Failure to disclose conviction u/s 138 of NI Act, 1881 in election nomination form and affidavit, election was rendered void despite subsequent acquittal – SC
In a recent judgment, Hon’ble Supreme Court has held that failure to disclose conviction u/s 138 of the Negotiable Instruments Act, 1881 in election nomination form and affidavit, election was rendered void despite being subsequently acquitted as due to wrongful acceptance of her nomination form, the election was materially affected.
ABCAUS Case Law Citation:
4834 (2025) (11) abcaus.in SC
In the instant case, the petitioner was convicted under Section 138 of the Negotiable Instruments Act, 1881 (The NI Act) and was sentenced to rigorous imprisonment for a period of one year and also ordered to pay compensation.
She, however, failed to disclose her conviction in the nomination form for the election to the post of Councillor in which petitioner was elected securing the highest number of votes. Notification to that effect was also to be issued
Her election was challenged by the respondent by filing an election petition before the Trial Court on the plea that the fact of her conviction, had not been disclosed by the petitioner in the election affidavit filed along with the nomination form. It was prayed that the petitioner be declared disqualified from holding the post of councillor.
The petitioner opposed the election petition stating that the order of conviction was no longer in existence as the same had been set aside in appeal. She stated that the election petition was liable to be dismissed as she had not incurred any disqualification.
The Trial Court set aside her election as null and void holding her to be disqualified under the provisions of The Madhya Pradesh Municipalities Act, 1961.
The Petitioner filed a revision application before the Hon’ble High Court inter alia raising the contention that the order of conviction had been set aside and hence the same could not be the basis for unseating her. It was also urged that the respondent had failed to prove that the election of the petitioner had been materially affected on account of non-compliance of the provisions of Nagar Palika Nirvachan Niyam 1994 (1994 Rules).
The Hon’ble High Court held that non disclosure of conviction under NI Act in her affidavit filed along with the nomination form resulted in breach of 1994 Rules. It was observed that the petitioner did not enter into the witness box to establish that by failing to disclose her conviction, her election was not materially affected nor did it influence the election. The judgment of the trial Court was thus upheld by the Hon’ble High Court leading to Petitioner preferring a Special Leave Petition before the Hon’ble Supreme Court.
The Hon’ble Supreme Court observed that as per 1994 Rule, every candidate contesting elections was required to furnish information which includes declaration of criminal antecedents, etc. The information required to be furnished was with regard to any pending criminal case in which the candidate is charged or any criminal case that had been disposed of and had resulted in his conviction. Failure to furnish such affidavit can result in rejection of the nomination paper. Also, such information is required to be furnished in furtherance of the right to information available to the electorate under Article 19 (1) (a) of the Constitution of India is now well settled.
The Petitioner relied upon a judgment of the Hon’ble Supreme Court to canvass that the conviction was not for an offence involving moral turpitude. It was a conviction under Section 138 of the NI Act and thus it could not be said that there was any serious or heinous crime committed by the petitioner.
The Hon’ble Supreme Court observed that in the judgment relied upon by the Petitioner, their Lordships had held that the word “involvement’’ in a criminal case at the time of filing of the nomination would only mean cases where a criminal complaint was pending investigation/trial, cases where the conviction and/or sentence was current at the time of filing of the nomination and cases where the conviction was the subject matter of any appeal or revision pending at the time of nomination. It was noted that the conviction in the said case was for disobedience of the directions issued by a police officer. By observing that such offence could not be treated to be a substantive offence, it was observed that protest was a tool in hands of the society and therefore failure on the part of said petitioner to disclose his conviction for the offence consequent upon holding a ‘dharna’ in front of the Panchayat Office could not be taken as a ground for declaring an election to be void.
The Hon’ble Supreme Court further observed that in another case, where a successful candidate in the assembly elections had not disclosed details of ownership of vehicles, failure to submit no dues certificate with regard to electricity charges and municipal dues. The Court found that vehicles had either been gifted or sold prior to filing of his nomination and hence the said vehicles could not be considered to be owned by his family members. It was further found that the said appellant had disclosed the value of his assets which included the value of the vehicles in question. It was then found that what was not disclosed by the appellant was not of a substantial nature so as to impact his election.
The Hon’ble Supreme Court observed that non-compliance of the provisions of the 1994 Rules is a ground to challenge the election of the returned candidate. In absence of any provision in the 1994 Rules that would enable the Court to condone such non-compliance or exempt its compliance on the ground that the conviction was for a non-serious offence or one not involving moral turpitude, adopting such course as urged would do violence to the NI Act and the 1994 Rules.
The Apex Court opined that once it is found that there has been non-disclosure of a previous conviction by a candidate, it creates an impediment in the free exercise of electoral right by a voter. A voter is thus deprived of making an informed and advised choice. It would be a case of suppression/non-disclosure by such candidate, which renders the election void.
The Hon’ble Supreme Court held that by failing to disclose her conviction under Section 138 of the Act of 1881, the petitioner suppressed material information and thus failed to comply with the mandatory requirements of the Rules of 1994. The acceptance of her nomination form had therefore been rightly held to be improper. She being the returned candidate, her election was rendered void. It was obvious that on account of such wrongful acceptance of her nomination form, the election was materially affected.
The Hon’ble Supreme Court observed that the petitioner relied upon on her subsequent acquittal in appeal, which event occurred after her election. She did not step into the witness box to explain her inadvertence. The plain reading of 1994 Rule and its requirement does not admit of any doubt whatsoever. Moreover, both the Courts had concurrently found that the petitioner failed to disclose her conviction without any justifiable reason. In these facts therefore, no special or exceptional case had been made out by the petitioner for the Apex Court to exercise jurisdiction under Article 136 of the Constitution.
Accordingly, Special Leave Petition was dismissed.
Download Full Judgment Click Here >>
- Mere using word “Arbitration” in agreement does not make it a valid arbitration agreement
- Failure to disclose conviction u/s 138 of NI Act made election void despite acquittal later
- Application of income u/s 11(1)(a) allowable on 15% of gross receipts not surplus remaining
- Payer claiming 100% expenses & payee declaring profit 44AE held legal tax planning
- Audit Objections can be basis for reopening but ignoring reply is non application of mind
