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PETITIONER: M.J. ZAKHARIA SAIT

       Vs.

RESPONDENT: T.M. MOHAMMED AND ORS.

DATE OF JUDGMENT25/04/1990

BENCH: SAWANT, P.B. BENCH: SAWANT, P.B. SHARMA, L.M. (J)

CITATION:  1990 SCR  (2) 719        1990 SCC  (3) 396  JT 1990 (2)   404        1990 SCALE  (1)816

ACT:     Representation  of  People Act, 1951: Sections  40,  83, 100, 123(4) and 127-A.     Election--Corrupt    practice--Pleadings    and    proof of--Requirements-Oral testimony--Corroboration by  contempo- raneous documents-Need for.     Statement  maligning personal character and  conduct  of candidate-Innuendo  meaning to be proved by special  or  ex- trinsic facts-Statements must be proved to have been reason- ably calculated to prejudice the prospects of the candidate.     Electoral offence--Complaint under s.  127-A of the  Act and s. 171/PC--Evidence of corrupt practice. Libel action and corrupt practice--Difference between. Status  of election agent--Almost similar to that of  candi- date.

HEADNOTE:     In the 1987 election to Kerala Legislative Assembly  the appellant contested against the first respondent.     The appellant and respondents belonged to two  different fronts,  each consisting of several political  parties.  The appellant  was declared elected, by a margin of  1873  votes over his nearest rival, the first respondent.     The  first respondent filed an election petition in  the High  Court claiming that the appellant’s election was  void and  that  he  should be declared elected in  place  of  the appellant. In support of his contention, he alleged  various corrupt  practices  on the part of the appellant.  The  High Court negatived all except two of the allegations, viz., (i) printing  and publication on March 22, 1987, a day prior  to the  election,  pamphlets containing a news  item  in  daily "Malayala Manorama" dated May 22, 1983, and (ii) publication of a wail poster, maligning the 720 personal character and conduct of the first respondent.     The High Court held that both the said acts amounted  to corrupt  practices within the meaning of Section  123(4)  of the  Representation of People Act, 1951 and were  sufficient to void the election.     This  appeal  under  s. 116A of  the  Representation  of People Act, is against the High Court’s judgment. Allowing the appeal, this court,

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   HELD: 1.1. As regards the pamphlets, the first  respond- ent  in his election petition had relied upon  an  innuendo, and  the innuendo was based upon the fact that, firstly,  he was  a  Marxist leader and, secondly, he  was  arrested  for harbouring the murderers. However, in the election petition, no  averment was made that it was because he was  a  Marxist leader  and was also arrested for harbouring  the  murderers that  the  electorate was likely to construe  the  said  two statements  as accusing him as the murderer. No  facts  were pleaded  in  the Election Petition  whereby  the  electorate would gather an impression that the first respondent was the murderer of the said four victims. [733B-C; 746 E-F]     1.2.  Barring his own testimony, all other evidence  led by  the  first  respondent is also totally  silent  on  this aspect  of  the  matter. None of his  witnesses  has  stated anywhere that the contents of the pamphlet had made out  the first respondent as the murderer of the four victims or even that  they were capable of doing so. On the other hand,  all his  witnesses  without exception are unanimous  that  after reading  the pamphlet the impression it created on them  was that it referred to an incident which had taken place on the previous  day  or to an earlier incident and  nothing  more. None of the witnesses has stated that the said pamphlet even remotely  connected the first respondent with  the  murders. The impression conveyed by the document that the Marxists or Communists  were  murderers  and  therefore  the  electorate should  not vote for them and hence it was  unfavourable  to the  first respondent, was not an impression about his  per- sonal character/ conduct. It was an impression at best about his political character/ conduct. In particular there was no impression that he was the murderer or one of the murderers. Although the first respondent has also added at the end that many persons who gathered such an impression, viz., that  he was meant by the publication, had contacted him over  phone, he  admitted that he did not examine anyone from  among  the said  persons.  This is a telling circumstance  against  him because he had 721 followed as a witness after all his witnesses were examined, and he knew that none of his witnesses had stated that  they had  connected the imputations in the publication with  him. On  the  other  hand, as stated earlier, not  only  all  his witnesses  had stated that they had gathered the  impression that  the incident had taken place the previous day  but  he himself  was of the view that the publication was  meant  to create such impression and that it did so. Hence, there  was no  reason for the electorate to connect him with  the  said incident  even remotely. On his own testimony as well as  on the testimony of his witnesses, therefore, it is clear  that the publication was intended to create an impression and did create an impression that the incident of murders had  taken place  a day previous to the election. If that is  so,  then the  publication and the two allegedly offending  statements in  the same did not connect him with the murders much  less had they called him a murderer. Even his arrest for harbour- ing  the  accused  in the old incident of  murders  was  not capable  of identifying him as the murderer in the  eyes  of the  people.  None knew who were the accused  and  who  were arrested in connection with the murders which were committed the  previous day. The people, however, certainly knew  that the first respondent was not arrested in connection with the said  murders.  Hence the extrinsic facts  which  the  first respondent  stated in his testimony for the first time  even if they were given in the pleadings would not have spelt out the  corrupt  practice. For those facts in the face  of  the

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assertion of the first respondent himself were incapable  of identifying him as the murderer in the eyes of the  elector- ate.  For these reasons, the extrinsic facts given  for  the first  time  by the first respondent in his  testimony  were incapable of identifying him as the hand behind the  murders or  as  the  murderer in the eyes of  the  people.  [746F-H; 751A-B; 755D-H; 756A-B]     1.3.  In the absence of the extrinsic  facts  supporting the innuendo meaning of the publication, the petition lacked the statement of material facts for spelling out the corrupt practice complained of. Either, therefore, the allegation of the  corrupt  practice should have been struck  off  or  the petitioner  ought not to have been allowed to lead  evidence in support of it. [756C]     2.1.  Where the defamatory words complained of  are  not defamatory  in the natural or ordinary meaning, or in  other words,  they  are not defamatory per se but  are  defamatory because  of certain special or extrinsic facts which are  in the  knowledge  of particular persons to whom they  are  ad- dressed, such innuendo meaning has to be pleaded and  proved specifically by giving the particulars of the said extrinsic facts.  It  is immaterial in such cases as  to  whether  the action is for 722 defamation  or for corrupt practice in an  election  matter, for  in  both cases it is the words complained  of  together with  the  extrinsic  facts which constitute  the  cause  of action.  It  is true that Section 123(4) of the  Act  states that  the statement of fact in question must be  "reasonably calculated  to prejudice the prospects" of  the  complaining candidate’s election. However, unless it is established that the  words complained of were capable of being construed  as referring to the personal character or conduct of the candi- date  because  of some specific extrinsic facts  or  circum- stances which are pleaded and proved, it is not possible  to hold  that they were reasonably calculated to prejudice  his prospects  in  the  elections. For, in the  absence  of  the knowledge  of the special facts on the part of the  elector- ate, the words complained of cannot be held to be reasonably calculated to prejudice such prospects. Once, however, it is proved  by laying the foundation of facts that the words  in question  were,  by virtue of the knowledge of  the  special facts, likely to be construed by the electorate as referring to  the  personal character or conduct  of  the  complaining candidate, it may not further be necessary to prove that  in fact  the electorate had understood them to be so.  That  is because all that Section 123(4) requires is that the  person publishing  the  complaining words must  have  intended  and reasonably  calculated to affect the prospects of  the  com- plaining candidate in the election. [745E-H; 746A-B]     2.2.  Whenever  an innuendo is alleged, a  statement  of material facts as required by Section 83(i)(a) of the Act is not  complete without stating the extrinsic  facts  spelling out  the  innuendo meaning. It is the  publication  together with the extrinsic facts which in such circumstances consti- tute  the corrupt practice. The absence of the statement  of such  facts is not an absence of the particulars of  corrupt practice  but an absence of the averment of  material  facts themselves.     Sheopat  Singh v. Ram Pratap, [1965] 1 SCR  175;  Kumara Nand  v. Brijmohan Lal Sharma, [1967] 2 SCR 127; Habib  Bhai v. Pyarelal & Ors., AIR 1964 MP 62; Manmohan Kalia v. Yash & Ors., [1984] 3 SCR 383; W. Hay & Ors. v. Aswini Kumar Saman- ta,  AIR  1958 Cal. 269; Hough v. London  Express  Newspaper Ltd., [1940] 3 All ER 31; Fullam v. Newscastle Chronicle and

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Journal  Ltd. & Anr., [1977] 3 All ER 32; Cassidy  v.  Daily Mirror  Newspapers, [1929] 2 KB 331; Nevill v. Fine Art  and General Insurance Co. Ltd., L.R. 1887 AC 68 and Capital  and Counties Bank Ltd. v. George Henty & Sons, LR 1882 7 AC 741, referred to.     Halsbury’s  Laws  of England, Vol. 28,  4th  Edn.  paras 174-178; Gatley on Libel and Slander, 8th Edn. paragraph 95; Street on Torts, 723 6th  Edn.,  p. 294 and Duncan & Neil on  Defamation,  [1978] Edn., p. 17, referred to.     3.  Both, for libel action as well as for an  allegation of corrupt practice in an election petition, it is necessary to  plead as well as to prove the extrinsic facts  to  spell out the innuendo meaning of the words complained of.  Howev- er, whereas in a libel action it may further be necessary to prove  that  those with special knowledge of  the  extrinsic facts  were  likely  to interpret or  understand  the  words complained of in a defamatory sense, in an election  action, it  may not be necessary to do so and all that is  necessary is  to  prove that the words complained of  were  reasonably calculated to prejudice the prospects of the defamed  candi- date’s  election. However, this latter distinction does  not obliterate the similarity between the two actions viz., that in  each case in the first instance the defamation is to  be spelt  out by pleading the necessary extrinsic facts.  In  a libel  action,  the extrinsic facts constitute  a  cause  of action  whereas in the election action they  constitute  the corrupt practice. In other words, without them, there is  no cause  of  action  in the libel suit and  no  allegation  of corrupt practice in an election petition. [756F-H; 757A]     4.1.  As  regards the wail-posters in  which  the  first respondent was described as a murderer and it is stated that hence  he  should be defeated, the first respondent  in  his petition has stated generally that it was the appellant, his agents  and his workers who had pasted the  wallposters.  He has not specified any wail or wails on which the poster  was pasted.  He has not mentioned either the agent or the  elec- tion  agent nor did he state that the pasting was done  with the  knowledge  and  consent of the election  agent.  It  is important  to  note  that he mentioned the  pasting  of  the poster only on one wail, though there was a vague  reference to "walls". [761F-H; 765B]     4.2.  Time and again, the courts have uttered a  warning against  the acceptance of a non-corroborted oral  testimony in  an election matter because it is not only  difficult  to get  a  non-partisan  witness but is also  easy  to  procure partisan witnesses in such disputes. The courts have, there- fore,  insisted upon some contemporaneous  documentary  evi- dence  to corroborate the oral testimony when in  particular such  evidence could have been maintained. Such a danger  is illustrated by the testimony of PW. 25 in the instant  case. It  is  not only contradictory, and fails  to  impress  this court but also leads to the belief that there is much  force in the contention of the appellant that the poster in  ques- tion  was concocted at a later day. It is difficult  to  ex- plain as to why the witness a 724 professional photographer who in the ordinary course  should maintain  his accounts and other documents should keep  them off  from the court on pretexts which are not only far  from convincing but positively doubtful. Although he stated  that he  was  paid Rs.8,00 for the photographs and  Rs.1,000  for copies  thereof,  he did not enter the amounts  in  his  ac- counts. He stated that he had a Bank account but he did  not

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remit  the  amount to the Bank. He then stated that  in  his studio there would be no record to show that the photographs were taken. He also stated that he had not given any receipt for receiving the payment. [764G-H; 767A-D]     4.3.  "Election agent" as defined in Section 40  of  the Act  is accorded a special status of almost an alter ego  of the candidate so much so that whatever is done by the  elec- tion  agent or with his consent is deemed to have been  done by the candidate himself whether it is with the  candidate’s consent or not. He is empowered to discharge almost all  the functions that a Candidate can himself perform. 1729E-FI     4.4. It was alleged that the wall-poster was written  at the specific instructions of the Chief Agent and the Conven- or. It was not specified who the Chief Agent and the Conven- or  of  the Election Committee were. The argument  that  the expression  "Chief Agent" should be construed to mean  elec- tion  agent,  cannot be accepted since  the  pleadings  with regard to corrupt practice have to be specific since  every- one  who is guilty of the corrupt practice is liable  to  be prosecuted  for the offence. And except in one place,  there is no reference to any such person as Chief Agent.  Wherever the first respondent wanted to refer to the election  agent, he  has done so. It cannot, therefore, be said that  he  did not  know the difference between the election agent and  the Chief Agent. [762B-E]     4.5.  The first respondent has come to the court with  a version  that  the wail-poster and such other  posters  were pasted  on wails in the different parts of the  constituency at  least  a week prior to the  election.  Admittedly,  such false  propaganda  is an electoral offence  punishable  both under  Section  127A  of the Act and Section  171-C  of  the Indian  Penal Code. The first respondent or his  agents  and workers  could  have made complaints both  to  the  Election Officer as well as to the police in that connection  immedi- ately, and a regular panchnama of the same could ,also  have been  made at the time. That would have been the  best  evi- dence  of the said allegation. The first respondent and  his workers would not have failed to do so had the posters  been pasted at the time alleged by them. [767E-F] 725

JUDGMENT:     CIVIL  APPELLATE  JURISDICTION: Civil  Appeal  No.  3951 (NCE) of:1987.     From  the  Judgment and Order dated  19.11.1987  of  the Kerala High Court in E.P. No. 3 of 1987.     K.K.  Venugopal, E.M.S. Anam, E. Ahmad and  V.K.  Beeram for the Appellant.     Dr.  Y.S.  Chitale, M.K. Damodaran, V.J.  Mathew,  Aseem Mehrotra and K.M.K. Nair for the Respondents. The Judgment of the Court was delivered by     SAWANT,  J. This is an appeal under Section 116A of  the Representation of the People Act, 1951 (hereinafter referred to  as the ’Act’) against the judgment of the High COurt  of Kerala  in  Election Petition No. 3 of 1987,  by  which  the election of the appellant to the Kerala Legislative Assembly from  Mattancherry Constituency No. 73 was declared void  on the  ground  that the appellant had  committed  two  corrupt practices within the meaning of Section 123(4) of the Act.     2.  The admitted facts are that election to  the  Kerala Legislative Assembly from all the constituencies was held on March 23, 1987. The main contest in almost all the constitu- encies  was between the United Democratic Front  (UDF)  con-

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sisting of Congress-I, Kerala Congress, Indian Union  Muslim League  (IUML)  and  others on the one hand,  and  the  Left Democratic Front (LDF) consisting of the Communist Party  of India--Marxist  (CPI-M), Revolutionary Socialist  Party  and others on the other. The appellant was the candidate of  the LDF  and the first respondent was the candidate of the  UDF. In the said election, the appellant was declared elected  by a  margin  of 1873 votes over his nearest rival,  the  first respondent.     3.  On May 8, 1987, the first respondent filed an  elec- tion  petition claiming a declaration that  the  appellant’s election  was void and that he was entitled to  be  declared duly  elected from the said constituency. In support of  the petition,  the  first  respondent  alleged  various  corrupt practices  on the part of the appellant. However,  the  High Court  negatived all the said corrupt practices except  two, viz., (i) printing and publication on March 22, 1987, a  day prior  to the election, pamphlets containing a news item  in daily  "Malayala  Manorama"  dated May 22,  1983,  and  (ii) publication  of a wall poster, both maligning  the  personal character  and  conduct of the first  respondent.  The  High Court  held that both these acts amounted to  corrupt  prac- tices  within the meaning of Section 123(4) of the  Act  and were sufficient to 726 void  the election. The pamphlet containing the  reprint  of the daily "Malayala Manorama" was marked as Ex. P-1 and  two photographs of the wall-poster were marked as Exs. P-14  and P-15 before the High Court and would be referred to  herein- after as such. Ex. P-14 is the close-up and Ex. P-15 is  the distant photograph of the same wall-poster.     4.  Before  we refer to the rival  contentions  and  the material  on record, it would be convenient if we  reproduce here  the  contents  of Ex. P-1 and Exs. P-14  and  P-15  to understand the allegations made in the said documents.     Ex. P-1 is a reprint of a page of the issue of 22nd May, 1983  of a daily newspaper "Malayala Manorama". It  contains the  names and the photographs of four men, who were  admit- tedly murdered in May 1983. It also carries two other photo- graphs,  one showing two killed bodies lying and  the  other showing the front part of the court building where allegedly all  the four were killed. It also carries a  photograph  of the  appellant with his election symbol which  was  ’ladder’ and  a photograph of the then Prime Minister, Rajiv  Gandhi. Apart  from the contents of the said newspaper as  they  ap- peared  in the said old issue, it carries additions  on  the left hand, the English translation of which is as follows: "ELECT ZAKHARIA THE UNITED FRONT CANDIDATE MATTANCHERRY.           On March 23rd a decisive election is taking  place in our State. We wish to have a Government who will  protect life and property of the people. In the light of past  expe- rience  the  only front acquired legitimate  claim  to  give protection is the United Democratic Front under the  leader- ship of Congress (I). Marxist Party has only created insecu- rity in the country. X                   X                  X                   X X           The  Marxist Comrades who create  lawlessness  and commit  murders while in power and out of power, is a  chal- lenge  to peace loving inhabitants of Mattancherry.  Mattan- cherry is a constituency which has witnessed terrible cruel- ties of the Marxists. The Mattancherry Town, once the centre of commerce, today became equal to a grave 727 yard  only due to violent activities of the Marxist  people.

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The  wounds created by their cruelties are always  unhealed. They need not be detailed by one. X                   X                  X                   X X           You  may  remember  only  the  cruel  murder  that shocked  Mattancherry in 1983. Four youngsters were  cut  to death  in the road in broad day light. The relevant  portion of the Malayala Manorama which published that news is  given herewith  as,  such; everybody knows the hands  behind  that murder. The Marxist leader arrested is also known. X                   X                  X                   X X           Dear  sisters,  brothers, you may think  a  while. Should we have the rule of the Marxist terrorists.           We  believe  that the people of  Mattancherry  who wish peaceful life in the country will defeat Marxists. X                   X                  X                   X X           Believers in democracy should be specially careful not to split their votes. It is possible to defeat  Marxists only  through unity of the believers in democracy.  That  is why the Indian National Congress lead by Shri Rajiv Gandhi’- the  stalvert of democratic Bharath is giving leadership  to the  democratic front. It is the necessity of  peace  lovers that  United Democratic Front should win for law  and  order and stable administration. Therefore, it is humbly requested that M.J. Zakharia may be elected with big majority  casting votes to his Ladder Symbol. --------------------------------------------------------- Photo of         Vote Democratic Front   Photo of candidate-       to avoid Marxist Rule   Rajiv Gandhi M.J. Zakharia    of Terror --------------------------------------------------------- Constituency Election Committee          Give Strength United Democratic Front,                 to Rajiv Gandhi’s Mattancherry                             hands 728 VOTE FOR UNITED DEMOCRATIC FRONT CANDIDATE M.J. ZAKHARIA IN LADDER SYMBOL                                     Printed at Veekshanam."     The High Court has found that the following statement in paragraph  3 above, viz., "everybody knows the hands  behind that murder. The Marxist leader arrested is also known"  was in  relation to the personal character/conduct of the  first respondent.  Exs.  P-14  and P-15 are  the  photographs,  as stated  earlier,  of the poster pasted on a wall,  with  the pamphlet (Ex. P-1) pasted on its left side. The contents  of the wall-poster are as follows:             "Defeat murderer T.M. Mohammed who murdered four              Christian brothers at Fort Cochin.                                                 Our Symbol." The  symbol is the ladder. This poster directly accused  the first  respondent as being murderer of the said four  killed persons and requested the voters to vote for the appellant.     5. As regards Ex. P-1, there is no mention of the  first respondent  directly  by his name anywhere  in  the  poster. However,  the first respondent has alleged that there is  an innuendo  by which he is projected there as the murderer  of the four victims. The High Court has accepted that the first respondent is referred to in the said pamphlet by  innuendo. The  High Court has also found that the pamphlets  were  got printed by one Latif who was appellant’s agent, on behalf of his  Election Committee and at the instance of and with  the consent  and  connivance of the appellant and  his  election agent and was distributed by them among the electors knowing

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the  imputation  to be false and calculated  to  affect  the prospectus of his election. As regards Exs. P- 14 and  P-15, the  High Court has recorded a finding that the  said  wall- poster  was  pasted on a wall at the instance and  with  the consent  of the appellant’s election agent. Thus,  the  High Court  has recorded a finding that the first respondent  had proved  that the appellant was guilty of the  corrupt  prac- tices within the meaning of Section 123(4) of the Act.      6.  Before we proceed to discuss the relevant  evidence on  record, it is necessary to understand the correct  posi- tion of law on the subject. The corrupt practices and  elec- toral offences are mentioned in Part-7 of the Act. Chapter I of  the said Part deals with corrupt practices and  contains Section 123 whereas Chapter III thereof enumerates electoral offences. and penalties therefore, and contains Sections 125 to 136. 729 Section  123(4)  with which alone we are  concerned  in  the present appeal reads as follows: "123(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  with- drawal,  of  any  candidate, being  a  statement  reasonably calculated  to prejudice the prospectus of that  candidate’s election."     It  is obvious from the aforesaid provisions of  Section 123(4)  that  for a publication to  constitute  the  corrupt practice (a) it must be a statement of fact: by (i) a candi- date; or (ii) his agent; or (iii) any other person with  the consent  of  the candidate or his election  agent;  (b)  the statement must be false or the candidate must believe it  to be false or should not believe it to be true; (c) the state- ment  should refer to the personal character and conduct  of another candidate and (d) that it must be reasonably  calcu- lated  to prejudice the prospects of that other  candidate’s election.  Explanation 1 to Section 123 states that in  that Section  the expression "agent" includes election  agent,  a polling agent and any person who is held to have acted as an agent  in connection with the election with the  consent  of the candidate. The expression "election agent" is defined in Section  40  and is accorded a special status of  almost  an alter ego of the candidate so much so that whatever is  done by the election agent or with his consent is deemed to  have been  done by the candidate himself whether it is  with  the candidate’s consent or not. It is further sufficient to note that the election agent is empowered to discharge almost all the functions that a candidate can himself perform.     7. The further provisions of the Act which are necessary to be noted are those of sub-sections (1)(b), (1)(d) and (2) of Section 100. They read as under: "100. Grounds for declaring election to be void-- (1) Subject to the provisions of sub-section (2) if the High Court is of opinion-- (a)............... 730 (b)  that any corrupt practice has been committed by  a  re- turned  candidate  or  his election agent or  by  any  other person  with  the  consent of a returned  candidate  or  his election agent; or (c)................ (d)  that the result of the election, in so far as  it  con- cerns a returned candidate, has been materially affected--

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(i)................ (ii)  by any corrupt practice committed in the interests  of the  returned candidate by an agent other than his  election agent, or (iii)  ................................................ the  High Court shall declare the election of  the  returned candidate to be void. (2)  If in the opinion of the High Court, a returned  candi- date  has been guilty by an agent, other than  his  election agent  of any corrupt practice but the High Court is  satis- fied-- (a) ................................................ (c)................................................. (d).................................................. then  the  High Court may decide that the  election  of  the returned candidate is not void".     The aforesaid provisions of Section 100 show that  where the  corrupt practice is committed not by the  candidate  or his  election agent or any other person with the consent  of the  candidate or his election agent but by an  agent  other than the election agent and in his interest, and the corrupt practice by such agent has materially affected the result of his  election,  the High Court is enjoined  to  declare  the election  of  the candidate to be void. Sub-section  (2)  of Section  100 enacts a rider to sub-section (1) thereof,  and states that even if the 731 agent has committed the corrupt practice in the interest  of the returned candidate, if the High Court is satisfied  that the said corrupt practice was not committed by the candidate or  his election agent and every such corrupt  practice  was committed contrary to the orders and without the consent  of the  candidate or his election agent and that the  candidate and  his election agent took all reasonable means  for  pre- venting the commission of the corrupt practice at the  elec- tion,  and that in all other respects the election was  free from  any corrupt practice the part of the candidate or  any of  his agents, the High Court may decide that the  election of the returned candidate is not void.     8. With this statement of law in mind, we may now  refer to the two corrupt practices alleged to have been  committed by the appellant. We will first deal with Ex. P-1 the print- ing,  publication and distribution of which is held to  have been  one  of  the two corrupt practices  committed  by  the appellant’s  agent at his instance and with his consent  and connivance  as well as of his election agent. As far as  the petition is concerned, the relevant averments with regard to Ex. P-1 are as follows: "13.  Another important aspect which will amount to  corrupt practice  is the publication of pamphlets by the  candidate, his agents and his workers with his consent and knowledge. 14.  Malayala Manorama dated 23.5.1983 was reported  by  the candidate at the expenses of the first respondent. This  re- printing is intended to propagate false statements which the candidate, his agents and as workers  .......... X                   X                  X                   X X 19.  It is clear from these that the reprinting of  Malayala Manorama by the candidate was with a view to create a  false impression  among  the electorate that the petitioner  is  a murderer  and hence the electorate shall not vote in  favour of  him. This was done with a mala fide intention to  propa- gate false news among the electorate. X                   X                  X                   X X

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46.  Malayala  Manorama daily dated 22nd May, 1983  was  re- printed with certain additions and also with photographs 732 of  Prime  Minister and the candidate with  the  candidate’s symbol.  This  was reprinted from the  Veekshanam  Press  at Ernakulam  and got printed by the Election Committee of  the first respondent  .... 47.  Annexure I reprinted Malayala Manorama was widely  dis- tributed  in  the constituency. It was distributed  on  22nd March, 1987. March 22, 1987 was a Sunday and May 1983 was also a Sunday. The petitioner is reliably  informed that  about  25,000 copies of Annexure I  were  printed  and those copies of reprinted Malayala Manorama were distributed throughout the constituency."     In  paragraphs 48 to 53 of the petition, the  first  re- spondent has proceeded to give the names of the persons  who distributed the said pamphlet in different divisions of  the constituency and of the persons whom he was going to examine as witnesses to prove the same. In paragraph 54, he has made further  averments in connection with the said  pamphlet  as follows: "Annexure  was really the reproduction of Malayala  Manorama daily  dated  22.5.1983.  Since a news  item  regarding  the murder  of  4 persons was reported in  the  daily  mentioned above,  to  mislead the electorate,  the  Malayala  Manorama printed and published on 22.5.1983 was reprinted  ......  "     9.  It  will  be apparent from these  averments  in  the petition  that although the first respondent has  stated  in his  petition that the pamphlet was printed and  distributed with a view to create a false impression among the  elector- ate  that he was a murderer, he has not stated as to why  it will create such an impression among the electorate. It  was necessary for him to state so in the petition because admit- tedly  the pamphlet nowhere names him as a murderer  of  the said four victims. What was, however, argued by Dr.  Chitale on behalf of the first respondent was that the statements in the  pamphlet, viz., "everybody knows the hands behind  that murder.  The Marxist leader arrested also is known"  were  a clear  and a direct reference to the first  respondent,  be- cause it was an admitted fact that the first respondent  was arrested  for an offence of harbouring the accused  in  that murder  case. There was also a protest meeting held in  that connection, and the appellant who was his agent at that time had  also addressed the said meeting condemning his  arrest. According to Dr. Chitale, therefore, 733 the arrest of the first respondent though for the offence of harbouring the murderers, was in connection with the  murder and  the statement in the pamphlet that "The Marxist  leader arrested is also known" read with the earlier statement that "Everybody  knows the hands behind that murder" was  clearly calculated to create an impression in the mind of the  elec- torate that it was the first respondent who was the  murder- er.  Admittedly, therefore, even according to  Dr.  Chitale, these  were the only two statements which could be  said  to have had a reference to the first respondent as the murderer and  there was no direct reference to or implication of  the first  respondent as the murderer of the said four  victims. In  other words, the first respondent even in  his  petition had relied upon an innuendo, and the innuendo was based upon the  fact that, firstly, the first respondent was a  Marxist leader  and,  secondly, he was arrested for  harbouring  the murderers.  However,  in the petition, no averment  is  made anywhere that it was because he was a Marxist leader and was also arrested for harbouring the murderers that the elector-

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ate was likely to construe the said two statements as accus- ing him as the murderer.     10.  The  facts and/or particulars which spell  out  the innuendo where one is alleged or relied upon to constitute a corrupt  practice  are themselves material facts and  it  is necessary  to  state  them in the petition in  view  of  the mandatory provisions of Section 83(1) of the Act. The provi- sions of Section 83(1) are as follows: "83. Contents of petition--(1) An election petition-- (a) shall contain a concise statement of the material  facts on which the petitioner relies; (b) shall set forth full particulars of any corrupt practice that  the petitioner alleges, including as full a  statement as  possible  of the names of the parties  alleged  to  have committed  such corrupt practice and the date and  place  of the commission of each such practice; and (c)  shall be signed by the petitioner and verified  in  the manner laid down in the Code of Civil Procedure, 1908 (5  of 1908) for the verification of pleadings:           Provided  that  where the petitioner  alleges  any corrupt  practice, the petitioner shall also be  accompanied by  an  affidavit in the prescribed form in support  of  the allega- 734 tion of such corrupt practice and the particulars thereof."     It is clear from the provisions of both clauses (a)  and (b) of the Section that election petition has to contain (i) a  concise  statement  of the material facts  on  which  the petitioner relies and also (ii) give full particulars of any corrupt  practice  that the petitioner alleges.  In  a  case therefore, where what constitutes a corrupt practice is  not a  bare statement/statements published but those  which  are not published, and yet are implied, a statement of  material facts  will  not be complete without the statement  of  such implicit facts. In other words, without the statement of the said facts, the statement will not be a statement of materi- al facts within the meaning of the said Section. This provi- sion of law is indisputable.     11.  Much of the debate that took place before  us  cen- tered round this aspect which has assumed all importance  in the  context  of the first charge of the  corrupt  practice. Various  authorities were cited on both sides in support  of the  respective contentions on the subject. We  may  briefly refer  to them to the extent they are relevant for our  pur- pose.     In Hough v. London Express Newspaper Ltd., [1940] 3  All ER  31 it was a case of an action for an alleged libel  pub- lished  in  the  newspaper. The  plaintiff,  Florence  Sarah Hough,  married  Frank Hough in 1933 and lived with  him  in Battersea as his wife and had one child from him. In  Febru- ary, 1936, he deserted her, and in June 1936 he was  ordered to pay maintenance for the child. He was known at Battersea, where  he  lived  at the time of the order,  and  after  the desertion also he continued to live there. He acquired  some notoriety as a boxer, and the plaintiff became known in  the district  as  his  wife. On December 22,  1937,  an  article appeared in Daily Express, a newspaper owned by the  defend- ants, containing the words:           "Frank Hough’s curly-headed wife sees every fight. "I should be in more suspense at home." she says, "I  always get  nervous  when he gets in the ring although  I  know  he won’t  get  hurt. Nothing puts him off his food.  He  always eats  a cooked meal last thing at night, however late it  is when he gets in"." From  the description given of the wife, it was  obvious  to

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those who knew the wife that another person was referred to. Hence,  the plaintiff brought an action for  libel  alleging that the words by innuendo meant that she was falsely repre- senting herself to be the wife and that she was 735 an  unmarried woman who had cohabited with and had  children by the boxer. On these facts, the Court of Appeal held:  (i) the words were defamatory as reasonable persons knowing  the circumstances would understand the words in defamatory sense (ii)  it was not necessary for the plaintiff to  prove  that one  or  more persons understood the words in  a  defamatory sense.  1t  is sufficient that reasonable persons  might  so understand  them. The decision, therefore, shows that it  is not  necessary that a person publishing a defamatory  state- ment  should intend that the statement should refer  to  the defamed  person.  It is sufficient that  reasonable  persons should understand it to refer to him or her. The words  need not be defamatory in the primary sense. They are  actionable if the existence of certain circumstances makes it  reasona- ble  that  persons to whom those  circumstances  are  known, might  understand  them  in a defamatory sense.  It  is  not necessary to prove that in fact persons with such  knowledge did so understand them. What is necessary, however, is  that the  special circumstances which are known to others and  by which  they are likely to understand the reference as  being one to that defamed persons must be pleaded and proved.     In  Fullam  v.Newscastle Chronicle and  Journal  Ltd.  & Anr., [1977] 3 All ER 32 the facts were that prior to  1962, the  plaintiff was a Roman Catholic priest and a  curate  in the dioceses of Salford near Manchester. In 1962, he gave up the  priesthood  and  became a schoolteacher.  In  1964,  he married  and in 1965 he and his wife had their first  child. The  plaintiff  took  a teaching post  at  Wakefield.  South Yorkshire, where he lived. In July 1973, he applied for  the deputy  headmastership  at a school in Redcar  on  Teesside, which  was  about 80 miles north of Wakefield,  and  he  was appointed  to that post. There had been a controversy  about the previous deputy headmaster. On 21st July, a local  news- paper  which  circulated in the districts  of  Teesside  and Newscastle-Upon-Tyne  but  not in the Wakefield  area,  pub- lished  an article about the plaintiff’s  appointment  which stated inter alia that he was a former Catholic priest, that he had left his parish in the Salford diocese and later  had married and that it was claimed by the general secretary  of the National Association of School masters that he "went off very  suddenly  from the parish where he was  curate  ’about seven years ago’." The plaintiff pleaded in his statement of claim  that  the  words in the article meant  and  would  be understood  to mean that he (a) had lathered a child  whilst still  a  priest  serving  in a  parish,  (b)  had  lathered an,,illegitimate  child, (c) had wrongly continued to  serve as a priest after his marriage, (d) had wrongly withheld the fact of his marriage from his eclesiastical 736 superiors  and parishioners and accordingly was unfit to  be deputy  headmaster of the school at Redcar. Pursuant to  RSC Order  82, rule 3(1), the plaintiff gave as the  particulars of the facts on which he relied in support of innuendoes (i) that he had married on 15th February, 1964 and (ii) that his eldest  child  had been born in May 1965. He  did  not  give particulars  of  the persons who knew one or  the  other  of those  extrinsic facts and who, therefore, having regard  to the  statement  in the article that he had left  the  parish suddenly  "seven  years ago", might have  derived  from  the article  the imputations alleged in (a) to (d) of para 5  of

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the statement of claim. The defendants applied to strike out para  5  of  the claim on the ground that  it  disclosed  no reasonable  cause  of action. The Court of  Appeal  held  as follows: "(i) Although it was not the usual practice in libel actions to  plead particular acts of publication if the  words  com- plained of had been published in a newspaper, in cases where the action was based on a legal, or ’true’, innuendo and the ordinary  readers of the paper would not have  derived  from the words complained of the innuendo alleged, the  plaintiff was  required, under RSC Order 18, rule 7(I) and  Order  82, rule  3(I)  to particularise not only  the  special  circum- stances which were alleged to give rise to the innuendo  but also  the  identity  of the readers of the  paper  who  were alleged  to know of those special circumstances,  since  the identity  of those readers was a material fact on which  the plaintiff relied in support of his cause of action. (ii)  Since the only readers of the article who  could  have concluded that the plaintiff had lathered a child or married while he was still a priest were readers who new either  the date  of birth of his ’eldest child or the date of his  mar- riage  but  did not know both those facts and  such  readers would  be rare and exceptional, having regard in  particular to the area where the paper circulated, the plaintiff should be  ordered to give particulars identifying  those  readers. Accordingly,  unless such particulars were given, para 5  of the statement of claim should be struck out." While  discussing  the law on the subject, Lord  Denning  MR observed as follows: "The essence of libel is the publication of written words to 737 a person or persons by whom they would be reasonably  under- stood to be defamatory of the plaintiff. But those words may give   rise   to  two  separate  and  distinct   causes   of action  .....  First, the cause of action based on a popular innuendo.  If the plaintiff relies on the natural and  ordi- nary meaning of the words, he must in his statement of claim satisfy  the person or persons to whom they were  published, save  in the case of newspaper or periodical which  is  pub- lished to the world at large, when the persons are so numer- ous as to go without saying. Secondly, the cause of action based on a legal innuendo.  If the  plaintiff  relies on some special  circumstances  which convey some particular person or persons knowing the circum- stances, a special defamatory meaning other than the natural and ordinary meaning of the words when he must in his state- ment  of claim specify the particular person or  persons  to whom they were published and the special circumstances known to  that person or persons for the simple reason that  these are the material facts on which he relies and must rely  for this  cause of action. It comes straight within the  general rule  of pleading contained in RSC Order 82, rule 3. In  the second cause of action, there is no exception in the case of a newspaper because the words would not be so understood  by the  world  at large but only by the  particular  person  or persons who know the special circumstances." (emphasis supplied)     Lord Denning further observed that this rule of pleading was  not  observed in Cassidy v.  Daily  Mirror  Newspapers, [1929]  2  KB 331 or in Hough v.  London  Express  Newspaper Ltd., (supra) because the defendant did not ask for particu- lars. After referring to paragraph 5 of the plaint, he  then observed that paragraph 5 was utterly inadequate as it stood and that no ordinary reader could ever derive those  imputa- tions  about "fathering a child" etc. from the  article.  It

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would  have to be some particular person with  knowledge  of some  special  circumstances. He further observed  that  the pleading  in  that case told the  circumstances,  viz.,  the marriage  in 1964 and the birth of a son in 1965 but it  did not tell as to who were the persons who knew of the  circum- stances and derived the imputations from the article. In the same case, Scarman LJ stated that it was obvious that a 738 material fact in such a cause of action was that the persons to  whom the words were published knew the extrinsic  facts. In  principle, therefore, their knowledge being  a  material fact  should be pleaded. He further observed that there  may be  a case where the facts may be very well ’ known  in  the area  of the newspaper distribution in which even  it  would suffice  to  plead merely that the plaintiff would  rely  on inference that some of the newspaper readers must have  been aware of the facts which are said to give rise to the  innu- endo.  But that was not the case in that action and,  there- fore,  justice  required  that the  plaintiff  should  fully particularise the publication relied on so that the  defend- ants  may  understand the nature of the case  they  have  to make.     These  two decisions, however, are in libel  action  and not in election matters.     12.  In Sheopat Singh v. Ram Pratap, [1965] 1  SCR  175, one  of the questions that directly arose for  consideration was of the burden of proving the ingredients of the  corrupt practice under Section 123(4). The facts were that an  alle- gation  was made against the personal character and  conduct of  one  of  the candidates in the election,  viz.,  that  a cinema theatre of Rs.7 lakhs in Ganganagar was the barkat of the  cement of the Rajasthan Canal. The candidate  concerned was at the crucial time the Minister-in-charge of the Rajas- than  Canal Project. During the election, a  cinema  theatre known  as  Adarsh Theatre was being put  up  at  Ganganagar. There  was  no dispute that the theatre referred to  in  the poster  was the said Adarsh Theatre and it belonged  to  the concerned  candidate and his sons. In that  context,  there- fore,  it was manifest that the poster meant to  convey  the idea  that the candidate had misappropriated the  cement  of the  Rajasthan Canal of which he was in-charge and  built  a big  theatre in the name of his sons. Hence, it was a  clear reflection  on the candidate’s personal character  and  con- duct. The argument advanced on behalf of the returned candi- date  was  that there was no evidence in the case  that  the said  statement was one reasonably calculated  to  prejudice the prospects of the election of the candidate against  whom the said statement was meant, viz., Ramchander Chowdhary. In that  connection, it was argued that if the voters  did  not know that the cinema theatre which was being built in Ganga- nagar  belonged  to Ramchander Chowdhary or  his  sons,  the statement concerned would not deflect the voters from voting in favour of Chowdhary. It was also argued that there was no evidence in the case that all or any of the voters knew  the fact  that the cinema theatre belonged to Chowdhary  or  his sons.  This  Court stated in that case that  they  were  not dealing with a libel action and, therefore, the 739 cases  cited  at the Bar on libel action such as  Nevill  v. Fine  Art and General Insurance Co. Ltd., LR 1887 AC 68  and the  Capital and Counties Bank Ltd. v. George Henty &  Sons, LR 1882 7 AC 741 had no relevance for determining the  ques- tion  under Section 123(4) of the Act. The only question  is whether the statement in question was reasonably  calculated

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to  prejudice  the prospects of  Chowdhary’s  election.  The Court then pointed out that on behalf of the returned candi- date it was not contended either before the Election  Tribu- nal  or before the High Court that the voters had no  knowl- edge  of  the  fact that the cinema  theatre  at  Ganganagar belonged  to  Chowdhary or his sons. The Court  further  ob- served that apart from that the object with which the state- ment was made was the crucial test. Since it was proved that Ganganagar  cinema theatre belonged to Chowdhary’s sons  and that  Chowdhary was the Minister-in-charge of the  Rajasthan Canal  and he was also the only effective candidate  against the  returned candidate who was the appellant in that  case, the  appellant’s  intention  in making  that  statement  was obvious  and  that was to attack the personal  character  of Chowdhary  in order to prejudice his prospects in  election. The  appellant  must  have reasonably  calculated  that  the voters, or at any rate the voters in and about the  locality where the cinema theatre was being put up, had knowledge  or the  tact that It was being constructed by the  Minister  of his  sons.  It cannot also be said that when  a  big  cinema theatre at a cost of Rs.7 lakhs was being put up in Gangana- gar the voters in and about that place would not have  known about  the ownership of that building. Hence, the fact  that the  building  was  brought in for  attacking  the  personal character  of Chowdhary merely indicated that the  appellant knew  that  the voters had knowledge of  its  ownership  and expected that it would create the impression which it  mani- festly indicated to convey. Hence, this Court held that  the High  Court’s  finding  that the  statement  was  reasonably calculated  to prejudice Chowdhary’s prospects  in  election could  not be said to be unsupported by evidence or by  the. admitted  facts placed before the High Court. It was a  rea- sonable inference from the facts found by the High’ Court.     It  must be said that in this case the question  whether it was necessary for the election petitioner to state in the petition the extrinsic facts which would connect the  person concerned  with the libelous statement was not  raised  and, therefore,  was  not answered. The only question  which  was agitated  was  whether the voters without knowing  that  the theatre belonged to the defamed candidate would be deflected from voting and this Court upholding the finding of the High Court, observed that it was not contended either before  the Election 740 Tribunal  or  before the High Court that the voters  had  no knowledge  of the fact that the cinema theatre  belonged  to Chowdhary  or his sons. Secondly, it was held  that  whether the voters had such knowledge was immaterial since what  was crucial for the corrupt practice under Section 123(4) of the Act is the object with which it was made. Since the election petitioner  had proved that the theatre belonged  to  Chowd- hary’s sons and that Chowdhary was the Minister-in-charge of the  Rajasthan  Canal,  it must be held  that  the  returned candidate  had reasonably calculated that the voters  or  at any  rate  the voters in and about the  locality  where  the theatre was being put up, had knowledge of the fact that  it was being constructed by the Minister or his sons, and  that such  extrinsic  facts could not have been  unknown  to  the voters.  This decision may be construed as laying down  that even if the petition does not state the extrinsic facts  but the  electorate  is well aware of them, the  petitioner  can lead  evidence and prove them. Whether the petition in  that case  did or did not state the extrinsic facts is not  clear from  the decision. It is also not clear from  the  judgment whether  any  evidence was led that in fact the  voters  had

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understood the said statement to refer to Chowdhary. On  the other  hand,  one of the observations made in  the  judgment shows that the proof of such an impression of the voters  is dispensable for the purpose of establishing a corrupt  prac- tice under Section 123(4) of the Act. That observation is as follows: "To be within the mischief of sub-section (4) of Section 123 of  the  Act such a statement shall  satisfy  another  test, namely,  it  shall be a statement reasonably  calculated  to prejudice  the  prospects of the election of  the  candidate against  whom  it is made. The word "calculated"  means  de- signed:  it denotes more than mere likelihood and imports  a design  to affect voters. It connotes a subjective  element, though the actual effect of. the statement on the  electoral mind reflected in the result may afford a basis to ascertain whether  the  said statement was  reasonably  calculated  to achieve  that  effect.  The emphasis is  on  the  calculated effect,  not on the actual result, though the latter  proves the  former. But what is important to notice is that  it  is not  necessary  to establish by positive evidence  that  the voters, with the knowledge of the contents of the  statement were  deflected from voting for the candidate  against  whom the statement was made." In Kumara Nand v. Brijmohan Lal Sharma. [1967] 2 SCR 127 the 741 facts  were that the complaining candidate was  called  "the greatest  of  the  thieves" in a poem recited  at  a  public meeting  in the presence of the returned candidate.  It  was held that it was not a mere expression of opinion but was  a statement of fact. It was further held that in such  circum- stances, particulars are not necessary before a bald  state- ment  with respect to personal character or conduct  of  the candidate can be said to be a statement of fact. It was also observed that whether particulars are necessary will  depend on  the facts and circumstances of each case. We  may  state here that the discussion in that case mainly centered around the  question whether the particular statement was a  state- ment of fact or an expression of opinion.     In Habib Bhai v. Pyarelal & Ors., AIR 1964 MP 62 dealing with  the  question of innuendo the High Court  referred  to certain English cases on the point and held that "in view of these decisions, it is obvious that an innuendo is simply an averment that such a one, means such a particular person; or that such a thing, means such a particular thing: and,  when coupled  with the introductory matter, it is an averment  of the  whole connected proposition by which the charge may  be brought  home to the person concerned. The whole attempt  of the  learned  counsel  for the appellant before  us  was  to suggest that the words, though not per se defamatory of  the third  respondent,  were definitely so  in  their  secondary meaning  read  in the context of circumstances. But,  as  no attempt  was  made in the pleadings to plead  the  extrinsic facts  to  show  by those facts as to  how  the  allegations contained  in annexure I were related to the third  respond- ents, we are of opinion that it must he held that by  refer- ring  to any possible meaning of the words used, no  imputa- tion could be read in the words as  against him."     It  can, therefore, be said that in this case the  Court had  insisted that it was necessary to plead  the  extrinsic facts  to  show all those facts as to how  allegations  were related to the defamed or complaining candidate.     In Manmohan Kalia v. Yash & Ors., [1984] 3 SCR 383 which is more or less on par with the present case, it was alleged by  the  election  petitioner that  the  returned  candidate through  speeches  either  made by him or  his  friends  had

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carried on a vilifying campaign to show that the complaining candidate was directly connected with the murder of one  Asa Ram,  a  Harijan and one of the supporters of  Congress  (I) Party  so as to wean away the votes of the harijans  of  the locality  and  members of the Congress (I) Party.  The  High Court had disbelieved oral evidence and found no nexus  with the news items etc. and had 742 dismissed  the  petition.  This Court held  that  where  the doctrine  of innuendo is applied, it must be clearly  proved that  the  defamatory allegation was made in  respect  of  a person  though  not named, yet so fully described  that  the allegation would refer to that person and that person alone. Innuendo  cannot  be proved merely by  inferential  evidence which may be capable of two possibilities. On the facts, the Court  held  that after having gone  through  the  evidence, statement  of witnesses and the documents placed before  the Court,  it  was difficult to find any  close  connection  or direct link between the imputations made against the  appel- lant  in 1978 and those made in 1980. In none of  the  docu- ments  produced by the complaining candidate which  referred to  the activities of the returned candidate, there was  the slightest possibility that the appellant had anything to  do with the murder of Asa Ram. The Court further observed as follows: "It  is now well-settled by several authorities of  the  Su- preme  Court that an allegation of corrupt practice must  be proved as strictly as a criminal charge and the principle of preponderance  of probabilities would not apply  to  corrupt practices  envisaged by the Act because if this test is  not applied  a  very serious prejudice would be  caused  to  the elected  candidate who may be disqualified for a  period  of six  years from fighting any election, which will  adversely affect the electoral process".     In W. Hay & Ors. v. Aswini Kumar Samanta, AIR 1958  Cal. 269 a Division Bench of the Calcutta High Court held that it is well-settled that in a "libel action" the ordinary defam- atory  words must be set out in the plaint. Where the  words are per se or prima facie defamatory only the words need  be set  out. Wherever the defamatory sense is not  apparent  on the  face of the words, the defamatory meaning or as  it  is technically known in law, the innuendo must also be set  out and  stated  in clear and specific terms.  Where  again  the offending  words would be defamatory only in the  particular context in which they were used, uttered or published, it is necessary  also to set out except where as in  England,  the law  is or has been made expressly otherwise, the  offending context  (colloquium)  in the plaint, and to state  or  ever further that this context or the circumstances  constituting the  same, were known to the persons to whom the words  were published,  or, at least, that they understood the words  in the  defamatory  sense. In the absence  of  these  necessary averments, the plaint would be liable to be rejected on  the ground that it does not disclose any cause of action. 743     13.  What  exactly should be pleaded in  an  action  for defamation  has been stated also in Halsbury’s Laws of  Eng- land  Vol. 28 4th ed. In paragraphs 174, 175, 176,  177  and 178  of the said Volume, we have discussion with  regard  to natural and ordinary meaning of the words complained of, and about  the  innuendo and the facts  and  matters  supporting innuendo  which should be pleaded and proved. It  is  stated there  that  in drafting a statement of claim  in  libel  or slander,  it  is necessary to distinguish between  cases  in which  the words complained of are alleged to be  defamatory

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in  their natural and ordinary meaning, whether the  literal or the inferential meaning, and those in which the defamato- ry meaning is a secondary meaning derived from extrinsic  or special  facts or matters, so that a legal or true  innuendo must be pleaded. If it is claimed that the words are defama- tory  in  their natural and ordinary meaning and  the  words bear only one literal meaning, which is clear and  explicit, it is not necessary to plead the meaning in the statement of claim.  However,  if  the words are  reasonably  capable  of bearing  more than one literal meaning or if the  defamatory meaning  relied  on  is inferential (a  "false  or  popular" innuendo),  it  is desirable and may even  be  necessary  to plead  the defamatory meaning or meanings. Where the  plain- tiff  wishes  to  claim that the words  complained  of  were understood  to  be  defamatory in a  secondary  or  extended meaning  by those persons having knowledge of  some  special facts  or  matters, such a meaning  constitutes  a  separate cause of action and the same should be pleaded expressly  in a  separate  paragraph in the statement of  claim  (emphasis supplied).  Particulars must be given of the facts and  mat- ters on which the plaintiff relies in support of any second- ary  or extended defamatory meaning which it is  decided  to plead.  These special facts or matters may be  extrinsic  to the  words used or there may be some special meaning of  the words themselves. The plaintiff should plead that particular words bore the innuendo meaning.     14.  In Gatley on Libel and Slander (8th ed.)  in  para- graph 95, while dealing with "True and False Innuendoes", it is observed that in distinguishing between the ordinary  and natural  meaning  and  the innuendo meaning  or  words,  the substantive law cannot be separated from the requirements of pleadings  and  the rules of evidence.  When  the  plaintiff wishes  to rely on any special facts as giving the  words  a defamatory  or  any particular defamatory meaning,  he  must plead  and prove such facts including, where necessary,  any special  knowledge possessed by those to whom the words  are published  which gives the words that meaning, and must  set out the meaning in his pleading. Where words are not defama- tory in their natural and ordinary mean- 744 ing  but are so only by reason of  extrinsic  circumstances, the  plaintiff must plead also those circumstances  and  the precise defamatory meaning conveyed by them to those persons to  whom the words were published. Otherwise, the  statement of claim will disclose no cause of action. Such an  innuendo is  required to be pleaded whenever the plaintiff relies  on any  extrinsic facts as giving to the words the  meaning  he alleges.  The plaintiff must plead the words, the  extrinsic facts  and  knowledge of those facts on the part of  one  or more  of those persons to whom the words were published.  He can also give evidence of any facts and circumstances  which he  has pleaded and which would lead reasonable  persons  to infer that the words were understood in that meaning provid- ed  such facts or circumstances were known to those  persons to  whom the words were published. The evidence required  is the  evidence of special facts causing the words to  have  a meaning revealed to those who knew the special facts.     Street  in his treatise on Torts (6th ed.) at page  294, has stated that where nothing is alleged to give an extended meaning,  words  must  be construed by the  judge  in  their ordinary  and  natural meaning. The whole of  the  statement must be looked at, not merely that part on which the  plain- tiff relies as being defamatory, although, of course, it may be  relevant  to take account of the greater  importance  of some part of a statement, e.g., the headlines of an  article

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in a newspaper. There may be circumstances where the  plain- tiff  alleges that the statement is defamatory because  spe- cific  facts  known to the reader give to  the  statement  a meaning  other than or additional to its  ordinary  meaning; this is known as a true or legal innuendo. In that case, the plaintiff must plead and prove such facts, for the defendant is  entitled to know that meaning of the statement on  which the plaintiff relies so that he is able to argue either that the  statement in that meaning is not defamatory or that  it is then true of the plaintiff. There is a third possibility. The  words may have a meaning beyond their  literal  meaning which is inherent in them and arises by inference or  impli- cation: this is sometimes known as the "false" innuendo. The plaintiff has to plead separately any such "false" innuendo. A  "false" innuendo differs from a "true" innuendo  in  that the  pleader  of  a "false" innuendo does not  set  out  any extrinsic facts in support of his plea.     Duncan  &  Neil in their book on defamation  (1978  ed.) while referring to "innuendo" on page 17 onwards have stated that  the law of defamation recognises that (a)  some  words have technical or slang meaning or meanings which depend  on some  special knowledge possessed not by the general  public but by a limited number of persons 745 and  (b)  that  ordinary words may on  occasions  bear  some special meaning other than their natural and ordinary  mean- ing  because of certain extrinsic facts  and  circumstances. The plaintiff who seeks to refer to an innuendo meaning  has to  plead and prove the facts and circumstances  which  give words  a  special meaning’. He has also to  prove  that  the words  were published to one or more persons who knew  these facts or circumstances or where appropriate, the meaning  of the technical terms etc.     While referring to the test where identification depends on  extrinsic  facts, the learned authors have  stated  that where  identification is in issue, the matter can  sometimes be  decided  by  construing the words  themselves  in  their context. More often, however, the plaintiff will be  seeking to  show that the words would be understood to refer to  him because  of some facts or circumstances which are  extrinsic to  the  words themselves. In these cases the  plaintiff  is required to plead and prove the extrinsic facts on which  he relies  to establish identification and, if these facts  are proved,  the  question  becomes:  would  reasonable  persons knowing these facts or some of them, reasonably believe that the words referred to the plaintiff.     Where  identification depends on extrinsic  facts  these extrinsic  facts must be pleaded because they form  part  of the cause of action.     15.  The conspectus of the authorities thus  shows  that where the defamatory words complained of are not  defamatory in the natural or ordinary meaning, or in other words,  they are  not  defamatory per se but are  defamatory  because  of certain  special of extrinsic facts which are in the  knowl- edge of particular persons to whom they are addressed,  such innuendo  meaning has to be pleaded and proved  specifically by giving the particulars of the said extrinsic facts. It is immaterial  in  such cases as to whether the action  is  for defamation  or for corrupt practice in an  election  matter, for  in  both cases it is the words complained  of  together with  the  extrinsic  facts which constitute  the  cause  of action.  It  is true that Section 123(4) of the  Act  states that  the statement of fact in question must be  "reasonably calculated  to prejudice the prospects" of  the  complaining candidate’s election. However, unless it is established that

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the  words complained of were capable of being construed  as referring to the personal character or conduct of the candi- date  because  of some specific extrinsic facts  or  circum- stances which are pleaded and proved, it is not possible  to hold  that they were reasonably calculated to prejudice  his prospects  in  the  elections. For, in the  absence  of  the knowledge of the special facts on the part of the 746 electorate,  the  words complained of cannot be held  to  be reasonably  calculated  to prejudice such  prospects.  Once, however, it is proved by laying the foundation of facts that the  words in question were, by virtue of the  knowledge  of the special facts, likely to be construed by the  electorate as  referring  to the personal character or conduct  of  the complaining  candidate, it may not further be  necessary  to prove that in fact the electorate had understood them to  be so. That is because all that Section 123(4) requires is that the  person publishing the complaining words must  have  in- tended and reasonably calculated to affect the prospects  of the complaining candidate in the election.     16.  It is in the light of this position in law that  we have  to examine as to whether the first  respondent  (elec- tion-petitioner) had discharged this primary burden cast  on him.  We have already shown above by referring to  the  por- tions  of  the  petition relating to Ex.  P-1,  that  beyond alleging that the pamphlet in question and particularly  the two  statements  therein, viz., "everybody knows  the  hands behind  that  murder. The Marxist leader  arrested  also  is known",  the  first respondent has not shown as to  how  the said  two statements or the rest of the contents of Ex.  P-1 had  projected him as the murderer in the eyes of the  elec- torate. Dr. Chitale, learned counsel appearing for the first respondent relied upon the contents of paragraphs 14 and  19 of the petition to contend that the extrinsic facts to spell out  the innuendo were sufficiently set out there and  those facts  being known to the electorate the said two  offending statements  were enough to point to the first respondent  as the murderer in the eyes of the electorate. We have  already referred to the relevant portions from the said  paragraphs. We do not find any facts pleaded there whereby the  elector- ate would gather an impression that the first respondent was the murderer of the Said four victims.     17. Barring his own testimony, all other evidence led by the  first respondent is also totally silent on this  aspect of  the  matter. None of his witnesses has  stated  anywhere that  the  contents of Ex. P- 1 had made out the  first  re- spondent  as the murderer of the four victims or  even  that they  were capable of doing so. On the other hand,  all  his witnesses without exception are unanimous that after reading Ex.  P-  1  the impression it created on them  was  that  it referred to an incident which had taken place on the  previ- ous day or to an earlier incident and nothing more. None  of the witnesses has stated that Ex. P-1 even remotely connect- ed  the first respondent with the murders. This is what  the witnesses have stated: 747 V.H.  Ashraft,  PW-2 states in his  examination-in-chief  as follows: "I  read Ex. P-1. The impression that it created in  me  was that  it  referred  to an incident that took  place  on  the previous day." In cross-examination, the witness states: "On  seeing a copy of Ex. P- 1 my first impression was  that it is an issue of the daily paper for that day  .....  I did not  go  through Ex. P-1 in full. Immediately  I  have  gone

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through  the daily issue also. At that time I realised  that Ex P-1 did not relate to an incident that took place on  the previous  day.  After  that when I read Ex.  P-1  I  further realised  that  it relates to some incident  on  an  earlier occasion".     VSA  Muthaliff, PW-3 in his examination-in-chief  states as follows: "On  reading Ex. P-1 I thought that it is a supplement  pub- lished in connection with the election. I thought that it is a  supplement  of Malayala Manorama Daily for  that  day.  I thought that it was the report regarding murders in  connec- tion with the election".     M.K. Saidalavi, PW-4 in his examination-in-chief  states as follows: "On  reading Ex. P- 11 thought that it was the news about  a murder that took place the previous day. The impression that 1   gathered   was  that  murder  was   committed   by   the Communists   ......   I thought that Ex. P-1  is  likely  to affect Left United Front adversely." In cross-examination, the witness says as follows: "I  had occasion to talk to my friends about Ex. P-1.  After reading  Ex. P-11 understood that it was not the news  of  a recent  incident. I had occasioned to read about that  inci- dent earlier in 1983. On going through Ex. P-1 I  understood that it related to an incident that took place in 1983." C.J.  Dominic,  PW-5 in his examination-in-chief  states  as follows: 748 "On  reading  the  headlines I went to the  market.  When  I returned home the talk there was as if murder took place the previous  day.  Then in order to clear doubt I went  to  the reading  room. On going through the daily issue of  the  Ma- layala Manorama I was not able to find the news in Ex. P- 11 felt  sorry that such a murder took place on the eve of  the election." K.D.  Abdu, PW-6 states in his examination-in-chief as  fol- lows: "I  read the copy of Ex. P-1 I realised that it was  a  con- scious attempt on the part of the United Democratic Front to defeat  the petitioner in the election. Copies of Ex.  P-  1 were supplied by them in almost all the houses in the local- ity. Majority of the voters in that locality was ladies  and they were illiterate also." In cross-examination, the witness states as follows: "Regarding Ex. P- 1 my enquiry revealed that almost all  the persons  of the locality had complained. I went through  the entire copy of Ex. P- 1." Then  it appears that there is a note by the court that  the witness  says that Ex. P-1 was purposely intended to  defame the petitioner. The witness further stated in cross-examina- tion as follows: "When  I talked to the petitioner (i.e., the first  respond- ent) about the speeches I made mention of the copy of Ex. P- 1 also. He did not ask for a copy. ’ ’ K.  Prakash,  PW-7  in his  examination-in-chief  states  as follows: "On reading such posters Ex. P-1 the news appeared to me  to be true. It was only after the election that I came to  know that the impression was not correct."     Though  T.M. Darar, PW-8 states in  his  examination-in- chief that he had seen copies of Ex. P- 1 being  distributed in  7th  Division and he also alleges that he had  seen  the copy  of the said pamphlet and the wall  posters  containing the photographs of the appellant seen pasted there, he  does not give the impression about the same. However, in crossex-

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amination he states as follows: 749 "I went through the copy of Ex. P-1. On reading I understood that it is an old story."     Thanhapen,  PW-9 in examination-in-chief has nothing  to state. However, in cross-examination he states as follows: "1  did  not read the copy of Ex. P- 1 in full when  it  was given  to  me. Even before reading I was pained to  see  it. Pain  was  because I saw that four  persons  were  murdered. After going over to my daughter’s residence on the same  day I read another copy of Ex. P-1 in full. On reading I  under- stood that it is an old story. Then the pain that I felt  at first was slightly relieved. But the pain continued  because after all murder is murder." C.S  Devadas, PW-10 in his cross-examination states as  fol- lows: "The  impression that I gathered was that the  Marxists  are murderers  and therefore instead of giving votes to them  it must be given to the 1st respondent (i.e., the appellant)." Sathyan,  PW-13 in his examination-in-chief states  as  fol- lows: "In  Ex. P-1 there was also a statement of the 1st  respond- ent. The reading of the news regarding 4 murders appears  at first  sight  to  be an item of news going  adverse  to  the petitioner.  This news item was a general discussion in  the locality." In cross-examination he states as follows: "When  I  got Ex. P-1 I read through the  same.  Even  after reading  Ex. P-1 in full I was not able to realise  that  it was  the news of murders committed much earlier. Even  after discussions  with  others I did not realise that it  was  an earlier incident. It had news importance. It was only  after the election that I came to understand that the news item in Ex. P-1 related to an earlier incident. Discussion was  with my  colleagues. They said that they also got the  copies  of Ex. P-1. They are persons without politics. I did not  bring this  news item to the notice of the petitioner  (i.e.,  the first respondent). 750 5.  The workers of the petitioner (i.e., the first  respond- ent)  also used to come to me for canvassing. I  asked  them about  the news in Ex. P- 1. They said they knew  about  it. This was after lunch on the date previous to election.  When Rajappan  and Vasukutty gave a copy of Ex. P-1 to me  others were  waiting outside. On seeing and reading a copy  of  Ex. P-1 it appeared to me to be a supplement of Malayala Manora- ma daily for that day. Even after reading. the news item  in Ex. P- I, on account of the importance of the news, I had no occasion  to think about it further to ascertain whether  it is a recent news or an old news." P.M.  Kaviraj,  PW-14 in his examination-in-chief  has  only this to say: "I heard ladies saying that the news contained in Ex. P-1 is a cruel act." In cross-examination he says as follows: "On getting PW- 1, I read through it in entirety. Even  then 1  understand (sic) that it is the news of an old  incident. My impression was that it was the news relating to an  inci- dent  which  took place on that date. I did not  inform  the petitioner that I read EX. P- 1. I wanted to tell him but  I did  not do so. Till now I did not inform him. That  is  be- cause  I am not interested. I told my friends. It  was  then that I knew that it was an old news." T.A.  Guide,  PW-15 in his  examination-in-chief  states  as follows:

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"The persons mentioned in Ex. P-1 who have been murdered are my neighbours." In cross-examination he states as follows: "On  reading  of Ex. P-11 understood that it related  to  an earlier  incident. We discussed the matter at home.  I  also discussed the matter with some friends."     18.  Thus, it is clear from the testimony of  the  first respondent’s  witnesses  that the contents of Ex.  P-1  gave them  an  impression variously as either  the  incident  had occurred the previous day or that it was 751 an old story or that the Communists or Marxits were  murder- ers  or that it was a cruel act or that it was  unfavourable to  the  first respondent. The impression  conveyed  by  the document that the Marxists or Communists were murderers  and therefore the electorate should not’ vote for them and hence it  was  unfavourable to the first respondent,  was  not  an impression  about his personal character/conduct. It was  an impression at best about his political character/conduct. In particular there was no impression that he was the  murderer or one of the murderers.     19.  As far as the petitioner himself is  concerned,  in paragraph  2  of his deposition in  examination-in-chief  he makes a general statement as follows: "Personally against me the propaganda on behalf of the first respondent (i.e., the appellant) was that I am a murderer, a non-religious  man and one who is unfit to be elected  as  a member of the legislative assembly." Thereafter  in paragraph 19 of his deposition he  says  with reference to Ex. P- 1 as follows: "The  original  of Ex. P-1 was printed and  published  on  a Sunday which was 22.5.83, distribution was on a Sunday which was  22.3.1987.  Four murders were  described  as  incidents which took place on the previous day. Out of the 4 murdered, the  photos  of two dead bodies lying in the  hospital  were also  published therein. Ex. P-1 mainly contained  the  news about  murders alone. The intention behind  the  publication was  to  make the electors understand 4  murders  that  took place  in  1983 as murders that took place on  the  previous day.  That  paper also contains a request by  the  committee with the photos of 1st respondent (i.e., the appellant)  and Rajiv Gandhi. In the request it is specifically stated ’that it is only common knowledge as to who is behind the  murder. So also it is written that the Marxist leader who is arrest- ed is also known to all. That was the result of a conspiracy consciously  entered into for the purpose of  maligning  and exposing  me as a murderer and an undesirable person. I  was never an accused of any murder case. 20. In connection with the 4 murders described in Ex. P- 1 a 752 case  was registered against me for having given shelter  to the  accused  in that case. There were several  meetings  in protest against my rest in connection with that case stating that it is a false case. 1 had absolutely no involvement  in giving protection or shelter to those persons.  Subsequently that  case ended in acquittal. In the main  protest  meeting held at Thoppumpadi one of the speakers was the 1st respond- ent  himself.  (i.e., the appellant). At the time  of  those murders  in 1983 Mr. Vayalar Ravi was the Home Minister.  He was also the leader of the Union in the Cochin Port Trust. I was also a worker of a rival union there. There were differ- ences of opinion between myself and Mr. Vayalar Ravi. There- fore  it was at his instigation that I was implicated  in  a false case."                                         (emphasis supplied)

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Then there is a Court question: Whether the murders of those persons  were political murders? The answer is:  Those  four murdered  persons  were anti-social elements. There  was  no politics involved in it. Then he continues to state: "The  publication  of Ex. PW-1 on the date previous  to  the election had the effect of creating an impression among  the impartial   electors  that  I  am  a  person   involved   in murders  .....  If such a propaganda is made as was done  in this  case  the opposite candidate will not  be  getting  an opportunity  to rectify the result. 1st respondent  and  his workers  were fully aware of the fact that I  am  completely innocent  in  connection with the murders of the  said  four persons.  Since they were fully aware of the fact that I  am sure  to succeed in the election, this story  was  purposely manipulated as a result of conspiracy." "22. Ex. PW-1 when it was published had the appearance of  a real  issue of Manorama. Daily People on reading the  report went  under the impression that what was  contained  therein was  the news of an incident which took place  the  previous day.  On seeing copies of Ex. PW-1, many of my  workers  and electors  also telephoned and told me that a  supplement  of Malayala  Manorama  was seen. They also inquired  about  the murders  mentioned therein. Since I was not able to  get  an opportunity of bringing the real facts 753 before  the electors, myself and my workers were in a  help- less condition."                                         (emphasis supplied)     In  his cross-examination he states in paragraph  32  of his deposition as follows: "The fight hand side of Ex. P- 1 contains a true copy of the Malayala  Manorama. In that portion there is no  difference. On  the  left hand side and the lower portion of  the  right side  there are certain additions. The news item in Ex.  P-1 regarding murders are correct in all details. What is  wrong is only that it was published as if to appear that it was an incident  that took place on the previous day. My  complaint is  that an impression was created among the people that  it was  an  incident that took place on 21.3.1987.  Even  after reading  the whole of Ex. P-I people go only under  the  im- pression that the incident happened on the previous day.  My memory  is that I have specifically alleged in the  petition that such an impression was created. It was unfavourable  to my  interest  only  on account of the creation  of  such  an impression  that  it was an incident that  happened  on  the previous day. My complaint is that I did not get an opportu- nity  to correct the impression before the polling.  I  have alleged in the petition that such an impression was  created among  the  voters  and I did not get time  to  correct  the impression before the polling. In the true copy of  Malayala Manorama contained in Ex.. P-1 there is nothing against  me. On the left hand side of Ex. P-1 is the request to vote  for the 1st respondent even though my name was not mentioned  it was intended against me. Even without mentioning my name  it is  possible  to know that it was intended against  me.  The writings  in that request capable of identifying me  as  the culprit are the statements that the persons responsible  are known  to  all and the Marxist leader who was  arrested  was also known to all."                                       (emphasis supplied). He  was then asked the question: "Have you so stated in  the petition?" The answer was "My memory is that it is so  stat- ed". He then proceeds to state as follows: "If  I remember correct I have stated in the  petition  that the  person intended by the arrested Marxist leader  is  my-

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self. 754 Many  persons who gathered such an impression  contacted  me over  phone.  I did not examine anybody among them.  I  have examined several persons for proving the distribution of Ex. P-1. None of those witnesses were asked by my counsel wheth- er  any  of  them understood the reference  in  the  request contained  in  Ex. P-1 as concerning me. I  was  present  in court when those witnesses were examined. I did not ask  any of  them whether they continued to hold the impression  that the murder took place on the previous day .....  My  impres- sion is only from what my workers told me."                                         (emphasis supplied)     20.  We have supplied the emphasis at the proper  places in the first respondent’s testimony reproduced above. He has himself admitted that all those who read Ex. P-1 gathered an impression  that  the  incident  had  occurred  on  the  day previous  to its publication. If that is so, then  even  the statements  in  Ex.  P-1 that "Every body  knows  the  hands behind  that  murder. The Marxist leader  arrested  is  also known" were not connected by the people with his arrest  for harbouring  the  accused  in the old murder  case  and  vice versa. The first respondent has repeated his allegation that the people had thought that the incident had taken place  on the  day  previous to the publication of Ex. P-1  at  places more  than one in his testimony. He has also placed his  own interpretation on the said publication which is incompatible with  the  extrinsic facts stated by him in support  of  the innuendo  meaning of the publication. According to  him  (i) the four murders were described as incident which had  taken place  on  the previous day; (ii) the intention  behind  its publication  was  to make the electorate  believe  that  the murders which had taken place in 1983 were murders that  had taken place on the previous day; (iii) it is in the  context of  this intention that it was specifically stated  that  it was only common knowledge as to who was behind the  murders. So also in the context of this intention that it was written that  the Marxist leader who was arrested was also known  to all; (iv) again it is to explain this intention that he  has given the extrinsic facts, viz., that in connection with the four  murders  described  in  the  publication  a  case  was registered  against  him  for having given  shelter  to  the accused  in  that case. He has also stated that  there  were several  meetings in protest against his arrest and that  in the  main  protest  meeting the appellant  was  one  of  the speakers  on  his behalf; (v) according to him  further  the people  on reading the report gathered the  impression  that what  was  stated  in the publication was  the  news  of  an incident  which  had  taken place  the  previous  day;  (vi) further what 755 was  wrong with the publication, according to him, was  only that  it was published as if to appear that it was an  inci- dent that had taken place on the previous day. He has  reit- erated  this by specifically stating that his complaint  was that an impression was created among the people that it  was an incident that had taken place on March 21, 1987.  Accord- ing to him, further even after reading the whole of Ex. P- 1 people went only under the impression that the incident  had occurred on the previous day. It is his case further that he has  specifically alleged in the petition that such  an  im- pression  was  created and that it was unfavourable  to  his interest only on account of the creation of such an  impres- sion, viz., that it was an incident that had happened on the

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previous  day. He has then stated that even though his  name was  not  mentioned, it was intended against him,  and  that even  without  mentioning his name it was possible  to  know that  it was intended against him and that  the  publication was capable of identifying him as the culprit because of the statements that "the persons responsible were known to  all" and "the Marxist leader arrested was also known to all.     Although he has also added at the end that many  persons who gathered such an impression, viz., that he was meant  by the  publication, had contacted him over phone, he  admitted that he did not examine anyone from among the said  persons. This  is a telling circumstance against him because  he  had followed as a witness after all his witnesses were examined, and he knew that none of his witnesses had stated that  they had  connected the imputations in the publication with  him. On  the  other  hand, as stated earlier, not  only  all  his witnesses  had stated that they had gathered the  impression that  the incident had taken place the previous day  but  he himself  was of the view that the publication was  meant  to create such impression and that it did so. Hence, there  was no  reason for the electorate to connect him with  the  said incident even remotely.     21. On his own testimony as well as on the testimony  of his  witnesses, therefore, it is clear that the  publication was  intended  to  create an impression and  did  create  an impression  that the incident of murders had taken  place  a day previous to the election. If that is so, then the publi- cation  and  the two allegedly offending statements  in  the same did not connect him with the murders much less had they called  him a murderer. Even his arrest for  harbouring  the accused  in the old incident of murders was not  capable  of identifying  him as the murderer in the eyes of the  people. None  knew  who were the accused and who  were  arrested  in connection with the murders which were committed the  previ- ous day. The people, however, certainly knew that the first 756 respondent  was  not arrested in connection  with  the  said murders. Hence the extrinsic facts which the first  respond- ent stated in his testimony for the first time even if  they were  given  in the pleadings would not have spelt  out  the corrupt practice. For those facts in the face of the  asser- tion  of  the  first respondent himself  were  incapable  of identifying him as the murderer in the eyes of the  elector- ate. For these reasons, we are of the view that the  extrin- sic  facts given for the first time by the first  respondent in  his testimony were incapable of identifying him  as  the hand  behind the murders or as the murderer in the  eyes  of the people.     22.  We are also of the view that in the absence of  the extrinsic  facts  supporting  the innuendo  meaning  of  the publication,  the petition lacked the statement of  material facts  for spelling out the corrupt practice complained  of. Either,  therefore, the allegation of the  corrupt  practice should  have been struck off or the petitioner ought not  to have been allowed to lead evidence in support of it. For, as stated earlier, whenever an innuendo is alleged, a statement of material facts as required by Section 83(i)(a) of the Act is not complete without stating the extrinsic facts spelling out  the  innuendo meaning. It is the  publication  together with the extrinsic facts which in such circumstances consti- tute  the corrupt practice. The absence of the statement  of such  facts is not an absence of the particulars of  corrupt practice  but an absence of the averment of  material  facts themselves.  Hence, it is not necessary for us to deal  with the controversy raised before us with regard to the  respon-

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sibility of furnishing of or asking for particulars.     23.  It  is  necessary, in this connection,  to  make  a distinction between a purely libel action and an  allegation of corrupt practice in an election petition. Both, for libel action  as well as for an allegation of corrupt practice  in an election petition, it is necessary to plead as well as to prove the extrinsic facts to spell out the innuendo  meaning of  the  words complained of. However, whereas  in  a  libel action it may further be necessary to prove that those  with special  knowledge  of the extrinsic facts  were  likely  to interpret or understand the words complained of in a defama- tory  sense, in an election action, it may not be  necessary to  do  so and all that is necessary is to  prove  that  the words complained of were reasonably calculated to  prejudice the prospectus of the defamed candidate’s election. However, this  latter distinction does not obliterate the  similarity between  the  two actions, viz., that in each  case  in  the first instance the defamation is to be spelt out by pleading the  necessary extrinsic facts. In a libel action,  the  ex- trinsic  facts constitute a cause of action whereas  in  the election action they 757 constitute  the  corrupt practice. In other  words,  without them,  there is no cause of action in the libel suit and  no allegation of corrupt practice in an election petition.     24.  Dr. Chitale, however, contended that the  appellant had nowhere stated that the first respondent was not intend- ed  to be referred to by the said publication. In this  con- nection, he invited our attention to the appellant’s deposi- tion. In his cross-examination on the subject. In  paragraph 25 the appellant has stated as follows: "The  statement contained in Ex. P-1 may give an  impression that  it  was in the name of the Election  Committee.  On  a reading  of that statement, it would appear that it  was  on behalf of the Election Committee." There were then the following questions and answers:     Question: Do you agree to the contents of the  statement included in Ex. P-17 Answer: I do not have any disagreement. Question: In the statement contained in Ex. P-1 it is stated that  everyone knows persons behind the murder and also  the Marxist leader who was arrested in that connection. What  is your  opinion  regarding those statements? Answer:  That  is only a repetition of an incident that took place in 1983.  I cannot say what was the intention behind that statement  and who  was intended thereby. Question: No Marxist  leader  was arrested in connection with that case. Further on a  reading of  that statement the impression that could be gathered  is that the Marxist leader in the election was responsible  for the  murder  and he was arrested. Is it so? Answer:  I  have nothing  to  do with that statement. And I was not  able  to gather such an impression on reading it. I do not think that anybody  else also will go under that impression.  Question: When any such statement is reprinted and published, it  must be  intended for upsetting the candidate..Answer:  That  de- pends upon the intention entertained by the person. I cannot give  an opinion. Question: When the petitioner  (the  first respondent) was the Deputy Mayor of the Cochin  Corporation, was  he not arrested in connection with that case under  the false  accusation that he gave shelter to the  accused?  An- swer: I remember that the petitioner (the first  respondent) was  arrested in connection with such a case. He  then  pro- ceeds as follows: "I was a speaker in a meeting in protest against his arrest. I spoke in that meeting because I felt that it is a  politi- cally  motivated  false case. In 1983, I have  gone  to  the

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hospital 758 where the dead bodies were taken for post mortem."     In  the first instance, in the absence of the  statement of  the material facts in the petition as stated above,  the appellant was not called upon to join issue with them in his written statement. Secondly, there is nothing in his  testi- mony referred to above, which helps the first respondent  in his  case  that the publication had referred to him  as  the murderer.  This  is more so, because, as stated  above,  the first respondent himself has interpreted the publication  as creating an impression of a different murder.     25.  The next corrupt practice of which the  High  Court has found the appellant guilty is the wall-poster affixed on the  Palace Road on the northern side of the City  Rationing Office, within 25 yards from the polling station. Near  this wall-poster  was also affixed Ex. P- 1. The contents of  the wall-poster are as follows: "Defeat  murderer T.M. Mohammed who murdered four  Christian brothers at Fort Cochin. Our symbol." Ex.  P-14  is  the close-up photograph of  the  said  poster whereas  Ex. P-15 is a photograph from a distance as  stated earlier.  There is no doubt that the contents of this  wall- poster  directly named the first respondent as the  murderer of  the  four  victims, and if it is proved  that  the  said poster  was affixed prior to the election by the workers  of the  appellant with his knowledge and consent as alleged  in the petition, nothing more has to be established to hold the appellant guilty of the corrupt practice within the  meaning of Section 123(4) of the Act. The finding of the High  Court on this corrupt practice is recorded in paragraph 50 of  its judgment. The High Court has stated there that the  writings were  at the instance of the appellant and with the  consent of  his  election  agent and that it was  published  in  the presence  of  and under the supervision of  the  appellant’s election agent and hence it attracts all the requirements of Section  123(4)  of  the Act. This finding  is  attacked  on behalf  of the appellant before us. It is necessary,  there- fore,  first to find out the allegations made by  the  first respondent  in  his election petition in  that  behalf.  The first  respondent has alleged in paragraphs 17, 34,  84  and 120 of his petition as follows: "17. The wall posters and writings on the walls arc done  by the first respondent, his agents and his workers with a view to  propagate  false aspects against the petitioner  and  to mis- 759 lead the electorate that the petitioner is a murderer and if anyone  votes  in  favour of him the law and  order  of  the society  will  be adversely affected. This  has  misled  the whole  electorate which has caused serious prejudice in  the election of the petitioner. X                   X                  X                   X X 34.  On  the Palace Road, on the northern side of  the  City Rationing  Office the workers of the first  respondent  with the  knowledge and consent of the first  respondent  affixed wall  poster  that the petitioner had murdered  4  Christian brothers at Fort Cochin and hence the electorate shall  vote against  the petitioner and they have to vote in  favour  of the first respondent. It is also relevant to note that  this is  within 25 yards from the polling station and  near  this writing  they have affixed the reprinted  Malayala  Manorama daily  on 22nd March, 1987 morning. This is to  mislead  the

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public that the petitioner is a murderer and he had murdered four Christian brothers  ..... X                   X                  X                   X X 84. To prove Annexures 20 and 21 the wall posters pasted  on the  walls  near  the City Rationing  Office,  Palace  Road, COchin,  the petitioner is examining two  witnesses  namely, (1)  K. Prakash, House No. 8/796, T.D. East  Raod,  Cherali, Cochin-2 and (2) J. Sundaram, Kocherry Junction, Pandikuddy, Cochin-2. X                   X                  X                   X X 120.  Even  before the distribution  of  reprinted  Malayala Manorama  the first respondent has  specifically  instructed his workers to write on the walls and also paste handwritten wall posters throughout the constituency publishing that the petitioner  is a murderer. The hand-written wall poster  was pasted near the City Rationing Office on the Palace Road,  a photostat  copy of which is produced and marked as  Annexure 20. This was pasted by Anil Raj S. Thamaraparambu,  Amarava- thy, Cochin-1. This wall poster was written at the  specific instruction of the Chief Agent and convener of the  election committee and in their 760 presence Anil Raj pasted this wail poster on the wails. This fact  was  witnessed by K. Prakash and J.  Sundaram.  Really these  writings misled the whole electorate and give  a  bad impression  about the petitioner that he is a murderer,  and he  is responsible for the murder of 4  Christian  brothers. This  is absolutely falsehood. This publication was done  by the  candidate, his agents and by his workers with the  con- sent and knowledge of the candidate and they knew that  this statement is false in relation to the petitioner."     26.  The allegations in the petition were denied by  the appellant in his written statement as follows: "12. Averments in paragraphs 30 to 35 are also false and are hereby  denied. Neither the first respondent nor his  agents or workers have any knowledge of the wail writings filed  by the  petitioner  as Annexures 15 to 22. Nor  were  any  such writings made by any person with the consent or knowledge of this respondent. Nor do the writings show anything beyond  a criticism of the Marxist party on grounds of law and  order. However,  the  wall writings shown as Annexure 20  were  not seen anywhere in the constituency nor made by the respondent or  his workers. It is deliberately concocted by  the  peti- tioner. In these paragraphs also no material facts  required to  impute a corrupt practice against the  first  respondent have  been stated. The entire allegations in  the  aforesaid paragraphs have been falsely made. X                   X                  X                   X X 18  ......  The annexure 20 appears to have been deliberate- ly  concocted by the petitioner with an ulterior motive  and the  rest  of  the aforesaid annexures  are  also  similarly concocted nor do they show any corrupt practice. The further contention  in para 98 that these writing and  wall  posters appeared  in  the constituency between 10th and  14th  March 1987  is  absolutely false. Nor were they done by  this  re- spondent  or by his agents or workers of the  UDF.  Neither, with  the  consent of the knowledge of the  respondent.  The witness mentioned in paragraph 98 also appears to be  parti- sans of the petitioner. X                   X                  X                   X X 761

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25.  The averments in paragraph 120 that the  reprinted  Ma- layala  Manorama was pasted and hand-written wallposter  was published  stating  that  the petitioner is  a  murderer  is entirely  false and the averment that the  first  respondent instructed his workers to do so is false. The averment  that annexure  20  is a photo copy of a handwritten  wall  poster near  the City Rationing Office on the Palace Road and  this was pasted by Anil Raj and they are written on the  specific instruction of the Chief Agent and convener of the  election committee is wholly untrue and is denied  ........... X                   X                  X                   X X 26. The averments in paragraph 121 that this respondent  has spent more than two lakhs for the election purpose is wholly untrue.  The  expense incurred by this  respondent  for  the election  has been strictly within the limits prescribed  by law, and the ejection accounts of this respondent have  been duly  submitted as required by law. The petitioner  is  fur- nishing  a  wholly fanciful idea of Auto rikshaws  and  cars etc. out of his imagination in paragraph 121."     27.  It  will thus be seen that in paragraph 17  of  the petition, the first respondent has averred generally that it was the appellant, his agents and his workers who had pasted the  wall-posters.  Secondly, in this paragraph he  has  not specified any wail or walls on which the poster was  pasted. Thirdly,  he has attributed the pasting only to  the  appel- lant, his agents and his workers. There is no mention of the election agent. What is further in this paragraph he has not said  whether the workers had done it with  the  Appellant’s consent or knowledge.     As  regards the averments in paragraph 34 of  the  peti- tion,  the first respondent does state that the  workers  of the  appellant had pasted the wall-poser with the  knowledge and consent of the appellant. But it is necessary to  remem- ber  here that he does not mention in this paragraph  either the agent or the election agent nor does he state here  that the pasting was ,done with the knowledge and consent of  the election agent. What is further important to note is that in this paragraph he mentions the pasting of the poster only on one  wall  and that is the Palace Road wall  near  the  City Rationing Office. 762     In  paragrah 84 again, he specifies that he is going  to examine witnesses in connection with the pasting only on one wall,  viz., the same wall on the Palace Road near the  City Rationing  Office, and he gives the names of  two  witnesses and  one of them, viz., K. Prakash (PW-7) has been  examined in that connection.     In the last paragraph where there is a reference to  the said  posters.  Exs. P- 14/P- 15, viz., paragraph  120,  al- though  there  is a vague mention of the "walls",  the  only wall specified is the same wall on the Palace Road. In  this paragraph,  again the averment is that the said pasting  was done  by the workers and agents with the knowledge and  con- sent of the appellant. In this paragraph, for the first time he has introduced the "Chief Agent" and the convenor of  the Election  Committee,  and the allegation is that  the  wall- poster was written at the specific instructions of the  said Chief  Agent and the Convenor. He has not specified who  the Chief Agent and the Convenor of the Election Committee were. Although  Dr. Chitale submitted that the  expression  "Chief Agent" should be construed to mean election agent, it is not possible  for us to accept the submission for  reasons  more than  one. In the first instance, the pleadings with  regard to  corrupt practice have to be specific since everyone  who

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is guilty of the corrupt practice is liable to be prosecuted for  the  offence. Secondly, except in  this  paragraph,  we don’t find there is a reference to any such person as  Chief Agent. Wherever the first respondent wanted to refer to  the election  agent,  he has done so. It cannot,  therefore,  be argued  that  he does not know the  difference  between  the election agent and the Chief Agent.     28. The averments in the petition, therefore, bring  out two facts in particular prominently. One is that, though the first  respondent has alleged vaguely in paragraphs  17  and 120  of  the petition, that the wall-posters  were  on  more walls than one he has specified no wall in paragraph 17  and he has referred to only one wall, i.e., the Palace Road wall in  all  the other relevant paragraphs, viz. ,, 34,  84  and 120.  What  is more, in paragraph 84, he had made  it  clear that  he was going to examine witnesses only  in  connection with  the pasting of the poster on the said one wall and  no more.  Secondly,  even  with regard to the  pasting  of  the wall-poster  on the said wall, he is not sure as to who  had done it and with whose knowledge and consent. As pointed out above,  in paragraph 17 he has stated that only  the  appel- lant’s  agents and workers had pasted it. He has not  stated that his workers had done it with the appellant’s consent or with  the consent of the election agent. In paragraph 34  no doubt  he  states that the appellant’s workers had  done  it with  the knowledge of the appellant, but in paragraph  120, he 763 states that it was done at the specific instructions of  the Chief  Agent  of the appellant and in the  presence  of  the Chief  Agent  and the convenor of  the  Election  Committee. Nowhere  in the petition it is stated that it was done  with the  knowledge and consent and at the instance of or in  the presence  of  the appellant’s election agent.  This  assumes importance because his witness, K. Prakash (PW-7) as will be pointed out hereafter, has come out with a version which  is inconsistent  with  the averments in the  petition  and  has stated  that  the pasting of the poster on the  Palace  Road wail  was being done under the supervision among  others  of Joseph Katithara, who was the appellant’s election agent.     29. As regards the evidence which the petitioner has led to  prove Exs. P-14 and P-15. we find that although  he  had cited  two witnesses, viz., K. Prakash and J.  Sundaram,  to prove  the lone wallposter on the Palace Road only one  wit- ness, viz. K. Prakash is examined. Though K. Prakash  (PW-7) was cited to prove the lone wail-poster on the Palace  Road, he has from the witness box deposed to the fact that he  had seen  "wall-posters"  being pasted on the Saturday,  a  week prior to the election. Since he is the only witness who  has been examined to prove the actual pasting of the wall-poster and the appearance of the wail-poster prior to the election, his  deposition has to be scanned carefully. He  has  stated that  he  resided in the 8th Division  of  the  Mattancherry Assembly  Constituency.  In examination-inchief,  he  stated that he was a medical wholesale distributor. He had also  an occasion  to see a copy of Ex. P-1. It was given to  him  at his  residence on the date previous to the election. He  has also named the appellant and M/s. M.K. Latif, Naveen  Kumar, Radhakrishnan  and  others  as being  the  persons  who  had brought  the  copy of Ex. P-1 to his  residence.  Indeed  he seems to be a very important man, since not only the workers of the appellant but the appellant himself had, according to him,  gone to his residence specially to deliver a  copy  of Ex. P-1 to him. Then he has deposed to the fact that he  had seen  copies  of  Exs. P-14 and P-15  being  pasted  on  the

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"wails" and not only one wail near the City Rationing Office on the Palace Road. He admits that Ex. P-14 is the  close-up photo and Ex. P-15 is the distant photo of the same  poster. It is, therefore, difficult to understand how he could  have seen both being pasted. May that be as it is. It has further to  be  remembered that both Exs. P- 14 and P-  15  are  the photographs of not only the wail-poster but also of Ex.  P-1 which was pasted by its side. Because, he has gone on to say that  he had seen "wall-posters" being pasted  on  Saturday, one week prior to the election. Since it is the case of  the first  respondent himself that Ex. P-1 was printed and  pub- lished only a day prior to the election, it is difficult  to understand as to how this witness 764 could have seen the wall-poster together with Ex. P- 1 being pasted  one  week prior to the election. He has  then  named Anil Raj, Joseph Katithara who is the election agent of  the appellant,  K.M. Mohammed, Radhakrishnan and  other  unnamed workers  of the UDF being persons present to  supervise  the pasting  of the wail-posters.’ Thereafter, he has  corrected himself  by saying that at that time the "photo" of Ex.  P-1 was not there, a statement difficult to follow. According to him at the time he saw the pasting being done, his co-worker was also there. He has not named him nor is he examined.  It is  then his case that on the day previous to the  election, he  also saw a copy of Ex. P-1 being pasted near  the  wall- poster.  Of  course, this witness has also  deposed  to  the writings  on walls which are Exs. P-16, P-17 and  P-18  with which  we are not concerned in this appeal but  about  which the  first  respondent  had made serious  complaint  in  the petition  before the High Court which has been  rejected  by the High Court. He is thus a witness not only for the  past- ing of Exs. P- 14/P- 15 on all the walls in the City but for a  similar pasting of all other exhibits complained  of.  An omnipresent witness indeed.     In cross-examination he was asked whether he was not the Secretary of the Election Committee of the first  respondent in  Division  No.  8 and also the branch  Secretary  of  the Marxist  Communist Party. He denied the said suggestion  and stated  that he did not work in the election for  the  first respondent  and  that he had no politics and he  was  not  a member  or sympathizer of any political party. He  has  also gone on to maintain that he had seen wail-posters similar to Ex. P-14 in other places and has named some of the places as Anavadil,  UCO  Bank, Cherlai, Pandikuddy Junction.  He  has then  stated contrary to what he had stated in his  examina- tion-in-chief,  that he had not seen the act of  pasting  of Ex. P-1 and he did not know who pasted Ex. P-1 near Ex. P-14 although in examination-in-chief he has categorically stated as follows: "On  the day previous to the election I saw copy of Ex.  P-1 being pasted near the wall-poster."     30.  Time and again, the courts have uttered  a  warning against the acceptance of a non-corroborated oral  testimony in  an election matter because it is not only  difficult  to get  a  non-partisan  witness but is also  easy  to  procure partisan witnesses in such disputes. The courts have, there- fore,  insisted upon some contemporaneous  documentary  evi- dence  to corroborate the oral testimony when in  particular such  evidence  could have been maintained. The  dangers  of accepting only 765 the  oral testimony are illustrated by this witness. In  the first instance, this witness was cited by the first respond- ent  himself  to prove only Exs. P- 14/P- 15 pasted  on  one

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wail,  viz.,  the City Rationing Office wall on  the  Palace Road  as  has  been stated clearly in paragraph  84  of  the petition.  Even  if we construe the said  paragraph  in  the petition  liberally, it can only mean that this witness  was cited to prove the "wallposters" being pasted on the "walls" near  the City Rationing Office on the Palace Road.  He  was not cited to depose to posters on walls in any other part of the  City.  Secondly, the petitioner has  not  produced  any documentary evidence such as the photographs of the  posters on  the other walls even near the City Rationing Office  not to  speak of the walls in other parts of the City. Ex.  P-15 shows  the  long  length of the wall. But  except  for  this poster  there  is no poster on any other part of  that  wall seen in the photograph. Assuming that there were posters  on the  other  walls, even near the City Rationing  Office,  we have no evidence in that behalf much less of the posters  on the  walls in the other parts of the City. The witness  has, however,  chosen  to depose to his having  seen  posters  on walls  in other pans of the City to which again there is  no specific  reference in the petition. It was the duty of  the petitioner  to  give the particulars of the posters  on  the other wails or in other parts of the City. His testimony  is also  suspect for other reasons as well. Firstly, this  wit- ness  has  also deposed to the fact that he had  received  a copy  of Ex. P-1 on the day prior to the election  and  what is’ further, he has gone to the extent of saying that it was the appellant himself who along with his election agent  and other workers had gone to his residence to deliver the  said copy.  It is difficult to believe that on the day  prior  to the election the appellant and his election agent in partic- ular, will have no other work but to go from house to  house distributing Ex. P-1. Secondly, the witness has also deposed to the fact that he had not only seen the wall-poster,  Exs. P-  14/P- 15 but he had also seen other  wall-posters  which were  the subject matter of the petition. What  is  further, according  to him, he had also seen Exs. P- 14/P-  15  being pasted  in his presence by one, Anil Raj under the  supervi- sion of the appellant’s election agent Joseph Katithara  and the  workers of the UDF one week prior to the  election.  We have  pointed  out above that in the petition  there  is  no reference to the election agent in this connection  anywhere and the reference to the Chief Agent cannot be construed  as a  reference  to him. What is further, he has  also  in  his examinatiOn-in-chief gone to the extent of saying that  even when Ex. P- 1 was pasted near Ex. P- 14, a day prior to  the election,  he had seen the actual pasting. This, of  course, he retracted in his cross-examination when he stated that he had not seen the said act of pasting. We have, therefore,  a witness here who is 766 omnipresent  at  all  crucial times and places  and  has  no compunction in contradicting himself on vital matters. It is this witness that we are asked to believe in support of  the first respondent’s case that the wail-poster Exs.  P-14/P-15 was  pasted by the appellant’s agents and workers under  the supervision  of the appellant’s election agent. Needless  to say  that his testimony has to be discarded being of a  very doubtful nature.     31. The only other witness who is examined in connection with Exs. P-14/P-15 is the photographer, K.J. Simon (PW-25). Even  according  to this witness, he had  taken  the  photo- graphs, Exs. P-14/ P-15 on March 25 and 26, 1987, i.e.,  two days  after the election. Therefore, even if we  accept  his evidence  that he had taken the photographs in  question  on the said days, that will not support the first  respondent’s

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case that the said posters were there prior to the  election day.  The appellant’s cross-examination of this witness  was directed to prove that he had not taken the photographs even on  25th and 26th March, 1987 but at a much later  date  and just  prior to the filing of the present election  petition. The  appellant’s case both in his written statement as  well as in the Court is that the wall poster of which Exs. P-  14 and  P-15 are the photographs was concocted much  after  the election and only for the purpose of the election  petition. It  is  in the light of this case of the appellant  that  we have  to scrutinise the testimony of this witness. The  wit- ness  says that Ex. P-14 is the chose-up photograph  of  the wail writing near the City Rationing Office and Ex. P-15  is its long-distance view and that he had taken the photographs in question on March 25 and 26, 1987. In  cross-examination, he  was asked whether since he was a professional  photogra- pher  and had his studio, he kept accounts. His  answer  was that  he kept accounts only for the indoorwork and  not  for the  out-door  work--an answer which is  very  difficult  to appreciate. The answer was given obviously to forestall  the further  investigation  in the matter by compelling  him  to produce his accountbooks which would have shown the date  on which  he  had actually taken the photographs. He  was  then asked as to how he had remembered the dates on which he  had taken  the  photographs of various other  posters  including Exs.  P-14/P-15.  To that he replied that he had  given  the dates of the photographs from his memory. To test his  memo- ry,  he was asked that since he was also taking  photographs of  marriage  ceremonies which were on an average  three  or four  times in a month, he could give the dates on which  he had  taken photographs in connection with some of  the  mar- riages.  To  that question, of course, he  answered  in  the negative.  This  witness, further, who was  called  only  to depose  to  the fact that he had taken  the  photographs  in question, has 767 gone  further  and  stated that all  the  wall-writings  and wall-posters appeared to him to be old and he had "seen them earlier". According to him, further, they were written  even two  days prior to the date of election. He also goes on  to say  that  Ex. P-1 was seen by him on the day prior  to  the election. Although he stated that he was paid Rs.800 for the photographs  and  Rs.1,000 for copies thereof,  he  did  not enter  the amounts in his accounts. He stated that he had  a Bank account but he did not remit the amount to the Bank. He then  stated that in his studio there would be no record  to show that the photographs were taken. He also stated that he had not given any receipt for receiving the payment. It  was then  suggested  to  him that he was a  sympathizer  of  the Marxist Party which suggestion, of course, he denied.     His testimony not only fails to impress us, but leads us to believe that there is much force in the contention of the appellant  that  the poster in question was concocted  at  a later  day. For otherwise it is difficult to explain  as  to why  the witness who in the ordinary course should  maintain his  accounts and other documents should keep them from  the court on pretexts which are not only far from convincing but positively doubtful.     32. There is yet another and a very important reason  as to why the entire version with regard to Exs. P-14/P-15  has to  be rejected. The first respondent has come to the  court with  a version that the wall-poster and such other  posters were pasted on walls in the different parts of the constitu- ency at least a week prior to the election. Admittedly, such false  propaganda  is an electoral offence  punishable  both

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under  Section  127A of the Act and Section 17  I-C  of  the Indian  Penal Code. The first respondent or his  agents  and workers  could  have made complaints both  to  the  Election Officer as well as to the police in that connection  immedi- ately,  and a regular panchnama of the same could also  have been  made at the time. That would have been the  best  evi- dence  of  the said allegation. We have no  doubt  that  the first respondent and his workers would not have failed to do so had the posters been pasted at the time alleged by them.     We  are,  therefore,  impelled to  reject  the  evidence produced  by  the first respondent in  connection  with  the publication  of the wallposter represented by Exs. P-  14/P- 15.     33. In the circumstances, the finding of the High  Court in  respect of both the alleged corrupt practices will  have to be set aside and 768 is  hereby set aside. Hence, we allow the appeal, set  aside the  order of the High Court and dismiss the election  peti- tion. Interim order passed by this Court also stands  vacat- ed. In the circumstances of the case, the parties will  bear their own costs.     The  Registry will take immediate action  under  Section 116C (2) of the Act. G  N.                                           Appeal   al- lowed. 769