Joseph M. Puthussery vs T.S.John And Ors

2. The facts, emerging from the record of the case, are as under:

On June 27, 2001, the respondent No. 1 filed Election Petition No. 6 of 2001 in the High Court of Kerala at Ernakulam, under Section 100(1)(b) of the Act assailing the election of the appellant. According to the respondent No. 1, the election of the appellant was vitiated by corrupt practice defined under Section 123(4) of the Act for the reason that copies of Ext. X4, which allegedly contained false statements of fact in relation to the personal character and conduct of the respondent No. 1 having tendency to prejudice the prospects of the election of the respondent No. 1, were distributed by the appellant, his election agent and workers of the United 4 Democratic Front, i.e., the party to which the appellant owe allegiance, with his consent as well as with the consent of his election agent on May 8, 2001 and May 9, 2001 ignoring the stipulation that electoral campaign must come to an end. The precise statements in Ext. X4, which, according to the respondent No. 1, allegedly amounted to the corrupt practice within the meaning of Section 123(4) of the Act, are extracted below: -

The appellant filed written statement resisting the election petition. In the written statement, distribution of Ext. X4 in the Constituency on May 8, 2001 and May 9, 2001 was not specifically denied meaning thereby ignorance was pleaded so far as distribution of the 7 pamphlets was concerned. However, the appellant took a specific stand that neither he nor his election agent or any one with his and/or their consent had distributed Ext. X4. What was stated by the appellant in the written statement was that the distribution was done by the Youth Wing of the party to which the respondent No. 1 belongs and that the distribution of Ext. X4 does not amount to any publication. It was also averred that, at any rate, the statement was not calculated to prejudice the prospects of the respondent No. 1 in the election held on May 10, 2001 and, therefore, the Election Petition was liable to be dismissed.

5. The learned Judge further held that in releasing Ext. X4 for consumption of the electorate by extensive distribution in the Constituency, there was publication as contemplated by Section 123(4) of the Act. The learned Judge found that Ext. X4 was not merely republication of the relevant portions of Exts. R-6, R-7 and R-8, but in addition to what was available in Exts. R6, R-7 and R-8, defamatory imputations by way of title, observations/comments in the sub-title, etc., were available in Ext. X4. The learned Judge held that out of the three allegations made in objectionable pamphlet Ext. X4, the third allegation, which relates to misappropriation and fraud to the tune of crores, falls under category of objectionable statement of fact under Section 123(4) of the Act and evidence of PW-6 shows that the statement was false. The Court noted that publication of Ext. X4 on the eve of 11 election was calculated to prejudice the prospects of the respondent No. 1 of winning the election. The Court concluded that the appellant was guilty of corrupt practices under Section 123(4) of the Act. However, the Court did not name any of the 77 workers of UDF under Section 99 of the Act and held that there was no specific evidence against any of them.

19. The discussion made above makes it evident that the respondent No. 1 has failed to prove that UDF workers had distributed the offending pamphlets on May 8 and May 9, 2001. The finding of the High Court on this score being against the weight of evidence is hereby set aside.

20. In the alternative, it was argued on behalf of the appellant that even if the distribution of pamphlets 41 by UDF workers was held to be proved, no satisfactory evidence was adduced by the respondent No. 1 to establish that distribution of the pamphlets by the UDF workers was with the consent of the appellant and, therefore, the judgment impugned is liable to be set aside.

23. The net result of the above discussion is that the finding, recorded by the High Court that the pamphlets were distributed on May 8 and May 9, 2001, is not only perverse but contrary to the facts proved and, therefore, the same is liable to be set aside.

28. For the foregoing reasons the appeal succeeds. The judgment dated August 8, 2005, rendered by the learned single Judge of the High Court of Kerala at Ernakulam in Election Petition No. 6 of 2001 by which the election of the appellant as a member of Kerala Legislative Assembly No. 106 Kallooppara Constituency is declared to be void on the ground that he is guilty of corrupt practice under Section 123(4) of the Representation of People Act, 1951, is hereby set aside. There shall be no order as to costs.

December 01, 2010.