Paragraph numbers below are the court’s original numbering, recovered from the source text.
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) -i 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 A 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 B the Holy Pope, taken on the occasion of the beatification ceremony of Mother 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 -t voters to vote for the appellant. To appreciate its contours and c 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 -I,. 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 .4' service as the pE!ople'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, nun$ 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 i.f elected from · P.C. THOMAS v. P.M. ISMAIL & ORS. [D.K. JAIN, J.] 145 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 this matter acknowledged and established through public declaration .k 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 c 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, f. for P.C. Thomas is the greatest friend and well-wisher of Malayalees in Delhi and other outside places. We ~re 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. i..,. 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 l 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 )"— t= John Kachiramattom Sd/- John Kachiramattom" ….J c
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 i- D 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. r
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), F Jose (PW-9), etc. etc., who all deposed about the party workers t of IFDP, towhich party the appellant belonged to, giving notice (ExtP1) and calendar (Ext.P2) to each one of them as a statement by John K., a known leadec of Catholics. The consent . of the appellant for distribution of the said exhibits among the G Catholic voters, though not directly proved was rightly 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 H (Ext.P1), discussed.about it with their family members or friends P.C. THOMAS v. P.M. ISMAIL & ORS. [D.K. JAIN, J.] 147 _j_ and to have come to the conclusion that the appellant being a 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 B' (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 c … , 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 't (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 D 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 distribut~d 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 F 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 G June, 2004.
20. Three witnesses were produced by the election petitioner in support of his pleas (regarding printing and 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 .J.. 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 electio.n office at ….( eight named places and the stated number of bundles being c 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. D When cross-examined, he stated that the said jeep was sold _)· away by its OVv'.ner (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 was in the CPl(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), f- 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. P.C. THOMAS v. P.M. ISMAIL & ORS. [D.K. JAIN, J.] 149 li~
22. PW-6 (K.J.Reji) deposed about his attending an election meeting at 5.30 p.m. on 24th April, 2004 at Vazhakulam; 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 c questioned on his statement about the election meeting on 24th April, !2004 attended by the appellant and being addressed by JohnK. (_
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. 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 137 A of the Act, inviting prosecution/action against him. The High Court in its juggment under appeal for reasons stated discredited the testimony of A 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., _il_ 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 B out 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 c 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. E 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 y appellant for 26 years, he well understood its importance, for if F really 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 G 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 . …_ P.C. THOMAS v. P.M. ISMAIL & ORS. [D.K. JAIN, J.] 151 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 inference drawn by the learned Judge was based on unproved c 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 (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, A 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 B 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 c of high stat_ure, 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 examining him, as strenuously urged on behalf of the appellant, particularly when the printing D 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 F 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 G 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 proof "beyond reasonable doubt". It is well settled that if after balancing the evidence adduced there H still remains· little doubt in proving the charge, its benefit must P.C. THOMAS v. P.M. ISMAIL & ORS. [D.K. JAIN, J.] 153 …. }._ 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 ' B 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 c 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 …. obseC1ed that although being the Court of First appeal, this Court ,,as 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 G 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, 20. (1985) 1 sec 370. A satisfactory and reliable evidence to establish the charge against the appellant under Section 123(3) of the Act. 30. For the view we have taken above, we deem it unnecessary to examine the second issue, viz. the corrupt B 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 c ,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 N0.5777 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 thJ,t election of P.C. Thomas having been set aside, instead of declaring the election petitioner as elected; the High Court should have declared the appellant as elected from 12 F 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 G ground. It is ordered accordingly. K.K.T. Appeals dismissed.