Jharkhand Gazette, No. 696, 21 August 2018

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ELECTION COMMISSION OF INDIA

ORDER

27th September, 2017

In re: Account of election expenses of Mr. Madhu Koda, returned candidate from 10-

Singhbhum Parliamentary Constituency, Jharkhand at the General Election to the Lok

Sabha, 2009-Scrutiny of account under Section 10A of the Representation of the People

Act, 1951.

No. 76/JHAR-HP/10/2010/EEM This case arises out of the news report published in Economic Times on 27th Sep 2010 against Shri Madhu Koda regarding huge expenses having been incurred by him in General Election to the Lok Sabha in 2009. A report dated 5th August 2010 was also submitted by District Election Officer, Chaibasa, Jharkhand in which it was stated that Shri Madhu Koda, the returned candidate from 10-Singhbhum Parliamentary Constituency, Jharkhand at the General Election to the Lok Sabha, 2009, had not submitted the account of his election expenses in the manner required by law under Section 10A of the Representation of the People Act, 1951. The case also relates to an investigation by the Income Tax Department against Shri Madhu Koda in which, a huge election campaign expense was revealed to have been incurred by him, which was beyond the permissible limit under the law. This order of the Election Commission hereby decides the question, as to whether Shri Madhu Koda (hereafter, Respondent) is subject to disqualification under Section 10A of the Representation of the People Act, 1951, for not lodging the account of his election expenses in the manner provided under Section 77 and Section 78 of the Representation of the People Act, 1951 (hereafter, "RP Act, 1951") and Rules 86-89 of the Conduct of Elections Rules, 1961 (hereafter, "CER, 1961").

FACTUAL MATRIX

1. The Respondent was declared elected on 16th May 2009 from 10-Singhbhum Parliamentary Constituency, Jharkhand in the general election to the Lok Sabha in 2009. A report was submitted by District Election Officer,Chaibasa, Jharkhand (hereafter, "DEO") before the Election Commission of India (hereafter, "the Commission") under Rule 89 (1) of the CER, 1961 on 14th July 2009 stating that the Respondent submitted his account of election expenses with the DEO on 1st June 2009 i.e. within the time prescribed under law and had submitted both Register and the Vouchers. The Respondent had submitted a total expenditure of Rs. 18, 92,353, as stated in the report. Thereafter, a letter was sent by the Commission to the DEO on 4th June 2010, stating that the report dated 14th July 2009, sent to the Commission was not in the prescribed format and it should be properly filed.Pursuant to letter, dated 4th June 2010, a report was re-submitted by the DEO on 5th August 2010 under Rule 89, of CER, 1961 stating as follows: (i) Respondent submitted his account of election expenses with the DEO on 01.06.2009 (within time).

(ii) Respondent submitted the account within time but not in the manner provided in the R. P Act 1951 and CER, 1961.

(iii) Total expenditure incurred according to Respondent is Rs.18, 92,353.

(iv) The Respondent has not submitted any supporting voucher against which the expenditure was incurred.

2. A news report was published in Economic Times on 27th Sep 2010 against the Respondent in which the following was mentioned:

(i) An investigation by Income Tax Department (hereafter, 'ÏT Department') has revealed that the Respondent has filed a false declaration with the DEO stating an expenditure figure of Rs. 18.92 lakhs while he has spent Rs. 9.32 crores on his election campaign in general election to the Lok Sabha in 2009.

(ii) IT officials further stated that the information revealed by six media houses shows that the advertisement expenditure alone stood at Rs. 28 lakhs as against Rs. 2.24 lakhs as shown by Respondent.

3. The Commission decided to take action in the matter on the basis of the news report and subsequently, a letter dated 29th Sep 2010, was sent by the Commission to the Chairman of Central Board of Direct Taxes (hereafter,'CBDT'), along with the copy of the news report. A request was made to the CBDT therein to submit a report, along with the gathered evidence, for further action in the matter to be taken by the Commission.

4. Pursuant to the report of DEO dated 5th August 2010, the Commission issued a show cause notice to the Respondent under Rule 89 (5) of CER, 1961, which stated as follows:

"Whereas, after considering the report of the District Election officer, West Singhbhum,

Chaibasa, Jharkhand, the Election Commission has noted that Shri MadhuKoda, contesting

candidate in the General Election to the House of the People, 2009, from 10-Singhbhum(ST)

Parliamentary Constituency of Jharkhand has failed to lodge his account of election expenses

in the manner required by law, because of the following reasons:-

(i) Supporting vouchers against which the Expenditure incurred have not been submitted.

Now, therefore, under sub-rule (5) of rule 89 of the Conduct of Election Rules, 1961, the

Election Commission herby gives notice to Shri Madhu Koda to show-cause why he should

not be disqualified for his failure to lodge a proper account. His representations, in writing,

giving detailed reasons for the default, should reach the office of the Commission within 20

days from the date of receipt of this notice. He should at the same time, forward to the above

said District Election Officer, West Singhbhum, Chaibasa, Jharkhand a copy of his

representation and rectify the said defects in his accounts. In case, he fails to do so within the

time stipulated above, he will be liable without any further reference to him in the matter, to

be disqualified under Section 10A of the Representation of the People Act, 1951, for being

chosen as and for being, a member of either House of Parliament or of the Legislative

Assembly or Legislative Council of State for a period of three years from the date of the order

of the Commission declaring him to be so disqualified.

(Extracts of Section 10A, 77 and 78 of the Representation of the People Act, 1951 and of

Rules 86 and 89 of the Conduct of Election Rules, 1961 are enclosed.)

Given under the seal of the Election Commission of India on the day of 7th October, 2010."

5. Thereafter, another report dated 8th Oct 2010 was submitted before the Commission by DEO stating that the Respondent submitted the account within time and in the manner provided in the R.P Act, 1951 and CER, 1961.

6. Subsequently, on 8th Oct 2010, CBDT also forwarded a copy of the report furnished by Director General of Income Tax (Inv.) Patna in the Respondent's case in respect of election expenses allegedly incurred beyond the permissible limits laid down in the R.P Act, 1951 to the40 ( Commission. The report alleged the total expenditure incurred by the Respondent on electronic and print media as Rs. 28, 01,729. It was stated in the report that during post-search investigation, the letters were written by the CBDT to different newspapers and channels like 'Uditvani' (Jamshedpur), 'Dainik Jagaran' (Chaibasa & Jamshedpur), 'Hindustan' (Jamshedpur), 'Prabhat Khabar' (Jamshedpur), 'Sahara India TV Network' (Ranchi), and 'ETV News' (Ranchi), asking for the promotional articles/advertorials published in the newspapers and telecast advertisements programmes shown on the channels for the Respondent during the General Election, 2009. These media agencies have submitted the details of expenditure, bill amounts along with bill nos., dates of advertisements, rates of advertisements and amount received for the advertisements alongwith photocopies of the alleged newspaper advertisement/articles that had been published relating to the Respondent herein.

7.

LIST OF ALLEGED ADVERTISEMENTS/NEWSPAPER ARTICLES:

8. In pursuance of the report of CBDT, a letter dated 19th October 2010 was sent by the Commission to DEO, Chaibasa, Jharkhand, with a direction to forward scanned copies of all vouchers with respect to the Respondent. Also, another letter dated 19th October 2010, was sent by the Commission to the Director of IT (inv.), Patna, directing him to forward scanned copies of the evidence found by IT Dept. withrespect to the Respondent.

9. Pursuant to show cause notice, dated 7th Oct 2010, the Respondent filed a reply dated 23rd Oct 2010, stating as follows: (i) Account of election expenses was filed duly within time and in manner provided under the law on 1st June 2009, which is evident from DEO's report dated 14th July 2009. (ii) In first week of October, 2010, the DEO informed the Respondent's office that the supporting vouchers had not been submitted and the same should be submitted by him. (iii) The Respondent traced the vouchers in the election expenditure cell which had been misplaced by the DEO's office and the same were provided to the DEO's office on 8th Oct 2010. (iv) DEO's report dated 8th October 2010, to the Commission stated that the account filed by Respondent is in manner as required by law.

10. In pursuance of the reply to the show cause notice, sent by the Respondent, the Commission again, sent a notice dated 22nd Jan 2011 to the Respondent under Rule 89 (5), the CER, 1961 which stated as follows: "I am directed to refer to Commission's notice No. 76/JHAR-HP/10/2010 dated 7th October 2010 and the reply dated 23rd October 2010 received from you. The Commission is in further receipt of a report from the Income Tax Department mentioning the details of your election expenses pertaining to Lok Sabha Election 2009. A copy of the summary by the findings of the Income Tax Department is enclosed as per the Annexure 'A 'and Annexure 'B'. From the said report of the Income Tax Department, it prima facie transpires that the account of election expenses filed by you under Section 78 of the Representation of the People Act, 1951 is not the correct account of the election expenses as required to be maintained under Section 77(1) of the said Act. You may inspect the relevant documents in the Commission's Secretariat on any working day if you so desire. You are hereby called upon to show-cause why you should not be disqualified under Section 10A of the Representation of the People Act, 1951, for your failure to maintain and lodge the accounts of election expenses in the manner required by law. Your reply in this matter should reach the Commission within 20 days from the date of receipt of this letter. In the event of failure to do so within the stipulated period, it will be presumed that you have no good reason or justification for the said failure and you will be liable to be disqualified under Section 10A of the Representation of the People Act, 1951."

11. In response to the above notice, lettersdated 14th Feb 2011 and 23rd Feb 2011 were sent by the Respondent before the Commission seeking extension of time to file a reply citing ill health, and a time period of 4 months was requested by the Respondent to file the reply to the show cause notice vide his second letter. The Commission sent a letter dated 3rd March 2011 to the Respondent granting him further 20 days' time to file the reply. Also, in regard to his request of time for 4 months, citing ill health, a certificate was sought from a medical authority in support of his request within a week. Thereafter, a medical certificate was submitted by the Respondent on 15th March 2011 and further, vide Commission's letter dated 5th April 2011, the Respondent was granted 20 days' further time to file the reply to the show cause notice.

12. The Commission, as stated in the notice of 22nd Jan 2011, had granted the Respondent an opportunity to inspect the documents. The Counsel for the Respondent, Mr. Himanshu Shekhar- carried out the inspection of documents and subsequently on the same day, vide his letter dated on 30th May, 2011, he submitted before the Commission that the documents relied upon in notice dated 22nd Jan 2011, had been supplied to him. In view of the inspection of the documents by the Counsel for the Respondent, the Commission vide its letter dated 6th June 2011 granted a further extension of 20 days to the Respondent to file his written submission from the date of receipt of this letter.

13. Parallel to the above events, a letter dated 11th March 2011 was sent by the Commission to DEO reminding him to submit acknowledgment receipt of the notice issued to the candidate under Rule 89 of CER, 1961, along with supplementary report stating whether the account lodged was true account incurred by candidate. It was further reminded in the letter that the supporting vouchers submitted by Respondent have to be submitted before the Commission. After a reminder dated 27th April 2011 in regard to the information sought in this letter, a reply dated 18th June 2011 was received from DEO stating as follows:

(i) In the DEO's report, dated 14th July 2009, it was wrongly stated that Respondent had submitted the supporting vouchers.

(ii) In DEO's report, dated 8th Oct 2010, it is stated that supporting vouchers were submitted by Mr. Ankur Kumar Chaudhary, election agent ofRespondent on 8th Oct 2010.

14. A letter dated 20th June 2011 was received from the Respondent's Counsel, Mr. Himanshu Shekhar stating that the copies of documents replied upon by the Commission were received on 14th June 2011 and thus, 3 months' extension is needed to go through the voluminous files. Also, vide his letter dated 29th June 2011, a copy of report of the DEO dated 18th June 2011 was requested to be furnished to him. Later, on 5th July 2011, the Commission granted a final opportunity to the Respondent for one week to file the reply to the show cause notice dated 22nd Jan 2011.

15. In the meanwhile, a Writ Petition No.4662/2011 (Madu Koda vs. Election Commission of India) was filed by the Respondent before the High Court of Delhi, praying to quash the notices issued by the Commission to the Respondent dated 7th Oct 2010 and 22nd Jan 2011 and to declare the said notices to be ultra vires and without any authority of law. The petition further challenged the jurisdiction of the Commission to decide an issue regarding excessive expenditure in violation of Section 77 (3) and for an action under Section 10A of the Representation of the People Act, 1951. The petition also challenged the constitutionality of Section 10A of the Representation of the People Act, 1951 vis-a-vis the returned candidates. The fate of the petition resulted in dismissal before the Delhi High Court on 30th Sept 2011.

16. Thereafter, a letter dated 7th Oct 2011 was sent by the Commission to Respondent directing him to appear before the Commission on 21st Oct 2011 and file a written submission, if any, by 17th Oct 2011. Pursuant to letter dated 7th Oct 2011, a letter dated 13th Oct 2011 was sent by the Counsel for the Respondent, Mr. Himanshu Shekhar to the Commission requesting a grant of time till end of November, 2011 as the Respondent was filing a Special Leave Petition (hereafter, 'SLP') against the order of the Delhi High Court dated 30th Sept 2011. Thereafter, the Commission vide its letter dated 18th Oct 2011, directed the Respondent to appear before the Commission on 21st Oct 2011 as there was no stay in the order of the High Court dated 30th Sept 2011. Subsequently, a letter dated 20th Oct 2011 was sent by the Superintendent of the Birsa Munda Central jail, Ranchi to the Commission forwarding Respondent's request to postpone the hearing and issue directions to the jail authorities to bring him to Delhi for his appearance before the Commission, as he was there confined to that jail. On 24th Oct 2011, the Respondent's Counsel Mr. Himanshu Shekhar requested the Commission to provide him the certified copies of the documents relied upon by the Commission and according to his request, the Commission replied to him vide its letter dated 8th Nov 2011. In view of these events, the Commission issued letter dated 27th Oct 2011 to the Respondent postponing the hearing to 18th Nov 2011 and directed the Respondent to file his written submission by 15th Nov 2011. But, the Commission had to postpone the hearing for its pre-occupation with some urgent election work and intimated46 ( the postponement of the hearing to the Respondent vide its letter dated 15th Nov 2011. Thereafter, the Commission sent a letter dated 8th May 2012 to the Respondent, fixing the date of hearing on 1st June 2012 and asked him to file his written submission by 20th May 2012, if any.

17. In the meanwhile, the Supreme Court stayed the proceedings before the Commission on 9th May 2012, in the SLP No. 14209/2012, filed by the Respondent challenging the order of the Delhi High Court dated 30th Sept 2011 in Writ Petition No.4662/2011 (Madu Koda vs. Election Commission of India). Thereupon, the Commission issued a letter dated 29th May 2012 to the Respondent, postponing the date of hearing.Subsequently, the Supreme Courtlisted the matter to be heard on 22nd Oct 2013.

18. Thereafter on 11th Oct 2013, a letter was sent by the Commission to the Director, Central Bureau of Investigation (hereafter, 'CBI'), requesting for a copy of the charge sheet filed against the Respondent in the disproportionate assets case in order to bring a plea before the Supreme Court of India regarding the suppression and underestimation of the election expenditure by the Respondent. CBI forwarded a copy of charge-sheet to the Commission vide its letter dated 22nd Oct 2013. The charge-sheet states that Mr. MadhuKoda has incurred election expenditure to the tune of Rs. 7, 38, 87,690 for the general elections to the Lok Sabha, 2009. Subsequently, the Supreme Court, on 5th May 2014,held in Ashok ShankarraoChavan v. MadhavraoKinhalkar&Ors.,(2014) 7 SCC 99 that:

"103…Election Commission does possess the requisite powers under Section 10A to

hold the necessary enquiry to ascertain the fact about the compliance of the statutory

requirements in the matter of submission of accounts of the election expenses, i.e. the

true, correct and bona fide expenses and that such expenses were within the prescribed

limit of the Act."

Consequently, the SLP filed to the Respondent was also dismissed by the Supreme Court on 5th May 2014.

19. After the Supreme Court's decision granting the power to the Commission to enquire and decide the matters regarding the submission of the true account of the election expenses, the Commission, its letter dated 9th July 2014, intimated the Respondent to file the reply to the show cause notice by 18th July 2014 and fixed the next date of hearing on 24th July 2014. The Respondent filed its reply dated 18th July 2014 to the show cause notice stating as follows: (i) Preliminary objection: The Respondent submits that the Commission has initiated the present proceedings against him on merely a bunch of papers sent by the Income Tax Department and there was no formal complaint filed by any complainant before the Commission. The documents are not filed on affidavit before the Commission. On this ground the proceedings must be dropped. (ii) In the absence of a proper detailed petition showing the relevancy of the documents in the annexures, it is difficult for the Respondent to frame a specific reply on every piece of paper. He is unaware of most of the documents and he finds most of them as vague and not in connection to him. The annexures include the third party statements taken by the IT department forcibly, that are needed to be cross examined by the Respondent and he needs an opportunity for the same. (iii) The money receipts submitted by the news agencies are not clear as to which news item/article/documentary was published, whether they were paid, by whom they were paid and whether the alleged payment was made with approval of the Respondent or not. (iv)The returning officer had not found any discrepancy in the account of election expenditure filed by the Respondent. (v) Hehas also sought an opportunity to cross examine the statements and documents and leading evidence.

20. The Commission further conducted its hearings on 24th July 2014, 11th Aug 2014, 29th Aug 2014, 16th Sept 2014, 16th Dec 2014, 5th Feb 2015, 08th July 2015, 06th Aug 2015, 7th Sept 2015, 14th Oct 2015, 18th Jan 2016, 1st Feb 2016, 13th April 2016, 11th July 2016, 9th Aug 2016, 31st Aug 2016, 26th Oct 2016, 21st Nov 2016, 26th March 2017, 5th April 2017, 24th April 2017, 15th May 2017, 16th May 2017, 31st July 2017 and 25th Aug 2017.

21. After the hearing on 29th Aug 2014, the Commission had framed its issues in the matter and the same were forwarded to the Respondent vide letter dated 9th Sept 2014. The issues framed by the Commission are as follows: (i) Whether the articles/news items/ advertisements/ advertorials/ spot ads and T.V coverage/ advertisements in newspapers and electronic media as per Annexure A were published/ telecast during the election process for promoting the prospects or procuring the election of the Respondent? (ii) Whether the expenditure in publication/telecast of all or any such item(s) as mentioned in issue no. 1 above was incurred/authorised by the Respondent or his election agent or by any person with implied consent or knowledge of the Respondent or his election agent? (iii) Whether the expenditure on publication or telecast of such item(s) as mentioned in issue no. 2 was included in the accounts of election expenses of the Respondent? (iv)Whether the Respondent has failed to lodge his account of election expenses in the manner required by or under the law, by not including such election expenditure?

(v) Whether the Respondent had any good reason or justification for the said failure to lodge his account of election expenses in the manner required by or under the law.

(vi)Whether the Respondent is liable to be disqualified by the Election Commission under Section 10A read with Section 77 and 78 of the R.P Act, 1951?

22. The Commission appointed Shri Pankaj Chopra, Advocate, as the Presenting Officer in this case. On his request, the Commission summoned the following persons (PWs', hereafter) as its witnesses: (i) Mr. Sunil Kumar (PW-1), DEO-cum-Deputy Commissioner (from 26thMay 2008 to 7th May 2010) of West Singhbhum during the elections in 2009. (ii) Mr. K. Srinivasan (PW-2), DEO-cum-Deputy Commissioner(from 7th May 2010 to 27th April 2013) of West Singhbhum.

(iii) Shri Anup Kumar Sarkar, Manager (PW-3), Neutral Publishing House ltd., Jharkhand (iv) Shri Prabhakar Nath Tiwari, Manager (PW-4), Hindustan Media Venture Ltd. Patna (v)Shri Praveen Kumar, Manager (PW-5), Jagaran Prakashan, ltd., Jamshedpur.

(vi)Shri Udit Agrawal, Manager (PW-6), Uditvani, Jamshedpur

(vii) Shri Rajnish, Manager (PW-7), Sahara India, TV Network, Kolkata

(viii) The Manager, M/s Ushodaya Enterprises Pvt Ltd. (TV Division), Patna

23. The Respondent produced the list of following witnesses:

(i) Mr. Vikas Kumar Sinha (RW-1), Chaibasa, Singhbhum, Jharkhand

(ii) Mr. Rajiv Nayanam (RW-2), Chaibasa, Singhbhum, Jharkhand

(iii)Mr. Vinod Kumar Sinha (RW-3), Chaibasa, Singhbhum, Jharkhand

(iv) Mr. Ankur Roy Choudhary (RW-4), Chaibasa, Singhbhum, Jharkhand

(v) Mr. Pramod Kumar(RW-5), Chaibasa, Singhbhum, Jharkhand

(vi) Respondent himself as (RW-6). The evidence of the above witnesses on both sides was recorded from 05th February 2015 to 16th May 2017. They were cross examined at length by the Counsels on both sides.

EVIDENCE OF WITNESSES:

24. Contentions made by the witnesses on behalf of the Commission:

i. PW-1 i.e. Mr. Sunil Kumar, DEO-cum-Deputy Commissioner,stated that he was posted as DEO- cum-Deputy Commissioner in West Singhbhum from 26th May 2008 to 7th May 2010. He stated that in the report dated 5th Aug 2010, submitted before the Commission by the then Deputy48 ( Commissioner, it was mentioned that the Respondent filed the account of election expenditure without supporting vouchers. Thereafter, in the report dated 8th Oct 2010, submitted before the Commission by the then Deputy Commissioner, it was made clear that the aforementioned missing vouchers have been subsequently lodged by the Respondent. Further, on the question of observing or receiving any report of irregularity, he mentioned that he was not sure of receiving any such report against the Respondent.

ii. PW-2i.e. Mr. K. Srinivasan, DEO-cum-Deputy Commissioner, confirmed the statements of PW- 1 by replying that the report dated 5th Aug 2010 was sent by him before the Commission, wherein it was mentioned that the Respondent filed the account of election expenditure without supporting vouchers. Later, he had sent another report dated 8th Oct 2010 before the Commission, wherein it was mentioned that the missing vouchers have been subsequently lodged by the Respondent. On the question of discrepancy in the total expenses shown to have been incurred by the Respondent i.e. Rs. 18,92,353/-, he stated that he cannot answer the same as he was not posted as District Magistrate in West Singhbhum during the relevant time period.

iii. PW-3 i.e. Shri Anup Kumar Sarkar, was asked question regarding production of original bills/receipts issued by Mr. Pramod Kumar (the person who booked the advertisements for Prabhat Khabar)on behalf of the newspaper( Prabhat Khabar) to the Respondent, to which he has stated that Mr. Pramod Kumar never issued receipts to the parties. He only received the money and forwarded it to the Publishing House. Hewas also asked as to whether the publications dated 8th April 2009 and 9th April 2009 were done on the basis of verbal instructions of Mr. Pramod Kumar to which he replied that both advertisements were published against Release Orders from the party end, forwarded by Mr. Pramod Kumar and payment for the same was made through Demand Draft dated 16th April, 2009. Further, he has also accepted that publications were normally done only when Release Order with contents had been submitted by the party.

iv. PW-4 i.e. Shri Prabhakar Nath Tiwari, A.G.M. (Finance) of M/s. Hindustan Media Venture Ltd. denied the suggestion by the Counsel of Respondent that the copies of Release Orders brought by him were fabricated. On the question of discrepancy in the date of one of the receipt dated 5th April 2009, he attributed it to be a mere clerical mistake because of a wrong setting on the fax machine. Further explaining the difference between an advertorial and a news report, he stated that advertorials had 'HT media marketing initiative' written under them. He also denied any pressure from the Income Tax authorities for preparation of the documents.

v. PW-5, i.e. Shri Praveen Kumar, A.G.M. of M/s Jagaran Prakashan Ltd. confirmed by stating that the newspaper records of the Respondent had been submitted as a reply to the information asked for by the Income Tax authorities in 2010. He further statedthat certain newspaper cuttings that had been filed did not contain the word 'advertorial' but bills had been generated and paid for them, hence they were considered as advertisements. He further replied that a credit note has been given with every original bill. He admitted that payments by cash were received of Rs. 5, 00,000on 30th March 2009; Rs.2, 00,000 on 9th April 2009; Rs. 1, 45,600/- on 9th April 2009; Rs. 2, 00,000 on 14th April 2009; Rs. 1, 00,000 on 18th April 2009 and Rs. 2, 50,000/- on 22nd April 2009. He also stated that the payments were received prior to the publication or on the same day( 49 except in one publication where the bill was generated on 8th April 2009 and the payment was received on 9th April 2009.

vi. PW-6 i.e. Shri Udit Agrawal, Manager of Uditvani has submitted that publication of advertorial is not done unless prior payment has been taken, in case an unknown person was giving the order.

Hedenied that the advertisement bills submitted by him were false and fabricated. He also expressly denied the suggestion of Counsel for Respondent that the documents were forged and placed in front of the Income Tax authorities at the behest of rival party members of the Respondent or that the Respondent had been falsely implicated. He also negated the suggestion that no advertorials were directed to be published by the Respondent and that the alleged advertorials were bogus and published without the knowledge/consent of the Respondent without any written communication between them.

vii. PW-7 i.e. Shri Rajnish, Bureau In-charge of Sahara T.V. stated that the in all the documents produced by him on record i.e. (a) the letter dated 30th April 2009 which is addressed to the Respondent as "M. Koda", (b) invoice dated 30th April 2009 in the name of "M. Koda" for a total sum of Rs. 5,00,000/-(c) ledger account for the period 01st April 2009 to 31st March 2010 showing debit of the aforementioned amount of Rs. 5,00,000, d) receipt dated 11th May 2009 confirming receipt of amount from "M. Koda"; herein, "M. Koda" refers to the Respondent. PW- 7 has denied that the documents are false and fabricated and had been prepared at the instance of Income Tax authorities to falsely implicate the Respondent.

25. Averments made by the Respondent himself and the witnesses on behalf of the Respondent:

i. RW-1, i.e. Mr. Vikas Kumar Sinha, Chaibasa, Singhbhum, Jharkhand stated that he is a businessmen by profession and he is brother of Mr. Vinod Kumar (RW-3). He denies the allegation of having paid Rs. 2,00,000/- on behalf of the Respondent to Danik Jagran for publishing advertorial on 9thApril 2009 in his favour. He replied that he never had any financial dealings with the Respondent, neither in past nor in the present.

ii. RW-2, i.e.Mr. Rajiv Nayanam, Chaibasa, Singhbhum, Jharkhand replied that he was the authorised counter for Hindustan Times Venture Ltd. at Chaibasa. He stated that he used to collect advertisement materials from the interested parties and issue bills in lieu of the payment received and sent carbon copies to the head in Jamshedpur office. He accepted receiving payments from one Ankur Kumar Chaudhary, election agent of the Respondent for publication of advertorials during the period of March, 2009 to May, 2009.He confirms that he had issued the vouchers (No. 59, 61 in Vol I and No. 218, 219, 220, 221, 222 in Vol II) to the Respondent and the vouchers bear his signatures.

iii. RW-3, i.e. Mr. Vinod Kumar Sinha, Chaibasa, Singhbhum, Jharkhand submitted that he is a businessman by profession, he was active in student politics and he met the Respondent in 1989- 1996 and thereafter he met him a few times only. He mentioned that the political rivals have been campaigning against the Respondent in conspiracy with mines mafia and dragged his name because the Respondent did not succumb to the pressure of mines mafia during his Chief Minister-ship. He vehemently, claimed that he never had any financial dealing with the Respondent.He denies the allegation that he had paid Rs. 5, 00,000/- to Danik Jagran in the election campaign of 2009 on behalf of the Respondent.

iv. RW-4, Mr. Ankur Roy Choudhary, Chaibasa, Singhbhum, Jharkhanddeposed that he was appointed by the Respondent as his authorized representative (election agent) during Parliamentary Elections of 2009.His work pertained to dealing with advertisements published in electronic and print media. He admitted to writing accounts in a register provided for by the Returning Officer for maintaining day to day account of expenses made during the election campaign. He stated that the Respondent had refused to succumb to the mines mafia lobby and hence a systematic campaign was started by rival political groups and mines mafia of which the Respondent became a victim. He admitted that he had paid Rs. 74,992 to Prabhat Khabar through Mr. Pramod Kumar,Rs. 115000/- to Hindustan Media Venture Ltd. through Mr. Rajeev Nayanam, Rs. 45000/- to authorized agent of Danik Jagaran and Rs. 45000/- to authorized agent of Danik Jagran. He stated that all other bills submitted by the newspaper agencies are false and fabricated. He also mentioned that no documents have been filed by them confirming their authorisation. He contended that the release orders submitted by Prabhat Khabar were not approved by him. He also denies any negotiation with Sahara TV network. He contended that he used to receive the material from the media company and it was published after our approval.

v. RW-5, i.e. Mr. Pramod Kumar, Chaibasa, Singhbhum, Jharkhand stated that he worked in Prabat Khabar from 1994 to March, 2013 at Chaibasa office.He used to collect advertisement materials from the interested parties and issue bills in lieu of the payment received. He accepted receiving payments from one Ankur Kumar Chaudhary, election agent of the Respondent for publication of advertorials during the period of March, 2009 to May, 2009. He also mentioned that each bill contained his signature and amounted to Rs. 74,992/-.

vi. RW-6, i.e. the Respondent himself mentioned with respect to publications in Prabhat Khabar that the total amount paid by him for 5 publications was Rs. 74,992. With respect to publications in Hindustan Times he stated that the total amount for 6 publications paid by him was Rs. 1, 15,000.

With respect to publications in Uditvani he stated that only 1 publication was authorised for Rs. 10,000. With respect to publications in Dainik Jagaran he contended that 1 advertorial was authorised for 4 different dates and the total amount paid by him for the same was Rs. 45,000.

With respect to telecast in Sahara TV, he stated that he or his election agent had never authorised the telecast of Rs. 5, 00,000 and no document confirming his authorisation has been brought on record. With respect to telecast in E TV, he stated that an advertorial was telecasted on ETV and he paid Rs. 15,000 for the same. Further, he averred that the bills and scripts submitted by the newspaper agencies are denied by him as the said articles were never authorized to be published by him or on his behalf and the bills and other documents are false and fabricated. He further said that the newspaper houses did not produce his authorization as they were never directly dealing with him or his election agent and hence their documents cannot be relied upon. He also attached a copy of the authorised content of the publications along with the affidavit which he claims to be( 51 the only publications authorised by him. He admitted that though he had the knowledge with respect to the publications, but he neither filed a complaint before nor after election against the unauthorised publications.

26. The Presenting Officer of the Commission has relied upon the following averments:

i. The Presenting Officer, with regard to the first issue framed by the Commission, relied upon the testimonies of PW-3, PW-4, PW-5, PW-6 and PW-7 and contended that the advertisements/news/articles/TV coverage which were published/telecasted during the election process led to the presumption that they were for the benefit of and for promoting the prospects of the Respondent. He also relied upon the fact that the publication of numerous advertisements has also been admitted by the Respondent in his cross-examination.

ii. The Presenting Officer further submits with regard to the second issue framed by the Commission that the Media Houses had confirmed receipt of payment, thus a strong presumption of the said payment being made arises. The publications were in favour of the candidature of the Respondent meaning thereby that he attained advantage of the same, without taking any action against the Media Houses, which implies to his consent of their publication. Most expenses were made in cash by the Respondent.

iii. Regarding the third issue framed by the Commission, the Presenting Officer points out that a fraction of the expenses have been included by the Respondent in his election expenditure accounts that have been submitted but the majority were excluded.

iv. The Presenting Officer with regard to the fourth issue framed by the Commission contends that the Respondent had failed to lodge his account of the election expenses in the manner required by law in view of the non-inclusion and non-disclosure of the entire gamut of expenses.

v. As regards the fifth issue, the Respondent has not provided any justification for the non-inclusion of alleged expenses and has merely denied the same.

vi. The Presenting Officer contends that in light of the abovementioned findings, the Respondent would be liable to be disqualified by the Election Commission of India under Section 10A read with Section 77 and 78 of the Representation of People Act, 1951.

27. The Respondent has made the following submissions through his counsel:

i. Learned Counsel Shri Anshuman Sinha, appearing for the Respondent submits that an election candidate should not be held responsible for the articles/publications that have neither been authorized by him nor any bills provided for the same.

ii. Further, it is mentioned by the Counsel that the word "advertorial" has not been mentioned in any publication of Dainik Jagran and mere newspaper articles cannot be assumed to be advertorials by the Respondent. Similar news articles had been published for other candidates and the Respondent cannot be expected to inquire whether the same had been paid for by52 ( someone else. An adverse burden of proof would put electoral candidates at the mercy of their opponents.

iii. Another point Learned Counsel makes is that the Respondent's electoral expenses where well within limits and additional expenditure, if made, could have easily been accommodated within the said limit.

iv. Learned Counsel also submits that the bills/invoices submitted by the Presenting Officer did not contain authorization/signature of the Respondent or his election agent. The computer generated bills/receipts have been termed inadmissible in law as evidence by the Learned Counsel for no certificate under Section 65B of the Indian Evidence Act had been filed in support of the same. Shri Sinha submits that an electronic record must follow certain conditions to be admissible as evidence, such as being accompanied with a certificate which identifies the electronic record, describe the manner in which the electronic record was produced, furnish the particulars of the device involved in the production of that record, as laid down in Section 65-B(2) of the Indian Evidence Act and must also be signed by a person occupying a responsible official position in relation to the operation of the relevant device.

v. It is contended by Learned Counsel that the information contained within the bills comes within the purview of the definition of "data" as per Section 2(o) of the Information Technology Act, 2000 and that data comes within the definition of "electronic records" in Section 2(f) of the IT Act, 2000 which has been assigned the same meaning under Section 3 of the Indian Evidence Act, 1872. Thus the computer generated bills in the present case would be coming within the ambit of the Indian Evidence Act, 1872 as electronic records and require their admissibility to be established.

vi. Learned Counsel contends that the witnesses PW-3 to PW-7 had no personal knowledge about the documents produced as they were not connected with the publication/creation of those documents at the relevant period of time. According to the Learned Counsel, this renders cross-examination of those witnesses ineffective. The Respondent had also filed an application before the Hon'ble Commission for directing the prosecution to call relevant/appropriate witnesses.

ANALYSIS OF EVIDENCE:

28. Firstly, in the investigation report of Director General of Income Tax (Inv) dated 8th Oct 2010, submitted by CBDT before the Commission, the total alleged expenditure incurred by the Respondent on electronic and print media, is revealed as Rs. 28, 01,729. The report also annexed the documents obtained during investigation from 4 newspaper agencies and 2 TV Channels i.e. Uditvani (Jamshedpur), Dainik Jagaran (Jamshedpur), Hindustan (Jamshedpur), Prabhat Khabar (Jamshedpur), Sahara India TV Network (Ranchi) and ETV News (Ranchi) respectively. The details of the bills generated in the name of the Respondent by these media houses and the amounts admittedly received by the particular media house from the Respondent, and the amount admitted by the Respondent in his account of election expenses are summarised as follows:

29. Secondly, during the inquiry conducted by the Commission, all the media houses were summoned as the witnesses of the Commission and were asked to submit the relevant documents before the Commission. Every media house except ETV news, authorised a person as the witness through an authority letter issued by the Officer in charge of the mediahouse and the witness submitted the relevant documents asked for by the Commission. The information submitted by the media houses before the Commission is summarised as follows:

30. Thirdly, the details of the expenditure on print and electronic media with respect to the alleged publications in 4 newspapers and 2 TV Channels, which have been submitted by the Respondent in his account of election expenses are as follows:

31. The above analysis of the evidence received on record of the Commission clearly shows that there is a huge difference between the amount of media expenditure alleged by the CBDT (investigation report by Director of Income Tax, Patna) and the information submitted by the Respondent in his account of election expenses. The report of CBDT is further supported by the documents submitted by media houses through the witnesses authorised by them to depose before the Commission. The details of contradictions found between the documentary evidence furnished by CBDT and supported by the media houses and the account of election expenses submitted by the Respondent are as follows:

i. Media House No. 1: Prabhat Khabar, Neutral Publishing House Limited, Jamshedpur:

The Respondent submits in his affidavit and in his account of election expenses that he has made an expense of only Rs. 74,992 on four publications in the newspaper Prabhat Khabar. In juxtaposition to this, the CBDT report submits that the Respondent has incurred an amount of Rs. 80,000 on the publications of articles in Prabhat Khabar. The report of CBDT is supported by the 5 release orders in name of the Respondent amounting to Rs. 80,000 submitted by the Mr. Anup Kumar Sarkar(PW-3) authorised by Prabhat Khabar.

ii. Media House No. 2: Hindustan Media Ventures Limited, Jamshedpur:

The Respondent submits in his affidavit and in his account of election expenses that he has made an expense of Rs. 1, 15,000on publications in Hindustan. In contradiction to this, the CBDT report shows that the Respondent has incurred an expenditure of Rs. 4, 93,930 on the publication of articles in the Hindustan. The report of CBDT is supported by 10 bills in the name of the Respondent amounting to Rs. 4, 93,930 submitted by Mr. Rajeev Nayanam (PW-4) authorised by Hindustan Media Ventures Limited.

iii. Media House No. 3: Udit Vani, Jamshedpur:

The Respondent submits in his affidavit and in his account of election expenses that he has made an expense of Rs. 10,000/- on a single publication in Udit Vani. But, the CBDT report shows that the Respondent has incurred an amount of Rs. 2,87, 900 on the publication of articles in Udit Vani. The report of CBDT is supported by 8 bills in name of the Respondent amounting to Rs. 2,87, 900 submitted by Mr. Udit Agarwal (PW-6) authorised by Udit Vani.

iv. Media House No. 4: Dainik Jagaran, Jamshedpur:

The Respondent submits in his affidavit and in his account of election expenses that he has made an expense of Rs. 45,000 on one vote appeal in Dainik Jagaran. However, the CBDT report shows that the Respondent has incurred an amount of Rs. 13, 94,676 on the publication of articles in Dainik Jagaran. The report of CBDT is supported by 28 bills in the name of the Respondent amounting to Rs. 13,94,676 submitted by Mr. Praveen Kumar(PW-5) authorised by Dainik Jagaran. Dainik Jagaran also submits a detail of the cash payment of Rs.13, 95,600 from the Respondentwhich corroborates the allegation in the report of CBDT.

v. Media House No. 5: Sahara India TV Network:

The Respondent avers in his affidavit and in his account of election expenses that he has made no expense on any telecast in Sahara TV. In contradiction to this, the CBDT report shows that the Respondent has incurred an amount of Rs. 5, 00,000 on a weekly program in the May 2009 on the channel. The report of CBDT is supported by a statement of ledger account of Sahara TV Channel in its dealings with Respondent in which the payment of Rs.5, 00,000 has been credited on 30th May 2009 to the account of Sahara TV head through Cheque No. 334395 issued on 9th May 2009.The aforementioned cheque was issued by the agency M/s. Satyam Art & Media Private Ltd. as evident form the documents brought on record by Sahara India TV Network and also mentions the client being "M. Koda, Jharkhand".

EXAMINATION AND ANALYSIS OF WRITTEN AND ORAL ARGUMENTS ON

BEHALLF OF THE RESPONDENT THROUGH HIS COUNSEL:

31. Learned Counsel for the Respondent has mainly raised the issue regarding the authorization of the publications contending that neither the Respondent nor his agent has authorized the publications alleged against Respondent in the CBDT report. The Respondent has submitted the text of the publications which have been authorised by him along with his affidavit. In the inquiry of the Commission, the evidence furnished by the CBDT report has been corroborated by the media houses along with copies of the release orders/bills/cash payment receipts which have been generated by these media houses in the name of the Respondent. Therefore, the evidence of payment, per se proves the authorization by the Respondent. Also, the text of the publications which have been produced by the Respondent along with his affidavit on record do not established that those were the only texts released by the Respondent and received by the media houses for publications except his own signatures, leading to the presumption that the authorizations could have been oral or absent altogether. Further, the Respondent admitted in his cross examination that he had knowledge of the publications as alleged against him. In spite of having such knowledge, he did not take any action against the media houses during the election campaign or after the election. He has failed to establish the case against the veracity of the bills/receipts produced by the media houses. Therefore, his argument with respect to unauthorised publications cannot be accepted.

32. Learned Counsel for the Respondent further raises an argument on limit of election expenditure where he says that the total expenditure which has been submitted in the account of election expenses by the Respondent is Rs. 18,92,353 which is far less than the limit of expenditure under law i.e. Rs, 25,00,000. He contends that if the Respondent had made the alleged expenses, the amount could have been easily accommodated in the account submitted by him. But, this argument also cuts no ice as the amount of expenditure by the Respondent on print and electronic media itself is Rs. 28, 01,729/-which is far beyond the limit of Rs. 25, 00,000 lakhs prescribed under the law. Further, the question of limit of the expenditure does not arise for an inquiry under Section 10A of the R.P Act, 1951. The main question which arises under the said60 ( Section 10A is whether the account kept is true and accurate and whether it has been lodged in time and in the manner as prescribed under the law (Section 77 and 78 of the R.P Act, 1951) and further, if there is a failure by the returned candidate regarding the same, he must have a good reason or justification for such failure. Thus, the returned candidate can be held liable for disqualification if he contravenes Sections 77 and 78 of the R.P Act, 1951 and submits an untrue or inaccurate account of his election expenses irrespective of whether or not it is exceeding the limit of expenditure prescribed under the law.

33. Learned Counsel for the Respondent has also raised the contention that computer generated bills produced by the witnesses on behalf of the media houses are inadmissible in evidence as they fail to adhere to the provisions of Section 65B (2) of the Indian Evidence Act, 1872, whereby production of a certificate identifying and describing the electronic record is mandated. Firstly, it is pertinent to mention that while conducting an enquiry under Section 10A, the Commission acts as a quasi- judicial Tribunal. This has been conclusively settled by the Supreme Court in the case of Ashok Shankarrao Chavan vs. Dr. Madhavrao Kinhalkar and Ors., AIR 2014 SC 3102 as follows:

"103. In the light of the above categoric statement made while holding that the rule of law

and free and fair elections are the basic features and facets of our democracy. Article 324

should be interpreted in a wide perspective giving power to the Election Commission which

has to be recognized in a broad sense and not in a narrow one. We fully approve of the

submissions of Mr. Ashok Desai, learned Senior Counsel on the above lines and we have

already held that in order to ensure free and fair elections, the power vested with the Election

Commission under Section 10A read along with the other provisions of the Act and the Rules,

it should be held that Election Commission does possess the requisite powers under Section

10A to hold the necessary enquiry to ascertain the fact about the compliance of the statutory

requirements in the matter of submission of accounts of the election expenses, i.e. the true,

correct and bona fide expenses and that such expenses were within the prescribed limit of the

Act…

111. In our considered view, if the above basics of democracy and purity in elections have to

be maintained, it is appropriate to hold that the decision of the Election Commission as

upheld by the High Court to the effect that Section 10A clothes the Election Commission with

the requisite power and authority to enquire into the allegations relating to failure to submit

the accounts of election expenses in the manner prescribed and as required by or under the

Act, is perfectly justified and we do not find any scope to interfere with the same."

As far as the applicability of the Indian Evidence Act, 1872 in a quasi-judicial proceeding before the Tribunal is concerned, in the case of Union of India vs T. R. Varma, 1958 SCR 499, the following was observed by the Hon'ble Supreme Court of India:

"Now, it is no doubt true that the evidence of the respondent and his witnesses was

not taken in the mode prescribed in the Evidence Act; but that Act has no application

to enquiries conducted by tribunals, even though they may be judicial in character.

The law requires that such tribunals should observe rules of natural justice in the

conduct of the enquiry, and if they do so, their decision is not liable to be impeached

on the ground that the procedure followed was not in accordance with that, which

obtains in a Court of law. Stating it broadly and without intending it to be

exhaustive, it may be observed that rules of natural justice require that a party

should have the opportunity of adducing all relevant evidence on which he relies,

that the evidence of the opponent should be taken in his presence, and that he should

be given the opportunity of cross-examining the witnesses examined by that party,

and that no materials should be relied on against him without his being given an

opportunity of explaining them. If these rules are satisfied, the enquiry is not open to

attack on the ground that the procedure laid down in the Evidence Act for taking

evidence was not strictly followed."

Earlier, in the case of Dhakeswari Cotton Mills Ltd. vs Commissioner of Income Tax, West Bengal, AIR 1955 SC 65, it had been observed by the Supreme Court that quasi-judicial tribunals were entitled to act on material which may not be accepted in a court of law as they were not fettered with technical rules of evidence. The observation to the same effect was also made in the case of New Prakash Transport Co. Ltd vs New Suwarna Transport Co. Ltd., AIR 1957 SC 232 by the Hon'ble Apex Court. In the present case, since the Commission is a fact finding body as held by the Hon'ble Supreme Court in the case of Ashok Shankarrao Chavan vs. Dr. Madhavrao Kinhalkar and Ors., AIR 2014 SC 3102(supra.), the strict rules of Evidence Act would not apply. The rules of Evidence law are cautionary and exclusionary and if adhered to strictly would limit the scope of quasi-judicial Tribunals. Thus it is conclusively established that strict application of the Indian Evidence Act, 1872 is not compulsory in the functioning of a quasi-judicial body and therefore the procedure codified under Section 65B would not be binding upon the Commission in the present proceedings consequently. The contention of the Respondent about the inadmissibility of computer generated bills/receipts in evidence has no merit and is rejected.Thus it can be concluded that proof beyond doubt is not required for establishing the failure of the Respondent in the present case and preponderance of probabilities would itself be sufficient to attract the provisions of Section 10A of the RP Act, 1951.

34. Learned Counsel for the Respondent has also challenged the admissibility of oral evidences of the witnesses (PW 3 to 7) on the ground that the witnesses authorized by the Media Houses to represent them had no personal knowledge as they had not originally booked the advertisements and thus their cross-examinations were rendered ineffective. The contention raised was that the Respondent's right under "principles of natural justice" had been violated. In the case of Sovachand Mulchand vs. The Collector of Central Excise, AIR 1968 Cal 174, Hon'ble High Court of Calcutta made the following observation:

"In other words, the person accused should know the nature of the accusation made; and

should be given an opportunity to state his case. If any reliance is placed on evidence or

record against a person, then that evidence or record must be placed before him for

information, comment and criticism. No natural justice requires that there should be a

kind of formal cross-examination. Formal cross-examination is procedural justice. It is

governed by rules of evidence. It is the creation of courts and not a part of natural justice

but of legal and statutory justice. The only obligation which the law casts on a domestic

tribunal is that they should not act on any information which they may receive unless

they put it to the party against whom it is used and give him a fair opportunity to explain

it."

Moreover in the case of Moti Lal Padampat Udyog Ltd. vs. The Commissioner Of Income Tax, 2007 293 ITR 656 All, decided by the Allahabad High Court, it was observed that if the statements of the witnesses had already been recorded before the Tribunal and the applicant had been given the opportunity to controvert the material gathered by the Assessing Authority to be used against him and then to explain himself, there had been compliance of the principle of natural justice. In the present case, the witnesses on behalf of the media houses were brought in to testify the veracity of the publications and thus there was no relevance of personal knowledge of witnesses qua these bookings.

FINDINGS OF THE COMMISSION ON:

ISSUE-1:(i) Whether the articles/news items/ advertisements/ advertorials/ spot ads and T.V coverage/ advertisements in newspapers and electronic media as per Annexure A were published/ telecast during the election process for promoting the prospects or procuring the election of the Respondent?

35. Firstly, the publications in the four newspapers were published during the election period (31st March 2009 to 23rd April 2009) starting 23 days before the dates of poll and continuing upto the poll date of 23rd April 2009. There were 5 publications in Prabhat Khabar, 9 publications in Udit Vani, 6 publications in Hindustan Times and 28 publications in Dainik Jagaran on different dates making a total of 48 publications. Out of these 48 news items, the Respondent has only accounted for 14 publications in his election expenses, while the rest of 34 news items have not been accounted for by him. The timing of all 48 news items clearly indicates that they were published with an objective to endorse the candidature of the Respondent in 2009 elections.

36. Secondly, the content of the news items seeks to highlight the repute of the Respondent in public estimation. Most of the publications carry the photograph and election symbol (scissors) of the Respondent. Almost every news item showcases the activities of development by the Respondent after he became the Chief Minister of Jharkhand in 2006 to 2008 for the first time and his promises for a better representation in the Parliament and a more sharpened leadership in future. The news items have highlighted the campaign and response to the campaign organised by the supporters of the Respondent, his wife Geeta Koda and other female groups. The news items have also prophesied the surety of winning the election by the Respondent. The headliners of the news items such as 'har hath ko kaam, har ghar ho khushhaal: madhu koda', 'Apni uplabhdhiyon ke bal par vote maang rahe Koda', 'Kolhanvasiyon ki ummeed par khare utre Koda', 'Tez hoti ja rahi hai Koda ki kenchi ki( 63 dhaar', 'kisi ki aalochana theek nahi, vikas humara sankalp hai: Koda', 'Mauka dijiye bahayenge vikas ki ganga: Madhu Koda', etc. carried a strong appeal to the voters to vote for the Respondent as a promising candidate.

Therefore, it is clearly established that the news items referred to in Annexure A were published by the Respondent or on his behalf to promote his prospects or procuring his election and he knowingly took advantage of the same. The issue No. 1 is accordingly answered and held to be proved against the Respondent.

ISSUE-2:(ii)Whether the expenditure in publication/telecast of all or any such item(s) as mentioned in issue no. 1 above was incurred/authorised by the Respondent or his election agent or by any person with implied consent or knowledge of the Respondent or his election agent?

37. The Respondent has clearly admitted in his cross examination that he had knowledge of all the said publications which have been published during the election period in his favour and he also concedes that no action was taken by him against the Media Houses before or after the election. He contended that the rival political groups and mines mafias had started a systematic campaign against him of which he became a victim. Despite having knowledge of the publications and presuming conspiracy by the rival groups and mines mafias, he did not take any action against them even after the elections. Further, the report of the CBDT has been clearly corroborated by the documents/bills/receipts/release orders produced by the Media Houses on record. There is a huge difference in the amounts shown by the Respondent against the publications and between the amounts that have been claimed by the Media Houses in the bills produced by them. He has also failed to prove that the documents produced by the Media Houses are false and/or fabricated. He only contended that the witnesses who have produced the documents cannot be relied upon as they had no personal knowledge of the documents.

38. Each and every bill produced by the Media Houses bears the name of the Respondent. Along with the bills, Udit Vani and Jagaran Prakashan have also provided the detailed receipts of the cash payments made by the Respondent against the bills which have been generated in his name. He had not produced any evidence against the documents proving cash payments by him. The Respondent and his witnesses have only denied the content of the documents and have failed to establish that they were false and fabricated. The proof of the payment for the publications by the Media Houses per se establishes the authorisation by the Respondent. Moreover, it was discovered that RW-3, Shri Vinod/Binod Kumar Sinha from West Singhbhum, was one of the Directors (DIN – 6470) of the agency M/s. Satyam Art & Media Pvt. Ltd. (CIN - U64200MH2008PTC184323)which had made the cheque payment of Rs. 5 lakhs to Sahara India TV Network, thus entirely demolishing his claim of not having any financial dealings with the Respondent, as he would have had a say in the payment made and also putting a serious doubt on the Respondent's claim of not having made any payment to Sahara India TV Network.Therefore, it is clearly established that the expenditure in publication/telecast of all64 ( or any such item(s) as mentioned in issue no. 1 above was incurred/authorised by the Respondent or his election agent or by any person with implied consent or knowledge of the Respondent or his election agent. The handwritten authorizations that the Respondent has brought forth do not contain signatures of anyone from the media houses and thus cannot be taken as proof that were the only publications authorized by him.The issue No. 2 is accordingly held to be proved against the Respondent.

ISSUE-3: Whether the expenditure on publication or telecast of such item(s) as mentioned in issue no. 2 was included in the accounts of election expenses of the Respondent?

39. The account of election expenses which has been submitted by the Respondent includes an amount of Rs. 6, 90,430 incurred on electronic and print media. Out of this amount, onlyRs. 2, 59,992 has been accounted through 15 vouchers pertaining to the publications/telecast by the 6 Media Houses (4 Newspapers and 2 TV channels) in question. The remaining amount of Rs. 4, 30,438 pertains to the other expenses which have been incurred on electronic and print media. In the amounts alleged against the Respondent and amount submitted by the Respondent in his account of election expenses, there are following differences:

i) A difference of Rs. 5,008 has been found in the amount submitted pertaining to the publications in Prabhat Khabar, The amount incurred is Rs. 80,000 and the admitted amount by the Respondent is Rs. 74,992.

ii) A difference of Rs. 2, 86,900 has been found in the amount submitted pertaining to the publications in Udit Vani. The amount as claimed by the Udit Vani is Rs. 2, 87,900 and the admitted amount by the Respondent is only Rs.10, 000.

iii) A difference of Rs. 3, 78,930 has been found in the amount submitted pertaining to the publications in HT Media Pvt Ltd. The amount as provided by HT Media is Rs. 4, 93,930 and the admitted amount by the Respondent is Rs. 1, 15,000.

iv)A difference of Rs. 13, 49,676 has been found in the amount submitted pertaining to the publications in Dainik Jagaran. The amount reported is Rs. 13, 94,676 and the amount admitted by the Respondent is Rs. 45,000

v) The Respondent has completely denied the payment of Rs.5, 00,000 to Sahara TV which was in fact incurred by RW-3 Shri Vinod/Binod Kumar Sinha is a close friend of the Respondent through his agency M/s. Satyam Art and Media Pvt. Ltd., with its registered office located in Mumbai, Maharashtra.

vi) The Respondent claims a payment of Rs. 15,000 to ETV through voucher no. 195 issued in favour of Ushodaya Enterprises.

40. The above differences in the amounts admitted by the Respondent in his election expenditure vis a vis the amount of expenses established through bills/receipts provided by media houses hereby clearly prove that the Respondent has not included other expenses incurred or authorized by him on the advertisements etc. published/released as per Annexure A.Therefore, it is established that the( 65 expenditure on publication or telecast of such item(s) as mentioned in Issue no. 2 was not included in the account of election expenses of the Respondent. Issue No. 3 is answered accordingly.

ISSUE-4:Whether the Respondent has failed to lodge his account of election expenses in the manner required by or under the law, by not including such election expenditure?

41. The charge that the Respondent has not submitted a true account of his election expenses has been sufficiently proven in the issues discussed above. In addition to the above discussion, there is one direct appeal dated 09/04/2009 in Jagaran Prakashan wherein the Respondent has himself made an appeal before public to cast the votes in his favour. The Respondent has accounted an expense of Rs.45, 000 (Voucher no. 37 in Vol I) for this direct appeal. Whereas it appears from the documents produced by the newspaper agency of Dainik Jagaran that a bill (No. JJ09040047) was raised amounting to Rs. 1, 51,200 for which a credit note of Rs.5600 was issued and a cash payment of Rs. 1, 45,600 (Payment receipt No. 09040032) was made against the bill by the Respondent. The appeal also carries a photograph of the Respondent and his election symbol of scissors. A difference of Rs. 1, 00,600 can be clearly seen in the expenses with respect to this appeal alone in the account submitted by the Respondent. The appeal has been clearly published by the authorisation of the Respondent as he has accounted the expense against the same in his election expenditure. The text of the appeal which removes every doubt about the authorisation of the appeal by the Respondent is as follows:

"Singhbhum Sansadeeya kshetra se yuva, karmath evam suyogya umeedvaar bhai Madhu

Koda ko Kenchi Chhap par button dabakar bhaari maton se vijayee banavein."

42. The above discrepancies in the amount of election expenditures provided against the Respondent and the amounts accounted for by the Respondent in his account clearly illustrates and demonstrates that the account of election expenses submitted by the Respondent was untrue and false. Therefore, it is conclusively established that the Respondent has failed to lodge his account of election expenses in the manner required by or under the law. Thus, issue No. 4 is answered against the Respondent.

ISSUE-5:Whether the Respondent had any good reason or justification for the said failure to lodge his account of election expenses in the manner required by or under the law?

The Respondent was given ample and just opportunity under Rule 89(5) of CER, 1961 to show-cause to his reason or justification for the failure to lodge a correct and accurate account of election expenses. But, he failed to provide a satisfactory reason or explanation in his final reply dated18th July 2014 to the show-cause notice dated 22ndJanuary, 2011 as to why the account of expenses was not filed in the manner required by law. Furthermore, he was unable to provide a cogent defence with respect to the evidence brought forth by the media houses. The Respondent would thus be liable for66 ( disqualification on the ground of submitting a false account of the election expenditure incurred by him. Hence, issue No. 5 is answered against the Respondent.

ISSUE-6:Whether the Respondent is liable to be disqualified by the Election Commission under Section 10A read with Section 77 and 78 of the R.P Act, 1951?

Unfair elections strike at the root of democracy. With a mass media oriented campaign, any candidate can effectively polarize a decidedly large proportion of votes towards him. Undecided voters, instead of being able to decide on the candidate's merit, fall victim to the bandwagon effect due to the illusion of mass support created by such a candidate. It is unfortunate that voters are exploited by this show of money power and the ECI has to maintain the ethical responsibility for conducting free, fair and transparent elections. Honest law-abiding candidates should not be side lined by those willing to contravene the law and distort the lines of morality for the sake of being elected to the Parliament or State Legislatures.

Therefore, the Commission is of the considered view and holds that the Respondent, Mr. Madhu Koda, should be disqualified under Section10A of the RP Act 1951. Accordingly, the Election Commission hereby declares that Mr. Madhu Koda, stands disqualified, for three years from the date of this order, under Section 10A read with Sections 77 and 78 ofThe Representation of People Act, 1951 for failure to lodge his account of election expenses in the manner required by the law and for having no good reason or justification for such failure.

(Mr. O.P. Rawat) (Mr. A.K. Joti)

Election Commissioner Chief Election Commissioner

Place: New Delhi Date: 27.09.2017