TaxTMI 
TaxTMI 
1996 (2) TMI 539
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....and which found favour with the High court could be stated by setting out ground (B) as given in the Election Petition : "B. Similarly large number of other void votes have also been illegally cast and received at the time of the polling which took place on the 12th June, 1991 to the Edakkad Assembly Constituency. In the voters' list, the names of some persons who are one and the same but whose names have been entered more than once in the voters' list with intentional slight difference in the House No. with variation in the description of their names, in their father's/husband's names etc. Taking into advantage that position more than one vote has been cast in the names of such persons. Under section 62 of the Representation of the People Act, 1951, no person shall at any election vote in the same constituency more than once and, if he does so vote, all his votes in that constituency shall be void. The petitioner respectfully submits that persons whose names and other details are mentioned in the list, produced along with as Annexure-B to the petition, have exercised more than one votes in the election aforesaid to the Edakkad No.11 Assembly Constituency. Si....
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....These votes have to be searched out and excluded from the total number of votes." In order to find out the candidate in whose favour those votes have been cast, the learned Judge overruling the objection raised by the learned counsel for the appellant/elected candidate that the suggestion to open the ballot boxes to examine the ballot papers would violate the secrecy of the ballot, ordered for opening of the ballot boxes to examine the ballot papers for the purpose mentioned above. This job was entrusted to the joint Registrar of the High Court who after verification found out of 308 vold/ invalid votes, (namely 269+39) 306 of such votes have been polled in favour of the appellant/elected candidate. In view of the said report given by the joint Registrar, the learned Judge found that those 306 votes counted in favour of the elected candidate must be deducted and after so doing, the Appellant/Elected candidate was found to have secured only 54659 which is less than 8/ votes secured by the Election Petitioner (first respondent herein). As a consequence of this finding while setting aside the election of the appellant as void, the learned judge further declared the first respond....
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..... 711 is not my signature." On the above evidence the conclusion of the learned judge is as follows : "According to PW53 she had cast only one vote No.142. The corresponding counterfoil is marked as Ext. P 711. When this was confirmed to the witness she denied the signature therein. Ext. P 712 is the counterfoil corresponding to voter No.239. The signature in Ext. P 711 and Ext. P 712 are almost similar. There is slight variation. But that does not affect the petitioner's case, as the signature in Ext. P 712 is exactly similar to the signature put by the witness in the deposition. Therefore, it is clear that voter No. 142 and 239 in Ext.P60 is one and the same person and that voter has cast more than one vote. In the result. I declare that vote cast against counterfoil No. 070975 (Ext.P. 711) of polling station No. 69 and the vote case against counterfoil No. 070258 (Ext.P.712) and polling station No.69 are void." In another instance the learned Judge held as follows : "The signature of the witness in the deposition does not tally with the signature found in these two counterfoils. On a comparison of the signature in Ext.P 713 and P 714 I have little ....
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...., but he denies that he is voter No.47 in one Balakrishnan Chathukutty Nambiar and according to this witness his father is not Chathukutty Nambiar and that he belongs to Thiyya community. But it is pertinent to note that in Ext.P.50 voter No.1192 is shown as resident of house No.245. In the original voters' list of polling station No.50, house No. 245 is described as krishnalayam and voter No. 642 is one L. Krishnan Nambiar. P.W.146 is not in a position to explain as to how his name happened to be included as a resident of the house of krishnan Nambiar. So even in the admitted entry there is voter No. 1192 in Ext.P 50. The corresponding counterfoil is marked as Ext. P 937. Even though the witness denies his signature therein, that is to be taken as his admitted signature as it corresponds with his admitted entry. The signature in Ext. P 937 is strikingly similar to the signature in Ext. P 36 counterfoil. So, it is clear that the person who put the signature in Ext. P 937 must have put the signature in Ext. P 936 also. Therefore, it is proved that there is not only similarity in the name but there is close similarity between the two signatures also. So, I hold that P.W. 146 had ....
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....s to set aside the election of a candidate, the appellant herein. The learned Judge in the course of the judgment has observed as follows : "Most of the witnesses either denied their signatures or expressed their inability to indentify their signatures. In the case of some well-educated persons when counterfoils containing the signature were shown to them, they stated that they could not identify the signatures. Every reasonable prudent person would be able to identify his signature whenever the signature is shown to him." Notwithstanding the above fact, namely, the learned Judge while doubting the testimony of the witnesses, instead of confronting them in a legal way to get the truth, jumped to his own conclusion. The learned judge in the course of appreciating the scope of Section 73 of the Evidence Act and having given a finding that under Section 73 of the Evidence Act a disputed signature could be compared only with the admitted signatures, proceeded to compare the signatures found in the counterfoils to find out whether both the signatures were to be by the same person. On the peculiar facts of this case, the learned Judge erred in taking upon himself the task ....
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....preme Court in a criminal case while considering the question whether the accused had committed the offence of forgery and chearing. In Fakhruddin vs. State of Madhya Pradesh (AIR 1967 SC 1326), the Supreme Court observed that comparison of the handwriting by the court with the other documents not challenged as fabricated, upon its own initiative and without the guidance of an expert is hazardous and inconclusive. These observations were made in the facts and circumstances of such case. But, in the instant case, comparison of the signature found in the counterfoil are made to ascertain whether both signatures were put by the same person." *********************************** "In the instant case, several witnesses who are alleged to have exercised their franchise more than once admitted that their names have been included in the electoral roll. They would say that they cast only one vote. In cases where their names are entered more than once in the electoral roll these witnesses admitted one entry and denied the other. The counterfoil corresponding to the admitted entry in the electoral roll must contain the signature of the voter. Even though this signature has also b....
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....own by this Court in AIR 1979 SC 14 (supra) on the ground that it was not a criminal case or taking upon himself the hazardous task of adjudicating upon the genuineness and authenticity of the signatures in question even without the assistance of a skilled and trained person whose services could have been easily availed of. Annulling the verdict of popular will is as much a serious matter of grave concern to the society as enforcement of laws pertaining to criminal offences, if not more. Though it is the province of the expert to act as judge or jury after a scientific comparison of the disputed signatures with admitted signatures, the caution administered by this Court is to the course to be adopted in such situations could not have been ignored unmindful of the serious repercussions arising out of the decision to be ultimately rendered. To quote it has been held in AIR 1979 SC 14 (supra) ; "The matter can be viewed from another angle also. Although there is no legal bar to the Judge using his own eyes to compare the disputed writing with the admitted writing, even without the aid of the evidence of any handwriting expert, the Judge should, as a matter of prudence and cauti....