GOVIND SINGH v. HARCHAND KAUR

396 SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.

A candidate as she had been meeting the appellant as a Minister in the official meetings. Thus, this witness can clearly be treated as an independent witness who has not supported the case of the respondent in regard to distribution of pension at the hands of the appellant. B

58Copy pinpoint58. Similarly PW-2 Shri Devinder Kumar, Superintendent Social Security in the office of District Programme Office, Sangrur has conceded in the cross-examination that approval letters were in respect of the whole District of Sangrur and not of Sherpur Constituency alone and the orders did not have the signatures of the returned candidate.

59Copy pinpoint59. PW-4 Shri N.K. Kapur, Assistant Manager, State Bank of Patiala, who was posted at Ghanauri Kalan Branch of the Bank had produced on record the original ledger and photocopies of samples from the original ledger in respect of 84 persons belonging to village Ghanauri Kalan and Ghanauri Khurd. These documents were exhibited as Exs. PW-4/1 to PW-4/84. This witness stated that no other amount could be credited in these accounts except the pension received by the person concerned from the Social Security Department. In his cross-examination, this witness stated that those accounts were opened on 7.9.2001, 6.8.2001 and on some other dates. But this witness has further deposed that he was not in a position to state whether any deposit had been made in these accounts in the year 2002 and in one of the accounts no transaction has been recorded i>howing any credit. In another account opened on 25.2.2002 he denied the opening of account by him or the procedure for releasing the pension or personal knowledge about the identity of any of the 84 persons.

60Copy pinpoint60. PW-5 Shri Satish Kapur son of Shri Sohan Lal Kapur, District Social Security Officer, Sangrur stated that pension was released from November 2001 to March 2002 and the payments have been made from August, 2001 to February,

2002. He had produced copies of compilation made from originals as well as the original themselves. He showed his

GOVIND SINGH v. HARCHAND KAUR 397

[GYAN SUDHA MISRA, J.] inability to explain as to who had sanctioned the pension by stating that he was not posted at Sangrur. The compilation placed on recorcrhad been duly certified by the District Social Welfare Officer, Sangrur.

61Copy pinpoint61. PW-6 Jagmail Singh, C.D.P.O. Block Malrekotla-11, had produced 92 applications in respect of pension out of which 86 belong to old age pension, 5 of handicapped and only 1 belonged to widow category. These applications were submitted before July, 2001 which was admitted by this witness himself. Similar is the position with regard to the pension record pertaining to the year 2001 which had been produced by PW- 7 Pritpa! Singh, C.P.D.O. Block Sherpur.

62Copy pinpoint62. All the aforesaid witnesses namely PWs 1, 4, 5, 6 and 7 therefore who can clearly be treated as non-partisan witnesses and were competent to depose as to how the pension applications were sanctioned have not supported the case of the respondent that any illegality had been committed by the appellant while distributing pension which started from the year 2001 and continued up to March 2002. In spite of this, the High Court has not given any weightage to the depositions of these witnesses but has chosen to rely only on the evidence of PW- 9 Ram Singh, PW-10 Jaspal Singh, PW-11 Devinder Singh and PW-12 Harchand Kaur who can clearly be treated as interested witnesses. The depositions of these witnesses clearly stand contradicted by the evidence of PW-1-Child F Development Project Officer, Dhuri who had deposed and stated the procedure and the manner in which the application for grant of pension had to be approved. As indicated hereinabove, she has stated that the application had to be submitted to the Child Development Project Officer for grant of G pension and the same was forwarded to the Sub-Divisional Magistrate who is the sanctioning authority and after sanction was accorded by the Sub-Divisional Magistrate, the pensions are issued. It is difficult to appreciate as to how the statement of this witness can be treated less trustworthy than PW-10 H Jaspal Singh who was the Sarpanch and claims to have

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A identified the signature of the appellant herein when the competent authority PW-1- Child Development Project Officer could not recognize the signature of the appellant. PW-1-Child Development Project Officer, Dhuri in comparison to PW-10 was more competent who is a sarpanch and cannot be treated B to be the competent authority to sanction the application for grant of pension who could be relied by the High Court when the competent authority Child Development Project Officer has not supported the evidence of PW-10. The sarpanch PW-10 Jaspal Singh as per his own version was a supporter of the c party to which the respondent belong and hence the credibility of this witness cannot be more weighty than the credibility of PW-1 -Child Development Project Officer who was competent to approve the application after which it was forwarded to the Sub-Divisional Magistrate for grant of pension. The value of the evidence of PW-10 definitely, therefore, cannot be treated to be more weighty and worthy of credence than the evidence of PW-1.

63Copy pinpoint63. PW-11 Devinder Singh although has supported the case of defeated candidate Smt. Kaur in regard to grant of old age and handicapped pension but he also has conceded that the election petitioner i.e. the defeated candidate Smt. Kaur I respondent herein had helped his wife during the election and she secured ticket for his wife. Thus this witness has also clearly admitted personal allegiance to the respondent herein and hence his evidence cannot be treated to be more trustworthy than the evidence of the officers who were PW-1, PW-2, PW-4, PW-5 and PW-6 who have not supported the case of the respondent and Smt. Kaur herself has not been able to depose anything which could improve her case in any manner. Thus, while comparing the.evidence of PW~9. PW-10, PW-11 and PW-12 relied upon by the respondent Smt. Kaur with the evidence of PW-1, PW-2, PW-4, PW-5 and PW-6, it is not possible to attach more weight to the witnesses relied upon by the respondent herein as we cannot overlook the well- H settled position that the behaviour, character and demeanor of

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[GYAN SUDHA MISRA, J.]

the witnesses who had been examined at the stage of trial has to be taken into account and is of prime consideration. In view of this position, the evidence of PW-1, PW-2, PW-4, PW-5 and PW-6 is clearly more reliable than PW-9, PW-10 and PW-11.

64Copy pinpoint64. In so far as the allegation of appointment of some ladies as Anganwadi workers is concerned, PW-1-Child Development Project Officer, Dhuri who is Smt. Paramjit Kaur had deposed that applications of various candidates who sought appointment as Anganwadi workers which has been exhibited as Exs. 1/46 to PW-1/70 were given appointments till 2002 and in her cross-examination she further stated that she was not posted at Dhuri which covered the Constituency in question when these appointments were made. She further deposed that a Selection Committee· on the basis of the instruction issued in the year 1988 was constituted. The Child Development Project Officer as well as the Senior Medical D Officer used to be the members. The Anganwadi workers were required to be selected from the village or at the most from the adjoining village. No MLA or Minister was the member of the Selection Committee. She has given details of marks which had been allocated in the interview. The witness was confronted with the instructions dated 31.5.2000 to show the allocation of marks for various qualifications and the document was taken on record as Exs. PW-1171, she has candidly and unequivocally accepted that all applicants were appointed before 11.11.2001 and no one was appointed thereafter and it may be reiterated herein that even if the Anganwadi workers were appointed in the year 2001, the same cannot clearly be held to be illegal as the appellant was admittedly a Social Security Minister at the relevant time and therefore any appointment made during this period cannot be alleged to be indulgence in corrupt practice in order to impress the voters as .these appointments were made in the year 2001 much before the appellant became the candidate in the election. We, therefore, find substance in the plea that the exhibits relied upon by the appellant alleging illegal appointment of the Anganwadi workers do not strengthen the H

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A case of the respondent in any manner. As already stated hereinbefore, we fail to comprehend as to how the appellant could be held to be instrumental in appointing the applicants as Anganwadi workers when he had ceased to be a Minister and had already declared his candidature as an independent 8 candidate as he had no legal authority to appoint Anganwadi worker after he had resigned from the post of Minister on 12.1.2002 and had filed his nomination on 23.1.2002. The counsel for the respondent also has not laid much emphasis on this plea and the arguments that have. been advanced by the counsel for the parties are primarily on the allegation of corrupt practice regarding distribution of cash as pension amount while he was a Minister and even after he had been declared as a candidate.

65Copy pinpoint65. Thus, we have noticed serious infirmities, inconsistencies in the evidence of the three witnesses i.e. PW- 9, PW-10 and PW-11 relied upon by the High Court in support of the case of the respondent herein who could not be treated as independent and trustworthy witnesses as against PW-1, PW-2, PW-4, PW-5 and PW-6 discussed hereinbefore who were the competent authorities/officials to sanction pension applications as also in regard to grant of appointment to Anganwadi workers in the year 2001 when the appellant was a Social Security Minister and not a candidate in the election so as to brush aside their evidence and prefer to rely upon the evidence of PW-9, PW-10 and PW-11 which were extremely shaky, subjective and fragile. Besides this, the High Court has clearly mixed up the alleged charge of corrupt practice which pertains to the period prior to the filing of nomination of the appellant which was on 25.1.2002 and ·had been pleased to set aside the election of the appellant not after a careful and meticulous scrutiny of the evidence but on an overall view that the appellant had indulged in corrupt practice on the evidence primarily of three witnesses only whose testimony were neither independent nor free from inconsistencies and at the most were general in nature.

GOVIND SINGH v. HARCHAND KAUR 401

[GYAN SUDHA MISRA, J.]

66Copy pinpoint66. Thus, on a threadbare scrutiny of the evidence which we have carefully analyzed, it is not difficult to notice that the election of the appellant could not have been set aside only on the testimony of PW-9, PW-10, PW-11 who had failed to stand the test of scrutiny to the extent that even though the appellant was alleged to have indulged in corrupt practice, the same for the reasons assigned hereinbefore do not lead to the irresistible conclusion that the appellant had indulged in corrupt practice merely on account of the fact that he had distributed old age pension or handicapped and widow pension to the voters of his constituency although he was the Minister holding the portfolio of Social Security Minister within whose domain lay the approval and distribution of pension which was in clear discharge of official duty. The alleged case that this was done even after he ceased to be a Minister and after he had filed his nomination for contesting election, could not be proved with unimpeachable evidence since there was no reason for the appellant to ensure compliance of formality of filling pension forms for distribution of cash as he had ceased to be a Minister on those dates. As the specific case of the respondent is that pension was distributed to influence the voters, then any distribution made in the capacity as a Minister could not be legally faulted as long as the same was distributed during his tenure as Minister and after the appellant had ceased to be a Minister, he was not legally entitled to distribute the pension and hence ensuring compliance of formality of filling up pension forms with the aid of PW-10- Sarpanch by pressurizing him to fill up pension forms makes no sense or reason so as to prove the charge of illegal distribution of pension amounting to corrupt practice.

67Copy pinpoint67. In view of the unsatisfactory analysis of the evidence and erroneous approach of the High Court while recording the finding on the issue of corrupt practice, we consider this appeal fit to be allowed as no conclusive inference can be drawn that the respondent Smt. Kaur who had secured only third position in the election has succeeded in proving the charge of corrupt H

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A practice against the returned candidate-the appellant herein and the same at best can be held to be based on allegations which desperately required unimpeachable evidence of trustworthy nature adduced by independent witnesses which could not be treated· as tainted or evidence of doubtful nature. Since the B charge of corrupt practice has to be proved beyond reasonable doubt and not merely by preponderance of probabilities, the evidence relied upon by the High Court cannot be held to be of such probative value which do not reflect on the credibility of the witnesses relied upon by the High Court, so as to interfere c with the election result by which the appellant had been elected. Consequently, we set aside the judgment and order of the High Court and allow this appeal. However, the parties are left to bear their own cost.

N.J. Appeal allowed.