Babu Rao vs Basavaraj Patil and Others

Mrs. Manjula Chellur, J.—Heard arguments on both sides.

The brief facts that led to the filing of the present election petition are as under:

The petitioner and respondents 1 to 4 contested the elections for the Karnataka Legislative Council held on 1.12.2003 from I-Bidar Local Authorities Constituency of 2003. The petitioner contested the election as Janata Dal (Secular) candidate and first respondent contested the election as Indian National Congress candidate. Other respondents contested the elections of other political parties like BJP, All India Congress Progressive Janata Dal and as independent candidates. In the counting on 3.12.2003, the first respondent got elected and was ultimately declared as successful candidate. The first respondent secured 1446 votes and the petitioner secured 980 votes.

According to the petitioner, the first respondent committed the following corrupt practices with the connivance of his supporters and agents.

a) He was holding the, portfolio of power as sitting member of the Council of Ministers of Karnataka State at the relevant time. As he was in-charge Minister for Bidar District, all the officials were under his control throughout the election. This has resulted in exercise of undue influence of Government officials as they not only induced several members of Zilla Panchayat, Gram, Town Panchayat and Municipal Council to vote only in favour of respondent, but also administered threats to the voters to vote in his favour. This undue influence has resulted in interference with the free exercise of electoral rights voting in favour of candidates of their choice. Therefore, it amounts to corrupt practice as per section 123(2)(a) (i) and (ii) of the Representation of the People Act, 1951, (hereinafter, referred to as ''the Act'').

b) After the date of withdrawal of nominations when the campaign commenced, the first respondent using his power held several meetings along with the Congress leaders and one such meeting was held on 21.11.2003 at 2.30 p.m. at Backward Class Hostel in Bidar. Several members of Zilla Panchayat, Zilla Taluk, Gram Panchayat and so also Municipal Council members who are the voters were present. Important leaders of the Indian National Congress namely Mr. Mallikarjun Kharge, Mr. Dharam Singh, Mr. H.M. Revanna, Mr. Basavaraju Bulla and M.G. Mulley etc., were present. In the said meeting, while addressing the voters, the first respondent made statements, amounting to corrupt practices within the meaning of section 123(4) of the Act and the details of statements reads as follows:

(Vernacular matter omitted...Ed.)

All these were published in several news papers having wide circulation within the constituency in question and the said statement had adverse effect in the election.

c) The abovesaid statements were countered by the petitioner when it came to his knowledge and they were published in ''Samyuktha Karnataka'', ''Hindu'' on 26.11.2003. Even local papers published the said statements i.e., Bidar Ki Awaz and ''Hindi Nanak Times'' etc. on 26.11.2003. In spite of it, the first respondent did not defy the statements of him made on 21.11.2003.

d) Party leaders of Janata Dal have countered the statement of first respondent, when the statements of respondent No. 1 brought to their notice. Such statements were published in ''Vijaya Karnataka'' and ''Hindu'' on 25.11.2003.

e) The meeting on 21.11.2003 was attended by one Mr. Khaja Arshad Ali, Editor of ''Bidar Ki Awaz'' and another person by name Siddaramaiah Swamy, Editor "Daman Hindi Daily" and other journalists. With the intention of affecting the election process of the petitioner such statements were made and the same has affected the election held on 1.12.2003.

On 1.12.2003 -- the date of election, the son of first respondent by name Rajashekhar Patil who is also a sitting MLA from Humnabad resorted to goondaism and intimidated the voters apart from threatening the polling agents of the BJP and J.D. (S) candidates and also their supporters at gun point at various polling booths, as they were coming within the Humnabad Legislative Assembly Constituency. He threatened the voters to vote in favour of first respondent-his father and also threatened the voters to show the ballot papers to whom they have voted at the gun point. When this was objected by the polling agents they scolded the polling agents abusing in vulgar language and threatened them with dire consequences. As they were 30 to 40 in number, being afraid of their lives, the voters did vote for first respondent. A complaint came to be lodged to the Returning Officer, Chief Election Commissioner, New Delhi. One Mr. Galappa -- Polling Agent of BJP also lodged a complaint to the Superintendent of Police, Bidar apart from Returning Officer etc. A case was registered against the son of first respondent and 12 others. This also came to be published in ''Hindu'' and ''Vijaya Karnataka''. These tactics adopted by the son of first respondent also affected the prospects of the petitioner in the election. Therefore, it was a corrupt practice u/s 123(2) of the Act.

On the date of polling, the concerned Polling Officers in all the above polling stations pertaining to the said constituency did not allow the polling agents of the petitioner into the polling booths till 9.00 a.m. in spite of producing valid authorisation to the Officers, which is a serious lapse on the part of polling officers. A complaint came to be lodged in this regard. The reason was that polling agent forms were signed by election agent whose signature did not tally with the specimen. Only after the complaint, all the polling agents were allowed to enter the booth only at 9.00 a.m. after the wireless message was flashed to Polling Officers. It was noticed that the voters had en masse voting between 8.00 a.m. to 9.00 a.m. itself in the absence of the polling agents of the petitioner in the polling booths. Therefore, the elections have to be declared as null and void. This was all done only to help the voters to vote in favour of respondent No.1, which is also a corrupt practice. This has prejudicially affected the prospects of the petitioner in election. According to the petitioner, the respondent using his office exercised undue influence on the polling officers and other Government servants which amounts to corrupt practices.

With these averments, he has sought for declaring the election of the first respondent to the I-Bidar Local Authorities Constituency as member of Karnataka Legislative Council as void and illegal and to declare the declaration made by the Returning Officer declaring the first respondent as elected candidate as void and declare the petitioner as elected.

As against this, the respondents have filed detailed objection statement denying the averments in the election petition. According to them, the very relief sought against the respondent No.1 is not maintainable in law and on facts as the election petition has not been filed in accordance with the provisions of section 100 of the Act, therefore, it is not maintainable. Sections 80 and 81 of the said Act are relevant. Sub-section (1) of section 100 is very relevant. The provisions of sub-section (3) of section 81 was not complied as the election petition was not accompanied with as many copies as the respondents mentioned in the petition and they shall all be attested in his own signature. The concise statement of material facts alleging the corrupt practice has to be made while disclosing the ground for corrupt practice. He also has to give the full statement of the names of the parties who committed the corrupt practices. The petition has to be filed and verified in the manner provided under CPC as contemplated u/s 83 of the said Act but the same was not done. No prescribed form in support of the allegations is made and Form No. 25 is the prescribed form for the purpose of complying with the provisions. The petition was not accompanied by the affidavit in the prescribed form.

In the copy of the election petition received by the respondent, there was no affidavit as contemplated under the Act, therefore, there is non-compliance of mandatory provisions. If the election petition given to the respondent is not a true copy of the petition, then also, the petition has to be thrown away at the threshold. Annexures and the verifications are not in accordance with Order 5, Rule 17 of CPC. Even otherwise all the allegations are incorrect without any substance.

Reading of the entire petition does not indicate allegations of bribery for filing the above election petition before this Court. Therefore, section 123 of the Act is not available. The reading of the entire petition does not disclose facts leading to undue influence or corrupt practice.

It is alleged, the petitioner being close to some of the press people and for the reasons best known to them got published material, which is totally incorrect. Surprisingly, none of those materials are found in the national newspapers. Only some local papers have published the material. This would only indicate that those publications referred to in the petition are based on concoction and imaginations.

With reference to the election to the Karnataka Legislative Council held on 3.12.2003, respondent No.1 secured 1446 votes and the petitioner was far behind the first respondent and secured 980 votes, therefore, he was not elected. The first respondent is into politics since a long time. At no point of time any allegations of corrupt practice are made against him. The election in question was from the local bodies representing small percentage of voters and not a general election.

The respondent has never used unfair means using his power as a Member of the Council of Minister and no Government official at Bidar was under his control. The elections are conducted by the Election Commission of India and the voters are from the local bodies who are the elected representatives of the people and distinct voters. They are not the common voters like others. Therefore, question of influencing anyone would not arise.

On the other hand, the petitioner is making false statements deliberately which has resulted in damaging the name and reputation of the respondent No.1. None of the voters have complained any such interference or threats alleged by the petitioner. These baseless allegations undermine the name of the first respondent.

Though a meeting was conducted on 21.11.2003 attended by several members of Gram Panchayat etc., the respondent has not made any statement, which amounts to corrupt practice especially the statement extracted in the election petition. The petitioner has made a false and deliberate statement against the respondent alleging that respondent has studied upto SSLC only whereas petitioner is a Graduate in Automobile Engineering. The respondent has made statements that the voters will not vote on the basis of degree but on the basis of the performance to the public at large. If the petitioner has countered the alleged statement of the first respondent, question of prejudicing the prospects of the petitioner in the election would not arise. None of the other allegations are within the knowledge of the first respondent regarding party limits of Janatha Dal in countering the statement.

The petitioner is put to strict proof of Khaja Arshad Ali and Siddaramaiah Swamy attending the meeting on 21.11.2003. To the best knowledge of the respondent, none other journalists were present in the said meeting and it was the petitioner who made character assassination of the respondent regarding his educational qualification. The petitioner is a total stranger to the election process. The petitioner instead of taking steps to project himself as a good election candidate, has made false allegations against the respondent who is very popular amongst voters of local bodies.

The allegations that his son Rajashekar Patil resorted to illegal activities like gooudaism etc., and threatened polling agents of Janatha Dal and BJP are all false. There was no complaint of any of the polling agent against the son of the respondent. His name was dragged with an intention to harm his reputation as well. The allegation that his son had gone to various polling booths with a gun and under threat secured the votes has undermined the name of the son of the first respondent and the first respondent. All allegations made against the first respondent and his son are denied. After investigating into the complaint made by Channamallappa Chakanalli, the police have filed ''B'' report before the Jurisdictional Magistrate which would establish the falsity in the claim of the petitioner. The voters of Bidar more so, voters of local bodies are very diligent and intelligent voters. Therefore, no one can threaten and persuade them. The allegation that the polling agents were not allowed to enter the booth till 9.00 a.m. is also denied. If there is non-tallying of the authorisation, it is not within the knowledge of the respondent. Similarly the Returning Officer flashing the wireless message alleged etc., is not within the knowledge of the respondent. The allegation that the voters had en massed votes between 8.00 a.m. to 9.00 p.m. is also absolutely false and baseless. Elections are done through electronic voting machine. Unless the concerned officer presses the button it does not work. There was no complaint that the election has not been held in free and fair manner. The agents of all political parties were present and their names were confirmed by the officials.

The petitioner after losing the election is desperately making attempt to make false and baseless allegations. The petitioner did not even pay the security deposit as required u/s 117 of the Act. The payment of Rs.2000/- was sent not in his name but in the name of his Advocate. Therefore, there is no compliance of section 117 of the Act. With these averments, he has sought for dismissal of the election petition.

On the basis of the above pleadings, the following issues are framed:

Whether the petitioner proves the commission of corrupt practices by the first respondent and his agents/supporters with the consent and knowledge of respondent No.1 or his agents, by making false statements as mentioned in paragraphs 5(a) to 5(e) of the Election Petition?

Does the petitioner further prove, as alleged in paras 6 and 7, about the commission of the corrupt practices by first respondent like undue influence by first respondent as mentioned in the Election Petition?

Whether the election of returned candidate i.e., respondent No.1 deserves to be declared as void and illegal?

If so, whether the petitioner deserves to be declared as elected?

What order?

Parties have let in evidence. On behalf of petitioners PWs-1 to 5 are examined and on behalf of respondent No.1 RW-1 the first respondent was examined. Several exhibits are marked. On perusal of the averments in the election petition, the allegations regarding commission of corrupt practices are alleged at paragraphs 5(a) to 5(e), 6 and 7 of the petition. Witnesses are examined to prove the allegations regarding commission of corrupt practices.

PW-1 is none other than the petitioner and he refers to averments in the petition. In an election petition charge of corrupt practices is required to be proved like that of a criminal charge and the standard of proof is also like that of a criminal charge. This is so, because the consequences are serious as the returned candidate will not only lose the seat but he will also incur disqualification from contesting elections which may extend up to 6 years. Therefore, an election petition cannot be set at naught on flimsy grounds. The allegation of corrupt practices has to be proved beyond reasonable doubt and principles of preponderance of probabilities would not apply. An election petition has to contain the concise statement of material facts on which the petitioner relies. It also should disclose full particulars of corrupt practices indicating the name of the persons alleged to have committed such corrupt practices, the date and the place of commission as well. The petition has to be accompanied by an affidavit in the prescribed Form 25 to make the election petition as a petition filed in accordance with law. On perusal of the records it is noticed that an affidavit is filed but it is not in the prescribed Form No. 25.

Learned Counsel for the respondents relies upon the following decisions:

Samant N. Balkrishna and Another Vs. V. George Fernandez and Others,

Rahim Khan Vs. Khurshid Ahmed and Others,

A. Younus Kunju Vs. R.S. Unni and Others,

Manmohan Kalia Vs. Yash and Others,

Surinder Singh Vs. Hardial Singh and Others, and

Gajanan Krishnaji Bapat and another Vs. Dattaji Raghobaji Meghe and others,

The gist of the above decisions is to the effect that facts which constitute the corrupt practice must be stated and the fact must be correlated to one of the heads of corrupt practice. Just as a complaint without disclosing the proper cause of action cannot be said to be a good complaint, so also an election petition without the material facts relating to a corrupt practice is no election petition at all. The entire and complete cause of action in the petition must be in the shape of material facts, the particulars being the further information to complete the picture. The material facts would show the ground of corrupt practice and the complete cause of action and the particulars will give the necessary information to present a full picture of the cause of action. The corrupt practices must be specifically pleaded and proved. Election once held is not to be treated in a light hearted manner and defeated candidate should not get away by filing election petition on non-substantial grounds and irresponsible allegations, thereby introducing a serious element of uncertainty in the verdict already rendered by the electorate. Unless clear and cogent testimony is furnished to the Court to uphold the corrupt practices against the candidate, the Court should not declare the election as void. The burden, therefore, heavily lies on the petitioner who assails an election which has been concluded. The appreciation of the material placed before it has to be scrutinised like in a criminal case. Each allegation has to be referred within the meaning of provisions and then test whether there is appreciation of evidence. If the test of strict proof on alleged corrupt practices is not followed, serious prejudice would be caused to the elected candidate which would come in the way of electoral process itself.

In the present case the allegations of corrupt practices is made against the 1st respondent and the allegation of undue influence is made not only against the 1st respondent but also against his son Rajashekar Patil. The first issue refers to allegation of corrupt practices by the first respondent as mentioned in paragraphs 5 (a) to 5(e) of the election petition.

According to the petitioner as part of the election campaign a meeting came to be held on 21.11.2003 at about 2.30 p.m. at Backward Hostel, Bidar, wherein the first re-spondent said to have made false allegations against the character of the petitioner as al ready referred to above. This was reported in the local newspapers next day. It is the case of the petitioner as spoken to by him in his evidence that the said meeting was attended by Khaja Arshad Ali - Editor of "Bidar ki Aawaz" and another person Siddaramaiah Swamy Editor of Daman Hindu Daily. Exs.P3, 4 & 5 are the newspapers marked through the evidence of the witnesses. Petitioner is examined as PW-1 and PW-2 is one Mr. Ashok Kumar Karanji, Editor of Ashoka Kote newspaper and PW-3 is one Anil Kumar Patil, Editor of Taruna Shakthi newspaper. Para 5(e) refers to the presence of these persons along with Khaja Arshad Ali and Siddaramaiah Swamy. As a matter of fact petitioner admits that Khaja Arshad Ali was on the dais in the meeting and he informed him later in the evening about alleged statement having been made by respondent No.1 but, however, said Khaja Arshad Ali is not examined, so also Siddaramaiah Swamy is not examined. At paragraphs 5(a) to 5(e) the offending portions of the statement said to have been made by the 1st respondent are narrated above. All the paragraphs refer to the petitioner indulging in counterfeit notes which was well within the knowledge of the 1st respondent and it also refers to the petitioner reaching the present status because of the counterfeit notes and Arati Motors. Apparently, the petitioner did not attend this meeting and he learnt about the allegations only through third parties and the paper reports.

P.Ws.2 & 3 are the persons concerned with the 2 local papers. When we look at the contents of Ex.P-5 and the evidence of P.W.2 in the examination-in-chief, he refers to the allegations made at paras 5-b(ii) & (iii). From a perusal of Ex.P-5 it is seen that it refers to only para 5(b) & (iii). P.W.3 Anil Kumar Patil refers to allegation made at para 5(b) (ii). He is the editor and publisher of "Taruna Shakthi" Kannada Daily. "Taruna Shakthi" Kannada Daily is marked at Ex.P-3. It also refers to para 5(b) (ii) of the averments in the petition. Ex.R-6 is the newspaper "Bidar ki Awaz". The said newspaper though reported the meeting, has not reported the allegations defaming the reputation of the petitioner. According to the petitioner - P.W.1., Mr. Khaja Arshad Ali the General Secretary of District Congress at Bidar was also on the dais along with the 1st respondent. He is also the Chief Editor of "Bidar ki Awaz". It was Mr. Khaja Arshad Ali who on the very same evening informed the petitioner about the accusations made against the petitioner by the 1st respondent in the meeting. If Arshad Ali were to be on the dais and he was the person who informed the petitioner in the evening in person, definitely "Bidar ki Awaz" which is marked at Ex.R-6 should have also carried the report of the said accusation made by the 1st respondent. According to the petitioner, apart from the news items to the effect on the next day in "Bidar ki Awaz" he has no other documents like video tape or a paper clipping making such allegation. He also admits that at Exs.P-3 & P-4 "Taruna Shakthi", no allegations from the speech of R.W. 1 are published. He also admits that he has not issued any defamation notice against the petitioner.

Therefore, it is clear that P.W. 1 was not actually present in the alleged meeting but P.Ws.2 & 3 who alleged to be present and who were in-charge of 2 newspapers are examined. In order to believe the evidence of P.Ws.2 & 3, one has to see whether each has corroborated the evidence of the other. It is apparent from the records that there are totally 14 newspapers and the alleged accusation of 1st respondent is published only in 3 local newspapers. In regional and national newspapers produced at Exs.R-2 to R-9 no such accusation against the petitioner is forthcoming. Even among the 3 newspapers the exact allegation said to have been made by the 1st respondent does not tally with each other. The common allegation is the words "counterfeit notes". Apparently, P.Ws.2 & 3 have not produced the notes, which they would have made during the meeting on the basis of which the news items were reported. As a matter of fact, R.W.1 the respondent has categorically denied the presence of these journalists. Except the publication of the news items in the newspapers on the next day, i.e. in the 3 local papers, no other material like recording material regarding the exact speech or words spoken to by the 1st respondent are forthcoming. In order to accept the evidence of RWs. 2 & 3 when we go through their evidence, they give different timings about the alleged speech of the 1st respondent. According to P.W.2 the respondent made the speech between 2.30 to 3.00 p.m. on that day and it was after commencement of 10 to 15 minutes of his speech. According to him, the meeting went up to 3.30 p.m. on that day and other guest speakers restricted their speech to 2-3 minutes.

With regard to the same facts, P.W.3 Anil Kumar says the function was held after 12.00 noon and he cannot say the exact time. According to him he cannot remember the number of minutes the other speakers spoke. He also cannot say whether the 1st respondent was the last one to spear. However, he remained in the function hall till the end and the same was concluded between 5.30 to 6.00 p.m.

The very timing of the meeting would indicate that the meeting concluded by 3.30 p.m. according to P.W.2, and the meeting concluded at 5.30 or 6.00 p.m. according to P.W.3. This witness also admits that representatives of other newspapers were also present. It is pertinent to mention that except 3 local newspapers none of the other alleged newspapers have reported the said accusations of the respondent No.1 against the petitioner and none of the national or regional papers have published the said accusations. In that view of the matter, in the absence of P.Ws. 2 & 3 producing the notes made by them during the meeting on the basis of which the news items were reported, would it be safe to rely upon such evidence?

As already stated above, the standard of proof required in an election petition to conclude that the returned candidate exercised corrupt practice has to prove such corrupt practice by substantial evidence like a criminal case, beyond reasonable doubt. On preponderance of probability because of appearance of news item, the Court cannot conclude that such accusation was made by the 1st respondent. According to the petitioners, the said accusation of the 1st respondent was aimed to bring down the name and fame of the petitioner so as to influence the public not to vote in his favour. Apart from the above deficits, it is noticed that there is no pleading or evidence on behalf of the petitioner that any of the audience who attended the meeting or who read the statements as reported in the newspapers have formed an adverse opinion about the petitioner and based on such impression, they have not voted in his favour, thereby prejudicially affecting the prospects of his success in the election.

The Court relies on the following citations:

Manmohan Kalia Vs. Yash and Others,

(1993) 3 SCC 151 S.A. Khan v. CH. Bhajan Lal and Anr.

K.V. Narayana Rao and others Vs. P. Purushotham Rao and others etc. etc.,

Subhash Desai Vs. Sharad J. Rao and Others, and

Mahendra Singh Vs. Gulab,

The gist of these cases is, it is very difficult for a Court to rely on news items published on the information given by correspondents because they may not represent the true state of affairs. A news item without any further proof of what had actually happened through other witnesses is of no value. It is at best a second hand or secondary evidence. It is well known that reporters collect information and pass it on to the editor who, edits the news item and then publishes it. In this process the truth, might get perverted or garbled. Such news items cannot be said to prove themselves although they may be taken into account with other evidence if the other evidence is plausible. The evidence must be clear and cogent and if there is vagueness in the allegations, it would not help the peti-tioner. The evidence cannot be too general so as to accept the same as material on a serious issue. Whatever is stated in the pleadings has to be established. Whenever a false statement regarding the personal character of the rival candidate is alleged, burden is on the petitioner to prove such allegations beyond reasonable doubt. Apart from bringing material to establish that such accusation assassinating the personal character or conduct of the rival candidate was made, the petitioner must also be able to establish that such accusation actually affects the election prospects of the candidate. Unless sufficient evidence is adduced in order to establish how the statement was understood either by the audience or the reader of the newspaper, it would not be possible for the Court to come to conclusion that such statements made by the 1st respondent in this case has affected the election prospects of the petitioner.

On the other hand, the evidence on record would indicate that the petitioner himself countered the said statements in several newspapers. Mere absence of denial by the 1st respondent would not amount to proof of accusations made by the 1st respondent. Therefore, the allegation of character assassination during a speech on 21.11.2003 made by the 1st respondent is not established by the petitioner, for the reasons mentioned above.

Then coming to the allegation of undue influence by the petitioner and his son Rajashekar Patil, they are at paragraphs 5(a), 7 & 6 of the election petition. According to the petitioner being a District In-charge Minister, the 1st respondent exercised undue influence on the Government officials and with their help induced members of the Taluk/ Zilla/Town Gram Panchayath and Town Municipal Council to vote in his favour by threatening the voters with dire consequences. Apparently, there is no affidavit filed in Form No.25 as required under the Act in support of the allegations of corrupt practices as contemplated under proviso to section 83(1). As a matter of fact, apart from the evidence of P.W. 1, he has examined P.W.5 one Mr. Maruti who has stated that polling agents of the petitioner were not allowed to enter the booth till 9.00 a.m. Though the petitioner has made lengthy allegations of undue influence, names of the voters who were threatened with such threats by the respondent are not mentioned. Apart from mentioning the names of those voters, date and place where such threats were made also have to be mentioned as material particulars. Except making an omnibus statement that Government officials extended help to the 1st respondent in bringing such pressure on the voters, no names of such Government officials are also forthcoming.

Similarly, there is nothing on record to show that whether such Government officials had the consent of the 1st respondent to make such pressure on the voters. According to the petitioner, on the date of election, none of the polling agents were allowed to enter the booths till 9.00 a.m. on the flimsy ground of the signature of the polling agent not tallying with the specimen signature of him. This was done at the instance of the 1st respondent as the polling officers were indirectly supporting the 1st respondent. First the petitioner has to establish that there was collusion between the polling officers and the polling agents of the 1st respondent.

The evidence of P.W.5 Maruti is not of much consequence to the case of the petitioner as there is no evidence to show that any voter was prevented from exercising his franchise. Even if the polling agents of the petitioner could not enter the booth on the ground of non-tallying of the signature with the specimen signature, how this can prevent any voter from exercising his vote is not forthcoming. Unless this act has prevented any voter from casting his vote or because of this there was impersonation by someone, it would not help the case of the petitioner. Not even one single witness who claims to be a voter is examined by the petitioner. The very speciality of the present election is that the voters were known as they are the members of Taluk/Zilla/Town Gram Panchayath and Town Municipal Council. It is not general electorate who have casted their votes. Any one voter who was influenced by the Government officials at the instance of the respondent could have been examined but no such evidence is forthcoming. Ex.P-19 is produced in this behalf which would only indicate that one Muralidhar Rao Kale polling agent was not allowed in the polling booth on the ground that his signature did not tally with the specimen signature. It is also justifiable on the part of the concerned officer not to allow a polling agent whose signature was not tallying with specimen signature. Just because there was verification of signature of one polling agent, it would not mean that all other polling agents were stopped from entering the booth till 9.00 a.m. Unless the petitioner would show how many proxy votes were cast in favour of the 1st respondent, it would not assist the petitioner in establishing that the election has been prejudicially affected.

Then coming to the allegation of undue influence by the son of the present petitioner, the material averments are found at para 6 of the petition. According to the averments in the petition, at para 6, on the date of polling 3.12.2003 Rajashekar Patil along with his supporters said to have entered the polling booth and said to have threatened the voters at gun point to vote in favour of the 1st respondent. In this connection, a complaint was lodged to the Returning Officer which is marked at Ex.P-20. To substantiate this allegation apart from himself, petitioner has examined P.Ws.4 & 5 as well. Both these witnesses belong to the political party -- Janata Dal (S) and they know the petitioner. They assisted him as party workers. Apparently, Muralidhara Rao Kale was not examined to speak what exactly happened when he was not allowed to enter the polling booth, because of difference in the signatures. P.W.4 says he cannot say how many voters were there at 11.00 a.m. when Raja-shekar Patil arrived at the Nirna booth. One Srinivas Pattar was the polling agent of BJP. However, he is also not examined though P.W.4 says neither himself nor BJP agent gave complaint against Mr. Rajashekar Patil. According to him, Mr. Rajashekar Patil asked about 10 voters to show the ballot paper. Though they are all from his village, he is not able to give the names. He also says that within 1/2 an hour after corning to the booth, he was sent away. 12 members according to this witness who were not the voters have cast bogus votes, but he cannot give the names of the persons who were impersonated to cast bogus votes.

So far as P.W.5 is concerned, he was the polling agent of the petitioner. The authorisation given to him was sent through someone else and it was in English and he was not knowing English. The said signature was not put by the petitioner in his presence and he was the only polling agent of J.D. (S) at booth No. 92. By 7.45 a.m. he submitted his authorisation. All other polling agents were permitted to go inside except him and the said authorisation was returned to him on the ground that the signature of the petitioner did not tally with the specimen signature. He came outside and was allowed to enter the booth only at 9.00 a.m. He sent word to the petitioner through other workers and the petitioner arrived and requested the polling officer to allow him inside the booth as his polling agent and immediately he was allowed inside. There were only 16 votes for booth No. 92 and by the time he entered the booth, 15 persons had casted their votes. Only one person had casted his vote after his entry. He has not lodged any complaint to anyone including the police that the polling officer intentionally did not allow him to enter the booth nor assisted the 1st respondent. He also admits that it was secret ballot but however, he says that one vote which was casted after his entry was in favour of Basavaraj Patil. However, he personally is not aware of other 15 persons casting their votes in favour of Basavaraj Patil as he did not see. The petitioner relies on Exs.P-14 & P-17 to contend that he made representation to the authorities on 1.12.2003 itself that the son of the respondent No. 1 intimidated the voters in the 3 polling booths and forced them to cast votes in favour of Congress candidate. However, in the so-oalled representation made by him, there is no reference to Rajashekar Patil entering the polling booth station with 30-40 supporters and threatening the voters with dire consequences at gun point. The said averment is only found in the petition and it is nothing but an improvement made at the time of filing the election petition. None of the names of Voters who were threatened with dire consequences by the son of the 1st respondent are named either in the representation which has come at the earliest point of time or in the pleadings. Except P.Ws.4 & 5, no other witnesses are examined. These P.Ws.4 & 5 are none other than the party workers of the petitioner. The material on record would go to show that the so-called complaint lodged against the son of the 1st respondent has resulted in ''B'' report. On the other hand, it is noticed that no complaint came to be lodged by the petitioner against Rajashekar Patil. Similarly, no complaint came to be lodged by such intimidated or threatened voters either against the son of the 1st respondent or any of his supporters. In that view of the matter, though several allegations of criminal intimidation and undue influence are made against the respondent and the son of the respondent the evidence placed on record by the petitioner is incomplete and it does not substantiate the allegations made against the 1st respondent and his son. The entire evidence brought on record does not establish the allegations made against the respondent that he indulged in corrupt practices and made undue influence on the voters.

In view of the above discussion and reasoning, the election petition deserves to be dismissed and is accordingly dismissed. Petition dismissed.