P.C.Thomas vs Adv.P.M.Ismail & Ors

setting aside the election of the appellant to the House of People

(Lok Sabha) from 12 H.P. Muvattupuzha Parliamentary

Constituency.

2 2. Election to the said Parliamentary Constituency was held

on 10th May, 2004 and the result was declared on 13th

May, 2004. The appellant, who was the first respondent

in the Election Petition, was the candidate from the

Indian Federal Democratic Party (`IFDP' for short), a

constituent of the National Democratic Alliance. He was

declared elected by a margin of 529 votes over the first

respondent (hereinafter referred to as the `election

petitioner'), who got the second highest number of votes.

The election petitioner was the candidate from the

Communist Party of India (Marxist), a constituent of the

Left Democratic Front (for short `LDF'). While the

appellant secured 2,56,411 votes, the election petitioner

got 2,55,882 votes. The second respondent in the

election petition, who had contested the election as a

candidate of the Kerala Congress (M), a constituent of

the United Democratic Front (`UDF' for short), secured

2,09,880 votes. The other 13 contestants got an

insignificant number of votes.

3. The election of the appellant was challenged by the

election petitioner on the ground that the appellant had

committed corrupt practices as enumerated under 3 Sections 123(3) and 123(5) of the Act and, therefore, his

election was liable to be declared void under Section

100(1)(b) of the Act. The consequent relief prayed for in

the Election Petition was for declaring the election

petitioner as elected in terms of Section 101(b) of the

Act.

4. The allegations in the Election Petition were denied by

the appellant. In the first instance, as a preliminary

objection, the appellant questioned the maintainability of

the Election Petition. Rejecting the objection, the High

Court, vide its order dated 28th February, 2005 sustained

the maintainability of the Election Petition only on two

grounds of corrupt practice, viz. one falling under

Section 123(3) of the Act and the other under Section

123(5) of the Act. While the election petitioner himself

gave up the grounds pertaining to allegation of excess

election expenditure incurred by the appellant over the

maximum limit provided under Section 77 of the Act and

the allegation of undue influence under Section 123(2) of

the Act arising out of a speech made by the then

President of the Bharatiya Janta Party, the High Court

rejected the ground pertaining to the allegation of bribery 4

in the form of gratification offered by the appellant to one

of the contestants in order to get his candidature

withdrawn from this election.

5. Upon consideration of the pleadings and taking note of

abandonment of the afore-noted allegations by the

election petitioner, the learned Judge framed the

following issues:

1. Whether the 1st respondent has committed corrupt practice as contemplated under Section 123(3) of the Representation of the People Act, 1951 by printing and publishing Annexure I notice and Annexure II photo calendar and distributing and circulating Annexure I along with Annexure II by himself, his election agent and other agents, his election workers and campaigners with the consent and connivance of the 1st respondent in various places of No.12 H.P. Muvattupuzha Parliamentary Constituency for the election held on 10.5.2004.

2. Whether the 1st respondent, his election agent and other agents with the consent of the 1st respondent, had committed corrupt practice contemplated under Section 123(5) of the Representation of the People Act, 1951 by hiring and procuring vehicles, viz., autorickshaw Nos. KL-

5/4400, KL-5/C 3431 and Jeep Nos. KRO 6606 and KL- 5/1845 for free conveyance of the electors to and from the polling station Nos. 57 to 71 in Poonjar Thekkekara 5

Panchayat in Poonjar Assembly Constituency of No. 2 Muvattupuzha Parliamentary Constituency for the election held on 10.5.2004.

3. Whether the election of the 1st respondent from No. 12 H.P.Muvattupuzha Parliamentary Constituency can be declared as void by the conduct of corrupt practices enumerated in issue Nos.1 and 2 and is it liable to be set aside.

4. Whether the petitioner has to be declared as duly elected from No.12 H.P. Muvattupuzha Parliamentary Constituency after setting aside the election of the 1st respondent.

5. Whether the election petitioner is entitled to get the cost of his election petition.

6. On behalf of the election petitioner, twenty five

witnesses, including himself were examined. Alleged

public notice dated 21st April, 2004 and photo-calendar,

filed as Annexures I and II respectively with the election

petition, were exhibited through election petitioner as

Ext.P1 and P2 respectively. On the side of the appellant,

eleven witnesses, including himself were examined and

Ext. R1(a) to R1(g) were marked.

6

7. Analysing the evidence adduced by the parties on the

issues, except for issue No.5, the High Court answered

all the issues in favour of the election petitioner. Thus,

costs of the election petition, were not awarded. It has

been observed by the High Court that in the instant

case, even though consent of the appellant herein for

printing Ext.P1 and P2 is not proved by direct evidence

but from proven facts, namely, the election agent of the

appellant, Advocate James Anakallungal, (hereinafter

referred to as `James'), arranging for printing of Ext. P1

& P2; the appellant paying the printing charges and the

party workers distributing these documents in the

houses of electors, who are Catholics, the only inference

possible is that the circulation of printed copies of

Exts.P1 & P2 was with the knowledge of the

appellant. Inter alia, observing that while Ext.P1

independently constitutes an appeal to the Catholic

voters to vote for the appellant on the ground of his

religion attracting the mischief of Section 123(3) of the

Act, Ext.P2 supports and strengthens Ext.P1, the

learned Judge held that the appellant has committed

corrupt practice under Section 123(3) of the Act by 7

appealing to the electors to vote on the ground of his

community and religion through the printing and

circulation of Exts.P1 and P2 among the electors.

Consequently, his election was liable to be declared void

under Section 100(1)(b) of the Act. On the second issue

also, the High Court has observed that though no direct

evidence is produced to prove the consent given by the

appellant or his election agent to his party workers to

arrange the vehicles and even the witnesses have not

specifically stated that the vehicles were provided to

them free of charge, yet in view of the evidence of the

witnesses that party workers of the appellant had offered

vehicles to them, the only possible inference could be

that the witnesses were provided vehicles free of charge

resulting in violation of Section 123(5) of the Act. Having

found issues No.1 to 3 against the appellant, the High

Court came to the conclusion that but for the corrupt

practices, proved to have been practiced by the

appellant, the election petitioner would have got at least

265 more of the votes polled in favour of the

appellant, in which case, he would have won the

election. Accordingly, exercising power conferred on it 8

under Section 100(1)(b) of the Act, the High Court

declared the election of the appellant, the returned

candidate, to the said Parliamentary Constituency, to be

void and the election petitioner was declared elected

under Section 101(b) of the Act in his place from the said

Constituency. The High Court further ordered that the

findings of commission of corrupt practices by the

appellant under Sections 123(3) and 123(5) of the Act

will hold good for the purpose of Section 99 of the Act as

well. Aggrieved by the said decision, the appellant has

come up in appeal before us.

8. Assailing the findings of the High Court, Mr. F.S.

Nariman, learned senior counsel appearing on behalf of

the appellant, strenuously urged that the conclusion of

the High Court to the effect that the appellant had

committed corrupt practices as envisaged under sub-

sections (3) and (5) of Section 123 of the Act are

palpably erroneous, inasmuch as: (i) it was neither the

case of the election petitioner, nor any specific plea was

raised in the election petition, that the appellant had

appealed to the electors to vote for him on the ground of

his community or religion by distribution of printed 9

offending materials viz. a notice/statement dated 21st

April, 2004 (Ext.P1) and a photo calendar for the year

2004 (Ext.P2); (ii) both the offending documents (Ext.P1

and Ext.P2) were not proved as per the prescribed

procedure and, therefore, the very basis in forming the

opinion that the appellant had committed corrupt practice

was missing; (iii) having held that independently Ext.P2

did not constitute an appeal to vote on the ground of

religion of the appellant and that the said exhibit had to

be read collectively with Ext.P1, alleged to be a notice

purportedly authored and printed by one John

Kachiramattom (hereinafter referred to as `John K.'),

which had been circulated along with Ext.P2, and the

circulation of both amongst the electors together

constituted an appeal to vote for the appellant on the

ground of his religion, the learned Judge has failed to

appreciate that none of the witnesses examined by the

election petitioner had stated that John K. had

acknowledged or stated to them that he had, in fact,

prepared and signed the said notice/statement for

circulation; (iv) though John K. was cited as one of the

witnesses by the election petitioner in the list submitted 10

by him, he was not called by the election petitioner for

recording of his evidence; (v) the inferences drawn by

the learned Judge were based on unproven documents,

even source whereof had not been proved; and (vi) the

finding of the High Court to the effect that appellant had

committed corrupt practice under Section 123(5) of the

Act was based only on inferences drawn from the

statements made by interested witnesses when none of

the witnesses had stated that the vehicles were provided

free of charge. To buttress his argument that an adverse

inference should have been drawn against the election

petitioner for not examining John K., learned counsel

placed reliance on the decisions of this Court in Hem

Raj Vs. Ramji Lal & Anr.1, Thakur Sen Negi Vs. Dev

Raj Negi & Anr.2, Virendra Kumar Saklecha Vs.

Jagjiwan & Ors.3, Jeet Mohinder Singh Vs.

Harminder Singh Jassi4 and Kanhaiyalal Vs.

Mannalal & Ors.5. Reliance was also placed on the

decisions of this Court in Ram Chand Bhatia Vs. Shri

Hardyal6, Ch. Razik Ram Vs. Ch. Jaswant Singh 1 (1975) 4 SCC 671 2 (1993) Supp. 3 SCC 645 3 (1972) 1 SCC 826 4 (1999) 9 SCC 386 5 (1976) 3 SCC 646 6 (1986) 2 SCC 121 11

Chouhan & Ors.7, Surinder Singh Vs. Hardial Singh &

Ors.8, Mercykutty Amma Vs. Kadavoor Sivadasan &

Anr.9, and a number of other decisions in which the

dictum in Ch. Razik Ram (supra) was followed in

support of the proposition that the standard of proof in an

election petition is the same as in a criminal trial, which

the election petitioner failed to discharge.

9. Mr. P.S. Narasimha, learned senior counsel appearing

for the election petitioner, on the other hand, supporting

the decision of the High Court, submitted that upon

production of originals of pamphlet and the calendar by

PW1, they were marked as Exts.P1 and P2 respectively

and duly endorsed by the Court trying the election

petition, therefore, the documents stood proved. In

support of the plea that once a document has been

admitted in evidence and marked as an exhibit, the

objection that it should not have been admitted in

evidence or that the mode adopted for proving the

document was irregular, cannot be allowed to be raised

at any stage subsequent to the marking of the document

7 (1975) 4 SCC 769 8 (1985) 1 SCC 91 9 (2004) 2 SCC 217 12

as exhibit, reliance was placed on the decisions of this

Court in R.V.E. Venkatachala Gounder Vs. Arulmigu

Viswesaraswami & V.P. Temple & Anr.10, Dayamathi

Bai (Smt) Vs. K.M. Shaffi11 and P.C. Purushothama

Reddiar Vs. S. Perumal 12. Other pleas raised were also

countered by the learned counsel.

10. Before we proceed to examine the facts of the case to

consider the question as to whether charges of corrupt

practices were established against the appellant, we

deem it necessary to reiterate that a charge of corrupt

practice envisaged by the Act is to be equated with a

criminal charge and the standard of proof thereof would

not be preponderance of probabilities as in a civil

action but

proof beyond reasonable doubt as in a criminal trial. If this test is not

applied, a very serious prejudice is likely to be caused to the

successful candidate whose election would not only be set aside, he

may also incur disqualification to contest an election for a certain

period entailing even extinction of his political career. Undoubtedly,

10 (2003) 8 SCC 752 11 (2004) 7 SCC 107 12 (1972) 1 SCC 9 13

the onus lies heavily on the election petitioner to make out a strong

case for setting aside an election.

11. In Ch. Razik Ram (supra), speaking for the Bench,

Sarkaria, J. observed thus:

"..It is well settled that a charge of corrupt practice is substantially akin to a criminal charge. The commission of a corrupt practice entails serious penal consequences. It not only vitiates the election of the candidate concerned but also disqualifies him from taking part in elections for a considerably long time. Thus, the trial of an election petition being in the nature of an accusation, bearing the indelible stamp of quasi-criminal action, the standard of proof is the same as in a criminal trial. Just as in a criminal case, so in an election petition, the respondent against whom the charge of corrupt practice is levelled, is presumed to be innocent unless proved guilty. A grave and heavy onus therefore, rests on the accuser to establish each and every ingredient of the charge by clear, unequivocal and unimpeachable evidence beyond reasonable doubt. It is true that there is no difference between the general rules of evidence in civil and criminal cases, and the definition of "proved" in Section 3 of the Evidence Act does not draw a distinction between civil and criminal cases. Nor does this definition insist on perfect proof because absolute certainty amounting to demonstration is rarely to be had in the affairs of life. Nevertheless, the standard of measuring proof prescribed by the definition, is that of a person of prudence and practical good sense. `Proof' means the effect of the evidence adduced in the case. Judged by the standard of prudent man, in the light of the nature of onus cast by law, the probative effect of evidence in civil and criminal proceedings is markedly different. The same evidence which may be sufficient to regard a fact as proved in a civil suit, may be considered insufficient for a conviction in a criminal action. While in the former, a mere preponderance of probability may constitute an adequate basis of decision, in the latter a far higher degree of assurance and 14

judicial certitude is requisite for a conviction. The same is largely true about proof of a charge of corrupt practice, which cannot be established by a mere balance of probabilities and, if, after giving due consideration and effect to the totality of the evidence and circumstances of the case, the mind of the Court is left rocking with reasonable doubt - not being the doubt of a timid, fickle or vacillating mind - as to the veracity of the charge, it must hold the same as not proved".

12. A three-Judge Bench of this Court in Jeet Mohinder

Singh (supra), referring to a large number of earlier

decisions, culled out the following legal principles,

relevant for our purpose, in the field of election

jurisprudence:

"(i) The success of a candidate who has won at an election should not be lightly interfered with. Any petition seeking such interference must strictly conform to the requirements of the law. Though the purity of the election process has to be safeguarded and the Court shall be vigilant to see that people do not get elected by flagrant breaches of law or by committing corrupt practices, the setting aside of an election involves serious consequences not only for the returned candidate and the constituency, but also for the public at large inasmuch as re-election involves an enormous load on the public funds and administration. [See: Jagan Nath Vs. Jaswant Singh13, Gajanan Krishnaji Bapat Vs. Dattaji Raghobaji Meghe14].

(ii) Charge of corrupt practice is quasi-criminal in character. If substantiated, it leads not only to the setting aside of the election of the successful candidate, but also of his being disqualified to contest 13 AIR 1954 SC 210 14 (1995) 5 SCC 347 15

an election for a certain period. It may entail extinction of a person's public life and political career.

A trial of an election petition though within the realm of civil law is akin to trial on a criminal charge. Two consequences follow. Firstly, the allegations relating to commission of a corrupt practice should be sufficiently clear and stated precisely so as to afford the person charged a full opportunity of meeting the same. Secondly, the charges when put to issue should be proved by clear, cogent and credible evidence. To prove charge of corrupt practice a mere preponderance of probabilities would not be enough. There would be a presumption of innocence available to the person charged. The charge shall have to be proved to the hilt, the standard of proof being the same as in a criminal trial. [See: Quamarul Islam Vs. S.K. Kanta15, F.A. Sapa Vs. Singora16, Manohar Joshi etc. Vs. Damodar Tatyaba alias Dada Saheb Rupwati etc.17 and Ram Singh Vs. Col. Ram Singh18].

(iii) The Appellate Court attaches great value to the opinion formed by the trial Judge more so when the trial Judge recording findings of fact is the same who had recorded the evidence. The Appellate Court shall remember that the jurisdiction to try an election petition has been vested in a Judge of the High Court. Secondly, the trial Judge may have had the benefit of watching the demeanour of witnesses and forming first-hand opinion of them in the process of evaluation of evidence. The Supreme Court may re- assess the evidence and come to its own conclusions on feeling satisfied that in recording findings of fact the High Court has disregarded settled principles governing the approach to evidence or committed grave or palpable errors.[See:Gajanan Krishnaji Bapat (supra); Kripa Shankar Chatterji Vs. Gurudas Chatterjee19]".

15 1994 Supp (3) SCC 5 16 (1991) 3 SCC 375 17 (1991) 2 SCC 342 18 1985 Supp SCC 611 19 (1995) 5 SCC 1 16

13. Similar opinion has been expressed in subsequent

decisions, including Surinder Singh (supra) and

Mercykutty Amma (supra) on which reliance had been

placed by learned counsel for the appellant.

14. With this background, it has to be examined if the

findings recorded in the judgment in appeal, holding

corrupt practices under Section 123(3) and (5) of the Act

having been committed by the appellant, are justified or

hit by the contentions to the contrary raised by the

appellant. It would be appropriate to reproduce the

aforesaid provisions of the Act, which are extracted

below:

"Section 123 - Corrupt practices. --The following shall be deemed to be corrupt practices for the purposes of this Act:--

(1) xxx xxx xxx

(2) xxx xxx xxx

(3) The appeal by a candidate or his agent or by any other person with the consent of a candidates or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols or the use of, or appeal to, national symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate:

17 Provided that no symbol allotted under this Act to a candidate shall be deemed to be a religious symbol or a national symbol for the purposes of this clause.

(3A) xxx xxx xxx

(3B) xxx xxx xxx

(4) xxx xxx xxx

(5) The hiring or procuring, whether on payment or otherwise, of any vehicle or vessel by a candidate or his agent or by any other person with the consent of a candidate or his election agent or the use of such vehicle or vessel for the free conveyance of any elector (other than the candidate himself the members of his family or his agent) to or from any polling station provided under section 25 or place fixed under sub-section (1) of section 29 for the poll:

Provided that the hiring of a vehicle or vessel by an elector or by several electors at their joint costs for the purpose of conveying him or them to and from any such polling station or place fixed for the poll shall not be deemed to be a corrupt practice under this clause if the vehicle or vessel so hired is a vehicle or vessel not propelled by mechanical power:

Provided further that the use of any public transport vehicle or vessel or any tramcar or railway carriage by any elector at his own cost for the purpose of going to or coming from any such polling station or place fixed for the poll shall not be deemed to be a corrupt practice under this clause.

Explanation.-In this clause, the expression "vehicle" means any vehicle used or capable of being used for the purpose of road transport, whether propelled by mechanical power or otherwise and whether used for drawing other vehicles or otherwise."

18 15. Issue No.1 is based on the alleged violation of sub-

section (3) of Section 123, the vital ingredients of which,

relevant for our purpose, are:- (i) appeal by a candidate

or his agent or by any person with the consent of the

candidate or his election agent, (ii) to vote or refrain from

voting for any person, (iii) on the ground of religion, race,

caste, community or language.

16. Therefore, in order to decide whether in the present

case, corrupt practice is committed, it has to be

examined: (a) whether notice (Ext.P1) and photo-

calendar (Ext.P2) independently or jointly constitute

appeal to the voters to vote on the ground of religion or

caste or community of the appellant as alleged in the

election petition and (b) if so, whether the appellant

herein or his agent or any other person with the consent

of the appellant or his agent has printed and distributed

or at least distributed the same among the voters to

bring them within the mischief of the sub-section.

Calendar (Ext.P2) is described as printed at "Akshara"

with the telephone number of the Press. It contains the

photograph of the appellant with the Holy Pope, taken on

the occasion of the beatification ceremony of Mother 19

Teresa. Notice (Ext.P1) purportedly authored and

published in the name of John K., does not contain the

name of the printing press or a direct appeal to the

voters to vote for the appellant. To appreciate its

contours and the purpose, it would be expedient to

visualize its contents, which are extracted below:

"Dear People, 21.4.2004

I need not introduce Adv. P.C. Thomas, Former President of the Kothamangalam Diocese, former State Secretary of the Catholic Congress, the son of P.T. Chacko, who was Kerala's powerful Home Minister and the prominent leader our community has been. It is humbly brought to your notice that our land and society will be blessed if P.C. Thomas who has for the last 15 years been carrying out illustrious service as the people's representative of Muvattupuzha Lok Sabha Constituency and safeguarded the honour of the community and above all of Keralites at the national level, is once again made victorious.

The Holy Father has exhorted us that the Christian Community, which is about 2% of population of India, should not keep away from the national main stream. Many priests, nuns and spiritualists from Kerala are carrying out gospel work, educational activities and nursing of the sick all over North India. Most of these places are now under BJP Rule. Various just released opinion surveys clearly predict that the BJP Government will again come to power at the centre. It is indisputable that if elected from Muvattupuzha, P.C. Thomas will receive central cabinet membership and also thereby a chance to do more good for our homeland and society.

When our missionaries were abused in Jambuva of Madhya Pradesh, it was P.C. Thomas who reached rushed first and took a strong stand. And was not 20

this matter acknowledged and established through public declaration by revered father mar Mathew Vaniyakizhakkal. Many representatives of the Christian community serving in North India have, via phone and letters informed me that the help and service they received at the political level should not be caused to be lost, and requested that P.C. Thomas must be elected and sent with more strength for functioning for them at Delhi. I too desire for their hope to be fulfilled, for P.C. Thomas is the greatest friend and well-wisher of Malayalees in Delhi and other outside places. We are also witnesses to the fight he fought in parliament for the benefit of the Agricultural Sector, which represents a great majority of the members of our community. Financial security is indispensable for spiritual strength, to some extent, as we know.

P.C. Thomas, who participated as the official representative of the Central Government at the function beatifying and conferring sainthood to Mother Teresa who had flown away to God's court like the piece of white cloud of purity and declared before the whole world, by kissing the hand of the holy father, the love and affection of 100 crore Indians, stands as social worker whom our community can always be proud of it was the selfishness and personal interest of certain people, which sent him to the BJP front. But there too he stands as a witness of Christ like the old Joseph who was elevated as king by the aliens.

I request you to give P.C. Thomas, who is the representative of the Christians followings the footsteps of lord Jesus who stepped in to this world to preach the gospel to the poor, to console the sad at heart to free the shackled, to give sight to the blind and to liberate the oppressed and who follows the commandment of the Holy Church, your ever strong prayer support to enable that son to continue as Jesus witness in Delhi.

With love and regard John Kachiramattom Sd/- John Kachiramattom"

21 17. Obviously, as the High Court has also deduced, notice

(Ext.P1) clearly contains an appeal in that, the Holy

Father, the Pope, head of the Roman Catholics does

exhort them not to keep away from the mainstream. It

applauds the services of the appellant in standing for the

community when it is under attack and had fought in

Parliament for the benefit of the community, whose

interest demanded the Catholics/Christians to vote for

him. The notice does contain a message or an appeal

on religious grounds to the Christians/Catholics to vote

for him for the benefit of the larger interests of the

Christians, particularly the Roman Catholics.

18. Indeed, the community members all over understood it

as such. This is borne out from the testimony of Benny

George (PW-2), K.J. Reji (PW-6), Chako (PW-7),

Benny Avoly (PW-8), Jose (PW-9), etc. etc., who all

deposed about the party workers of IFDP, to which party

the appellant belonged to, giving notice (Ext.P1) and

calendar (Ext.P2) to each one of them as a statement by

John K., a known leader of Catholics. The consent of the

appellant for distribution of the said exhibits among the

Catholic voters, though not directly proved was rightly 22

inferred from the fact that his agent James, who got

these printed, paid charges and circulated these. The

circulation of the said exhibits amounted to violation of

Section 123(3) of the Act. The aforesaid witnesses also

stated having gone through the notice (Ext.P1),

discussed about it with their family members or friends

and to have come to the conclusion that the appellant

being a leader of Catholics and a candidate in the

Parliamentary Elections 2004, having always stood with

the community, deserved to be supported and voted for.

Nothing significant was brought out in their cross

examination to discredit them. Considering it all, the

High Court was satisfied that notice (Ext.P1) and

calendar (Ext.P2) were distributed by workers of the

appellant. Applying the test of common man's

understanding and the effect of the said documents on

the mind and feelings of an ordinary average voter, we

agree with the High Court that the said notice/statement

(Ext.P1) did constitute an appeal to the members of the

Christian community, particularly, the Catholics to seek

their votes for the appellant, being a Catholic, on the

ground of religion, caste and community. Calendar 23

(Ext.P2), as indicated above, does not per se fall within

the mischief of Section 123(3) of the Act but taken along

with Exhibit P1 does serve as a statement to strengthen

the appeal in notice (Ext.P1).

19. To bring the aforesaid appeal within the ambit of Section

123(3) of the Act, it required proof that as per specific

pleas in paras 11 and 14 of the Election Petition,

documents Ext.P1 and Ext.P2 were got printed and

published at Akshara Press by the appellant through his

election agent, James and distributed by the agents or

workers/campaigners as alleged. We have examined the

evidence produced in the case. The election petitioner-

Respondent No.1 claimed to have no personal

knowledge about it and stated that the information about

it was supplied to him by the jeep driver, Ajimon (PW-4)

and K.K. Parmeswaran (PW-19) who deposed having

supplied the said information to the election petitioner

around the middle of May, 2004, whereafter the election

petition was filed on 26th June, 2004.

20. Three witnesses were produced by the election

petitioner in support of his pleas (regarding printing and 24

distribution of Exts.P1 & P2) in paras 8, 9, 11 and 14 of

the petition. Ajimon (PW-4) driver of the jeep KEF 7953

made a detailed statement about his reporting with jeep

to appellant's election agent James on 24th April, 2004;

the latter taking the jeep to Akshara Press; the

appellant's arriving there and making cash payment

through his agent James to the Press owner; taking

delivery of bundles of printed materials, each bundle with

a copy of the printed material Exts.P1 or P2 on it; 50

bundles of Exts.P1 and P2 being loaded in the jeep and

James taking the jeep driven by PW-4 to the election

office at eight named places and the stated number of

bundles being unloaded at appellant's election offices at

each place. He also stated his reporting to James again

on 25th April, 2004, loading from the Press the remaining

50 bundles of the printed material in the jeep and going

to three named places with and under instruction of

James and unloading the same at each place. When

cross-examined, he stated that the said jeep was sold

away by its owner (RW-9) - Thomas, some two months

after the election. Further cross-examined, he denied

that he was an IFDP worker or that the day before, he 25

was in the CPI(M) office, and was pressurized by them

to make a statement as above.

21. PW-5, K.K. Balachandran (claiming to have been

temporarily employed for a month at the Akshara Press

to meet the election rush of work) deposed about the

appellant/his agent James visiting the Press on 8th April,

2004 and placing a printing order for notice (Ext.P1) and

calendar (Ext.P2); these being printed there and packed

in bundles; his being associated in packing of the printed

material at the Press and of James (RW-11) with the

jeep driven by Ajimon (PW-4), taking delivery; appellant

reaching there; making payment to the Press owner

through his agent James; his (witnesses) assisting in

loading of 50 bundles in the jeep and James leaving the

Press in the said jeep. Cross-examined, he gave details

of the premises, the machinery installed therein, and the

other occupiers of the building. He denied the

suggestion that he had no connection with the Press or

that he came to the court to make a false statement.

22. PW-6 (K.J.Reji) deposed about his attending an election

meeting at 5.30 p.m. on 24th April, 2004 at Vazhakulam; 26

participation of the appellant and John K in the meeting;

the latter making a speech; the jeep coming to the

election office of the appellant, unloading of some

bundles and on request of Anil Johny (his friend) to have

taken bundles to the election office of the first

respondent. He also stated of being given a calendar

(Ext.P2) and notice (Ext.P1) from these bundles; his

going back home with these; reading notice (Ext.P1) and

seeing the calendar (Ext.P2). Cross-examined, he

denied that he was an active worker of the IFDP. He

was not questioned on his statement about the election

meeting on 24th April, 2004 attended by the appellant

and being addressed by John K.

23. To counter the evidence of PW-4, PW-5 and PW-6, the

appellant produced Thomas (RW-9), the owner of jeep,

Jose Kutty (RW-6), owner of Akshara Press and James

(RW-11), who respectively sought to counter the

versions of the respondent No.1's witnesses, PWs-4, 5,

and 6 aforesaid. RW-9, Thomas, owner of the jeep

stated that he never gave the jeep to PW-4 or instructed

him to report to James on 24th April, 2009. He admitted

that Ajimon was employed by him but to drive his bus. 27

According to him, the jeep was purchased just for sale

and was not run by him. According to him, the jeep was

sold away by him within eight days of its purchase. If

really so, there was no occasion for him to get it

transferred in his name, which he did. RW-6 (Jose

Kutty), owner of the Press denied having ever employed

PW-5 or the printing of notice (Ext.P1) and calendar

(Ext.P2) at his Press. In cross- examination, he

admitted that the appellant and his election agents were

known to him for a long time; that he did undertake

election printing work for them and also that printing any

material without inscribing the name of the Press

thereon (as on notice, Ex.P1) is violative of the

provisions of Section 137A of the Act, inviting

prosecution/action against him. The High Court in its

judgment under appeal for reasons stated discredited

the testimony of the owner of the jeep (RW-9) and owner

of the printing Press (RW-6) and believed the testimony

of PW-4, PW-5 and PW-6. While dealing with the

statement of RW-9, the High Court has recorded that his

answers to the questions were generally evasive and his

evidence untrustworthy. Nothing was pointed out 28

against these observations. His testimony carries little

conviction as against that of PW-4 (Ajimon).

24. RW-11, James, the chief election agent of the appellant,

in his proof affidavit, denied the allegation made by PW-

4, PW-5 and PW-6 and the part allegedly attributed to

him by PW-5 about the placing of a printing order of

Exts.P1 and P2 with Akshara Press on 8th April, 2004

and taking delivery of the printed material on 24th April,

2004 (vouched by PW-4 and PW-5) at 5.00 p.m. or so,

or about the election meeting on 24th April, 2004 at 5.30

p.m. at Vazhakullam; stated by PW-6 as having been

attended by him and the appellant or being addressed

by John K, purported author of Ext.P1. According to

him, there was no such meeting at 5.30 p.m. or 6.00

p.m., as on that date and time; he was in the District

Collector's office where scrutiny of nomination papers of

the appellant was held. In cross-examination, he stated

that his attendance in proceedings for scrutiny of papers

is a matter reflected in court records. No evidence about

it was produced in support. Being an advocate of

standing, associated with law office of the appellant for

26 years, he well understood its importance, for if really 29

so, production of such record could have rendered the

entire case of the election petitioner about RW-11

getting Exts.P1 and P2 printed; taking delivery of the

same from Akshara Press; its distribution that day as

highly doubtful, nay, a nullity and not doing so provided

sanctity to the election petitioner's case and credibility to

the testimony of PW-4 to PW-6. We accordingly see no

ground to differ with the findings recorded by the High

Court on issue No.1.

25. The aforesaid findings on issue No.1 were sought to be

assailed by learned senior counsel appearing for the

appellant on points No.(i) to (v) digested in para 8

(supra). These are not tenable. Pithily stated, these

were: (i) it was neither the case of the election petitioner

nor any specific plea that the appellant had appealed to

the electors to vote for him on the ground of community

or religion by distribution of Exts.P1 and P2; (ii) the

aforesaid documents were not proved by prescribed

procedure and the basis for forming opinion thereon was

missing; (iii) notice (Ext.P1) purports to be authored by

John K, who was not examined by the election petitioner

despite having cited him as a witness and as such an 30

inference drawn by the learned Judge was based on

unproved documents; (iv) no witness produced had

stated that he had acknowledged to him that John K had

prepared or signed the said exhibits and (v) the

inference drawn is based on unproved documents.

26. As already noted above (Para 19 supra), the election

petitioner's case in paras 8, 9, 11 and 14 of the petition

laid in specific terms, concisely put, does show that

documents Exts.P1 and P2, purportedly authored by

John K, were got printed by the appellant through his

admitted election agent - James at Akshara Press; the

appellant paid charges therefor through his said agent to

the owner of the Press and delivery of the printed

material was taken from the Press and the same were

circulated amongst Catholic/Christian voters by

appellant's agents and campaigners to his knowledge.

As noted in para 17 (supra), these did contain an appeal

to Catholics/ Christians to vote for the appellant on

religious grounds. These documents, produced by the

election petitioner, were also proved by him as PW-1

and exhibited P1 and P2 with the consent of the parties.

PW-5 also stated that the notice (Ext.P1) and calendar 31

(Ext.P2) were given by James (RW-11), agent of the

appellant for printing at Akshara printers where he was

then working. No objection on pleas of "inadmissibility"

or "mode of proof" was raised at the time of their

exhibition or any time later during trial, when most of the

witnesses, produced by the parties were confronted with

these, as duly exhibited, bearing stamp marking with

particulars, prescribed under Order XIII Rule 4 of the

Code of Civil Procedure, 1908 and duly signed as such.

In our opinion, it is too late in the day now to object to

their exhibition on the ground of "prescribed procedure"

i.e. mode of proof. Moreover, we also find that it was

nobody's case that the said documents were got printed

by John K or distributed amongst voters by him.

Absence of proof of acknowledgment by him because of

non production of John K as a witness, in the

circumstances, in our view, is inconsequential.

Admittedly, John K was a well known leader of high

stature, recognized as such by Christian/Catholic voters

including those mentioned in Para 17 (supra) and,

therefore, there is no question of drawing an adverse

inference against the election petitioner for not 32

examining him, as strenuously urged on behalf of the

appellant, particularly when the printing and circulation of

offending material (Exts.P1 and P2) has been proved by

the election petitioner beyond reasonable doubt. In that

view of the matter, the dictum of this Court in Hem Raj

(supra) and other cases referred to in para 8 (supra) is

not applicable. In these cases, the election petitions

were dismissed because of inadequacy of the evidence

produced by the election petitioners in order to discharge

the onus to prove the corrupt practice alleged and not

because of non-examination of a named witness.

Moreover, the printing and circulation of Exts.P1 and P2

having been proved, the question as to who authored

Ext.P1 is immaterial. The contentions raised by the

learned counsel on the point are thus, unsustainable.

27. As regards the decision of this Court in Ch. Razik Ram

(supra) and other decisions on the issue, relied upon on

behalf of the appellant, there is no quarrel with the legal

position that the charge of corrupt practice is to be

equated with criminal charge and the proof required in

support thereof would be as in a criminal charge and not

preponderance of probabilities, as in a civil action but 33

proof "beyond reasonable doubt". It is well settled that if

after balancing the evidence adduced there still remains

little doubt in proving the charge, its benefit must go to

the returned candidate. However, it is equally well

settled that while insisting upon the standard of proof

beyond a reasonable doubt, the Courts are not required

to extend or stretch the doctrine to such an extreme

extent as to make it well nigh impossible to prove any

allegation of corrupt practice. Such an approach would

defeat and frustrate the very laudable and sacrosanct

object of the Act in maintaining purity of the electoral

process. (See: S. Harcharan Singh Vs. S. Sajjan

Singh & Ors.20). As noted above, in the present case,

the High Court has recorded a clear finding that the

election petitioner has produced adequate evidence

which goes to prove the charges against the appellant

under Section 123(3) of the Act beyond reasonable

doubt. Thus, the ratio of the decision relied upon by the

appellant is of no avail to him.

28. This Court in Gajanan Krishnaji Bapat (supra) has

observed that although being the Court of First appeal,

20 (1985) 1 SCC 370 34

this Court has no inhibition in reversing such a finding, of

fact or law, which has been recorded on a misreading or

wrong appreciation of the evidence or the law but

ordinarily the appellate court attaches great value to the

opinion formed by the Trial Judge, more so when the

Trial Judge happens to be a High Court Judge; had

recorded the evidence and had the benefit of watching

the demeanour of witnesses in forming first hand opinion

of them in the process of evaluation of evidence. This

Court should not interfere with the findings of fact

recorded by the Trial Court unless there are compelling

reasons to do so.

29. Having examined the material on record in the light of

the afore-noted settled principles, we are convinced that

the High Court has not committed any grave error in the

appreciation and assessment of the evidence on the

point. On consideration of the evidence in its totality,

adduced by the election petitioner and the appellant, we

agree with the High Court that the election petitioner has

adduced cogent, satisfactory and reliable evidence to

establish the charge against the appellant under Section

123(3) of the Act.

35

30. For the view we have taken above, we deem it

unnecessary to examine the second issue, viz. the

corrupt practice in hiring or procuring vehicles free of

charges to the electors to go to and from the polling

booths falling under Section 123(5) of the Act, on which

ground also the election of the appellant has been

invalidated by the High Court.

31. For all the foregoing reasons, we see no merit in this

appeal. The same is dismissed accordingly but in the

circumstances of the case, we make no order as to costs

in this appeal.

CIVIL APPEAL NO.5777 OF 2006

32. This appeal under Section 116A of the Act has been

preferred by the 2nd respondent in C.A. No.5033 of 2006,

who had unsuccessfully contested the election as a

candidate of the Kerala Congress (M). As noted above,

the appellant in the said appeal, who was declared

elected had got 2,56,411 votes; the election petitioner

got 2,55,882 votes and the appellant in this appeal had

secured 2,09,880 votes. The short grievance of the

appellant is that election of P.C. Thomas having been 36

set aside, instead of declaring the election petitioner as

elected; the High Court should have declared the

appellant as elected from 12 H.P. Muvattupuzha

Parliamentary Constituency.

33. In our opinion, fresh election to the said parliamentary

constituency having already taken place in this year, this

appeal is rendered infructuous and has to be dismissed

on that ground. It is ordered accordingly.

........................................J. (D.K. JAIN)

.........................................J. (R.M. LODHA) NEW DELHI;

SEPTEMBER 4, 2009.