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Mohd. Ali Shabbir vs Yousuf Ali And Ors. on 30 December, 2005

Andhra High Court
Mohd. Ali Shabbir vs Yousuf Ali And Ors. on 30 December, 2005
Equivalent citations: AIR 2006 AP 160
Author: C Somayajulu
Bench: C Somayajulu


ORDER

C.Y. Somayajulu, J.

1. Petitioner filed this petition questioning the election of the first respondent to Kamareddy Assembly Constituency, which was held during the A.P. General Election in 1999.

2. The averments, in brief, in the petition, are during the general election for A.P. Legislative Assembly held in 1999, petitioner contested the election for 232 Kamareddy Assembly Constituency on behalf of the Indian National Congress, first respondent contested the same on behalf of Telugu Desham Party, second respondent on behalf of Bahujan Samaj Party, third and fourth respondents on behalf of other political parties and respondents 5 and 6 as independent candidates. Since first respondent has polled 63,949 votes as against 60,178 votes polled by the petitioner, he was declared elected in view of the narrow margin of 3,771 votes polled by him by indulging in corrupt practices as a candidate set up by the ruling Telugu Desham Party, which was in power by the time of 1999 General Election, and which entered into a seat adjustment agreement with Bharatiya Janata Party to defeat the Indian National Congress Party. When the Bharatiya Janata Party was ruling U. P. State, Babri Masjid was demolished on 6-12-1992, antoganising the muslim community and so muslims were against Bharatiya Janata Party, and in view of the seat adjustment between it and the Telugu Desham Party, they were favouring the Indian National Congress party. Therefore, Telugu Desham Party, with a view to woo the Muslim voters in Andhra Pradesh took several measures to appease Muslims by some schemes including giving grants for construction and reconstruction of mosques etc. through the A.P. Wakf Board. First respondent, who is appointed as Chairman of A.P. State Wakf Board In 1996 for a period of five years, by making use of his office as the Chairman of that Board started utilizing the funds of more than three and half crore rupees granted by the Government, by making use of G.O.Ms. No. 25 (Minorities Welfare) dated 16-2-1996, as per which amount not exceeding Rs. 10,000/- can be granted for repairs and renovation of mosques etc.. and an amount up to Rs. 25,000/- for fresh construction Taking advantage of the said G.O., though first respondent is not authorised under the said G.O. to sign the cheques issued for the amount sanctioned thereunder first respondent himself signed the cheques huge amounts by way of cheque for Rs. 25,000/ each dated 3-7-1999, were distributed to several institutions in the constituency for renovations/ repairs etc. in some cases even without application, or by calling for applications, and got several of those cheques distributed on 17-9-1999 i.e., one day prior to the elections through his supporters Yousuf Bin Sayeed and M.A. Hameed at the mosques at Yelapakonda, Lacchapet, Machareddy, Annavam Kamareddy, Domakonda, Jangampally, Basvapur and Peda Mallareddy and through Habeeb Bin Sayeed and Mohd. Faizuddin as another batch and got made an announcement in the mosques that as he sent those amounts they should support his candidature. He came to know about those facts after the election through his friends and through paper publication of such news item. Since first respondent indulged in corrupt practice of getting distributed cheques for repairs etc. to the religious institutions by luring the voters to vote in his favour he won the election by a narrow margin. As such distribution of cheques had the effect of swaying away some voters in his favour the election of the 1st respondent is liable to be set aside.

3. The averment, in brief, in the written statement of the first respondent, is that neither Habib Bin Sayeed nor Mohd Faizuddin nor Yousuf Bin Sayeed nor M.A. Hameed are his followers, and that he did not get distributed any cheques through them one day prior to the election and the allegation that he made a request for announcement in the mosques before the prayers to the members that assembled in the mosques to cast their vote in his favour as the sanctioned money to those institutions is not correct and since he did not indulge in any corrupt practice or bribery, petitioner is not entitled to any relief because by the date of issuance of cheques i.e. 3-7-1999 he did not even contemplate to contest the election.

4. Basing on the pleadings, the following issues were settled for trial:

1. Whether the first respondent devised a plan to induce Muslim voters in Kamareddy Assembly Constituency to exercise their franchise in his favour by offering money by way of issuing cheques for renovation/repairs/construction of mosques at the rate of Rs. 25,000/- to each mosque?

2. Whether Mr. Yusuf Bin Sayeed and Mr. M. A. Hameed of Kamareddy are strong supporters and followers of first respondent and if so, they went to Yeloapogonda village and handed over a cheque with a request to inform all the Muslims that the amount was granted by the first respondent and requested them to extend their support to the first respondent?

3. Whether the said Yosuffin Sayeed and M.A. Hameed handed over a cheque for Rs. 25,000/- on 17-9-1999 to Mr. Zainullabuddin and requested him to announce at the Mosque before the Friday prayers begin about the sanction of the amount by the first respondent and to extend support to first respondent?

4. Whether the said two individuals went to Lachapet on 17-9-1999 and handed over a cheque for Rs. 25,000/- and requested Mr. Ramjan and Gudu Saheb to make announcement before the Friday prayer begins about the grant of money by the first respondent and to extend their support to the first respondent?

5. Whether Mr. Yusuffin Sayeed of Kamareddy went to Annavaram village and handed over a cheque for Rs. 25,000/- to Syed Khader towards financial assistance given by the; first respondent for renovation of Masjid and if so, whether the said cheque was bounced for want of funds?

6. Whether Mr. Habeebin Sayeed and Mr. Faiyaz are supporters of the first respondent and whether they went to Domakonda on 17-9-1999 and handed over a cheque to Mr. Mahmood Khaja Mohiudeen, Peshimam and Mr. Omer Bin Sayeed, President of Jamamasjzid and have taken return of the said cheque on 20-9-1999 informing that a fresh cheque for Rs. 35,000/- would be given to Masjid?

7. Whether the said Habeebin Sayeed and Mr. Faiyaz went to Bikanoor on 17-9-1999 and handed over a cheque for Rs. 25,000/-to Mr. Moulana and went to Basawapoor on 17-9-1999 and handed over a cheque for Rs. 25,000/- to Mr. Mohamood Hussain for construction of compound wall and toilet at the grave yard in the Mosque?

8. Whether the said Habeebin Sayeed went to Pedda Mila Reddy Village and handed over a cheque for Rs. 25,000/- to Madina Masjid Committee members in the Mosque and requested them to make announcement before the Friday prayers begin to extend support of the entire Muslim community to the first respondent?

9. Whether the said Habeebin Sayeed and Faiyaz went to Jangampally on 17-9-1999 and handed over cheque to Masjid Committee members?

10. Whether Mr. Khaja Nazimuddin and Md. Mainulla Khan of Kamareddy went to Mirza Masjid at Kamareddy and handed over a cheque for Rs. 25,000/- to the Committee members of the said Masjid for repairs without there being any application for grant of amount for repairs.

11. Whether an amount of Rs. 25,000/-was granted to Mirza Masjid at Kamareddy by way of a cheque and another cheque for Rs. 25,000/- was also released by the first respondent to win over the Muslim votes in his favour contrary to the guidelines?

12. Whether the first respondent misused his powers as Chairman of the Wakf Board and issued various cheques under the guise of renovation/repairs to various mosques only with a view to induce Muslim votes to extend their support to him?

13. Whether the first respondent sanctioned amounts to various Mosques contrary to the guidelines issued in G.O. Ms. No. 25 dated 16-2-1996 and got distributed various cheques dated 3-7-1999 and 22-7-1999 through his supporters two days before the poll?

14. Whether the result of the election is materially affected by his issuing cheques for repairs to the mosques?

15. Whether the petitioner would have obtained majority of valid votes if the cheques as stated above were not issued by the first respondent?

16. Whether the election of the first respondent to Kamareddy Assembly Constituency becomes void?

17. Whether the petitioner is entitled to be declared elected? And

18. To what relief?

5. In support of his case, petitioner examined himself as P.W. 1 and examined 15 other witnesses as P.Ws. 2 to 16 and got marked Exs. A-1 to A-27. On behalf of the first respondent, he examined himself as R.W. 1 and 14 other witnesses as R.Ws. 2 to 15. He did not adduce any documentary evidence. Exs. A.1 to X. 50 were marked through witnesses. After hearing both sides by my order dated 17-9-2002, notices to R.Ws. 2, 3, 4, 7, 8 and 10 were ordered to be issued to show cause why they should not be made as parties and named for tampering the record of A.P. Wakf Board. They appeared through their counsel. R.Ws. 2 to 4, 7, 8 and 10 filed separate written statements. R.Ws. 3 and 4 filed memos adopting the written statement of R.W. 2. They all denied their rendering help to the first respondent in the elections.

6. On the basis of the written statement of R.Ws. 2 to 4, 7, 8 and 10, the following additional issues were framed for trial on 3-2-2003.

1. Whether respondents 2 to 4 actively or passively rendered support to the first respondent in creating the record and assisting the first respondent to sign various cheques dated 3-7-1999 which were distributed in Kamareddy Assembly Constituency a day prior to the election?

2. Whether respondents 7, 8 and 10 are the strong supporters and followers of the first respondent?

3. Whether respondents 7 and 8 handed over the cheque bearing No. 488348 dated 3-7-1999 of State Bank of Hyderabad, Gunfoundry, Hyderabad along with the proceedings to Mr. Khaleemullah Sharif and Mr. Shoukat All Mohd. the mosque committee members, on 17-9-1999 at 12-00 noon and requested them to inform all the Muslims about the amount granted by first respondent and requested to extend their support?

4. Whether respondents 7 and 8 handed over a cheque for Rs. 25,000/- on 17-9-1999 to the President of Mosque Committee at Machareddy to Mr. Zainullabuddin and requested him to announce at the mosque before the Friday prayers begin about the sanctioning of amount by the first respondent and to extend their support to him.

5. Whether respondents 7 and 8 went to Lachapet on 17-9-1999 at about 1 p.m. and handed over cheque bearing No. 488357 dated 3-7-1999 for Rs. 25,000/- along with the proceedings to the Committee members of the mosque and requested them to announce about the grant by the first respondent before the Friday prayers begin and to extend their support to him?

6. Whether respondent No. 10 went to Mirza Masjid at Kamareddy and handed over a cheque bearing No. 488347 dated 3-7-1999 for Rs. 25,000/- to the committee members of the mosque on 17-9-1999 without there being any application for grant of the amount for the repairs?

7. Whether respondent No. 10 with the active connivance of respondents 2 to 4 created the record as if the cheques were prepared on 3-7-1999 and handed over to him on the same day with a view to assist the first respondent for distributing the cheques a day before the election?

8. Whether respondents 2 to 4 and 10 are to be named as per the provisions of Representation of People Act. 1951 for creating the record and distributing the said cheques a day prior to the date of election?

7. After framing of the above additional issues, petitioner did not adduce- any evidence. But P.Ws. 1, 2. 6, 7, 12, 13, 15 and 16 were recalled for further cross-examination by the newly added parties and R.W. 2 only was recalled and re-examined on behalf of R.Ws. 2 to 4, 7, 8 and 10.

8. The main contention of the learned Counsel for the petitioner is that as per G.O.Ms. No. 25 dated 16-2-1996 (Ex.A.3) an institution for which amount was granted under that G.O. is not eligible for re-grant of further amount under that G.O. for a period of 3 years, and a maximum amount of Rs. 10,000 for repairs/renovation and Rs. 25,000/- for construction of new institution can only be granted thereunder, yet first respondent got distributed cheques for Rs. 25,000/- to various mosques in the constituency, either with or without application for that purpose, in some cases within a period of three years also, beyond the limit of their entitlement, through R.Ws. 5 to 8 who are his staunch supporters, and created record to show that those grants were made in pursuance of applications submitted, by taking applications and other relevant documents with ante dale to make it| appear that the amounts were sanctioned on their applications and since the evidence adduced by the petitioner clearly shows that the cheques dated 3-7-1999 were distributed just prior to the election, by manipulating the proceedings, with a view to induce Muslim voters to cast their vote in his favour, which is disclosed by Ex. A-15 and Ex. A-19 news items, it is clear that first respondent indulged in corrupt practices. It is also his contention that the documents summoned from the A.P. Wakf Board, on a close examination, show they were either tampered with or manipulated and that fact is evident from Ex. X-6 on which the year is mentioned as 1999-2000 but it contains entries from 1-9-1999 to 10-12-1999 with serial numbers 1 to 740 and Ex. X-47, said to be for the year 1999-2000 and 2000-01 which contains entries from 14-12-1999 to 13-6-2001 with S.Nos. 741 to 1175 and Ex. X-48 said to be for the year 1998-99 contains entries from 1-1-1999 to 29-4-2000 with serial Nos. 556 to 1304, and since R.W. 3 could not show the corresponding entries pertaining to Ex. A-5 to A-14 in Exs. X-36-A to X.48 on the pretext that it is his predecessor in office that made those entries, and hence he cannot explain the entries in those registers, and since he admitted that the registers are not maintained continuously, it is clear that the books of account produced by the A.P. Wakf Board do not reflect the correct state of affairs.

9. Counsel for first respondent and R.Ws. 7, 8 and 10 did not make any new contention. The main contention of the learned Counsel for R.Ws. 2 to 4 is that since R.W. 2, during his examination on 27-4-2004, stated that if account section receives a proceeding containing several transactions, only one token number will be given to all the transactions as per the general practice being followed in the office, merely because the same token number is given to some cheques issued it is of no consequence and since the evidence adduced, after adding of the parties, shows that the practice in the office of the A. P. Wakf Board is preparation of cheques without putting the date, before sending them to the Chief Executive Officer and Chairman for their signature, and putting the dates after receipt of the signed cheques in the section, RWs. 2 to 4 did not commit any irregularity and since the evidence on record does not show that R.Ws. 2 to 4 rendered any assistance or help to the first respondent or to show that they have any role to play in the election campaign of the first respondent, proceedings against them are liable to be dismissed.

10. At the outset, it should be stated that there is a typographical error in the issues that were framed on 3-2-2003 in the sense that instead of typing ‘RWs’ the word ‘respondents’ was typed in those issues. So the issues framed on 3-2-2003, wherever respondents 2 to 4, 7, 8 and 10 are mentioned, they should be read as R.Ws. 2 to 4, 7, 8 and 10. In fact, issues 2 to 6 framed on 3-2-2003 are covered by the issues framed earlier and so I am deleting them suo motu, as superfluous and redundant.

11. Issues 2 and 3:

The specific case of the petitioner is that Yousuf Bin Sayeed and M.A. Hameed i.e., R.Ws. 7 and 8 are the supporters and followers of the first respondent. First respondent defined the said allegation. R.Ws. 7 and 8 denied their being the supporters of the first respondent in their evidence and also in their written statement. The fact that the first respondent examined Yousuf Bin Sayeed and M.A. Hameed, after citing them as his witnesses in the list of witnesses filed by him. Prima facie shows that they are his supporters because nobody would cite a person as his witness if he knows that he would not support him, and since it can be presumed that list of witnesses would be furnished only after ascertaining the willingness of the concerned witness whether he would speak in his favour or not. Obviously, because petitioner knew that R.Ws. 7 and 8 would not speak in his favour, petitioner did not cite them as his witnesses and since first respondent knew that they would support him he cited them as his witnesses.

12. Mr. Zainullahbuddin is examined as P.W. 3. His evidence is that on 17-9-1999, the Peshimam of Jama Masjid informed him that the first respondent sent a cheque for Rs. 25,000/- through his people and that the cheque is with the cashier of Masjid Committee and so he went to the Cashier and collected the cheque. Since the evidence of P.W. 3 does not disclose R.Ws. 7 and 8 handing over a cheque to him, and since there is no other evidence in support of issue No. 3. Issue No. 3 has to be answered against the petitioner.

13. The evidence of P.W. 7, Mr. Karimullah Shariff, is that he is the president of Yeloapokonda Masjid Committee and that on the day prior to the date of election, Hameed (R.W. 8) came to him and gave a cheque for Rs. 25,000/- for repairs of Masjid and asked him to announce in the Masjid that first respondent sent a cheque for Rs. 25,000/- for repairs to the Masjid, and so he made such an announcement. During cross-examination on behalf of first respondent he stated that he does not belong to any political party and denied the suggestion that he is giving false evidence at the instance of the petitioner and that nobody gave cheque to him and that he did not make any announcement. During further cross-examination after his being recalled, on 6-8-2003, he stated that he does not know to which party R.W. 8 belongs and that R.W. 8 handed over the cheque to him at about 8.30 a. m. and that he was not present at the time of Namaz in the afternoon. The evidence of P.W. 2 is not of much help in deciding this case because, his name is not referred to in the petition and since the specific allegation in para 10 of the petition is that the petitioner came to know from Zainulabud-din, president of Masjid Committee of Machareddy (i.e. P.W. 3) about R.Ws. 7 and 8 handing over of cheques one day prior to the election.

14. The evidence of R.W. 7 is that he is not a supporter or follower of the first respondent and that he did not hand over any cheque to anybody, on behalf of the first respondent, one day prior to the election. During cross-examination he stated that he is in active politics for a long time and that about 4 or 5 days prior to his giving evidence both the petitioner and the first respondent came to him and requested him to give evidence in the Court and told him about the date of hearing, and denied the suggestion that he is a strong supporter of the first respondent during 1999 election and actively canvassed for him. He admitted that Hameed (R.W. 8) was his classmate and that both of them studied up to 5th standard. He pleaded inability to read Ex. A.21, a paper-cutting from news paper Siasat Urdu dated 10-9-1999 showing his congratulating the first respondent on his winning the assembly elections, describing him (R.W. 7) as the District Convenor of Telugu Desham Party.

15. The answers given by R.W. 7 during cross-examination clearly establish his close connection with the first respondent. His evidence that petitioner came to him about 4 or 5 days prior to his evidence is a clear untruth because petitioner closed his evidence long prior to the examination of the petitioner and six witnesses were already examined on behalf of the first respondent before R.W. 7 was examined. As stated earlier petitioner would have cited R.W. 7 as his witness if he had an intention- to examine him as his witness. The fact that first respondent cited and examined him as his witness shows that R.W. 7 is associated with the first respondent and is his follower. Being a District Convener of Telugu Desam Party, as seen from Ex. A. 21 it is difficult to believe the evidence of R.W. 7 that petitioner came to him with a request to give evidence in his favour.

16. The evidence of RW.8 is that he and RW.7 did not go to Yalapokonda, Macharreddy and Aannaram for distribution of cheques. During cross-examination, he admitted that he and RW.7 are thick friends and are classmates and that he was discharging duties as president of the Managing Committee of Dargah and that on 7-10-1999 after declaration of results, he went and congratulated the first respondent on his success and garlanded him and that Ex. A.24 photograph was taken on that occasion and volunteered that he congratulated the first respondent, and had himself suo- motu produced Ex.X.36 photograph showing his offering sweets and garlanding the first respondent. Since RW.8 admitted his garlanding and congratulating the first respondent on his success in the election and since the first respondent cited him as his witness, it has to be taken that RW.8 also is a follower and supporter of the first respondent.

17. Since nothing useful was elicited during cross examination of PW.7 to disbelieve his evidence in the chief examination, I hold that RW.8 handed over a cheque of Rs. 25,000/- to him, and since Exs.A. 18 and A. 19 paper publications which are proved by examining PWs 15 and 16 reporters who sent the news for publication show that cheques issued by the Wakf Board were distributed a day prior to the election, I hold that PW.8 gave a cheque for Rs. 25,000/- to PW.7 at Velapokonda village, with request to inform the Muslims that first respondent sent that amount. Thus, Issue No. 2 is answered in favour of arid issue No. 3 is answered against the petitioner.

18. Issue No. 4 : Since, neither Ramzan Saheb nor Gudu Saheb or Syed Khader, to whom, as per the allegation in the petition, RWs 7 and 8 handed over cheques are examined by the petitioner, I hold this issue against the petitioner.

19. Issue No. 6 : Since this issue relates to Md. Faizuddin and Habib Bin Sayeed i.e. RWs 5 and 6 handing over cheques to Khaja Mohiuddin. (PW.G) and others, the evidence of PW.G. RWs.5 and 6 is relevant to decide this issue. The evidence of PW.6 is that on 17-9-1999 one Pasha and Ahmad, local workers of Telugu Desham Party, Domakonda, came to him when he was in the mosque preparing for Namaz and gave a cheque for Rs. 25,000/- stating that it was sent by the first respondent for repairs to the mosque, and that he received the cheque and made announcement that the first respondent sent the cheque for Rs. 25,000/-for repairs to the Mosque and later some persons including Moinullah Khan of Kamareddy (RW. 10) came and took away the cheque promising to bring a fresh cheque for Rs. 35,000/-. Since PW.6 did not speak about RWs.5 and 6 handing over any cheque to him and since there is no other evidence except the evidence of PW.6 in respect of this issue, I hold this issue against the petitioner.

20. Issues 7 and 8 : These issues relate to RWs 5 and 6 handing over cheque for Rs. 25,000/- to Mohd. Moulana (PW.8) and a cheque for Rs. 25,000/- to Mohd. Hussain (PW. 10) and handing over another cheque for Rs. 25,000/- to the members of the Madina Masjid Committee. The evidence of PW. 8 is that he is the vice president of Masjid Committee, Bikanoor, and that one day prior to the election, when he went to Mosque for Friday Prayers, the Imam of the Masjid, after Namaz time and after preaching, stated that the first respondent sent a cheque for Rs. 25,000/- and made a request to him to make an appeal to the congregation to cast their vote in his favour i.e. in favour of the first respondent and that he raised an objection for the Imam bringing a political issue into the mosque. This evidence is not in consonance with the pleading in the petition. The averment in the petition is that the petitioner, on enquiry from the members of the Juma Masjid at Bikanoor, i.e. Mr. Moulana son of Mohd. Ghouse, Mohd. Ismail son of Mohd. Moulana Abdul and Mohd. Sattar, came to know that Habeeb Bin Sayed and Faiyaz handed over a cheque for Rs. 25,000/- on 17-9-1999 and that a copy of the proceedings was given to the President by Moulana son of Mohd. Ghouse. Since the evidence of PW.8 is in the nature of hearsay, and since Imam of the Masjid is not examined to swear to the fact that a cheque was handed over to him, and since it is not the evidence of PW.8 that he was present when the cheque was issued, it cannot be said that petitioner is able to establish that PW.8 was handed over a cheque for Rs. 25,000/- by RWs 5 and 6.

21. The evidence of Mohd. Hussain (PW. 10), a member of Madina Masjid Committee, is that when the Masjid Committee met a day prior to the election Mohd. Moinuddin (PW.9) informed them that a person delivered cheque for Rs. 25,000/- and made a request to make an announcement in the Masjid that the first respondent sent that amount and so PW.9, before the Namaz, made an announcement that the first respondent who is contesting as M.L.A. in the election has sent a cheque for Rs. 25,000/-for the mosque. The evidence of PW.9, Sadar of Pedamallareddy Masjid is that one day prior to election, a person claiming that he was sent by the first respondent handed over a cheque for Rs. 25,000/- and requested him to make an announcement during the Namaz time that first respondent sent a cheque for the purpose of mosque and wanted the support and so he sought the opinion of the mosque committee as to whether such announcement can be made during the Namaz and as he was asked to make the announcement just before Namaz time, he made an announcement that first respondent sent a cheque for Rs. 25,000/-and so they may cast their votes in his favour.

22. The evidence of Mohd. Moulana (PW.8) a resident of Bikanor and vice president of the Masjid Committee, is that one day prior to the election, Imam of the Masjid, after Namaz time and during the preaching stated that first respondent sent a cheque for Rs. 25,000/- for repairs to the mosque.

23. Since neither PW.8 nor PW.9 nor PW. 10 spoke about Habeeb Bin Sayeed (RW.6) or Faiyaz (RW.5) handing over cheques to them, it cannot be said that the cheques allegedly received by them were handed over to them by Habeeb Bin Sayeed and Faiyaz.

24. The evidence of Mohd. Sha Ali (PW.4) Sadar of Jama Masjid at Basawapur is that on 17-9-1999 when he was cleaning the mosque for prayer time, two persons came on a scooter and called him by name and enquired whether he is Sadar of the Mosque and when he answered in affirmative, they. stating that first respondent sent a cheque for Rs. 25,000/- for the purpose of mosque and burial ground, handed over that cheque to him with a request to make an announcement after the prayer that about the first respondent sending a cheque for Rs. 25,000/- for the mosque and for burial ground with a request to vote for him.

25. The evidence of Abdul Razzak (PW. 12) a resident of Basawapur is that one day prior to the election, when he went to the mosque for Namaz, he came to know from the discussion with the committee members, that a cheque for Rs. 25,000/- was received from Telugu Desham Party with a request to support the candidature of Telugu Desham Party during the election and that the committee unanimously decided to support the Telugu Desham Party during the election by requesting the people to vote for that party.

26. Since none of the above witnesses spoke about Habeeb Bin Sayeed and Faiyaz, i.e. RWs 6 and 5 handing over cheques to them, I hold these two issues against the petitioner.

27. Issue No. 9: PW.5 is the only witness examined from Jangampally. His evidence is that he is the Accountant of the Mosque at Jangampalli and when he was following a funeral procession on 17-9-1999, he saw the first respondent, who came in a Car, stopping the car and following the procession with the dead body and enquired him whether the cheques sent by him were received and when he answered in the affirmative and informed him that since the cheque bears the date 3-7-1999, it is difficult to encash it, first respondent stated that the cheque can be encashed within 15 days and asked him to request the people to cast their vote in his favour. This evidence of PW.5 is not in consonance with the pleadings, as the specific averment of the petition is that petitioner came to know from Dilawarali Mirza (PW.5) that Habeeb Bin Sayeed and Faiyaz (RWs 6 and 5) visited the Jangampalli on 17-9-1999 and handed over a cheque bearing No. 488358 dated 3-7-1997. Since PW. 5 did not speak about Habeeb Bin Sayeed and Faiyaz handing over the cheque, I hold this issue against the petitioner.

28. Issue Nos. 10 and 11 The allegation in para 13 of the petition is that petitioner came to know from Taher Hussain (PW. 11) and others that Khaja Nizamuddin son of Khaja Zainulabuddin c/o. KCT Cycle Taxi, Old Bus Stand, Kamareddy and Mohd. Moinullah Khan son of Bakshulla Khan, Kamareddy Wakf Board President, Old Bus Stand, Kamareddy came to the mosque on 17-9-1999 and handed over a cheque bearing No. 488341 dated 3-7-1999, S.B.H. Gunfoundry for Rs. 25,000/- along with the proceedings dated 3-7-1999 for the purpose of repairs to the Mosque Meraj at Kamareddy and that those persons informed him that they have not submitted any application for grant of the amount from the Wakf Board for repairs to the mosque, as an amount of Rs. 25,000/- was granted earlier.

29. The evidence of PW. 11 is that he is secretary of Meraj Mosque and that Moinullah Khan and Habib Bin Sayeed of Kamareddy gave a cheque for Rs. 25,000/-to Sadar of the Mosque Gulam Hussain on 17-9-1999 and that he was not present when the cheque was given and that a few minutes prior to the Namaz it was announced that first respondent sent a cheque for Rs. 25,000/- for repairs to the mosque and that he questioned the propriety of such announcement in the mosque. Since the evidence of PW. 11 does not disclose that the cheque was granted even without application, and since he admittedly was not present when the cheque was delivered to Sadar of the Mosque, I hold these issues against the petitioner.

30. Issues 1, 7 and 8: framed on 3-2-2003. In the order dated 17-9-2002, after discussing the evidence on record and the registers received from the A.P. Wakf Board, having felt that the registers received from the A.P. Wakf Board may not be representing the real or true facts, notices were directed to be issued to RWs. 2 to 4, 7, 8 and 10 to enable the Court to find out the real facts. Significantly, even after notices were sent to RWs. 2 to 4, 7, 8 and 10, petitioner did not file an application for amendment of the petition and did not make any specific allegation in the petition imputing any motives, or making any allegations against RWs. 2 to 4, 7, 8 and 10, and did not specifically plead that the first respondent tampered the record of the A.P.Wakf Board with the help of RWs. 2 to 4, 7, 8 and 10. The bald allegation in para 15 of the petition reading “petitioner submits that after coming to know about the first respondent in indulging the distribution of cheques with ante date just one day before the poll to lure Muslim voters”, is not sufficient for naming RWs 2 to 4, 7, 8 & 10 or for holding that they supported the first respondent either actively or passively, and assisted him in any of the alleged corrupt practices. If there is any tampering of the records and if so who is responsible for the tampering, is to be decided by the Wakf Board itself. This Court need not take upon itself that responsibility in the absence of any pleading. Therefore, I hold these issues in favour of RWs 2 to 4, 7, 8 and 10 and against the petitioner.

31. Issue Nos. 1, 12 to 17 : The specific case of the petitioner is that first respondent acting in violation of G.O.Ms. No. 25 dated 16-2-1996 issued several cheques to several institutions and got them distributed one day prior to the elections at various places by making a request to the persons to whom the cheques were handed over to inform the gatherings in the Mosques that since first respondent sent those cheques they should support him in the election. It is well known that allegation relating to corrupt practice, like criminal cases, require proof beyond reasonable doubt, as a person indulging in corrupt practice has to suffer some penal consequences.

32. ‘Corrupt Practice’ is defined in Section 123 of the Representation of People Act, 1951 (the Act) as “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) a person to stand or not to stand as, or (to withdraw or not to withdraw) from being a candidate at an election, or

(b) an elector to vote or refrain from voting at an election, or as a reward to–

(i) a person for having so stood or not stood, or for (having withdrawn or not having withdrawn) his candidature; or

(ii) an elector for having voted or refrained from voting;

(B) the receipt of, agreement to receive, any gratification, whether as a motive or a reward —

(a) By a person for standing or not standing as, or for (withdrawing or not withdrawing) from being, a candidate; or

(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).

As per explanation 1 to the said Section 123 ‘Agent’ includes an election agent, polling agent, and any person who is held to have acted as an agent in connection with the election with the consent of the candidate. So, for the first respondent to be held guilty of indulging in a ‘corrupt practice’ for the acts committed by a third party, petitioner should first establish that such third party was acting for and on behalf of the first respondent in connection with his election, with his consent.

33. As per para 16 of G.O.Ms. No. 25 dated 16-2-1996, Secretary Wakf Board will have to release the amount to the concerned Construction committees through cheques to be counter signed by the Deputy Secretary in Minorities Welfare Department. There is nothing in the said G.O. to show that the cheques Issued in pursuance of that G.O. are to be countersigned by the Chairman of the A.P. Wakf Board. The learned Counsel for RWs 2 to 4 contended that the signatures of the first respondent were obtained on the cheques because they have to be countersigned by him as per the Wakf Rules. Question whether the procedure prescribed by the above G.O., or the Wakf Board Rules have to be followed while issuing the cheques under the said G.O. No. 25 dated 16-2-1996 would be of academic interest only, since the same does not amount to a ‘corrupt practice’ as defined in the Act, and may be a breach of the procedure contemplated by the said G.O. From such breach, if any, committed by the first respondent, petitioner cannot derive any benefit and same does not further his case.

34. All the cheques distributed to various religious institutions admittedly bear the date 3-7-1999. Admittedly the election notification was issued on 21-8-1999. According to the evidence of first respondent he was selected as candidate for Kamareddy Assembly Constituency on behalf of Telugu Desham Party only on 12-8-1999. All the cheques admittedly were issued in the name of Mandal Parishad Development Officer. Therefore, the question is whether issuance of cheques in the name of Mandal Parishad Development Officer, for the benefit of the institutions, in pursuance of the G.O.Ms. No. 25, allegedly distributed one day prior to the election at various mosques, would amount to corrupt practice, when both the petitioner and the first respondent are Muslims. In Harjit Singh v. Umrao Singh , while considering what a corrupt practice is the Apex Court held that for an act to be a ‘corrupt practice’ there must be an element of bargaining.

In Mrs. Om Prabhat Jain v. Abinash Chand, it is held that:

Unless it can be established that there was a bargain with the voters for getting their assistance at the election, a Minister granting money for uplift of certain communities is not corrupt practice.

35. Since it is not the case of the petitioner, and since there is no evidence that first respondent bargained either with the persons in management of the institutions in whose name the cheques were issued or the persons of any village that in consideration of their casting of their vote in his favour he would give the cheques to the institution concerned in the name of Mandal Parishad Development Officer, it cannot be said that first respondent indulged in a corrupt practice by distributing cheques dated 3-7-1999, in view of the ratio in Dhartipakar Madan Lal Agarwal v. Shri Rajiv Gandhi, , in which case one of the allegations against Rajiv Gandhi, the returned candidate, was that prior to the declaration of the election and during the election period, his workers,’with his consent, spearheaded the construction work of Amethi Railway Station with a view to persuade the voters to cast their vote in his favour and that act amounted to a gift to the voters. Repelling the said contention the Apex Court held that development activities being carried in constituency do not fall within the definition of bribery. It was also held that the speech made by his mother Smt. Indira Gandhi on development of the constituency that they should vote for Rajiv Gandhi, only amounts to a representation being made by Smt. Indira Gandhi and would not fall within the definition of bribery and undue influence under Section 122 of the Act, as followers and supporters have every right to canvass for success of the candidate. So granting money to religious institutions, that too in the name of the Mandal Development Officer, would not amount to bribery or corrupt practice and so I hold all these issues in favour of the first respondent and against the petitioner.

36. In the result, the petition is dismissed but in the circumstances of the case, without costs.

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