2010 Supreme(SC) 1163

2010 (8) Supreme 138
SUPREME COURT OF INDIA
J.M. Panchal and Gyan Sudha Mishra, JJ.
Joseph M. Puthussery — Appellant
versus
T.S. John & Ors. — Respondents
Civil Appeal No. 5310 of 2005
Decided on : 1-12-2010

IMPORTANT POINTS
1. In an election trial it is not permissible to the High Court to discard substantive oral evidence on account of defect in the pleadings.
2. It is very difficult to prove a charge of corrupt practice merely on the basis of oral evidence because in election cases, it is very easy to get the help of interested witnesses.
3. To prove that the corrupt practice of a third person is attributable to a candidate under Section 123 of the Act, it must be shown that the candidate consented to the commission of such act.
4. One of the important ingredients in proving the offence of corrupt practice under Section 123(4) of the Act is that it has to be established that the returned candidate believed the statement that was published, to be an untrue statement. The onus of proving that the maker believed the statement to be false rests with the election petitioner.

Headnote:Representation of People Act, 1951- Section 116A- Appeal against judgment of High Court in Election Petition by which election of appellant as Member of Kerala Legislative Assembly from No. 106, Kallooppara Constituency was declared void on ground that he was guilty of the corrupt practice within the meaning of Section 123(4) of the Act as he extensively distributed directly and through UDF workers, who did so with his consent, copies of Ext. X4, which contained statements of fact, which were false and which he believed to be false or did not believe to be true in relation to the personal character and conduct of respondent No. 1- So far as standard of proof is concerned, held that High Court misdirected itself on the point of standard of proof required under Section 123 of Act, 1951- High Court without explaining invented a new standard of proof to be made applicable to election disputes and held that standard of proof higher than the one applicable to civil cases but certainly lesser than one applicable to the criminal cases, should be adopted while determining the question whether an elected candidate is guilty of corrupt practice/s within meaning of the Act- Standard of proof, which should be adopted according to the High Court while determining an election dispute, was contrary to settled principles of law- Nothing on the record to show that appellant had indulged in the act of distribution of pamphlets and thus committed a corrupt practice- Since High Court placed reliance on unreliable and scanty evidence to find appellant guilty of corrupt practice , finding that appellant was disqualified under Section 99 of Act held completely unsustainable-Again High Court in impugned judgment could not even identify a single UDF worker, who, according to it, had distributed pamphlets and had simply held that there was evidence to show that UDF workers had distributed the pamphlets- The testimonies of 77 persons named in the election petition could not have been accepted because their testimonies were self-serving and interested one-Finding, recorded by High Court that pamphlets were distributed on May 8 and May 9, 2001, was not only perverse but contrary to the facts proved –No explanation offered by High Court how and by way of what evidence led by the respondent No. 1 it stood proved that appellant believed that contents of pamphlets were false-Impugned Judgement of High Court set aside-Appeal allowed. (Paras 15 to 28)

       Facts of the Case :

        Present Appeal has been filed against judgment of High Court in Election Petition by which election of appellant as Member of Kerala Legislative Assembly from No. 106, Kallooppara Constituency was declared void on ground that he was guilty of the corrupt practice within the meaning of Section 123(4) of the Act as he extensively distributed directly and through UDF workers, who did so with his consent, copies of Ext. X4, which contained statements of fact, which were false and which he believed to be false or did not believe to be true in relation to the personal character and conduct of respondent No. 1.

       Findings of the Court :

        So far as standard of proof is concerned, held that High Court misdirected itself on the point of standard of proof required under Section 123 of Act, 1951. High Court without explaining invented a new standard of proof to be made applicable to election disputes and held that standard of proof higher than the one applicable to civil cases but certainly lesser than one applicable to the criminal cases, should be adopted while determining the question whether an elected candidate is guilty of corrupt practice/s within meaning of the Act. Standard of proof, which should be adopted according to the High Court while determining an election dispute, was contrary to settled principles of law. Nothing on the record to show that appellant had indulged in the act of distribution of pamphlets and thus committed a corrupt practice. Since High Court placed reliance on unreliable and scanty evidence to find appellant guilty of corrupt practice , finding that appellant was disqualified under Section 99 of Act held completely unsustainable.Again High Court in impugned judgment could not even identify a single UDF worker, who, according to it, had distributed pamphlets and had simply held that there was evidence to show that UDF workers had distributed the pamphlets. The testimonies of 77 persons named in the election petition could not have been accepted because their testimonies were self-serving and interested one.Finding, recorded by High Court that pamphlets were distributed on May 8 and May 9, 2001, was not only perverse but contrary to the facts proved .No explanation was offered by High Court how and by way of what evidence led by the respondent No. 1 it stood proved that appellant believed that contents of pamphlets were false.Impugned Judgement of High Court was set aside-Appeal was allowed.

       Result : Appeal Allowed.