construed. The Court held
that it cannot refuse to enquire into allegations made by
the election petitioner merely because the election
petitioner or someone who prepared his brief did not know
the language of law.
Noting that the striking of pleadings before trial has
commenced, such plea ought to be cautiously considered.
Further it is to be noted that the allegations made in the
present case are not standalone allegations, but are also
continuing in nature.
As regards the allegations relating to issuance of
Medi Assist cards, there are specific assertions at paragraph
33 of the petition that the cards were distributed after
25.4.2018 and between 25.4.2018 and 11.5.2018. It
comes out from Annexure-AA that the policies were
cancelled only on 8.5.2018 (i.e. after the date for filing
nomination was fixed on 25.4.2018). In view of the above,
the question of striking off the pleadings relating to
issuance of Medi Assist cards, accepting the contention of
the respondent at this stage would not arise.
In so far as the contention regarding the promise to
distribute free seats in the Engineering College, though
there is a reference to the television interview on
30.03.2018, the facebook post containing the said interview
has been uploaded on 30.03.2018. The facebook post
continuing to be on the online platform, with it being
accessible to viewers in the election period would prima
facie indicate that the possibility of facebook post serving
as an enticement cannot be summarily ruled out at this
pre-trial stage. Accordingly, the contention of the
respondent is liable to be rejected.
Similarly, the contention of the respondent regarding
the announcement of a donation made for the temple
through a facebook post dated 25.03.2018 cannot be
construed to be an allegation made in isolation, in light of
the assertions made in paras-12 and 39 of the petition.
As regards the relief sought to strike off the
pleadings relating to other paragraphs mentioned in the
application, the same is dealt hereinafter.
The averments in paragraph Nos.3 to 6 of the
petition relate to the background of the petitioner while, the
averments in paragraph Nos.7 and 8 relate to general
assertion of facts. The averments at paragraph No.11
relates to the number of votes polled and issuance of Form-
21C while, the averments in paragraph Nos.13 to 17 relate
to constitution and management of Sri Maruthi Seva
Samithi. No grounds are made out to strike off such
pleadings as it cannot be said that the pleadings are, in
terms of Order VI Rule 16 or under the provisions of the
Representation of People Act, 1951 demonstrably such as
being liable to be struck off.
As regards the pleadings in paragraph Nos.21 to 24
and 26 to 30, the same primarily relate to the allegations of
corrupt practice by issuance of Medi Assist cards and
contention to strike off pleadings relating to such allegation
has already been dealt supra. Hence, no ground is made
out to allow the application and the same is liable to be
rejected.
10. In light of the above discussion, the
applications, viz., I.A. Nos.1/2018 and 2/2018 are
dismissed.
11. In view of the above, I.A. No.1/2019 seeking
for permission to furnish fresh affidavit does not call for any
orders and the said application is disposed off as not
requiring to be adjudicated upon."
134. The requirements under Section 83 of the R.P.
Act in the present petition has been considered while
passing orders on the interlocutory applications, viz.,
I.A.Nos.1/2018 and 2/2018 in detail and accordingly, Issue
No.(i) is answered in the affirmative in terms of the order
passed dated 06.12.2019 disposing off the interlocutory
applications.
135. Accordingly, to avoid repetition, the order on the
above said interlocutory applications in its entirety is to be
read as an answer to the present issue raised. An attempt
to summarize the said order and pass fresh order would be
wholly unnecessary. Any attempt to summarize would also
be inadequate insofar as some of the points contained in
the order may be left out and accordingly, the said attempt
is not being made.
IV ANALYSIS OF PROCEEDINGS UNDER SECTION 99 OF R.P ACT
136. The relevant extract of Section 99 of the R.P. Act
is as follows:-
"99. Other orders to be made by the High
Court.-- (1) At the time of making an order under
section 98 the High Court shall also make an order--
(a) where any charge is made in the petition of
any corrupt practice having been committed at the
election, recording--
(i) xxx
(ii) the names of all persons, if any, who have
been proved at the trial to have been guilty of any
corrupt practice and the nature of that practice; and
(b) xxx
Provided that a person who is not a party to the
petition shall not be named in the order under sub-
clause (ii) of clause (a) unless--
(a) he has been given notice to appear before
the High Court and to show cause why he should not
be so named; and
(b) if he appears in pursuance of the notice, he
has been given an opportunity of cross-examining any
witness who has already been examined by the High
Court and has given evidence against him, of calling
evidence in his defence and of being heard.
(2) In this section and in section 100, the
expression "agent" has the same meaning as in
section 123."
137. Insofar as the mandate of Section 99 of the R.P.
Act which prohibits the naming of a person who has been
proved at the trial to have been guilty of corrupt practice,
the requirement under law is that a person who is not a
party to the petition shall not be named unless he has been
given notice to appear and show cause why he should be so
named.
138. In light of such mandate and noticing the settled
position that proceedings under Sections 98 and 99 of R.P.
Act have to be considered simultaneously, the notices were
issued to the following persons:- Sri Palanethraiah, Sri
Arehalli Manjunath, Smt.Renukamma, Smt.Sunandamma,
Sri Krishnegowda and the President of KMSS.
139. Alongwith the notices, the Noticees were
furnished with relevant pleadings and documents so as to
enable them to make out an effective reply. All of the said
Noticees have filed their statement of defence and also led
their own evidence and have been granted opportunity to
cross-examine witnesses and also examined the witnesses
who have already adduced the evidence.
140. In the course of the proceedings under Section
99 of the R.P. Act, a finding is to be recorded as to whether
the Noticees could be named as being guilty of corrupt
practice.
141. Before adverting to the particular facts and
contentions of each of the Noticees, there are certain legal
and factual aspects which are common as regards all of the
Noticees.
142. It must be noted that in the pleadings specifically
at para-33 of Election Petition, it is averred that the
respondent No.1 distributing Medi Assist cards was an act to
induce the voters to vote in favour of respondent No.1 and
it is asserted that the distribution of Medi Assist cards were
effected between 25.04.2018 to 11.05.2018 at different
times by the JD(S) Party workers who are mentioned in the
table extracted at para-33 of the Election Petition. The
names of the Noticees are found in the table at Sl.No.20
(Smt.Renukamma and Sri Krishnegowda) and Sl.No.24 (Sri
Arehalli Manjunath).
143. Insofar as the incident of seizure of insurance
policies subsequent to interception of the Scorpio vehicle
belonging to Sri Palanethraiah by the FST-II Squad on
11.05.2018, the relevant pleadings are found in para-39,
though name of Sri Palanethraiah is not forthcoming. After
Crime No.0073/2018 was registered regarding the incident
of 11.05.2018, investigation was conducted and in the
report subsequently filed during the pendency of the
proceedings, name of Sri Palanethraiah being mentioned,
the same is brought to the notice of the Court at the stage
of evidence.
144. Insofar as the common contention relating to
handing over of Medi Assist cards by the Noticees as is
alleged by the witnesses, it is specifically asserted that
while handing over Medi Assist cards, there was request to
the recipients of the bonds to vote for respondent No.1.
The very act of handing over the Medi Assist cards which
could be invoked to claim reimbursement of medical
expenses and could be construed to be a gift/offer with the
object of directly or indirectly inducing the elector to vote;
or could be construed to be a gratification to induce the
elector to vote. Accordingly, the same would constitute
'bribery' in terms of Section 123 of the R.P. Act.
145. Though it is contended that PW.3, PW.5, PW.6
and PW.8 are interested witnesses and are brought at the
instance of the petitioner, however, the evidence of such of
the witnesses deserve acceptance when looked into in
conjunction with the circumstances relating to the
distribution of policies, which include averment of
respondent No.1 in para-24 of the written statement and
the documents marked by PW.3, PW.5, PW.6 and PW.8
extracted at the table at para-97. The said documents
corroborate the Medi Assist cards produced by the recipients
as regards Schools in which the children are studying, which
details are found in the Medi Assist cards. It is also to be
noted that all the Noticees have adopted the cross-
examination of the witnesses of the respondent No.1,
indicating that both the respondent No.1 and the Noticees
were sharing a similar stand.
146. It is in this background that the allegations made
out against the Noticees is to be looked into.
147. Noticee - Sri Palanethraiah
(i) The allegations made out in the notice as regards Sri
Palanethraiah are as follows:-
"Allegations made against Palanethraiah:
It is alleged that on 11.05.2018, a day prior to
election, the officer-in-charge of the FST-11 squad while
proceeding in K.Palasandra village noticed a Scorpio vehicle
bearing registration No. KA 06 N 2725 and tried to stop the
vehicle but the vehicle sped away. The vehicle was chased
down and pulled over and four persons ran away from the
vehicle out of which one person took a bag along with him.
After inspection the officer in-charge seized one note-book
in which JDS was written, JDS student insurance policy, 5
pages containing names of booth level workers and their
telephone numbers, a bundle of Rs.500 notes amounting to
Rs. 50,000/-, one cheque book, one Canara Bank pass
book, pair of chappals and wedding invetition card. After
seizure mahazar was drawn and FIR was registered and
Crime No.0073/2018 dated 11.05.2018 was registered
against four unknown persons. In the case, Palanethraiah
appeared before the trial court and pleaded guilty under
section 171(E) of IPC.
It is further alleged that the said Palanethraiah is the
counting agent of Respondent No.1. Therefore, it is stated
that the corrupt practice carried out by Palanethraiah is
stated to have been proved by the fact that he pleaded
guilty in Crime No.0073/2018,making RespondentNo.1
liable for corrupt practices under section 123 of RP Act."
(ii) Responding to the show cause as to why he
should not be named, the defence statement came to be
filed asserting as follows:-
(a) That there is no pleading in the Election
Petition that the Noticee is an agent or person with
the consent of the candidate.
(b) The pleadings do not indicate that the Noticee
is an occupant or agent who has indulged in
bribery.
(c) That insofar as the proceedings initiated
pursuant to Crime No.0073/2018 as per the Police
Report filed after investigation, there is no
identification of persons who were occupants of the
vehicle. The Police Report further includes the
name of the Noticee only, as he is the registered
owner of the vehicle.
(d) Pleading guilty by the Noticee for the offence
under Section 171E of IPC was only in order to get
over the "false petty offence to avoid the long
drawn legal battle does not enure to the benefit of
any person to draw the presumption."
(e) The Noticee is not the Counting Agent of
respondent No.1 and Ex.P32 produced by the
petitioner cannot be relied upon.
(iii) The evidence by way of affidavit has been filed
by Sri Palanethraiah. Insofar as his request to lead evidence
touching the aspect of his pleading guilty in the proceedings
in Crime No.0073/2018, this Court has observed at paras-22
and 23 of the order dated 22.11.2022 that the question of
leading evidence contrary to the judgment passed in criminal
proceedings does not arise. Further, the legal consequence
of conviction under Section 171E of IPC is as envisaged
under Section 11A of the R.P. Act and that cannot be lost
sight of. Relevant observations made at para-23 of the order
referred to above is as follows:-
"23. ... The question of leading evidence insofar
as judgment of conviction is concerned, would not
arise in light of the legal consequence flowing from
the judgment of conviction which remains
unchallenged. Accordingly, the Noticee is entitled
to lead evidence only insofar as the aspect of him
allegedly being a counting agent of the
respondent."
The said order came to be challenged before the Apex
Court in SLP Diary No.40495/2022 filed by Sri Palanethraiah
and though leave was granted and matter was heard, the
appeal came to be dismissed holding that the order
impugned did not call for interference as per the order dated
16.12.2022, which reads as hereunder: -
"1. The application for permission to file the
Special Leave Petition is allowed.
2. We have heard learned counsel for the
petitioner at a considerable length and also perused
the statutory provisions as well as the deposition of
P.W.12.
3. In our considered view, the impugned interim
order dated 02.12.2022, passed by the High Court of
Karnataka at Bengaluru, does not call for any
interference by this Court.
4. The Special Leave Petition is, accordingly,
dismissed.
5. As a result, pending interlocutory application
also stands disposed of."
(iv) Accordingly, the evidence led in was limited only
insofar as the assertion that the Noticee was the Counting
Agent of respondent No.1.
(v) It must be noted that on 11.05.2018, a day prior
to the polling day, the FST-II Squad visited Gulur, Hebbur
Hobli and when it was approaching K.Phalasandra Village,
a Scorpio Vehicle bearing registration No.KA-06-N-2725
was intercepted. The said vehicle was abandoned
immediately and the Squad has seized the following:-
a) Scorpio vehicle bearing registration
No.KA-06-N-2725;
b) xxxx
c) JD(S) student Indemnity Letter;
d) xxxx
e) Eight pages containing details of Booth
Level workers with telephone numbers;
f) Currency Notes of Rs.500/- denomination
of 100 notes totaling to an amount of
Rs.50,000/-;
g) Cheque Book consisting of 12 empty
cheque leaves of Canara Bank belonging
to Palanethraiah.G S/o Gangappa;
h) Pass Book relating to A/c
No.0474101036881 belonging to
Palanethraiah.G S/o Gangappa;
(vi) The FIR was registered as per Crime
No.0073/2018 initially against the unknown persons and
after investigation, the charge sheet came to be filed in
Crime No.0073/2018 for the offence under Section 171E of
IPC and charges were framed and the Noticee Sri
Palanethraiah has pleaded guilty. An extract of the
proceedings is as follows:-
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(vii) It is clear from the charges framed that the
charge made out a case that money was being ferried in
the vehicle in order to distribute the same to the voters on
behalf of JD(S) Party during the time the Code of Conduct
was notified and was in force and that the accused had
abandoned the vehicle and upon inspection, the material
referred to above was seized and accused had committed
an offence under Section 171E of IPC. By virtue of pleading
guilty, it could be stated that the charges have been held to
be proved and the legal consequence would be that the said
Noticee Sri Palanethraiah can be stated to have been guilty
of the corrupt practice. In terms of Section 123 of the R.P.
Act, 'corrupt practice' includes 'bribery' and Section 171E
provides punishment for 'bribery'. Section 171B defines
'bribery' and Section 171B(2) provides that a person who
offers or agrees to give a gratification shall be deemed to
give a gratification.
(viii) By virtue of pleading guilty, the offence under
Section 171E is established and would constitute 'bribery' in
terms of Section 123.
(ix) Though it is submitted that the judgment in
C.C.No.3079/2018 has been challenged by filing Criminal
Appeal No.15/2023 after a delay of about five years and
during the pendency of the present proceedings, it would
not have the effect of taking away the conviction and
sentence in the absence of stay of the judgment and order
of sentence passed in C.C.No.3079/2018.
(x) Accordingly, it can be stated that the Noticee Sri
Palanethraiah is guilty of corrupt practice in terms of the
offence for which punishment is imposed under Section
171E of IPC.
(xi) Insofar as the defence relating to the allegation
made against Sri Palanethraiah as being a Counting Agent
of the respondent No.1, it is asserted that the Conduct of
Election Rules, 1961 prescribes a procedure of appointment
of Counting Agent and Form-18 is the prescribed format,
which has not been produced by the petitioner.
(xii) The endorsement dated 27.11.2019 is enclosed
alongwith the list of Counting Agents and contains the
name of Sri Palanethraiah. G. The said document is signed
on behalf of Tahsildar and the covering sheet to the list is
the endorsement furnishing the information of Counting
Agents as has been sought for. Therefore, in light of the
discussion made supra at para-87, there is a presumption
under Section 114 of the Indian Evidence Act as regards the
documents issued by the public authority.
(xiii) The Noticee Sri Palanethraiah had asserted that
the said document is a fabricated document and submits
that the said document does not have his signature.
(xiv) Once the Noticee, Sri Palanethraiah seeks to
assert that he is not the person referred to as
Palanethraiah.G in Ex.P32 and that Ex.P32 is a fabricated
document, the burden is cast on Sri Palanethraiah himself
to prove the same. The same has not been discharged by
Sri Palanethraiah who was afforded an opportunity to lead
evidence through Section 99 proceedings wherein such
stand as noticed above was taken. It was upto Sri
Palanethraiah, the Noticee to disprove Ex.P32 or to have
taken such other steps to discharge the burden of proving
the assertion that he was not a Counting Agent of
respondent No.1 and that Ex.P32 does not relate to him.
(xv) Accordingly, it can be held that the Noticee Sri
Palanethraiah has committed the corrupt practice of bribery
in terms of 'bribery'.
148. Noticee - Sri Arehalli Manjunath:-
(i) Insofar as the Noticee Sri Arehalli Manjunath, the
allegations made out under Section 99 of R.P. Act are as
detailed in the notice and extracted hereinbelow:-
"The nature of allegations made against you and the
evidence in that regard are briefly mentioned as herein
below:
It is the case of the petitioner that you have
colluded with Respondent no.1 and have committed
corrupt practice of distributing Medi Assist Insurance
Policies by carrying out door to door campaign during
the election for the period between 25.04.2018 to
11.05.2018. It is the allegation made that though the
policy was taken prior to the nomination of the
candidate, the distribution was carried out in favour of
Respondent No.1 after the nomination of the candidate
was filed.
The Petitioner has led evidence by examining
Laksminarayan V.N. [PW-3] and Ramamani [PW-8] -
It is stated in the evidence affidavit of PW-3 that PW-3
is the resident of Virupasandra, Guluru Hobli, Tumkur
and that Arehalli Manjunath is a former member of
Taluk Panchayat and JDS Party Worker. It is further
stated that during 2018 General Election, few days
prior to polling day, Arehalli Manjunath and his
followers conducted door-to-door campaign and
carried out distribution of Medi Assist Policy Cards and
lured the residents to cast their vote in favour of
Respondent No.1. It is particularly stated that Arehalli
Manjunath came to the house of PW-3 and handed
over Medi Assist Policy Bond bearing the name of the
son of PW-3, Yashwanth Gowda VL. (Exhibit P.52)
and informed PW-3 that the amount towards insurance
bond was paid by Respondent No.1 and that incase if
PW-3 or his son Yashwanth Gowda V.L meets with an
accident or suffers any health issues the insurance
bond covers upto Rupees Ten Thousand and that they
can get treatment from any hospital without making
payment. It is further stated that the bond was
handed over in a cover containing cover images of
Respondent No.1 and his father D.C Chennigappa, the
then President of JDS Tumkur District, Sri.
Kumaraswamy, former Chief Minister, Sri. Deve
Gowda, former Prime Minister and the Symbol of JDS
Party along with manifesto of JDS Party.
PW-8 through her evidence affidavit has made
out similar allegations.
(ii) In response to the said notice, the defence
statement has been filed to the show cause notice. The
primary stand taken by the Noticee is that the petitioner
has relied upon PW.3 and PW.8, who were parents of the
wards, who are the beneficiaries of the Medi Assist Policy
distributed to them and evidence of such of the witnesses
were not reliable as they were deposing at the instance
of the petitioners.
(iii) PW.3 Sri Lakshminarayana has stated in his
evidence affidavit that in the 2018 Assembly Elections,
few days before the polling date, the noticee Sri Arehalli
Manjunath and his supporters had come to his house and
handed over a bond of the M/s.New India Assurance Co.
Ltd., in the name of his son Yashwanth Gowda. It is
further narrated at para-5 of the affidavit that he was
told while handing over of the bond that the insurance
premia was paid by Sri D.C.Gowrishankar and in the
event of any illness, they could take benefit of the
insurance bond as regards expenses upto Rs.10,000/-.
It is further asserted that the elections were to be held
for Tumkur Rural Constituency within a few days and he
and his family members were to vote in favour of Sri
D.C.Gowrishankar.
(iv) The witness PW.3 was cross-examined and
has withstood the cross-examination. It is also relevant
to notice that during cross-examination PW.3 has
specifically stated that the noticee has come to his house
on two occasions and the bond was given on one such
occasion.
(v) It is relevant to note that the learned counsel
for the noticee has sought for adoption of cross-
examination of the said witness on an earlier occasion by
learned counsel for respondent No.1.
(vi) PW.8 Smt.Ramamani has filed affidavit by
way of evidence asserting that Sri Arehalli Manjunath and
Smt.Sunandamma are from her village and had come to
her house in April 2018. It is submitted that the details
of her daughter studying in 5th standard was collected by
Smt.Sunandamma and about eight days prior to the
polling date. Sri Arehalli Manjunath and
Smt.Sunandamma had come to her house and handed
her a bond in the name of her daughter issued by
M/s.New India Assurance Co. Ltd., while informing them
that in case herself or her daughter meets with an
accident or suffers any health issue, there would be an
insurance coverage upto Rs.10,000/- and treatment
could be obtained from any hospital. She has further
stated at para-5 of the affidavit that she was lured to
cast her vote to Sri D.C.Gowrishankar in the elections to
be held.
(vii) The said witness has also withstood
cross-examination and in response to the Court question
as to how did she know that Sri Arehalli Manjunath and
Smt.Sunandamma were JD(S) Party workers, she has
stated that she had seen them moving around with Sri
D.C.Gowrishankar in all the functions.
(viii) Though an effort was made to raise a doubt
regarding the notarization of the affidavit, the said aspect
does not have the effect of discarding the affidavit.
(ix) It must be noted that PW.3
Sri Lakshminarayana has got marked the following
documents in support of his stand and to corroborate his
evidence regarding issuance of Medi Assist cards issued
in the name of his child:-
NAME OF WITNESS WITNESS EXHIBITS MARKED
EXAMINED AS
Lakshminarayana V.N PW - 3 Ex.P49 and Ex.P50 - Voters List for
the year 2018, 2021
Ex.P51 - Son's Study Certificate
Ex.P52 - Medi Assist Card
Ex.P53 - Aadhar Card
Ex.P54 - Son's Aadhar Card
Similarly, PW.8 Smt.Ramamani has produced the
following documents in support of her stand and
assertion:-
NAME OF WITNESS WITNESS EXHIBITS MARKED
EXAMINED AS
Ramamani PW - 8 Ex.P73 and Ex.P74 - Voters List
Ex.P75 - Daughter's Study Certificate
Ex.P76 - Medi Assist Card
Ex.P77 - Aadhar Card
Ex.P78 - Daughter's Aadhar Card
(x) It is clear from the above that the details of
the child as regards PW.3 and PW.8 found in the Medi
Assist card is supported by the details in the Aadhar Card
(Ex.P53 and Ex.P54 produced by PW.3 and Ex.P77 and
Ex.P78 produced by PW.8). The Study Certificate issued
by the School also tallies with the description of the School
in the Medi Assist Policy.
(xi) Accordingly, it can be held that the Noticee Sri
Arehalli Manjunath has committed the corrupt practice of
bribery in terms of Section 123 of R.P. Act insofar as after
the coming into force of the Code of Conduct, Medi Assist
cards were distributed to the parents of children in Tumkur
Rural Constituency (PW.3 and PW.8) with the quid pro quo
of the parents voting for Sri D.C.Gowrishankar
(respondent No.1) during the election. The Medi Assist
Policy could be construed to be either a gift in terms of
Section 123(1)(A) with the object of directly or indirectly
inducing the electors to vote for the returned candidate, or
could be construed to be a gratification from the candidate
- respondent No.1. As the Noticee has distributed
inducing the elector to vote for the candidate in terms of
Section 123(1)(B). The said distribution of gift/gratification
as per the evidence made out was on behalf of the
candidate as is made out from the oral evidence of PW.3
and PW.8.
149. Noticee Smt Renukamma
(i) As regards Noticee Smt.Renukamma, the
notice was issued and the allegations contained are
extracted as herein below:-
"The nature of allegations made against you and the evidence
in that regard are briefly mentioned as herein below:
It is the case of the petitioner that you have colluded
with Respondent no.1 and have committed corrupt practice
of distributing Medi Assist Insurance Policies by carrying out
door to door campaign during the election for the period
between 25.04.2018 to 11.05.2018. It is the allegation
made that though the policy was taken prior to the
nomination of the candidate, the distribution was carried
out in favour of Respondent No.1 after the nomination of
the candidate was filed.
The Petitioner has led evidence by examining
Mahadevaiah [PW-5] and D.R. Ramesh [PW-6] - It is stated
in the evidence affidavit of PW-5 that PW-5 is a resident of
Doddasarigipalya, Gulur, Tumkur and that Krishnegowda
and Renukamma who are from the same village are the
party workers of JDS Party and supporters of Respondent
No.1. It is further stated that during 2018 General election,
in the month of April, Krishnegowda and Renukamma
visited the house of PW-5 and informed him that they are
the agents of Respondent No.1and that Respondent No.1 is
doing free health insurance policies to one child of each
electorate families of Tumkur Rural Assembly Constituency
and that they should cast their vote in favour of respondent
No.1 and also collected the details of daughter of PW-5. It
is further stated that two days prior to date of pooling
Krishnegowda and Renukamma conducted door-to-door
campaign and carried out distribution of Medi Assist Policy
Cards and lured the residents to cast their vote in favour of
Respondent No.1. It is particularly stated that
Krishnegowda and Renukamma came to the house of PW-5
and handed over Medi Assist Policy Bond bearing the name
of the daughter of PW-5, Kum. Sinchana DM (Exhibit
P.63) and informed PW-5 that the amount towards
insurance bond was paid by Respondent No.1 and that
incase if PW-5 or his daughter Kum. Sinchana DM meets
with an accident or suffers any health issues the insurance
bond covers upto Rupees One to Two Lahks and that they
can get treatment from any hospital without making
payment. It is further stated that the bond was handed
over in a cover containing cover images of Respondent No.1
and his father D.C Chennigappa, the then President of JDS
Tumkur District, Sri. Kumaraswamy, former Chief Minister,
Sri. Deve Gowda, former Prime Minister and the Symbol of
JDS Party along with manifesto of JDS Party.
PW-6 through his evidence affidavit has made out
similar allegations against Krishnegowda and Renukamma."
(ii) In response to the said notice statement of
defense was filed. It was asserted that there was no
sufficient pleadings nor evidence to show that the Noticee
had visited the house of PW.5 and PW.6 in the company
of Sri Krishnegowda and had indulged in alleged corrupt
activities.
(iii) It is asserted that except for the oral
testimony of PW.5 and PW.6, there is nothing on record
to indicate that the proposed respondent had visited the
residence of the said witnesses.
(iv) At the outset, it must be noted that the
petitioner has specifically averred at para-33 of the
election petition that Medi Assist cards bearing the name
of the students has been distributed between 25.04.2018
to 11.05.2018 by the JD(S) Party workers detailed in the
table and the name of Smt.Renukamma is found along
side that of Sri Krishnegowda and Sri Naveen as regards
the village of Guluru is concerned. The tone and tenor of
the pleading at para-33 is to the effect that the
distribution was on behalf of respondent No.1. The
averment at para-12 is to the effect that the corrupt
practices have been carried out with the consent and
connivance of respondent No.1 by his agents and his
family members and when read in conjunction with the
averment in para-33 it becomes clear that the allegation
of distribution of Medi Assist Policies with the consent of
respondent No.1, has been made in the pleadings.
(v) PW.5 Sri Mahadevaiah has specifically
asserted in the affidavit filed that his daughter was
studying in 5th Standard in the Government School at
Doddasarangipalya and his other child Vidhyashree was
studying in 3rd Standard in the same school. It is
asserted that he was acquainted with Sri Krishnegowda
and Smt.Renukamma who are JD(S) Party workers from
his village and that they had come to his house in April
2018 and were told that Sri D.C. Gowrishankar was
getting health insurance policies in the name of the
children and that they were required to vote in his
favour. It is submitted that the details of his daughter
Sinchana and name of the school in which she was
studying was collected.
(vi) It was submitted that two days prior to the
polling day, Sri Krishnegowda and Smt.Renukamma had
come to his house and handed a bond bearing the name
of his daughter in the name of M/s New India Assurance
Co. Ltd., whereby, they had informed him that premium
was paid by the JD(S) MLA, whereby there was
insurance coverage which would take care of medical
expenses. While handing over the bonds it was
specifically averred that they were required to vote for
Sri D.C Gowrishankar.
(vii) PW.5 had produced and got marked Medi
Assist Policy at Ex.P63 and had produced other
documents to support the details mentioned in the Medi
Assist card which are as follows:-
NAME OF WITNESS WITNESS EXHIBITS MARKED
EXAMINED AS
Mahadevaiah PW - 5 Ex.P60 and Ex.P61 - Voters List for
the year 2018, 2021
Ex.P62 - Daughter's Study Certificate
Ex.P63 - Medi Assist Card
Ex.P64 - Aadhar Card
Ex.P65 - Daughter's Aadhar Card
(viii) Though much is made of the differences in the
name of the school as the Study Certificate at Ex.P62
mentions GLPS (Government Lower Primary School)
Doddasarangipalya, whereas in the Medi Assist cards at
Ex.P63, the name of the school it is mentioned as GHPS
(Government Higher Primary School) Doddasarangipalya.
However, the said difference in name of the School is not
material enough so as to disbelieve the Medi Assist card.
So also the spelling error in the name in the Medi Assist
is also not material and is clearly a typographical error.
(ix) The possession of the original Medi Assist card
which is produced and marked by itself has to be given
due weightage as that pertaining to the daughter of Sri
Mahadevaiah.
(x) PW.6 Sri D.R. Ramesh has filed his affidavit on
same identical lines as that of Sri Mahadevaiah and
submits that his son Rahul was studying in SLN
Vidyamandira in 1st Standard and Sri.Krishnegowda and
Smt.Renukamma had collected the details. The same
promise was held out while handing over the bond as
was made out to Sri Mahadevaiah. It was submitted that
the bond was handed over about two days prior to the
polling date inside a cover and such cover had the
photograph of Sri D.C. Gowrishankar, his father Sri
C. Chennigappa, Sri Kumaraswamy, former Chief Minister
and Sri H.D. Deve Gowda, former Prime Minister. It also
contained a copy of election manifesto.
(xi) In support of his assertion regarding grant of
Medi Claim Policy to his son, PW.6 has submitted the
following documents :-
NAME OF WITNESS WITNESS EXHIBITS MARKED
EXAMINED AS
D.R. Ramesh PW - 6 Ex.P66 - Voter ID
Ex.P67 - Son's Study
Certificate
Ex.P68 - Medi Assist Card
Ex.P69 - Aadhar Card
Ex.P70 - Son's Aadhar Card
(xii) Despite minor contradictions, the witness has
withstood the cross-examination.
(xiii) Accordingly, taking note of the evidence of
PW5 and PW6 and also noticing the circumstantial
evidence relating to distribution of Medi Assist cards
including the seizure of Medi Assist cards pursuant to
investigation, it can be stated that evidence is made out
regarding distribution of Medi Assist cards by Smt.
Renukamma. It is clear that the timing of the
distribution of Medi Assist cards few days prior to the
polling date was made with the enticement to vote in
favour of respondent No.1. The said fact of enticement
has been stated in the affidavit and is also a matter that
could be inferred from the circumstance of distribution
during election as reasoned in the detailed discussion
made supra. It can be stated that corrupt practice in
terms of Section 123 of R.P. Act has been committed.
150. Noticee Smt. Sunanda
(i) As regards Smt.Sunanda23 notice was issued and
the allegations contained are extracted as herein below:-
"The nature of allegations made against you
and the evidence in that regard are briefly
mentioned as herein below:-
It is the case of the petitioner that you have
colluded with Respondent no.1 and have
committed corrupt practice of distributing Medi
Assist Insurance Policies by carrying out door to
door campaign during the election for the period
between 25.04.2018 to 11.05.2018. It is the
allegation made that though the policy was taken
prior to the nomination of the candidate, the
distribution was carried out in favour of
Respondent No.1 after the nomination of the
candidate was filed.
referred to as Smt.Sunandamma in the deposition by the parties/witnesses
The petitioner has led evidence by
examining Ramamani [PW-8] - It is stated in the
evidence affidavit of PW-8 that PW-8 is a resident
of Honnudike, Gulur, Tumkur and that Arehalli
Manjunath and Sunandamma who are from the
same village are the party workers of JDS Party
and supporters of Respondent No.1. It is further
stated that during 2018 General election, in the
month of April, Arehalli Manjunath and
Sunandamma visited the house of PW-8 and
informed her that they are the agents of
Respondent No.1and that respondent No.1 is
doing free health insurance policies to one child of
each electorate families of Tumkur Rural Assembly
Constituency and that they should cast their vote
in favour of Respondent No.1. It is also stated
that Arehalli Manjunath and Sunandamma
collected the details of daughter of PW-8. It is
further stated that two days prior to date of
pooling Arehalli Manjunath and Sunandamma
conducted door-to-door campaign and carried out
distribution of Medi Assist Policy Cards and lured
the residents to cast their vote in favour of
Respondent No.1. It is particularly stated that
Arehalli Manjunath and Sunandamma came to the
house of PW8 and handed over Medi Assist Policy
Bond bearing the name of the daughter of PW-8,
Poornima (Exhibit P.76) and informed PW-8 that
the amount towards insurance bond was paid by
Respondent No.1 and that incase if PW-8 or her
daughter Kum. Sinchana DM meets with an
accident or suffers any health issues the insurance
bond covers upto Rupees Ten Thousand and that
they can get treatment from any hospital without
making payment. It is further stated that the bond
was handed over in a cover containing cover
images of Respondent No.1 and his father D.C
Chennigappa, the then President of JDS Tumkur
District, Sri. Kumaraswamy, former Chief Minister,
Sri. Deve Gowda, former Prime Minister and the
Symbol of JDS Party along with manifesto of JDS
Party."
(ii) In response to notice issued under Section 99
of the R.P. Act, defence statement came to be filed
asserting that there was no sufficient pleading, that the
only evidence of Smt.Ramamani (PW8) is not sufficient,
that witness was a tutored witness, that the witness has
failed to establish that Smt.Sunandamma was JD(S)
Party worker.
(iii) Smt.Ramamani (PW8) has filed her evidence
by way of affidavit and is stated to be working as a cook
in a School. It is stated that she has a daughter by name
Poornima, studying in 9th Standard at Swarnamba
School. It is stated that Sri Arehalli Manjunath and
Smt.Sunandamma are from her village and belong to the
JD(S) Party. It is stated that they had come to her
house in the month of April 2018 and had stated that Sri
D.C.Gowrishankar was taking out free health insurance
for the benefit of the children and Smt.Sunandamma had
collected details of her daughter.
(iv) It is further stated that Sri Arehalli Manjunath
and Smt.Sunandamma had come to her house about
eight days prior to polling day and handed a bond
bearing the name of her daughter Poornima issued by
M/s New India Assurance Co. Ltd. It was requested to
vote for Sri D.C. Gowrishankar in the elections.
(v) The said witness has produced the following
documents:-
NAME OF WITNESS EXHIBITS MARKED
WITNESS EXAMINED AS
Ramamani PW - 8 Ex.P73 and Ex.P74 - Voters List
Ex.P75 - Daughter's Study Certificate
Ex.P76 - Medi Assist Card
Ex.P77 - Aadhar Card
Ex.P78 - Daughter's Aadhar Card
(vi) The documents assume a corroborative value
and would indicate as regards the details of the child
mentioned in the Medi Assist card to be correct.
(vii) It is specifically asserted during cross-
examination that Sri Arehalli Manjunath and Smt.
Sunandamma had distributed the policy. Despite minor
contradictions, no case is made out to discard the
evidence of PW8, though witness admits that there is
mistake regarding year of study furnished by the Head
Master. However, that by itself would not have the effect
of disbelieving the case put forward by PW8. Though it is
stated that witness has come to know that the bond was
fake, such discovery has been made only after the
elections.
(viii) The evidence of PW8 when read with the
evidence of other witnesses and in light of admissions
made regarding distribution of policy it can be stated that
Smt.Sunanda has committed a corrupt practice under
Section 123 of the R.P. Act. The giving of Medi Assist
card to the parent of the child during election time with
the express request for voting in favour of respondent
No.1 would fall within the definition of 'bribery' under
Section 123 of R.P. Act.
(ix) The contra evidence of the Noticee does not
have the effect of displacing the evidence led in by PW8
and accordingly, the Noticee Smt.Sunanda is also named
to have committed the corrupt practice.
151. Noticee Sri Krishnegowda
(i) As regards Sri. Krishnegowda notice was
issued and the allegations contained are extracted as
herein below:-
"The nature of allegations made against you and the
evidence in that regard are briefly mentioned as herein below:
It is the case of the petitioner that you have colluded
with Respondent no.1 and have committed corrupt practice
of distributing Medi Assist Insurance Policies by carrying out
door to door campaign during the election for the period
between 25.04.2018 to 11.05.2018. It is the allegation
made that though the policy was taken prior to the
nomination of the candidate, the distribution was carried
out in favour of Respondent No.1 after the nomination of
the candidate was filed.
The Petitioner has led evidence by examining
Mahadevaiah [PW-5] and D.R. Ramesh [PW-6] - It is stated
in the evidence affidavit of PW-5 that PW-5 is a resident of
Doddasarigipalya, Gulur, Tumkur and that Krishnegowda
and Renukamma who are from the same village are the
party workers of JDS Party and supporters of Respondent
No.1. It is further stated that during 2018 General election,
in the month of April, Krishnegowda and Renukamma
visited the house of PW-5 and informed him that they are
the agents of Respondent No.1and that Respondent No.1 is
doing free health insurance policies to one child of each
electorate families of Tumkur Rural Assembly Constituency
and that they should cast their vote in favour of respondent
No.1 and also collected the details of daughter of PW-5. It
is further stated that two days prior to date of pooling
Krishnegowda and Renukamma conducted door-to-door
campaign and carried out distribution of Medi Assist Policy
Cards and lured the residents to cast their vote in favour of
Respondent No.1. It is particularly stated that
Krishnegowda and Renukamma came to the house of PW-5
and handed over Medi Assist Policy Bond bearing the name
of the daughter of PW-5, Kum. Sinchana DM (Exhibit
P.63) and informed PW-5 that the amount towards
insurance bond was paid by Respondent No.1 and that
incase if PW-5 or his daughter Kum. Sinchana DM meets
with an accident or suffers any health issues the insurance
bond covers upto Rupees One to Two Lahks and that they
can get treatment from any hospital without making
payment.It is further stated that the bond was handed over
in a cover containing cover images of Respondent No.1 and
his father D.C Chennigappa, the then President of JDS
Tumkur District, Sri. Kumaraswamy, former Chief Minister,
Sri. Deve Gowda, former Prime Minister and the Symbol of
JDS Party along with manifesto of JDS Party.
PW-6 through his evidence affidavit has made out
similar allegations against Krishnegowda and Renukamma."
(ii) In response to the notice under Section 99 of
R.P. Act, the statement of objection has been filed by Sri
Krishnegowda. It is asserted that pleadings are not
sufficient, that the evidence of PW5 Mahadevaiah and PW6
Sri D.R.Ramesh of Doddasarangipalya are parrot like stories
and affidavits are identical.
(iii) It is submitted that the witness is tutored
witness and that PW5 and PW6 were falsely deposing at the
instance of the petitioner.
(iv) It must be noted that the pleading at para-33 of
election petition does indicate that there was distribution by
Sri Krishnegowda and if read in conjunction with pleading at
para -12, the assertion of distribution with consent has been
made out.
(v) The documents have been marked by PW.5 and
PW.6 to corroborate the issuance of Medi Assist cards which
are detailed as below:-
NAME OF WITNESS WITNESS EXHIBITS MARKED
EXAMINED AS
Mahadevaiah PW - 5 Ex.P60 and Ex.P61 - Voters List for
the year 2018, 2021
Ex.P62 - Daughter's Study Certificate
Ex.P63 - Medi Assist Card
Ex.P64 - Aadhar Card
Ex.P65 - Daughter's Aadhar Card
D.R. Ramesh PW - 6 Ex.P66 - Voter ID
Ex.P67 - Son's Study Certificate
Ex.P68 - Medi Assist Card
Ex.P69 - Aadhar Card
Ex.P70 - Son's Aadhar Card
(vi) These documents would demonstrate that the
details of the children of PW.5 and PW.6 tallies with the
description in the Medi Assist Policy.
(vii) The said witnesses have withstood testimony and
accordingly it can be stated that case is made out for
holding that the distribution of Medi Assist cards during the
election period was done with intention of enticement.
(viii) Accordingly, it is held that Sri. Krishnegowda is
guilt of corrupt practice under Section 123 of R.P. Act.
152. Noticee President, KMSS
(i) Insofar as the President, KMSS, the notice under
Section 99 of R.P. Act came to be issued calling upon the
Noticee, President of KMSS to reply to the show cause
notice as regards such of the allegations.
The nature of allegations made against you and
the evidence in that regard are briefly mentioned as
herein below:
The prime allegations made against a Society
by the name 'Kammagondanahalli Sri Maruthi Seva
Samithi' (KMSS) is that the Society formed by the
father of Respondent No.1, Sri. Chennigappa who was
also the then President of Tumkur JDS Party and that
the said society is essentially controlled and managed
by the family members of Respondent No.1, has
approached an insurance company by the name 'New
India Assurance Company Ltd' for group insurance
policies covering health risk of the students studying
in various institutions within the Assembly
Constituency from where Respondent No.1 was
nominated and that the Society has paid a sum of
Rs.6,00,000/- towards the premium. It is further
alleged in the petition that the said transaction was
serviced by Medi Assist Insurance TPA Pvt. Ltd., and
the policy bearing No.6710034170500000258 having
its validity for the period of 26.02.2018 to 25.02.2019
(see para 26 of the petition)
It is further alleged that KMSS having its
registered office at Bangalore North Taluk, Bangalore
and its administrative office situated at Nelamangala
Taluk, Bengaluru Rural District, the engineering
college which is managed and run by KMSS is
situated in Byranayakanahalli, TyamagondluHobli,
Nelamangala Taluk, also the school which it is running
is at Yelahanka, hence the area of operation and the
activities of KMSS is in Bangalore Rural District.
Whereas KMSS is not running any school in Tumkur
Rural Taluk, KMSS has not taken any such insurance
policy to cover the students either of Nelamangala
Taluk or of Yelahanka and the fact that KMSS has
chosen to cover 16000 students in 133-Tumkur Rural
Constituency is for the only reason to entice the
parents of insured children who are all voters in 133-
Tumkur Rural Constituency to vote for Respondent
No.1.
It is because the son of the President of KMSS is
contesting the election to the Karnataka Legislative
Assembly as a JDS candidate and that the society is a
family run society (the President's wife, the first
respondent's mother is the treasurer, the President's
another son who is the brother of the first respondent
is the Vice-President, the secretary is the son-in-law
of the President of KMSS and the brother-in-law of
Respondent No.1) and every one of them were
interested in furthering the cause of the Respondent
No.1 (see para 42 of the petition). It is further
asserted that in order to bribe the voters in the said
constituency and entice them to vote in favour of the
respondent no.1 they have applied to National
Insurance Company Ltd., for a Group Insurance (see
para 43 of the petition).
The above stated allegations are supported by
the Evidence affidavit of the Petitioner and Ramesh
Bettaiah (PW2).
Subsequently the brother of Petitioner got the
policies cancelled and upon such cancellation the
refund of premium amount was made to the bank
account of KMSS as per Ex. P.88 and P.90 series.
Reliance is placed on the email conversations
between Devendra Prasad.A (PW-11).Kittuswamy A.
(PW-10) who is the Regional Manager New India
Assurance Co. Ltd. has stated in his evidence that the
Flexi Group Mediclaim policy is insured in the name of
KMSS and that the premium was paid by cheque. The
adjustment voucher which records payment of
advance premium is marked as Ex.P.81.It is further
stated that a letter dated 07.05.2018 (Ex.P.86) is an
intimation sent to KMSS regarding cancellation of
Medi Assist Policies. Ex.P.90 series is identified by
PW-10 as payment vouchers which reflect refund of
premium consequent to the cancellation of policy and
the refund is made to KMSS.
Therefore, it is alleged that KMSS society
carried out corrupt practices by making payment for
the insurance policies in favour of children studying
within the constituency from which Respondent No.2
was nominated in order to entice the voters of the
constituency.
(ii) Essentially, the notice was issued in the context
of allegations made against KMSS, while noticing that
during the relevant period Sri C. Chennigappa, the father of
respondent No.1 was the President of KMSS. In the reply to
the said notice, Sri D.C.Venugopal has asserted that till Sri
D.C. Venugopal was appointed as the President Sri
C. Chennigappa, father of the respondent No.1 was the
decision making person. It was asserted that Sri
Chennigappa had informed Sri D.C.Venugopal that the
KMSS did not make any transaction or payment to M/s.New
India Assurance Co. Ltd., and that it was ORCF which had
made a request to provide data regarding the poor
students.
(iii) It is specifically brought out in the cross-
examination regarding Sri C. Chennigappa being Chairman
of KMSS since 1992 to October 2018. The relevant
deposition of Sri D.C. Venugopal is as follows:-
"My father was Chairman of KMSS Trust since
1992 to October 2018.... Before I became
Chairman of KMSS, my father was looking after
day-to-day affairs. My father was the Authorized
Signatory for the Bank Account between 2017 and
2018."
Thus, it becomes clear that Sri C. Chennigappa was
incharge of day-to-day affairs till 2018.
(iv) Insofar as the role of KMSS, the specific defence
is taken that respondent No.1 is not an office bearer.
(v) It is asserted that KMSS and M/s. New India
Assurance Co. Ltd., have no transactions amongst them. it
is averred that premium was paid by Sri T.L.Krishnamurthy,
Founding Trustee of ORCF and accordingly, there was no
involvement of KMSS. It is submitted that even on
cancellation, the KMSS has not received the refund which
was in fact received by another entity named KMSS.
(vi) It must be noted that Ex.P80 is on record and
the policy has been taken out in the name of KMSS.
Irrespective of who has paid the premium, the policy at
Ex.P80 would stand.
(vii) It must be noted that insofar as the distribution
of Medi Assist cards, despite Media reports regarding the
same as per Ex.P10(a) and Ex.P11(a), there was no effort
made by KMSS to distance itself from alleged action of
distribution of Medi Assist cards.
(viii) It is stated during cross-examination that except
Sri B.H. Munisiddappa, all persons mentioned in Ex.P6, list
of Executive Members are family members. Ex.P6 is the list
of Executive Committee Members and when Sri D.C.
Venugopal, who is the brother of respondent No.1 and
present President of KMSS was subjected to cross-
examination subsequent to notice issued under Section 99
of R.P. Act, insofar as the office bearers of KMSS are
concerned, he has deposed as follows:-
"Ex.P6 is the list of office bearers of KMSS for the
year 2017-18. All the persons mentioned in Ex.P6
are family members except B.H.Munisiddappa at
Sl.No.6 ... Apart from the list of office bearers in
Ex.P6, there are no other office bearers."
It is clear from the above that except Sri
B.H.Munisiddappa, all the members of Executive Committee
of KMSS are related. Therefore, all others are admittedly
the family members as per the say of Sri D.C.Venugopal
who being the present President of KMSS and there is no
reason to disbelieve such statement.
(ix) The proof of distribution of Medi Assist cards
pursuant to the policy at Ex.P80 and the timing of taking of
the policy and distribution of Medi Assist cards by other
persons as discussed supra would all point to action being
taken by KMSS to help respondent No.1 who was a family
member in the elections, which would be a presumption to
be drawn relating to the conduct of KMSS in accordance
with the natural human conduct in terms of Section 114 of
the Indian Evidence Act.
(x) The distribution by persons on behalf of
respondent No.1 by his consent has been proved through
circumstantial evidence as per the discussion at para- 113.
(xi) Accordingly, it could be concluded that evidence
would point out to the role of KMSS in the commission of
corrupt practice by facilitating the distribution of Medi Assist
cards and not taking any steps to distance itself from such
distribution. It cannot be lost sight of that the question of
distribution of Medi Assist cards arose only consequent to
the taking out of Medi Assist Policy as per Ex.P80 in the
name of KMSS. The circumstances read in its entirety
would indicate that the distribution of Medi Assist cards was
with the consent of KMSS. Though respondent No.1 and
RW2 have taken the specific stand that there was MoU
between KMSS and ORCF, the same has not been produced
and the Noticee Sri D.C.Venugopal merely denies existence
of such MoU and cannot be believed in light of the specific
stand by respondent No.1 and RW2, which evidence
outweighs that of Sri D.C. Venugopal. The fact that the
Noticee admits that resolution was passed by KMSS for
collection of information and giving information to ORCF
would indicate that there was a relationship between the
two, but the burden was upon KMSS to establish that
beyond providing for information, there was no other
understanding between KMSS and ORCF. That burden has
not been discharged. No steps are taken to summon the
MoU stated to be in possession of Police Authorities as is
revealed by RW2 and in the absence of taking steps to
summon the said MoU from custody of the Authorities, an
adverse inference could be drawn under Section 114 of
Indian Evidence Act that steps were not taken to obtain
such MoU, as it would go against the Noticee.
(xii) The evidence and material on record would
indicate that KMSS has stood by and did not distance itself
from the distribution of Medi Assist cards which was in the
name of KMSS. It can be stated that KMSS has been an
accessory and played a part in the entirety of the design of
commission of corrupt practice.
(xiii) However, as the KMSS is represented by Sri D.C.
Venugopal as its President, who has specifically stated that
Sri C. Chennigappa was incharge of all affairs till October
2018 noticing that all acts attributable to KMSS have been
conducted prior to October 2018, in light of death of Sri C.
Chennigappa, it would be impermissible to name Sri D.C.
Venugopal in terms of Section 99 of the R.P. Act so as to
inflict harsh penalties that may flow from naming Sri D.C.
Venugopal.
(xiv) It is clarified that the effect of not naming the
President only due to the technical reasons as stated above,
that would not water down the finding made in the main
proceedings against KMSS. Section 99 proceedings are
limited to the naming of the person. In the case of KMSS,
as it is a separate entity, the question of naming would be
of the person incharge at the relevant period of time.
Though the role of KMSS has been affirmed as an accessory
in the commission of corrupt practice, however, there is no
sufficient material to name Sri D.C. Venugopal, as material
reveals that it was Sri C. Chennigappa was incharge of the
proceedings at the relevant point of time.
(xv) The sending of notice under Section 99 of R.P.
Act was specifically with respect to the President of KMSS
and in light of facts made out, no case is made out as
regards naming of present President Sri D.C. Venugopal.
153. After having recorded the findings on the issues,
it is clear that case is made out for declaring the election of
respondent No.1 as void in terms of Section 100(1)(b) of
R.P.Act. No grounds are however made out for declaring
the petitioner to be elected. Further, as discussed, no
grounds have been made out in terms of Section 100(2) of
the R.P. Act so as to refrain from declaring the election
void, despite respondent No.1 being guilty of commission of
corrupt practice by virtue of acts done, found to be done
with his consent.
154. In light of the above discussion and findings on
the issues the following:-
Order
(a) The election of the returned candidate
Sri D.C. Gowrishankaraswamy, Member of
Legislative Assembly, No.133 - Tumkur Rural
Assembly Constituency having been declared
elected as per Form-21C dated 15.05.2018 is
hereby declared to be void.
(b) The following persons are named in
terms of Section 99(1)(a)(ii) of the R.P. Act for
having committed corrupt practice at the
election, viz., Sri Palanethraiah. G, Sri Arehalli
Manjunath, Sri Krishnegowda, Smt.Renukamma
and Smt.Sunanda (Noticees);
(c) The Registrar to comply with the
mandate under Rule 19 of the Election Petitions
Procedure Rules, Karnataka.
Accordingly, the Election Petition is allowed in part.
Sd/-
JUDGE
NP/VGR
ANNEXURE
LIST OF WITNESSES EXAMINED ON BEHALF OF PETITIONER
PW-1 : B. Suresh Gowda
PW-2 : Ramesh Bettaiah
PW-3 : Lakshminarayana V.N.
PW-4 : Gopalaiah
PW-5 : Mahadevaiah
PW-6 : D.R. Ramesh
PW-7 : Narasimha Murthy
PW-8 : Ramamani
PW-9 : R. Rangaswamy
PW-10 : Kittuswamy. A
PW-11 : Devendra Prasad. A
PW-12 : Rangadamappa. C
LIST OF EXHIBITS MARKED ON BEHALF OF PETITIONER
Ex. P1 : Copy of the News item declaring Respondent No.1 as
JDS candidate to contest from Tumkur Rural Constituency No.133
Ex. P2: Certified copy of the declaration of result in Form No. 21C
Ex. P3: Certified copy of Form No.12E
Ex. P4: Certified copy of Affidavit of the petitioner filed before the election
authority
Ex. P5: Certified copy of the bye laws of the Kammagondanahalli Sri
Maruthi Seva Samithi
Ex. P6: Certified copy of the names of the Executive Committee
Kammagondanahalli Sri Maruthi Seva Samithi
Ex. P7: Screenshot of the Facebook account of Respondent No.1
Ex. P8: Screenshot of photograph posted by Respondent No.1 in his
Facebook page.
Ex. P9: Screenshot of photograph on the statement of Sri. Chennigappa
about providing 1000 free seats in the engineering college run
by the Kammagondanahalli Sri. Maruthi Seva Samithi
Ex. P10: Prajavani newspaper dated 09.05.2018.
Ex.P.10(a): Copy of news item published in Prajavani newspaper on
09.05.2018
Ex. P.11 :Prajavani newspaper dated 11.05.2018
Ex.P.11(a): Copy of news item published Prajavani newspaper on
11.05.2018
Ex. P.12: Tumakur Varthe newspaper dated 12.05.2018
Ex.P.12(a): Copy of newspaper Tumakur Varthe, dated 12.05.2018
Ex. P13: Certified copy of Order sheet in C.C No.2797/2013
Ex. P13(a): Certified copy of FIR in C.C.No.2797/2013
Ex. P13(b): Certified copy of Complaint dated 07.04.2013 in C.C
No.2797/2013.
Ex. P13(c): Copy of the PF No. 15-2013
Ex. P13(d): Copy of the Amanath Panchanama
Ex. P13(e): Copy of the Chargesheet along with statement of witness in
C.C 2797/2013
Ex. P13(f): Copy of the Indemnity Bond
Ex. P14: Copy of the Notification of Election Commission of India along
with Calendar of events
Ex. P15: Certified copy of the Voter's List 2013
Ex. P15(a): relevant portion of the Voters List bearing Serial Nos. 491-510
Ex. P16: Copy of the RTI application endorsement dated 12.03.2021
Ex. P17: Copy of the order sheet in C.C. No.2493/2018
Ex. P18: Copy of the Application filed in C.C No.2493/2018
Ex. P19: Copy of the FIR in Crime No.97/2018(C.C.No.2493/2018)
Ex. P20: Copy of requisition by the I.O dated 03.04.2018
Ex. P21: Copy of P.F No. 25/2018
Ex. P22: Copy of the Seizer Panchanama
Ex. P23: Copy of the chargesheet in C.C No.2493/2018
Ex. P23(a)
to
Ex. P23(BD): Copy of the Medi Assist cards issued by M/s.New India
Assurance Co. Ltd.
Ex. P24: Copy of Pen drive containing video recording facebook page
of respondent relating to the contents in Ex.P9
Ex. P25: Copy of Pen drive containing video footage uploaded on
respondents facebook page on 27.04.2018
Ex. P26: Copy of the PF No 31/2018
Ex. P27: Copy of the chargesheet dated 06.07.2018 bearing No.47/2018
Ex. P28: Copy of the order sheet in C.C. No.3079/2018
Ex. P29: Copy of the vehicle release application in C.C No.3079/2018
Ex. P30: Copy of the charge and accused statement in C.C No. 3079/2018
Ex. P31: Copy of application filed in Crime No.0073/2018
Ex. P32: RTI endorsement relating to furnishing list of election agents
Ex. P32(a): Copy of counting agents
Ex. P33: Copy of the Email Sent by PW 2 on 07.04.2018 to Smt. Jyothi
K.S Incharge of Customer Care and Vigilance of IRDAI.
Ex. P34: Copy of the Email Sent to PW 2 by Radhika M.A., Officer of
M/s.New India Insurance Company Ltd. And Copies marked to
various officers of M/s. New India Insurance Company Ltd.
Ex. P35: Copy of the Email addressed by Jyothi K.S to Shanmugam N,
Preetha. S and Radhika M.A.
Ex. P36: Copy of the Email dated 20.04.2018 by P.W.2 to Devendra
Prasad, and copies to Preetha. S and Jyothi K.S. seeking
vigilance team Report.
Ex. P37: Copy of follow up Email sent by P.W. 2 on 28.04.2018 to
Devendra Prasad A, Radhika M.A. and other officers.
Ex. P38: Copy of Email sent by P.W.2 on 01.05.2018 to officers of New
India Assurance Company Ltd. And officers of Election
Commission of Karnataka.
Ex. P39: Copy of Email forwarded by Nagaraj N.R. to other officers of
Election Commission related to email sent on 01.05.2018.
Ex. P40: Copy of follow up Email sent by P.W.2 dated 03.05.2018
addressed to Election Commission of Karnataka and officer of
M/s.New India Assurance Co. Ltd.,
Ex. P41: Copy of the Email sent by P.W.2 on 08.05.2018 to Preetha .S,
Devendra Prasad .A and other officer of New India Assurance
Co. Ltd.,
Ex. P42: Copy of Email received by P.W.2 from Preetha S on 08.05.2018
Ex. P43: Grievance Complaint raised by P.W.2 under Ministry of Finance.
Ex. P44: Grievance registered under with PMO 1193 bearing No.
PMOPG/E/2018/0320062 on 01.07.2018
Ex. P44(a): The attached copy of Ex. P44 produced by P.W.2
Ex. P45: Copy of the Complaint made by P.W.2 bearing No.
PMOPG/D/2018/0283030.
Ex. P46: Letter dated 01.09.2018 addressed by the Additional Chief
Secretary to the Government which is addressed to the CBI
transferring the P.W.2's Grievance Petition.
Ex. P47: Letter received by P.W.2 on 23.01.2019 from Shivakumar .R.
Chief Vigilance Officer of M/s New India Assurance Co. Ltd.
Mumbai
Ex. P48: Endorsement by Circle Inspector Tumkur Rural Circle,
Tumakuru on 01.12.2018 on P.W.2's complaint.
Ex P49: Certified copy of Voter's List for the year 2018 denoting
name of Mr. Lakshminarayana, SI No.145 of the said list.
Ex P50: Certified copy of Voters List for the year 2021, denoting
name of Mr. Lakshminarayana, SI No.174 of the said list.
Ex P51: Certified copy of Study Certificate of Sri. Yashwanth Gowda V. L
Ex P52: Certified copy of Medi Assist Card containing the name of
Yashwanth Gowda V.L
Ex P53: Certified copy of Aadhar of Lakshminarayana V.S.
Ex P54: Certified copy of Aadhar of Yashwanth Gowda V.L
Ex P55: Certified copy of Voter ID of Gopalaiah.
Ex P56: Certified copy of Study Certificate of Nirmala G.
Ex P57: Certified copy of Medi Assist Card Containing the name of
Nirmala G.
Ex P58: Certified copy of Aadhar of Gopalaiah
Ex P59: Certified copy of Aadhar of Nirmala G.
Ex P60: Certified copy of Voter's list, 2018.
Ex P61: Certified copy of the Voter's list, 2021 denoting the name of Sri.
Mahadevaiah.
Ex P62: Certified copy of Study Certificate of Sinchana DM.
Ex P63: Certified copy of Medi Assist Card containing name of
Sinchana DM.
Ex P64: Certified copy of Aadhar of Mahadevaiah
Ex P65: Certified copy of Aadhar of Sinchana DM.
Ex P66: Certified copy of Voter ID Card of Sri. D.R Ramesh
Ex P67: Certified copy of Study Certificate of Rahul R.
Ex P68: Certified copy of Medi Assist Card containing name of Rahul R.
Ex P69: Certified copy of Aadhar of D.R Ramesh
Ex P70: Certified copy of Aadhar of Rahul R.
ExP71:Certified of copy of Voter I.D. of Narasimha Murthy.
Ex P72: Certified copy of Aadhar of Narasimha Murthy.
Ex P73: Certified copy of the Voter's list, 2018, denoting the name of
Ramamani.
Ex P74: Certified copy of Voter's list, 2021 denoting name of Ramamani
Ex P75: Certified copy of the Study Certificate of Poornima.
Ex P76: Certified copy of Medi Assist Card containing name of Poornima.
Ex P77: Certified copy of Aadhar of Ramamani
Ex P78: Certified copy of Aadhar of Poornima.
Ex P79: Certified copy of complaint made by R.Rangaswamy to Police
Sub-Inspector Tumakur Rural Police Station.
Ex P80: Certified copy of Medi Assist Policy denoting the name of insured
as Kammagondanahalli Sri Maruthi Seva Samithi.
Ex P81: Certified copy of Adjustment Voucher
Ex P82: Certified copy Advance Premium Deposit Receipts
Ex P83: Certified copy of Advance Premium Deposit Receipt
Ex P84: Certified copy of Advance Premium Deposit Receipt
Ex P85: Certified copy of Advance Premium Deposit Receipt
Ex P86: Certified copy of Intimation of cancellation of Medi Assist Policy
sent to KMSS
Ex P87: Certified copy of Policy cancellation documents.
Ex P88: Certified copy of refund endorsement
Ex P89: Certified copy of Nil endorsement
Ex P90: Certified copy of Refund Payments Voucher
Ex P90(a): Certified copy of refund excess Voucher.
Ex P90(b): Certified copy of Email dated 21.06.2018 denoting refund
after policy cancellation.
Ex P90(c): Certified copy of letter dated 26.06.2018 denoting refund of
policy cancellation.
Ex P90(d): Certified copy of table denoting names of account holder to
whom the premium was refunded.
Ex P90(e): Certified copy which contains details of amount and beneficiary
name and the payment overview.
Ex P90(f): Certified copy of the policy cancellation documents dated
08.05.2018.
Ex P91: Certified copy of Email dated 05.03.2018 handed over by
Devendra Prasad.A.
Ex P92: Certified copy of Email sent by Preetha S to Devendra Prasad.
Ex P93: Certified copy of Bank Statement of New India Assurance Co.Ltd.,
Ex P94: Certified copy of complaint
Ex P95: Signature on Panchanama at Serial No.1
Ex. P96: Certified copy of the Crl.P. No.3821/2020
Ex. P97: Certified copy of order dated 10/11/2020 in Crl.P.No.3821/2020
Ex. P98: Certified copy of FIR in Crime No.No.128/2020
Ex. P99: Certified copy of SLP (Crl.)No.6515/2020
Ex. P100:Certified copy of Apex Court order dated 22/01/2021 passed
SLP (Crl.) No.6515/2020.
Ex. P101: Certified copy of the sale deed dated 03/02/2020
Ex. P102: Certified copy of Pamphlet
Ex. P103: C.D. containing the video clip
Ex. P104: Certified Copy of Index of Charge sheet in Crime No.128/2020
Ex. P105: Certified copy Gazette notification dated 02/05/2018
Ex. P105 (a): Certified copy Page of No.262 of Gazette notification dated
02/05/2018 showing list of contesting candidates in
133- Tumkur Rural Constituency, 2018
Ex.P106: Certified copy of Medi Assist Policy along with policies relating to
500 students
Ex.P107: Voluntary Statement of Kishore Varadachar in Cr.No.128/2020
Ex.P108: Further voluntary statement of Kishore Varadachar in
Crime No.128/2020
Ex.P109: Certified copy of statement of accounts of Krishnamurthy T.L.
Ex.P110: Certified copy of vakalathnamma by Kishore Varadachar,
Gowramma & Ananthu in Spl.CC. No.1407/2021
Ex.P111: Certified copy of Order sheet in NCR No.104/2020
Ex.P112: Certified copy of charge sheet in Crime No.13/2014
Ex.P113: Certified copy of FIR in Crime No.106/2020
Ex.P113(a): Certified copy of charge sheet in Crime No.106/2020
Ex.P114: Certified copy of screen shot of photo recognizing
Gowramma along with certified copy of Section 65-B certificate
LIST OF WITNESSES EXAMINED ON BEHALF OF RESPONDENTS
RW-1 : Gowrishankara Swamy D.C.
RW-2 : Kishore Varadachari
RW-3 : Rangaswamy
LIST OF EXHIBITS MARKED ON BEHALF OF RESPONDENTS
Ex.R1: Certified copy of list of contesting candidates to Karnataka
Legislative Assembly 133 Tumkur Rural Constituency
Ex.R2: Certified copy of Statement of Accounts for the period from
28/02/2018 to 25/03/2018 of Krishnamurthy T.L.
Ex.R3: Certified copy of Email sent by Devendra Prasad A to
Ramesh Bettaiah dated 20 April 2018 281.
Ex.R4: Certified copy of order dated 17.09.2019 in Crl.P. No.6604/2019
Ex.R5: Certified Copy of report dated 10/12/2018, submitted by Tumkur
Rural Police to Superintendent of police, Tumkur District, Tumkur
Ex.R6: Certified copy of statement of Devendra Prasad. A
Ex.R7: Certified copy of statement of Kishore Varadachari.
Ex.R8: True copy of Email sent by Krishna of One Rupee charity
foundation to Devendra Prasad dated 07/02/2018
Ex.R9, 9(a), 9(b), 9(c): Certified copy of the Release Deed dated
19/05/2007
Ex.R10: Certified copy of order dated 21.09.2021 in Crl.P.No.86/2020
Ex.R11: Certified copy of voters list of 181-Nelmangala
Ex.R12: Certified copy of voters list of Tumkur Rural Legislative Assembly
Ex.R13, (a), (b), (c), (d), (e), (f): Certified Copy of Trust Deed of One
Rupee Charity Foundation dated 01 July 2013
Ex.R14: Tailor Made Group Mediclaim Policy
Ex.R14(a): Tailor Made Group Mediclaim Policy
Ex.R14(b): Tailor Made Group Mediclaim Policy
Ex.R14(c): Tailor Made Group Mediclaim Policy
Ex.R14(d): Tailor Made Group Mediclaim Policy
Ex.R15: Medi Assist Policy issued to KMSS
Ex.R15(a): Medi Assist Policy issued to KMSS
Ex.R16 & R16(a): Cardless claim dated 14.04.2018 made by student
Ex.R17: School Record Certificate dated 17/03/2022
Ex.R18: School Record Certificate dated 17/03/2022
Ex.R19: Aadhaar card of Rangaswamy
Ex.R20: Voters' list of Mallasandra Door no.1 to 414
Ex.R21: Medi Assist Policy issued to KMSS
Ex.R22: Medi Assist Policy issued to KMSS
LIST OF NOTICEES
1. Arehalli Manjunath
2. Renukamma
3. Sunanda
4. Palanethraiah
5. Krishnegowda
6. President, KMSS
LIST OF EXHIBITS MARKED ON BEHALF OF NOTICEES
EXHIBITS MARKED BY PALANETHRAIAH
Ex. S1, 2, 3 and 4: Photographs along with 65B Certificate
Ex. S5: Voters List, 2016 of Bhyrasandra Village
Ex. S5(a): Entry at No. 773 of the voters List at Ex. S5.
Ex. S6: Voters List, 2-18 of Bhyrasandra Village
Ex. S6(a): Entry at No. 746 of the Voters' List at Ex. S6
Ex. S7: Voters List, 2023 of Bhyrasandra Village
Ex. S7(a): Entry at No. 792 of the Voters' List at Ex.S7
Ex. S.8: FIR in Crime No.0149/2017 along with Complaint.
Ex. S.9: FIR in Crime No.0147/2017 along with Complaint.
Ex. S10: FIR in Crime No.0165/2022 along with Complaint.
Ex. S11 - Screenshot of Facebook Post
EXHIBITS MARKED BY SUNANDA
Ex. S12: Voters List, 2018 of Honnudike Village
Ex. S13: Entry at No. 790 in Voters List, 2023 of Honnudike Village
EXHIBITS MARKED BY KRISHNEGOWDA
Ex. S14: Signature of Krishnegowda on affidavit dated 14.12.2022.
Ex. S15: FIR in crime No.0298 dated 24.09.2008 along with Complaint
EXHIBITS MARKED BY RENUKAMMA
Ex. S16:Signature of Renukamma on Evidence Affidavit dated 18.01.2023.
Ex. S17: Voters list, 2023 of Gulaharive Village
Ex. S18: Entry at No. 295 at Ex. S.17.
Ex.S19: Cover containing photographs of respondent No.1 and others.
EXHIBITS MARKED BY AREHALLI MANJUNATH
Ex. S20: Signature of Arehalli Manjunath in Evidence Affidavit dated
18.01.2023
EXHIBITS MARKED BY PRESIDENT, KMSS
Ex. S21: Signature of D.C. Venugopal on evidence affidavit dated
23.01.2023
Ex. S22: Statement of Accounts of KMSS from 01.04.2017 to 31.03.2018,
obtained from Axis Bank
Ex. S23: Statement of Accounts of KMSS from 442-44 01.04.2018 to
31.03.2019, obtained from Axis Bank
Ex. S24: Audit report of KMSS for the year ending 31.03.2018.
Ex. S24(a): The Income & Expenditure Account for the year ending
31.03.2018 at page 21.
Ex. S24(b): Relevant Receipts & Payments Account for the year ending
31.03.2018 at page 25.
Ex. S25: Audit report of KMSS for the year ending 31.03.2019.
Ex. S25(a): Total amount in Balance sheet for the year ending 31.03.2019
at page 31.
Ex. S25(b): Total amount in Balance sheet for the year ending 31.03.2019
at page 40.
Ex. S25(c): Income & Expenditure Account for the ear ending 31.03.2019
at page 32.
Ex. S25(d): Income & Expenditure Account for the year ending 31.03.2019
at page 41.
Ex. S25(e): Receipts & Payments Account for the year ending 31.03.2019
at page 30.
Ex. S25(f): Receipts & Payments Account for the year ending 31.03.2019
at page 39.
Ex. S26: Certified copy of Account Statement in Form 10(B) for
the year ending 31.03.2018 obtained from the Office of the
District Registrar of Societies
Ex. S26(a): Income & Expenditure Account for the year ending 31.03.2018
at page 10.
Ex. S26(b) :Relevant pages of Receipts & Payments Account for the year
ending 31.03.2018 at page -9
Ex. S27: Certified Copy of audit report of KMSS for the year ending
31.03.2019 as filed before the Registrar of Societies.
Ex. S27(a): Entry relating to Total Amount of Ex. S27 at page 27.
Ex. S27(b): Income & Expenditure Account for the year ending 31.03.2019
at page 28.
Ex. S27(c): Witness's signature in the Receipts & Payments Account for
the year ending 31.03.2019.
Ex. S28: Statement of Mr. D. C. Venugopal before Tumkur Rural Police
dated 03.03.2021.
Ex. S29: List of office bearers of KMSS for the years 2018-2019, 2019-
2020, 2020-2021, 2021-2022.
Ex. S30: Form No.6 filed by D C Venugopal for transferring voters list.
Sd/-
JUDGE
NP/VGR
