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PETITIONER:

R.P. MOIDUTTY

Vs.

RESPONDENT:

P.T. KUNJU MOHAMMAD & ANR.

DATE OF JUDGMENT: 28/09/1999

BENCH:

S.Rajendra Babu, R.C.Lahoti

JUDGMENT:

R.C. LAHOTI, J.

This appeal under Section 116A of The Representation

of the People Act, 1951 (hereinafter, the Act, for short )

has been preferred by the candidate who lost at the election

and also in the election petition challenging the election

of respondent No.1, who had succeeded at the polls.

Election to the 65 - Guruvayur Legislative Assembly

constituency in Kerala was held on 27.4.1996. The appellant

contested the election on the symbol of `ladder' of the

Muslim League Party with the support of the United

Democratic Front. The respondent No.1 was an independent

candidate supported by the Left Democratic Front owing

allegiance to Communist Party of India

(Marxist). There were seven other contesting

candidates also. The result was declared on 8.5.1996. The

real contest was between the appellant and the respondent

No.1. The appellant secured 37034 votes. Respondent No.1

secured 39870 votes. Thus the respondent no. 1 succeeded

by a margin of 2836 votes over the appellant.

According to the petitioner (appellant herein) the

result of the election was materially affected and vitiated

by the commission of corrupt practice within the meaning of

Sub Sections (3) and (3 A) of Section 123 of the Act by the

respondent No.1. According to the appellant, the Marxist

Party had launched Video Cassette Ex. P-2 entitled as

`VICHARANA' (i.e. Trial). The script of the video film was

written by the respondent No.1. He had also directed and

produced the said video film. It was exhibited throughout

the constituency during the election. The photo-contents of

the video cassette as also the speeches contained therein

were highly objectionable and inflammatory.

The petitioner alleged that he would have obtained

more votes if only the returned candidate had not committed

corrupt practice as defined in sub-sections (3) and (3A) of

Sec. 123 of the Act. It will be useful to extract and

reproduce the relevant part of pleadings as to the said

corrupt practice as raised in the petition. Paras 4 and 5

of the petition read as under:-

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"4. As the main part of the election propaganda, the

Communist Party of India (Marxist) has launched a Video

Cassette known as "VICHARANA". The script of the video

cassette is written by the 1st respondent and he directed

and produced the video film. The actors in the play are

well known film actors in Malayalam viz. Mamokoya,

Pallissery Jose, Shreeram and others.

5. After the nomination of the 1st respondent as a

candidate of the Left Democratic Front he has exhibited the

Video Film `VICHARANA' (trial) throughout the Muslim

predominant areas of Guruvayoor Constituency. More than 50%

of the voters in the Guruvayoor Constituency are Muslim.

The contents of this video cassette with speeches are highly

objectionable and inflammatory, offending sections 123(3)

and (3A) of the Representation of the People Act. It is

submitted that the incidents narrated in the film do not

have any real bearing on the deeds actually committed by the

group of persons in focus."

Paragraphs 6 to 8 set out the contents of the video

cassette. To put it briefly, the film depicts the

demolition of Babri Mosque on 6.12.1992 and the worst riots

which broke out thereafter. The dialogues contained in the

video cassette aimed at fixing the responsibility for all

the incidents on Shri P.V. Narasimha Rao, the then Prime

Minister and also the then President of the Indian National

Congress (I) which was leading the United Democratic Front

which had sponsored the candidature of the petitioner. All

the incidents recorded in the video cassette were blown out

of proportion exhibiting untold and extreme miseries of the

muslim population affected by the riots so as to develop in

the minds of the muslim population hatred against Shri P.V.

Narasimha Rao, Indian National Congress (I) and the United

Democratic Front and thereby materially and adversely affect

the election prospects of the petitioner. Paragraphs 10 to

13 set out the dates and the places at which the cassette

was displayed for viewing in the constituency. The names of

three persons who exhibited the film for viewing at

different places are also given as Shri P.C. Sahoo, Shri

K.T. Bharathan, Shri Vijayan - all local leaders of C.P.I

(M) and it is alleged that each one of them did so `with the

consent of the first respondent.'

There are other averments made in the petition which

are not relevant for the present discussion.

The affidavit accompanying the petition reads as

under:-

" That the statements made in paragraphs

4,5,6,7,8,9,10,11,12 and 16 of the accompanying Election

Petition and the schedule about the commission of corrupt

practices (sic.) the first respondent and the particulars of

such corrupt practice mentioned in the said paragraph of

4,5,6,7,8,9,10,11,12 and 16 of the

Election Petition and the Schedule are true to the

best of my knowledge and information. I am advised that

these acts of the 1st respondent Constitute corrupt

practices under section 123(3) and (3A) of the

representation of People act, 1981. I beg to state that the

particulars of such corrupt practice mentioned in the said

paragraphs of the Election Petition and the schedule may be

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read as part of this affidavit.

I state that the facts stated about the corrupt

practices are true to the best of my knowledge and

information and I believe them to be true.

Dated this the 24th day of June, 1996."

( Underlining supplied)

All the averments abovesaid made in the petition have

been specifically denied by respondent no.1 but simply so

without raising any explanatory or clarificatory plea in

that regard.

The learned Designated Election Judge framed a number

of issues and tried them. Here itself, it may be mentioned

that preliminary objections were raised to the

maintainability of the petition inter-alia on the ground

that the averments made in the petition were lacking in

material particulars and therefore could not have been tried

in view of Section 81 (3) of the Act. However, the learned

Trial Judge over-ruled the preliminary objections upholding

entertainability of the petition. As against the order

deciding the preliminary objections, the respondent No.1 had

preferred an appeal to this Court which was dismissed

reserving liberty to respondent No.1 to press the objections

for decision in the event of the final decision after the

trial of the election petition going against him. In short,

the Supreme Court had not decided the appeal preferred by

respondent No.1 on merits but had postponed the decision on

merits of such pleas to a later event and if only an

occasion may arise for the purpose.

By the judgment under appeal, the learned Designated

Election Judge of the High Court has directed the petition

to be dismissed holding that commission of any corrupt

practice within the meaning of Sec. 123 was not proved.

It cannot be disputed that the averments made in the

petition, if they satisfy the requirements of pleading a

corrupt practice in an election petition and are held to be

proved then they do amount to corrupt practice on the part

of the first respondent within the meaning of sub-sections

(3) and (3A) of Section 123 of the Act. Under sub-section

(3), an appeal by a candidate or his agent or by any other

person with the consent of a candidate or his election agent

to vote or refrain from voting for any person on the ground

of his religion, caste or community etc. or appeal to

religious symbols etc. for the furtherance of the prospects

of the election of that candidate or prejudicially affecting

the election of any candidate amounts to a corrupt practice.

Under sub-section (3A) the promotion of, or attempt to

promote, feeling of enmity or hatred between different

classes of the citizens of India on the ground of religion,

caste, community etc. by a candidate or his agent or any

other person with the consent of a candidate or his election

agent for the furtherance of the prospects of the election

of that candidate or for prejudicially affecting the

election of any candidate amounts to corrupt practice.

We may briefly notice the findings arrived at by the

High Court. According to the High Court though there was a

total denial by the returned candidate of the allegation

that he had scripted, directed and produced the cassette

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`Vicharana', he admitted during his deposition before the

court that he had worked as a co-ordinator for the making of

the film and he had a role in contacting the actors for

acting in the film. The returned candidate had visited the

site of shooting once or twice and had also assisted the

producer in contacting the actors in the film. Though the

evidence pointed out to there being no written script for

the film but that appeared to be highly unnatural looking at

the way the dialogues were recited in the film. The

evidence pointed out to the returned candidate being a co-

ordinator in making the film which factum was concealed by

the returned candidate in his written statement. A co-

ordinator is one who has a substantial role to play in the

production of a film. The High Court felt satisfied that

the conclusion flowing from the cumulative effect of the

proved facts was that the returned candidate had acted as

co-ordinator of the film by getting the actors selected, had

probably also chosen the location for the scenes being shot

and was physically present on two days of the shooting. It

was to be held that the cassette `Vicharana' was produced by

the returned candidate on the basis of a script prepared or

suggested by him but there was no sufficient evidence to

show that he had directed the said film (para 20). The

exhibition of the cassette `Vicharana' in the Guruvayur

constituency was with the consent and knowledge of the

returned candidate (para 21). In spite of arriving at the

abovesaid findings, the High Court held that it had not been

established that Babri Mosque was a religious symbol of the

muslims (para 22) and therefore commission of corrupt

practice within the meaning of sub-sections (3) and (3A) of

Section 123 was not made out. Vide para 27 the High Court

has held that though the evidence does not disclose that

there was a total communal slant to the depiction of the

incidents relating to the destruction of Babri Masjid, the

Bombay riots, the alleged attack on the mosque at

Tellicherry and the Poonthura incidents, it does indicate

that there was an intention to convey to the viewers the

impression that the rulers of the day were conniving with

the Hindu community and were not taking steps to protect the

interests of the muslim community. The manner of depiction

in the cassette had a tendency to disturb the mind of the

viewers but it could not be said that the cassette contained

a direct communal appeal or a seeking of votes on the ground

of religion, caste or community. There was no reference in

the video cassette either to the election petitioner or to

the returned candidate. It could not be inferred that there

was an appeal to garner votes on the ground of religion or

the use of or appeal to religious symbol for the furtherance

of the prospects of the election of the returned candidate

or to affect the candidature of the election petitioner

(para 27). The charge of corrupt practice was therefore not

brought home to the returned candidate under Section 123(3)

of the Act. Vide para 29, the High Court has held that in

spite of the cassette having been exhibited and the muslim

population in the constituency being not very literate and

on the other hand mainly consisting of women and fishermen

of muslim community yet there was no untoward incident. The

visual and speech contents of the cassette neither promoted

nor attempted to promote feelings of enmity or hatred

between two classes of citizens. Certainly the contents did

not further the election prospects of first respondent nor

prejudicially affect the election of petitioner. The

exhibition of the cassette could not be said to be corrupt

practice within the meaning of Section 123 (3A) of the Act.

Vide para 31, the High Court has also recorded a finding

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that it was not proved that the exhibition of the video

cassette had materially affected the result of the election

in Guruvayur constituency.

It is basic to the law of elections and election

petitions that in a democracy, the mandate of the people as

expressed at the hustings must prevail and be respected by

the Courts and that is why the election of a successful

candidate is not to be set aside lightly. Heavy onus lies

on the election petitioner seeking setting aside of the

election of a successful candidate to make out a clear case

for such relief both in the pleadings and at the trial. The

mandate of the people is one as has been truly, freely and

purely expressed. The electoral process in a democracy such

as ours is too sacrosanct to be permitted to be polluted by

corrupt practices. If the court arrives at a finding of

commission of corrupt practice by a returned candidate or

his election agent or by any other person with the consent

of a returned candidate or his election agent then the

election of the returned candidate shall be declared to be

void. The underlying principle is that corrupt practice

having been committed, the result of the election does not

echo the true voice of the people. As the consequences

flowing from the proof of corrupt practice at the election

are serious, the onus of establishing commission of corrupt

practice lies heavily on the person who alleges the same.

The onus of proof is not discharged merely on preponderance

of probabilities; the standard of proof required is akin to

that of proving a criminal or a quasi-criminal charge.

Clear cut evidence, wholly credible and reliable, is needed

to prove beyond doubt the charge of corrupt practice. [See:

Ram Chandra Rai vs. State of Madhya Pradesh & Ors. (1970)

3 SCC 647; Manphul Singh vs. Surinder Singh AIR 1973 SC

2158; Rahim Khan vs. Khurshid Ahmed and others AIR 1975 SC

290; Bir Chandra Barman vs. Shri Anil Sarkar and others

AIR 1976 SC 603; Lakshmi Raman Acharya vs. Chandan Singh

and others AIR 1977 SC 587; Amolak Chand Chhazad vs.

Bhagwandas Arya (Dead) and anr. AIR 1977 SC 813]. The

legislature has taken extra care to make special provision

for pleadings in an election petition alleging corrupt

practice. Under Section 83 of the Act ordinarily it would

suffice if the election petition contains a concise

statement of the material facts relied on by the petitioner,

but in the case of corrupt practice the election petition

must set forth full particulars thereof including as full a

statement as possible of (i) the names of the parties

alleged to have committed such corrupt practice, (ii) the

date, and (iii) place of the commission of each such

practice. An election petition is required to be signed and

verified in the same manner as is laid down in the Code of

Civil Procedure, 1908 for the verification of pleadings.

However, if the petition alleges any corrupt practice then

the petition has additionally to be accompanied by an

affidavit in Form No. 25 prescribed by rule 94A of the

Conduct of Elections Rules, 1961 in support of the

allegations of such corrupt practice and the particulars

thereof. Thus, an election petition alleging commission of

corrupt practice has to satisfy some additional

requirements, mandatory in nature, in the matter of raising

of the pleadings and verifying the averments at the stage of

filing of the election petition and then in the matter of

discharging the onus of proof at the stage of the trial.

In F.A.Sapa etc.etc. vs. Singora and others etc.

AIR 1991 SC 1557, this Court has held:

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"A charge of corrupt practice has a two dimensional

effect: its impact on the returned candidate has to be

viewed from the point of view of the candidate's future

political and public life and from the point of view of the

electorate to ensure the purity of the election process.

There can, therefore, be no doubt that such an allegation

involving corrupt practice must be viewed very seriously and

the High Court should ensure compliance with the

requirements of Section 83 before the parties go to trial.

While defective verification of a defective affidavit may

not be fatal, the High Court should ensure its compliance

before the parties go to trial so that the party required to

meet the charge is not taken by surprise at the actual

trial. It must also be realised that delay in complying

with the requirements of Section 83 read with the provisions

of the C.P.C. or the omission to disclose the grounds or

sources of information, though not fatal would weaken the

probative value of the evidence ultimately lead at the

actual trial. Therefore, an election petitioner can afford

to overlook the requirements of Section 83 on pain of

weakening the evidence that he may ultimately tender at the

actual trial of the election petition. The charge of

corrupt practice has to be proved beyond reasonable doubt

and not merely by preponderance of probabilities.

Allegation of corrupt practice being quasi- criminal in

nature, the failure to supply full particulars at the

earliest point of time and to disclose the source of

information promptly may have an adverse bearing on the

probative value to be attached to the evidence tendered in

proof thereof at the trial. Therefore, even though

ordinarily a defective verification can be cured and the

failure to disclose the grounds or sources of information

may not be fatal, failure to place them on record with

promptitude may lead the court in a given case to doubt the

veracity of the evidence ultimately tendered."

Though the decided cases illustrative of the nature of

particulars required to be pleaded in support of an averment

of corrupt practice are available in plenty, it would

suffice to refer to two only. In Rahim Khan vs. Khurshid

Ahmad & Ors. 1975 (1) SCR 643, it was held that it was not

the requirement of Sections 83 and 87 of the Act or Rule

94-A and Form No. 25 thereof to mention the names of the

witnesses as a source of information or as a part of the

particulars. Every witness need not be mentioned as a

source and every source informant need not be examined

necessarily. However, omission to do so in a given case may

reflect on the credibility of the evidence depending on the

facts and circumstances of an individual case. The court

has to be careful to insist that the means of knowledge are

mentioned right in the beginning to avoid convenient

embellishment and irresponsible charges; though, good and

reliable testimony should not be stifled nor proof of

corrupt practices thwarted by technicalities of procedure.

In Azhar Hussain vs. Rajiv Gandhi 1986 (2) SCR 782 ,

the corrupt practice alleged was referable to the returned

candidate and as committed at the meetings organised during

the election campaign. This court held that dates and

particulars of the meetings should be given so as to

eliminate the possibility that witnesses could be procured

later on for adducing evidence. In the context of the

charge of corrupt practices referable to distribution of

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certain pamphlets, this Court held that the pleadings should

have stated who had distributed the pamphlets when, where

and to whom they were distributed and in whose presence.

This court further observed that no amount of evidence could

cure the basic defect in the pleadings.

Application of the abovenoted well settled principles

to the case at hand raises a gloomy picture indeed. The

petition is bereft of some material facts and particulars.

It does not set out names of even a few persons who viewed

the film and/or in whose presence it was exhibited though it

was not necessary for the petitioner to have alleged the

names of each and every person who had viewed the video

film. However, the names of a few persons who had viewed

the film and in whose presence it was exhibited were

expected to have been alleged in the election petition so as

to put respondent No.1 on notice that these were the persons

who were proposed to be examined by the petitioner in

support of his averments. The petitioner's pleading in this

regard fails to satisfy the requirement of proviso to sub

section (1) of Section 83 of the Act as explained in Azhar

Hussain's case (Supra).

We have carefully perused the marshalling of evidence

as done and the process of reasoning as applied by the High

Court. We have found it difficult to sustain the same and

uphold all the findings arrived at by the High Court. The

High Court has been much influenced by the consideration

that the returned candidate has in his written statement

completely denied all the allegations made in the petition

but during his statement in the Court made certain

admissions which belie his total denial of the case of the

petitioner. The High Court expected the first respondent to

have been more truthful in his written statement i.e. he

should have atleast admitted so much parts of the

allegations made by the petitioner as were correct according

to him also and should have denied only somuch parts thereof

as were not acceptable to him. To this extent, the High

Court may be right but we cannot subscribe to the view that

if a part of the denial is found to be false then for this

reason alone the rest of the denial of the petitioner's case

by the first respondent can also be termed as untruthful and

then to proceed to hold that proof of part can be taken to

be proof of the whole.

In proof of the averments made in para 4 of the

petition as to the respondent's contribution made in

bringing out the cassette, the witnesses examined on behalf

of the petitioner can be grouped into three. The main

testimony consists of the statements given by the three

actors namely Mammokkoya (PW 6), Jose Pallissery (PW 7) and

Shreeraman (PW 8) who have played leading roles in the film.

The second set consists of Sunny Joseph (PW 22) who was the

cameraman and had done the videography. The third set of

witnesses is Neelan (PW 10) and Abdul Razak (PW 20). Neelan

was an employee of Asianet News Division who was called by

the petitioner to prove the contents of an interview

telecast in April, 1996 by Asianet wherein the respondent

No. 1 is alleged to have made certain incriminating

admissions as to the video cassette `Vicharana'. Abdul

Razak (PW 20) claimed to have viewed the interview.

We would first proceed to assess the testimony of the

three main actors. Mammokkoya ( PW 6), has not stated

anything material to advance the case of the petitioner and

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in the opinion of the High Court itself the impression

created by this witness was that he was trying to hide more

than he was willing to reveal. Most of the answers given by

this witness to the questions asked on behalf of the

petitioner were evasive. In the opinion of the High Court

the answers given by this witness left the distinct

impression in the mind of the court that the witness was not

a witness of truth. Jose Pallissery, (PW 7) stated nothing

to connect the first respondent with the direction or

production of the film. All that he has stated is that

Shreeraman (PW 8) had asked him to act in the film and also

made him understand that the request was at the instance of

Mr. Bennie, the director of the film. Shreeraman (PW 8)

stated that he was not aware who had made the film. The

remuneration of the actors was paid by one Sukumaran Nair in

his capacity as the production manager. Production was done

by a group of people. The only role ascribed by Shreeraman

(PW8) to the first respondent is that the later had

telephoned him to call some artists for acting in the film

for video cassette `Vicharana'. Thus, the testimony of the

three actors has not revealed anything concrete to connect

the first respondent with the film either as a producer or

as a director of the film. The three actors were examined

by the petitioner. Their being untruthful witnesses or

their criticism by the High Court that they were concealing

the truth could not have been pursued further to hold that

what was not told by them was the truth. Mammokkoya (PW 6)

did not see respondent No.1 at any time at the place of the

shooting. All the three actors have stated one Mr. Bennie

to be the director of the film. Mr. Bennie Tholath was

examined as RW 2 by the first respondent who stated that he,

and not the first respondent, had directed the film. He

also stated that he had directed the film `Vicharana' at the

instance of the private secretary of Mr. V.S.

Achuthanandan the then leader of the opposition in the

Kerala Legislative Assembly. He could not tell the name of

the private secretary. Even if the testimony of Shreeraman

(PW 8) was to be accepted all that it leads to is that the

first respondent had asked one of the actors to act in the

film and on one or two occasions he had also visited the

shooting site but without doing anything positive there.

From this much evidence, the direction or production of the

video film cannot be attributed to the first respondent.

In the election petition, vide paras 14 and 15, it was

alleged that the District Collector and District Election

Officer, Ernakulam had issued a direction to Shri A.P.

Varkey, Ernakulam District Secretary of CPI (M) to expunge

the offending portion from the video cassette. One Shri

A.P. Varkey filed Criminal Misc. Case No.920/1996 before

the High Court of Kerala seeking quashing of the direction

of the District Collector. In the petition filed before the

High Court there was an admission contained that the first

respondent had written the script of video cassette and also

directed and produced the same. These averments were denied

in the written statement filed by the first respondent. It

was submitted that what had transpired between the District

Collector and Shri A.P. Varkey and what were the

proceedings taken by Shri A.P. Varkey, were not in the

knowledge of the first respondent but in any case he was not

bound by the contents of the criminal petition filed by Shri

A.P. Varkey. Shri A.P. Varkey was examined by the

petitioner as P.W.2. He stated to have made use of the

cassette `Vicharana' during the election campaign on behalf

of CPI(M). He also stated that the directives given by the

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District Collector for removing the objectionable portions

from the video cassette as pointed out by the District

Collector were complied with by removing the same and

thereafter only the cassette was displayed. During

cross-examination he admitted that the contents of the

criminal petition filed in the High Court were based on

hearsay information. He also admitted that the election

propaganda in Trichur District had nothing to do with the

first respondent and the first respondent had neither

requested the witness or the Ernakulam District Committee of

the party for any help in election propaganda on behalf of

the first respondent. In spite of such admissions made by

the witness, the so-called admission contained in the

criminal petition Exhibit P3 has been held to be and used as

a piece of incriminating evidence against the first

respondent by the learned Designated Judge. Firstly, the

admission, if any, was the admission of the witness and not

the admission of the first respondent. Secondly, the

witness had itself discredited the worth, if any, of the

so-called admission by stating that it was based on hearsay.

Thirdly, if the witness was not speaking the truth then the

witness had stood discredited. The witness was examined by

the petitioner and by holding him to have been discredited

an inference against the first respondent could not have

been drawn by the High Court.

Having dealt with the principal testimony of the three

actors we may now deal with Sunny Joseph, P.W.22. According

to him he had shot only a part of the video film and that

too at the location of a hotel. None associated with the

shooting at other locations has been examined on behalf of

the petitioner. Sunny Joseph stated in the examination-in-

chief itself that the producer of the film was Sukumaran

Nair. He had paid the remuneration to the cameraman. Mr.

Bennie was the director of the video film and had instructed

the witness for shooting of the film. He specifically

denied having been instructed for shooting by the first

respondent or anyone at his behest. He also denied the

suggestion that the cassette was scripted, produced and

directed by the first respondent. In our opinion, the

evidence brought on record by the petitioner himself through

his own witness Sunny Joseph, P.W.22 was sufficient to

demolish the case of the petitioner insofar as it related to

the corrupt practice attributed to the first respondent.

Let us now deal with the third set of witnesses. It

was only at the stage of trial that the election petitioner

made an attempt at adducing evidence of the contents of an

interview telecast on Asianet Television wherein the first

respondent was alleged to have claimed that he had made the

film. The record of the interview was not available and

could not be produced. Neelan (PW 10 ) chief of the News

Division of Asianet did not depose to any admission as to

the video cassette having been made by the first respondent.

He stated in the examination-in-chief itself that the record

of interview was destroyed on account of time having elapsed

and it was humanly impossible to remember the contents of

interview. Another witness Abdul Razak (PW 20) was examined

who claimed to have viewed the television interview telecast

by Asianet wherein the returned candidate had participated

and during the course of interview admitted that he was very

confident of winning at the election as he had succeeded in

exposing the communal fascist forces before the electorate.

The witness went on to say that the respondent no.1 had

during the interview admitted to have written the script of

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`Vicharana' and also prepared the cassette. When

cross-examined, the witness fumbled and could not give

details of the interview said to have been viewed by him.

He could not give date of the interview viewed by him, the

name of the programme wherein the interview was telecast,

the person who was interviewing the first respondent and so

on. Such piece of evidence has been relied on by the High

Court for the purpose of inferring an incriminating

admission by the first respondent. The first respondent in

his statement did admit having participated in the interview

telecast by Asianet but did not admit having made any such

admission as was sought to be put in his mouth .

The infirmity in the finding arrived at by the High

Court is writ large. Firstly, an admission is a substantive

piece of evidence and when the same was relied on for

proving a corrupt practice, it ought to have been pleaded in

the election petition so as to give the first respondent an

opportunity of meeting and explaining the same but this has

not been done. Secondly, an interview telecast on

television would have been viewed by hundreds of persons yet

the petitioner could find only one person to depose to the

contents of the interview. An admission put in the mouth of

the first respondent and denied by him cannot be believed

unless cogent and convincing evidence was adduced in proof

thereof. Lastly, an alleged admission sought to be relied

on as an incriminating piece of evidence must be proved with

precision. Unless the phraseology in which the so called

admission was couched is brought before the court, the court

may not be in a position to act upon it as an incriminating

link in the chain of evidence. A suggestion denied

constitutes no evidence.

There is no evidence adduced nor any material brought

on record wherefrom an inference that the cassette was

displayed for viewing by P.C. Sahoo, K.T. Bharathan or

Vijayan at the instance of or with the consent of the first

respondent could be drawn. It is not the case of the

petitioner that any one of the said three persons was the

agent of the first respondent. There is absolutely no

evidence or material available on record to connect the

first respondent with choosing of any of the locations where

shooting was done. The inference in that regard appears to

be a guess-work merely certainly not permissible when the

allegation to be brought home is criminal or quasi-criminal

in nature.

The first respondent who appeared in the witness-box

as RW1 has stated on oath that he had no part to play either

in the preparation of the script or in the production or

direction of the film `Vicharana'. On the telephonic

request of Mr. Sukumaran Nair who was the producer of the

cassette `Vicharana' he had extended some help to him by

asking the actors to agree for acting in the film and he had

also visited the shooting sites on two occasions. He stated

that he had seen the video cassette only twice - once after

the polls and second before filing the written statement.

The video film was never displayed in the constituency

either at his instance or in his presence. He denied having

at any time claimed to have produced or directed the video

film or written its script. He stated that he was not a

member of the Communist Party (Marxist). We have carefully

read the statement of the first respondent and we do not

find his having been discredited in cross-examination. His

testimony inspires confidence.

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Bennie Tholath, (RW2) examined on behalf of the first

respondent is the witness who had directed the video film

`Vicharana'. He clearly stated that the persons involved in

preparation of the script for `Vicharana' were Sukumaran

Nair, Secretary to Shri V.S. Achuthanandan, the then leader

of the opposition, Babu Pallissery, the District Secretary

of the DYFI, Trichur District and Joseph, a freelance

journalist. The witness had directed the film at the

instance of Sukumaran Nair. He specifically stated that the

first respondent had no part to play in the preparation of

the script. He further stated that the first respondent had

done nothing particular in connection with the making of the

video film `Vicharana'. The witness further stated that

normally what is done by a coordinator in the production of

a film was not done by the first respondent. The witness

denied any role having been played by the first respondent

either in the preparation of the script or in the production

of the cassette either as a writer or as a producer or

director insofar as the first respondent is concerned.

In the above state of evidence, we are definitely of

the opinion that the High Court was not justified in

arriving at a finding that the first respondent had worked

as a coordinator of the cassette `Vicharana' and had a

substantial role to play in the production of the film. The

High Court was also not justified in holding that the

cassette `Vicharana' was produced by the first respondent on

the basis of a script prepared or suggested by him. The

evidence produced by the petitioner utterly failed to

satisfy the standard of proof required for bringing home a

criminal or a quasi-criminal charge. These findings of the

High Court cannot be sustained and hence are set aside.

There is also a sharp divergence between the pleadings

and the proof. In the petition the petitioner has not

alleged the actors in the film having been hired, engaged or

even introduced to the producer by the first respondent.

The petition merely alleges the names of the actors playing

in the film. Yet the High Court has found a case proved

which was not specifically pleaded.

Para 4 of the petition alleges the script of the video

cassette `Vicharana' to have been written by the first

respondent and the film having been directed and produced by

the first respondent. The High Court has not found the

video film to have been directed and produced by the first

respondent. The finding recorded by the High Court is that

the first respondent was co-ordinator in the production of

the video film. What has been found is certainly not the

case pleaded. So far as the writing of the script is

concerned, there is no evidence available on record to hold

that there was any script fully written available while the

film was under production. The testimony of the witnesses

examined on behalf of the petitioner and dealt with by the

High Court in its judgment goes to show that there was only

an incomplete script available which had left room for

improvisation. The High Court having viewed the video film

proceeded to apply a parity of reasoning and held that the

dialogues recited by the actors in the video film could not

have been so recited unless there was a written script

available and that goes to show that a fully written script

was in existence and available. The written script has not

been produced in the Court. Certainly, there is no evidence

adduced to attribute authorship of the script, complete or

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incomplete, to the respondent No.1. Even if the deficiency

in the pleadings was ignored and all the findings arrived at

by the High Court were accepted as correct, still, in our

opinion, the facts found may give rise to a strong suspicion

of the respondent No.1 having had something to do with the

production of the video film `Vicharana' but suspicion

howsoever strong cannot take the place of proof of the

charge of corrupt practice.

The High Court has no where found nor is it the case

of the petitioner that the respondent No.1 was himself

exhibiting the video film. Similarly, the High Court has

not arrived at a finding as to any particular named person

having exhibited the video film as an agent of or with the

consent of the respondent No.1. Earlier summarising the

conclusions arrived at by the High Court, we have already

noticed one of the findings arrived at that the video

cassette does not contain an appeal to garner votes on the

ground of religion or the use of or appeal to religious

symbol for the furtherance of the prospects of the election

of the returned candidate or to prejudicially affect the

election of any candidate. Inspite of the hard labour put

in by the learned counsel for the appellant, he has not been

able to dislodge the abovesaid finding. The principal

ingredient of sub sections (3) and (3 A) of Section 123 of

the Act is therefore missing. Having ourselves read the

evidence, with the assistance of the learned counsel for the

parties, while we uphold this finding of the High Court, we

have no hesitation in our mind also to record that the other

findings arrived at by the High Court in favour of the

election petitioner cannot be sustained for want of proper

pleadings and requisite evidence and hence are liable to be

set aside.

The affidavit filed by the petitioner in support of

the election petition as required by Rule 94 A also does not

satisfy the requirement of proviso to sub section (1) of

Section 83 of the Act and Form No. 25 appended to the

Rules. The several averments relating to commission of

corrupt practice by the first respondent as contained in

paragraphs 4 to 12 and 16 of the petition have been verified

as true to the best of " my knowledge and information " -

both, without specifying which of the allegations were true

to the personal knowledge of the petitioner and which of the

allegations were based on the information of the petitioner

believed by him to be true. Neither the verification in the

petition nor the affidavit gives any indication of the

source of information of the petitioner as to such facts as

were not in his own knowledge.

The verification of the petition does not even satisfy

the requirement of Order 6 Rule 15 of the CPC. The

verification reads as under:

VERIFICATION

I, R.P.Moidutty, S/o.Abubakker Haji, aged 54,

petitioner in the above election petition do hereby declare

that the averments in para 1 to 17 are true and made from

personal knowledge and on the basis of personal enquiry I

believe that all the averments made in para 1 to 17 is true.

Signed and verified in this the 21st day of June,

1996.

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PETITIONER :" [Underlining supplied] All the averments

made in paras 1 to 17 of the petition have been stated to be

true to the personal knowledge of the petitioner and in the

next breath the very same averments have been stated to be

based on the information of the petitioner and believed by

him to be true. The source of information is not disclosed.

As observed by the Supreme Court in F.A. Sapa etc.etc. vs.

Singora and others AIR 1991 SC 1557, the object of requiring

verification of an election petition is to clearly fix the

responsibility for the averments and allegations in the

petition on the person signing the verification and, at the

same time, discouraging wild and irresponsible allegations

unsupported by facts. However, the defect of verification

is not fatal to the petition; it can be cured [see:

Murarka Radhey Sham Ram Kumar vs. Roop Singh Rathore and

Ors. AIR 1964 SC 1545, A.S. Subbaraj vs. M. Muthiah 5

ELR 21 ]. In the present case the defect in verification

was pointed out by raising a plea in that regard in the

written statement. The objection was pressed and pursued by

arguing the same before the Court. However, the petitioner

persisted in pursuing the petition without proper

verification which the petitioner should not have been

permitted to do. In our opinion, unless the defect in

verification was rectified, the petition could not have been

tried. For want of affidavit in required form and also for

lack of particulars, the allegations of corrupt practice

could not have been enquired into and tried at all. In

fact, the present one is a fit case where the petition

should have been rejected at the threshold for non-

compliance with the mandatory provisions of law as to

pleadings.

For the foregoing reasons, we do not find the ultimate

finding arrived at by the High Court liable to be interfered

with. The dismissal of the election petition by the High

Court is upheld though for the reasons set out in this

judgment. The appeal is accordingly dismissed. No order as

to the costs.