Civil Appeal No 5992 of 1983 Appeal from the Judgment and order dated the 7th December 1982 of the Kerala High Court in Election Petition No 8 of 1982 MM Abdul Khader and EMS Anam for the Appellant
P Govinden Nair and N Sudhakaran for the Respondents
The Judgment of the Court was delivered by RANGANATH MISRA J
This appeal under Section 116A of the Representation of People Act 1951 hereinafter referred to as the Act  is directed against the decision of the Kerala High Court dismissing the election petition of the appellant whereby he challenged the election of respondent No 1 as a member of the Kerala Legislative Assembly from Constituency No 125 Eravipuram in the Quilon district of that State
Election was held on 19582 and the result was declared on the following day
There were eight candidates in all but the main contest was between the appellant and the respondent No 1
The appellant polled 37 073 while respondent No 1 polled 37 862
There was therefore an excess of 789 votes
All the remaining candidates together polled about 2000 votes
164 Challenge to the election was laid on two grounds namely commission of corrupt practices within the meaning of sub sections 2 4 and 7 of Section 123 of the Act and several irregularities in the course of counting leading to wrong conclusion regarding the result
The returned candidate joined issue and denied these allegations
The learned Election Judge in the High Court came to hold that the appellant had failed to bring home the charges of corrupt practices
He also did not accept the plea of irregularities in counting of ballot papers
A request made to him for recount was rejected and on these conclusions he held that the election petition was liable to be dismissed
Appellant s counsel conceded that the allegations of corrupt practices covered by sub section 2 of Section 123 of the Act would not be pressed
He also fairly accepted the position that the evidence relating to obtaining or procuring of assistance for the furtherance of the prospects of respondent No 1 s election from government servants was inadequate as found by the High Court
Two grounds were therefore pressed in support of the appeal namely the allegations of corrupt practice within the Section 1234 of the Act and the allegations of irregularities in the matter of counting of ballot papers
Section 1234 provides 123
The following shall be deemed to be corrupt practices for the purposes of this Act 4 The publication by a candidate or his agent or by any other person with the consent of a candidate or his election agent of any statement of fact which is false and which he either believes to be false or does not believe to be true in relation to the personal character or conduct of any candidate or in relation to the candidature or withdrawal of any candidate being a statement reasonably calculated to prejudice the prospects of that candidates election
 Admittedly Azeez was the election agent of respondent No 1
In paragraphs 4 to 8 of the election petition it had been alleged that election agent Azeez published a statement dated 13582 in the form of a hand bill making false but serious allegations against the appellant touching his personal character and conduct
It was alleged that the appellant had caused the murder of one Omana a 165 lady worker supporting the respondent No 1 because she refused to support his campaign
A meeting was held on 14582 at a place known Tatamala Junction to condemn and condole the said death
It was represented that the death was caused on the ground that the said helpless lady was not prepared to work for him
Azeez along with other election workers carried wide scale propaganda with loud speakers
At the said meeting there were many speakers including Azeez and the respondent No 1 who spoke in the same strain as the contents of the hand bill
This was done with a view to affecting the prospects of the appellant s election
Similar propaganda was said to have been made by them until canvassing stopped
The respondent No1 denied these allegations in the written statement
According to the appellant the corrupt practices within the meaning of Section 1234 of the Act related to distribution of the hand bill in question namely at two places being Mayyanana
and Thrikkovil Battom areas and the speeches were made at the public meeting held at Tatamala Junction
Exhibit P 1 is a copy of the hand bill
No steps were taken to summon the original documents from the press where the hand bill is said to have been got printed by Azeez though the name of the press was borne on the hand bill
Soon after the hand bill came to be circulated a denial was published by the press to the effect that no such bill was printed andor published by the press Admittedly the relevant materials if called from the press would have been the best evidence to provide the link between the publication of the objectionable material and the election agent of the respondent No 1
When we made a query from counsel for the appellant as to why such steps were not taken and the primary evidence was kept away from the Court learned counsel indicated to us that the press had come out with a denial closely following the circulation and it was not likely that the press would have caused production of the document
Since the name of the press was given in the document and appellant proceeded on the footing that the document was printed in the said press if the press did not comply with the summons production could have been enforced by law
Want of proper steps at the right time and negligence or willful default at the trial cannot be answered in the manner appellant s counsel has contended before us and we must draw adverse inference against the appellant for non production of the relevant material
Reliance was also placed on a report by PW4 a police officer where there was mention of such propaganda being carried on with reference to the death of the 166 lady
The report did not indicate the source but only stated that the police officer collected the information from the gossips in the locality
Such a report as rightly held by the High Court was not admissible and it was hearsay of a type to which no credence could attach
Though counsel was very vehement to press this document into service he was not in a position to cite any legal basis for doing so
Apart from these two documents which we hold had been rightly ruled out the other evidence is oral in character and PWs 7 811 and 12 are the witnesses who have been spoken about it
Admittedly all these witnesses were the workers of the appellant
There is over whelming material on the record and even counsel fairly admitted that the election was fought on party basis and there was sharp division of the electorate on the basis of political parties
That being the position workers at the election with party alignment would necessarily be political supporters of the respective candidates and when called as witnesses they would support their stand
Instances are not uncommon where such witnesses support their respective candidates and their cases even though the same be far from truth
In such circumstances we do not think on the oral testimony of these four witnesses the charge of publication of objectionable materials can be said to have been established
Admittedly the meeting at Tatamala Junction was held on the 14582 towards the evening
It is the case of the appellant that at this meeting the respondent No 1 his election agent Azeez and several other supporters spoke
Each one of them referred to the appellant as the person responsible for the murder of the lady
There is no dispute before us that the picture drawn up as the appellant as the murderer of the lady would very much tarnish his image personality and character and would have adversely affected the prospects of his winning the election is widely circulated in the constituency before polling
Three witness as have been examined being PWs 2 6 and 9 in respect of the Tatamala meeting
PW 2 was the Circle Inspector of Police of the area and stated that he had attended the meeting
Though the meeting started at 7 pm he went to the meeting place at about 9 pm and remained there for about an hour
Thus at about 10 pm he left the place but the meeting was still continuing
He referred to the speech by Azeez but did not indicate as to what exactly he spoke
In cross examination he admitted that though he maintained a diary the details of the meeting were not available and he did not report about the meeting to his superior officers
This evidence does not lend any support to the case sought to be made out by the appellant
PW 6 was a printer and publisher of 167 the newspaper by name Pauramitram
His evidence is that he was also working as reporter of the paper and had gone to the meeting in such capacity
On the basis of his jottings he gave a news item which was published in the paper marked Exhibit P 3
He claims to have left the meeting place at 930 pm but the meeting was still continuing
The news item as reported does indicate what Azeez spoke
The witness also deposed on oath about the speech of Azeez
The High Court refused to place any reliance on this witness mainly on account of the fact that this paper was not an established newspaper of the area and did not have regular publication
On the basis of the evidence of RW 1 the information officer at the state headquarters the High Court came to doubt the bona fide of PW6 as also his paper
We have also perused the evidence of PW6 and RW1 and the observations of the High Court in regard to this aspect
We are inclined to agree with the High Court that the evidence of the witness is not impressive and we hold the same was rightly rejected by the High Court which had occasion to see him
The only other witness who has been examined in regard to the meeting is PW9
a person who claims to be independent and unconnected with the lis
PW9 on his own showing had gone to see his father suffering from a heart attack
He came from a place about 20 kilometres away
According to him he left father s place by around 1030 pm
If that be so and he was covering a distance of about 20 kilometres he would not have reached the meeting place before 11 pm when the meeting is said to have concluded
His evidence that he stayed at the meeting place to listen to the speeches for quite sometime has therefore to be ruled out as inconsistent with the other evidence
His evidence too has been rightly rejected by the High Court
There is total consensus of judicial opinion that a charge of corrupt practice under the Act has to be proved beyond reasonable doubt and standard of proof is the same as in a criminal case
See Mahant Shree Nath vs Choudhry Ranbir Singh
This proposition has even not been disputed by counsel for the appellant
We therefore do not propose to refer to the catena of decisions affirming the aforesaid view
The High Court applied the right standard in the matter of appreciation of the material placed before it and has come to hold that the allegations of corrupt practice within the meaning of Section 1234 of the Act has not been proved
In such a situa 168 tion as pointed out by this Court in the case of Boddepalli Rajagopala Rao vs NG Ranga this Court would not reappreciate the evidence
Shah J as he then was observed thus The finding of the learned Trial Judge is based upon appreciation of evidence of the witnesses in the light of probabilities
A charge of corrupt practice under the Representation of the People Act must be established by clear and cogent evidence
When the Court of First Instance on a consideration of the evidence of the witnesses has refused to place any reliance upon their testimony the burden lying upon the party setting up a plea of corrupt practice becomes no lighter in appeal
The charge cannot be held established merely upon suspicion or preponderance of probabilities
Unless the appellant establishes that the appreciation of evidence was vitiated by gross misreading or misconception of the evidence or because of failure to consider important pieces of evidence which had a bearing on the charge or because of serious irregularities in procedure which amount to a denial of a fair trial the appellate court will not proceed to reappreciate the evidence on which the findings are recorded by the Court of First Instance on the credibility of witnesses
 We are in complete agreement with these observations
Our conclusion therefore is that the High Court rightly negatived the challenge to the election of respondent No 1 on grounds of corrupt practices
The only other contention canvassed at the hearing is about the irregularities in the counting
The total rejected ballot papers were within the range of 500 while the difference between the appellant and the respondent No 1 was about 800
The details necessary for obtaining a recount were not pleaded in the election petition nor was any cogent material placed before the Court which could bring the matter within the rule indicated by this Court to justify a direction for recount
That plea in our opinion has rightly been negatived by the High Court
The appeal fails and is dismissed
Parties shall bear their own costs in this Court
SR Appeal dismissed


Summary:
In the election held on 1951982 for the election of a member of the Kerala Legislative Assembly from constituency No 125 Eravipuram in the Quilon District of that State there were eight candidates in all but the main contest was between the appellant and the respondent No 1
The appellant polled 37073 while the respondent polled 37862
There was therefore an excess of 789 votes
As per the result declared on 2051982 the respondent was declared elected
The appellant therefore filed an election petition in the Kerala High Court alleging commission of corrupt practices within the meaning of sub sections 2 4 and 7 of Section 123 of the Act and several irregularities in the course of counting leading to wrong conclusion regarding the result
In paragraphs 4 to 8 of the election petition it had been alleged that election agent Azeez published a statement dated 1351982 in the form of a hand bill making false but serious allegations against the appellant touching his personal character and conduct
It was alleged that the appellant had caused the murder of one Omana a lady worker supporting Respondent No 1 because she refused to work for the appellant
The oral evidence to this effect by PWs 7 811 and 12 who were the workers of the appellants and the plea for nonsummoning the printer with the documents printed by him were not believed by the Election Judge
The election petition having been dismissed the petitioner has come in appeal
Dismissing the appeal the Court  HELD 11
The High Court rightly negatived the challenge to the election of respondent No 1 on grounds of corrupt practice
168E 1 2
There is a total consensus of judicial opinion that a charge of corrupt practice under the Representation of People Act 1951 has to be proved beyond reasonable doubt and the standard of proof is the same as in a criminal case
When the High Court applied the right standard in the matter of appreciation of the material placed before it and has come to hold that the allegations of corrupt practice within the meaning of section 1234 of the Act has not been proved the Supreme Court would not re appreciate the evidence
167F H 168A 163 Mahant Shreenath vs Choudhry Ranbir Singh  Boddepalli Rajagopala Rao vs NG Ranga AIR  applied
Want of proper steps at the right time and negligence or willful default at the trial to cause the summons and production of a document must only lead the Court to draw an adverse inference regarding non production of the relevant material
165G H 1 4
Any report of a police officer which indicates that the information was gathered from the gossips in the locality is not admissible and it is hearsay of a type to which no credence could attach
166A B 1 5
When an election was fought on party basis and there was sharp division of the electorate on the basis of political parties workers at the election with party alignment would necessarily be political supporter of the respective candidates and when called as witnesses they would support their stand
Instances are not uncommon where such witnesses support their respective candidates and their cases even though the same may be far from truth
In such circumstances on the oral testimony of PWs 7 8 11 and 12 who are admittedly workers of the appellant the change of publication of objectionable materials can not be said to have been established
166B D