TaxTMI 
TaxTMI 
TaxTMI 
2010 (2) TMI 1130
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....er, 2004. The appellant contested the elections as a candidate of NCP- Congress -- R.P.I. alliance, whereas the respondent contested the election as a Shiv Sena -- Bharatiya Janta Party alliance candidate. Out of a total of 1,35,063 votes cast in the election, while the respondent secured 67,556 votes, the appellant could manage 47,593 votes. Resultantly, the respondent was declared elected. 3. Not being satisfied with the election result, the appellant preferred an election petition, challenging the election on several grounds and for declaring the said election to be void in terms of Sections 100(1)(b), 100(1)(d)(ii) and 100(1)(d)(iv) of the Act, with consequential relief of declaring the appellant as elected in terms of Section 101(b) of the Act. 4. The election petition was contested by the respondent denying all the allegations. It was pleaded that the election petition was not maintainable inasmuch as it was not in the prescribed format; no details of the communal appeals allegedly made by respondent and his agents were mentioned in the petition; certified copies of the VHS Cassette and its transcript, containing the speeches delivered by the respondent, had not been furnis....
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....ction was sufficient and no further evidence was required to be adduced to prove as to how the said cassette was obtained by the appellant. It has been observed that even in the affidavit filed by the appellant, in lieu of examination-in-chief, there is no mention of the said cassette and that it had been obtained from the office of the Election Commission on payment of requisite charges for the same. The Tribunal has also found that the transcripts produced by the appellant have not been proved to be those of the original audio recordings. The Tribunal finally held that since the contents of the cassette and the transcripts had not been proved, the allegation of the appellant that the respondent had indulged in corrupt practices by appealing to the Maratha community to vote on the basis of community, could not be accepted. On Issue No.2, the Tribunal has observed that apart from the fact that there are no specific pleadings in the election petition with regard to the claim of the respondent about the work done by him and the alleged threats by him in publication "Deshdhoot", the appellant had failed to adduce any evidence to prove that the claims made by the respondent in the spec....
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....short question for consideration is whether the Tribunal was justified in discarding the cassette placed on record by the appellant to prove the allegation of appeal by the respondent to the voters to vote on communal ground, amounting to a corrupt practice within the meaning of Section 123(3) of the Act? 11. Before we proceed to examine the controversy at hand, we deem it necessary to reiterate that a charge of corrupt practice, envisaged by the Act, is equated with a criminal charge and therefore, standard of proof therefor would not be preponderance of probabilities as in a civil action but proof beyond reasonable doubt as in a criminal trial. If a stringent test of proof is not applied, a serious prejudice is likely to be caused to the successful candidate whose election would not only be set aside, he may also incur disqualification to contest an election for a certain period, adversely affecting his political career. Thus, a heavy onus lies on the election petitioner to prove the charge of corrupt practice in the same way as a criminal charge is proved. 12. Explaining the nature and extent of burden of proof in an election trial involving a charge of corrupt practice, in Ra....
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.... an election petition though within the realm of civil law is akin to trial on a criminal charge. Two consequences follow. Firstly, the allegations relating to commission of a corrupt practice should be sufficiently clear and stated precisely so as to afford the person charged a full opportunity of meeting the same. Secondly, the charges when put to issue should be proved by clear, cogent and credible evidence. To prove charge of corrupt practice a mere preponderance of probabilities would not be enough. There would be a presumption of innocence available to the person charged. The charge shall have to be proved to the hilt, the standard of proof being the same as in a criminal trial. (iii) The Appellate Court attaches great value to the opinion formed by the trial Judge more so when the trial Judge recording findings of fact is the same who had recorded the evidence. The Appellate Court shall remember that the jurisdiction to try an election petition has been vested in a Judge of the High Court. Secondly, the trial Judge may have had the benefit of watching the demeanour of witnesses and forming first-hand opinion of them in the process of evaluation of evidence. The Suprem....
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....ls with documentary evidence. Section 61 thereof lays down that the contents of documents may be proved either by primary or by secondary evidence. As per Section 62 of the Evidence Act, primary evidence means the document itself produced for the inspection of the Court. Section 63 categorises five kinds of secondary evidence. Section 64 lays down that documents must be proved by primary evidence except in the cases mentioned in the following Sections. To put the matter briefly, the general rule is that secondary evidence is not admissible until the non-production of primary evidence is satisfactorily proved. However, clause (e) of Section 65, which enumerates the cases in which secondary evidence relating to documents may be given, carves out an exception to the extent that when the original document is a "public document" secondary evidence is admissible even though the original document is still in existence and available. Section 74 of the Evidence Act defines what are known as "public documents". As per Section 75 of the Evidence Act, all documents other than those stated in Section 74 are private documents. There is no dispute that certified copy of a document issued by the E....
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....the documents along with the written submissions without exhibiting them at the trial would be sufficient for the Court to look into those documents as they were not in evidence and the defendant had no opportunity to reply to those documents. The Petitioner has not proved the receipt issued by the election commission's office and has thus failed to prove that the VHS Cassette was a public document. That being the position, it is not possible to rely on the contents of the VHS cassette." Thus, observing that the appellant had failed to produce even the receipt stated to have been issued by the Election Commission's office, the Tribunal held that mere production of the cassette with the Election Petition would not lead to the inference that it had been produced in evidence and being a public document, it was not required to be proved. Having perused the material on record, we are in complete agreement with the Tribunal that in the absence of any cogent evidence regarding the source and the manner of its acquisition, the authenticity of the cassette was not proved and it could not be read in evidence despite the fact that the cassette is a public document. No relevant materi....