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PETITIONER: R.P.  MOIDUTTY

       Vs.

RESPONDENT: P.T.  KUNJU MOHAMMAD & ANR.

DATE OF JUDGMENT:       28/09/1999

BENCH: S.Rajendra Babu, R.C.Lahoti

JUDGMENT:

     R.C.  LAHOTI, J.

     This  appeal under Section 116A of The  Representation of  the People Act, 1951 (hereinafter, the Act, for short  ) has been preferred by the candidate who lost at the election and  also in the election petition challenging the  election of respondent No.1, who had succeeded at the polls.

     Election  to  the 65 - Guruvayur Legislative  Assembly constituency in Kerala was held on 27.4.1996.  The appellant contested  the  election  on the symbol of ‘ladder’  of  the Muslim  League  Party  with  the   support  of  the   United Democratic  Front.   The respondent No.1 was an  independent candidate  supported  by  the Left  Democratic  Front  owing allegiance to Communist Party of India

     (Marxist).    There   were   seven  other   contesting candidates  also.  The result was declared on 8.5.1996.  The real  contest  was between the appellant and the  respondent No.1.   The appellant secured 37034 votes.  Respondent  No.1 secured  39870 votes.  Thus the respondent no.  1  succeeded by a margin of 2836 votes over the appellant.

     According  to  the petitioner (appellant  herein)  the result  of the election was materially affected and vitiated by  the commission of corrupt practice within the meaning of Sub  Sections (3) and (3 A) of Section 123 of the Act by the respondent  No.1.   According to the appellant, the  Marxist Party  had  launched  Video Cassette Ex.   P-2  entitled  as ‘VICHARANA’ (i.e.  Trial).  The script of the video film was written  by  the respondent No.1.  He had also directed  and produced  the said video film.  It was exhibited  throughout the constituency during the election.  The photo-contents of the  video  cassette as also the speeches contained  therein were highly objectionable and inflammatory.

     The  petitioner  alleged that he would  have  obtained more  votes if only the returned candidate had not committed corrupt  practice as defined in sub-sections (3) and (3A) of Sec.   123  of  the Act.  It will be useful to  extract  and reproduce  the  relevant  part of pleadings as to  the  said corrupt  practice as raised in the petition.  Paras 4 and  5 of the petition read as under:-

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     "4.   As the main part of the election propaganda, the Communist  Party  of  India (Marxist) has launched  a  Video Cassette  known  as  "VICHARANA".  The script of  the  video cassette  is  written by the 1st respondent and he  directed and  produced  the video film.  The actors in the  play  are well   known  film  actors  in  Malayalam  viz.    Mamokoya, Pallissery Jose, Shreeram and others.

     5.   After  the nomination of the 1st respondent as  a candidate  of the Left Democratic Front he has exhibited the Video  Film  ‘VICHARANA’  (trial)   throughout  the   Muslim predominant areas of Guruvayoor Constituency.  More than 50% of  the  voters in the Guruvayoor Constituency  are  Muslim. The contents of this video cassette with speeches are highly objectionable  and  inflammatory, offending sections  123(3) and  (3A)  of the Representation of the People Act.   It  is submitted  that  the incidents narrated in the film  do  not have any real bearing on the deeds actually committed by the group of persons in focus."

     Paragraphs  6  to 8 set out the contents of the  video cassette.   To  put  it  briefly,   the  film  depicts   the demolition  of Babri Mosque on 6.12.1992 and the worst riots which  broke out thereafter.  The dialogues contained in the video  cassette  aimed at fixing the responsibility for  all the  incidents  on Shri P.V.  Narasimha Rao, the then  Prime Minister  and also the then President of the Indian National Congress  (I) which was leading the United Democratic  Front which  had sponsored the candidature of the petitioner.  All the  incidents recorded in the video cassette were blown out of  proportion exhibiting untold and extreme miseries of the muslim  population affected by the riots so as to develop in the  minds of the muslim population hatred against Shri P.V. Narasimha  Rao, Indian National Congress (I) and the  United Democratic Front and thereby materially and adversely affect the  election prospects of the petitioner.  Paragraphs 10 to 13  set  out the dates and the places at which the  cassette was displayed for viewing in the constituency.  The names of three  persons  who  exhibited  the   film  for  viewing  at different  places  are also given as Shri P.C.  Sahoo,  Shri K.T.   Bharathan, Shri Vijayan - all local leaders of  C.P.I (M) and it is alleged that each one of them did so ‘with the consent of the first respondent.’

     There  are other averments made in the petition  which are not relevant for the present discussion.

     The  affidavit  accompanying  the  petition  reads  as under:-

     "   That   the    statements    made   in   paragraphs 4,5,6,7,8,9,10,11,12  and  16 of the  accompanying  Election Petition  and  the schedule about the commission of  corrupt practices (sic.) the first respondent and the particulars of such  corrupt  practice mentioned in the said  paragraph  of 4,5,6,7,8,9,10,11,12 and 16 of the

     Election  Petition  and the Schedule are true  to  the best  of  my knowledge and information.  I am  advised  that these   acts  of  the   1st  respondent  Constitute  corrupt practices   under   section   123(3)   and   (3A)   of   the representation of People act, 1981.  I beg to state that the particulars  of such corrupt practice mentioned in the  said paragraphs  of the Election Petition and the schedule may be

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read as part of this affidavit.

     I  state  that  the  facts stated  about  the  corrupt practices  are  true  to  the   best  of  my  knowledge  and information and I believe them to be true.

     Dated this the 24th day of June, 1996."

     ( Underlining supplied)

     All  the averments abovesaid made in the petition have been  specifically  denied by respondent no.1 but simply  so without  raising  any explanatory or clarificatory  plea  in that regard.

     The  learned Designated Election Judge framed a number of  issues and tried them.  Here itself, it may be mentioned that   preliminary   objections    were    raised   to   the maintainability  of  the petition inter-alia on  the  ground that  the  averments  made in the petition were  lacking  in material particulars and therefore could not have been tried in  view of Section 81 (3) of the Act.  However, the learned Trial  Judge over-ruled the preliminary objections upholding entertainability  of  the  petition.  As against  the  order deciding the preliminary objections, the respondent No.1 had preferred  an  appeal  to  this Court  which  was  dismissed reserving liberty to respondent No.1 to press the objections for  decision  in the event of the final decision after  the trial of the election petition going against him.  In short, the  Supreme  Court had not decided the appeal preferred  by respondent  No.1 on merits but had postponed the decision on merits  of  such  pleas  to a later event  and  if  only  an occasion may arise for the purpose.

     By  the judgment under appeal, the learned  Designated Election  Judge of the High Court has directed the  petition to  be  dismissed  holding that commission  of  any  corrupt practice within the meaning of Sec.  123 was not proved.

     It  cannot be disputed that the averments made in  the petition,  if  they satisfy the requirements of  pleading  a corrupt  practice in an election petition and are held to be proved  then they do amount to corrupt practice on the  part of  the first respondent within the meaning of  sub-sections (3)  and (3A) of Section 123 of the Act.  Under  sub-section (3),  an appeal by a candidate or his agent or by any  other person with the consent of a candidate or his election agent to  vote or refrain from voting for any person on the ground of  his  religion,  caste or community etc.   or  appeal  to religious symbols etc.  for the furtherance of the prospects of the election of that candidate or prejudicially affecting the election of any candidate amounts to a corrupt practice. Under  sub-section  (3A)  the promotion of,  or  attempt  to promote,  feeling  of  enmity or  hatred  between  different classes  of the citizens of India on the ground of religion, caste,  community  etc.  by a candidate or his agent or  any other person with the consent of a candidate or his election agent  for the furtherance of the prospects of the  election of  that  candidate  or   for  prejudicially  affecting  the election of any candidate amounts to corrupt practice.

     We  may briefly notice the findings arrived at by  the High  Court.  According to the High Court though there was a total  denial  by the returned candidate of  the  allegation that  he  had scripted, directed and produced  the  cassette

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‘Vicharana’,  he  admitted during his deposition before  the court that he had worked as a co-ordinator for the making of the  film  and  he had a role in contacting the  actors  for acting  in the film.  The returned candidate had visited the site  of  shooting once or twice and had also  assisted  the producer  in contacting the actors in the film.  Though  the evidence  pointed  out to there being no written script  for the film but that appeared to be highly unnatural looking at the  way  the  dialogues  were recited  in  the  film.   The evidence  pointed out to the returned candidate being a  co- ordinator  in making the film which factum was concealed  by the  returned  candidate  in his written statement.   A  co- ordinator  is one who has a substantial role to play in  the production  of  a film.  The High Court felt satisfied  that the  conclusion  flowing from the cumulative effect  of  the proved  facts  was that the returned candidate had acted  as co-ordinator of the film by getting the actors selected, had probably  also chosen the location for the scenes being shot and  was physically present on two days of the shooting.  It was to be held that the cassette ‘Vicharana’ was produced by the  returned candidate on the basis of a script prepared or suggested  by  him but there was no sufficient  evidence  to show  that  he  had directed the said film (para  20).   The exhibition  of  the  cassette ‘Vicharana’ in  the  Guruvayur constituency  was  with  the consent and  knowledge  of  the returned  candidate (para 21).  In spite of arriving at  the abovesaid findings, the High Court held that it had not been established  that Babri Mosque was a religious symbol of the muslims  (para  22)  and  therefore  commission  of  corrupt practice  within the meaning of sub-sections (3) and (3A) of Section  123 was not made out.  Vide para 27 the High  Court has  held  that though the evidence does not  disclose  that there  was  a total communal slant to the depiction  of  the incidents  relating to the destruction of Babri Masjid,  the Bombay   riots,  the  alleged  attack   on  the  mosque   at Tellicherry  and  the Poonthura incidents, it does  indicate that  there  was an intention to convey to the  viewers  the impression  that  the rulers of the day were conniving  with the Hindu community and were not taking steps to protect the interests  of the muslim community.  The manner of depiction in  the  cassette had a tendency to disturb the mind of  the viewers but it could not be said that the cassette contained a direct communal appeal or a seeking of votes on the ground of  religion, caste or community.  There was no reference in the  video cassette either to the election petitioner or  to the returned candidate.  It could not be inferred that there was  an appeal to garner votes on the ground of religion  or the use of or appeal to religious symbol for the furtherance of  the prospects of the election of the returned  candidate or  to  affect  the candidature of the  election  petitioner (para 27).  The charge of corrupt practice was therefore not brought  home to the returned candidate under Section 123(3) of  the Act.  Vide para 29, the High Court has held that  in spite  of the cassette having been exhibited and the  muslim population  in the constituency being not very literate  and on  the other hand mainly consisting of women and  fishermen of muslim community yet there was no untoward incident.  The visual  and speech contents of the cassette neither promoted nor  attempted  to  promote  feelings of  enmity  or  hatred between two classes of citizens.  Certainly the contents did not  further the election prospects of first respondent  nor prejudicially  affect  the  election   of  petitioner.   The exhibition  of the cassette could not be said to be  corrupt practice  within the meaning of Section 123 (3A) of the Act. Vide  para  31, the High Court has also recorded  a  finding

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that  it  was  not proved that the exhibition of  the  video cassette  had materially affected the result of the election in Guruvayur constituency.

     It  is  basic  to the law of  elections  and  election petitions  that in a democracy, the mandate of the people as expressed  at the hustings must prevail and be respected  by the  Courts  and  that is why the election of  a  successful candidate  is not to be set aside lightly.  Heavy onus  lies on  the  election  petitioner seeking setting aside  of  the election  of a successful candidate to make out a clear case for such relief both in the pleadings and at the trial.  The mandate  of the people is one as has been truly, freely  and purely expressed.  The electoral process in a democracy such as  ours is too sacrosanct to be permitted to be polluted by corrupt  practices.   If the court arrives at a  finding  of commission  of  corrupt practice by a returned candidate  or his  election agent or by any other person with the  consent of  a  returned  candidate or his election  agent  then  the election  of the returned candidate shall be declared to  be void.   The  underlying principle is that  corrupt  practice having  been committed, the result of the election does  not echo  the  true  voice of the people.  As  the  consequences flowing  from the proof of corrupt practice at the  election are  serious, the onus of establishing commission of corrupt practice  lies  heavily on the person who alleges the  same. The  onus of proof is not discharged merely on preponderance of probabilities;  the standard of proof required is akin to that  of  proving  a criminal or  a  quasi-criminal  charge. Clear  cut evidence, wholly credible and reliable, is needed to prove beyond doubt the charge of corrupt practice.  [See: Ram  Chandra Rai vs.  State of Madhya Pradesh & Ors.  (1970) 3  SCC  647;  Manphul Singh vs.  Surinder Singh AIR 1973  SC 2158;  Rahim Khan vs.  Khurshid Ahmed and others AIR 1975 SC 290;   Bir  Chandra Barman vs.  Shri Anil Sarkar and  others AIR  1976 SC 603;  Lakshmi Raman Acharya vs.  Chandan  Singh and  others  AIR  1977  SC 587;  Amolak  Chand  Chhazad  vs. Bhagwandas  Arya  (Dead)  and anr.  AIR 1977 SC  813].   The legislature  has taken extra care to make special  provision for  pleadings  in  an election  petition  alleging  corrupt practice.   Under Section 83 of the Act ordinarily it  would suffice   if  the  election   petition  contains  a  concise statement of the material facts relied on by the petitioner, but  in  the case of corrupt practice the election  petition must  set forth full particulars thereof including as full a statement  as  possible  of  (i) the names  of  the  parties alleged  to  have committed such corrupt practice, (ii)  the date,  and  (iii)  place  of the  commission  of  each  such practice.  An election petition is required to be signed and verified  in the same manner as is laid down in the Code  of Civil  Procedure,  1908 for the verification  of  pleadings. However,  if the petition alleges any corrupt practice  then the  petition  has  additionally  to be  accompanied  by  an affidavit  in  Form  No.  25 prescribed by rule 94A  of  the Conduct  of  Elections  Rules,  1961   in  support  of   the allegations  of  such corrupt practice and  the  particulars thereof.   Thus, an election petition alleging commission of corrupt   practice   has   to    satisfy   some   additional requirements,  mandatory in nature, in the matter of raising of the pleadings and verifying the averments at the stage of filing  of  the election petition and then in the matter  of discharging the onus of proof at the stage of the trial.

     In  F.A.Sapa  etc.etc.  vs.  Singora and  others  etc. AIR 1991 SC 1557, this Court has held:

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     "A  charge  of corrupt practice has a two  dimensional effect:   its  impact  on the returned candidate has  to  be viewed  from  the  point of view of the  candidate’s  future political  and public life and from the point of view of the electorate  to  ensure the purity of the  election  process. There  can,  therefore, be no doubt that such an  allegation involving corrupt practice must be viewed very seriously and the   High   Court  should   ensure  compliance   with   the requirements  of Section 83 before the parties go to  trial. While  defective  verification of a defective affidavit  may not  be  fatal, the High Court should ensure its  compliance before the parties go to trial so that the party required to meet  the  charge  is not taken by surprise  at  the  actual trial.   It  must also be realised that delay  in  complying with the requirements of Section 83 read with the provisions of  the  C.P.C.  or the omission to disclose the grounds  or sources  of  information, though not fatal would weaken  the probative  value  of  the evidence ultimately  lead  at  the actual  trial.  Therefore, an election petitioner can afford to  overlook  the  requirements  of Section 83  on  pain  of weakening  the evidence that he may ultimately tender at the actual  trial  of  the  election petition.   The  charge  of corrupt  practice  has to be proved beyond reasonable  doubt and   not   merely  by   preponderance   of   probabilities. Allegation  of  corrupt  practice being quasi-  criminal  in nature,  the  failure  to  supply full  particulars  at  the earliest  point  of  time  and to  disclose  the  source  of information  promptly  may  have an adverse bearing  on  the probative  value to be attached to the evidence tendered  in proof   thereof  at  the   trial.   Therefore,  even  though ordinarily  a  defective verification can be cured  and  the failure  to  disclose the grounds or sources of  information may  not  be  fatal, failure to place them  on  record  with promptitude  may lead the court in a given case to doubt the veracity of the evidence ultimately tendered."

     Though the decided cases illustrative of the nature of particulars required to be pleaded in support of an averment of  corrupt  practice  are  available in  plenty,  it  would suffice  to refer to two only.  In Rahim Khan vs.   Khurshid Ahmad  & Ors.  1975 (1) SCR 643, it was held that it was not the  requirement  of Sections 83 and 87 of the Act  or  Rule 94-A  and  Form No.  25 thereof to mention the names of  the witnesses  as  a source of information or as a part  of  the particulars.   Every  witness  need not be  mentioned  as  a source  and  every  source informant need  not  be  examined necessarily.  However, omission to do so in a given case may reflect  on the credibility of the evidence depending on the facts  and  circumstances of an individual case.  The  court has  to be careful to insist that the means of knowledge are mentioned  right  in  the   beginning  to  avoid  convenient embellishment  and irresponsible charges;  though, good  and reliable  testimony  should  not  be stifled  nor  proof  of corrupt practices thwarted by technicalities of procedure.

     In  Azhar Hussain vs.  Rajiv Gandhi 1986 (2) SCR 782 , the  corrupt practice alleged was referable to the  returned candidate  and as committed at the meetings organised during the  election  campaign.   This court held  that  dates  and particulars  of  the  meetings  should be  given  so  as  to eliminate  the possibility that witnesses could be  procured later  on  for  adducing evidence.  In the  context  of  the charge  of  corrupt practices referable to  distribution  of

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certain pamphlets, this Court held that the pleadings should have  stated  who had distributed the pamphlets when,  where and  to  whom they were distributed and in  whose  presence. This court further observed that no amount of evidence could cure the basic defect in the pleadings.

     Application  of the abovenoted well settled principles to  the  case at hand raises a gloomy picture  indeed.   The petition  is bereft of some material facts and  particulars. It  does not set out names of even a few persons who  viewed the film and/or in whose presence it was exhibited though it was  not  necessary for the petitioner to have  alleged  the names  of  each  and every person who had viewed  the  video film.   However,  the names of a few persons who had  viewed the  film  and  in  whose presence  it  was  exhibited  were expected to have been alleged in the election petition so as to put respondent No.1 on notice that these were the persons who  were  proposed  to  be examined by  the  petitioner  in support of his averments.  The petitioner’s pleading in this regard  fails  to satisfy the requirement of proviso to  sub section  (1) of Section 83 of the Act as explained in  Azhar Hussain’s case (Supra).

     We  have carefully perused the marshalling of evidence as  done and the process of reasoning as applied by the High Court.   We have found it difficult to sustain the same  and uphold  all the findings arrived at by the High Court.   The High  Court  has been much influenced by  the  consideration that  the  returned candidate has in his  written  statement completely  denied all the allegations made in the  petition but  during  his  statement  in   the  Court  made   certain admissions  which belie his total denial of the case of  the petitioner.  The High Court expected the first respondent to have  been  more truthful in his written statement i.e.   he should   have  atleast  admitted  so   much  parts  of   the allegations made by the petitioner as were correct according to him also and should have denied only somuch parts thereof as  were  not acceptable to him.  To this extent,  the  High Court  may be right but we cannot subscribe to the view that if  a part of the denial is found to be false then for  this reason alone the rest of the denial of the petitioner’s case by the first respondent can also be termed as untruthful and then  to proceed to hold that proof of part can be taken  to be proof of the whole.

     In  proof  of  the  averments made in para  4  of  the petition  as  to  the   respondent’s  contribution  made  in bringing  out the cassette, the witnesses examined on behalf of  the  petitioner  can be grouped into  three.   The  main testimony  consists  of  the statements given by  the  three actors  namely Mammokkoya (PW 6), Jose Pallissery (PW 7) and Shreeraman (PW 8) who have played leading roles in the film. The  second set consists of Sunny Joseph (PW 22) who was the cameraman  and  had done the videography.  The third set  of witnesses is Neelan (PW 10) and Abdul Razak (PW 20).  Neelan was  an employee of Asianet News Division who was called  by the  petitioner  to  prove  the  contents  of  an  interview telecast  in  April, 1996 by Asianet wherein the  respondent No.   1  is  alleged  to  have  made  certain  incriminating admissions  as  to  the video cassette  ‘Vicharana’.   Abdul Razak (PW 20) claimed to have viewed the interview.

     We  would first proceed to assess the testimony of the three  main  actors.   Mammokkoya ( PW 6),  has  not  stated anything  material to advance the case of the petitioner and

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in  the  opinion  of the High Court  itself  the  impression created  by this witness was that he was trying to hide more than he was willing to reveal.  Most of the answers given by this  witness  to  the  questions asked  on  behalf  of  the petitioner  were evasive.  In the opinion of the High  Court the  answers  given  by  this   witness  left  the  distinct impression in the mind of the court that the witness was not a  witness of truth.  Jose Pallissery, (PW 7) stated nothing to  connect  the  first  respondent with  the  direction  or production  of  the  film.  All that he has stated  is  that Shreeraman  (PW 8) had asked him to act in the film and also made  him understand that the request was at the instance of Mr.   Bennie,  the director of the film.  Shreeraman (PW  8) stated  that  he was not aware who had made the  film.   The remuneration of the actors was paid by one Sukumaran Nair in his capacity as the production manager.  Production was done by  a group of people.  The only role ascribed by Shreeraman (PW8)  to  the  first  respondent  is  that  the  later  had telephoned  him to call some artists for acting in the  film for  video cassette ‘Vicharana’.  Thus, the testimony of the three  actors has not revealed anything concrete to  connect the  first respondent with the film either as a producer  or as  a director of the film.  The three actors were  examined by  the  petitioner.   Their being untruthful  witnesses  or their  criticism by the High Court that they were concealing the  truth could not have been pursued further to hold  that what  was not told by them was the truth.  Mammokkoya (PW 6) did  not see respondent No.1 at any time at the place of the shooting.   All the three actors have stated one Mr.  Bennie to  be  the director of the film.  Mr.  Bennie  Tholath  was examined as RW 2 by the first respondent who stated that he, and  not  the first respondent, had directed the  film.   He also stated that he had directed the film ‘Vicharana’ at the instance   of   the   private   secretary   of   Mr.    V.S. Achuthanandan  the  then  leader of the  opposition  in  the Kerala  Legislative Assembly.  He could not tell the name of the  private secretary.  Even if the testimony of Shreeraman (PW  8) was to be accepted all that it leads to is that  the first  respondent had asked one of the actors to act in  the film  and  on one or two occasions he had also  visited  the shooting  site  but without doing anything  positive  there. From  this much evidence, the direction or production of the video film cannot be attributed to the first respondent.

     In the election petition, vide paras 14 and 15, it was alleged  that  the District Collector and District  Election Officer,  Ernakulam  had  issued a direction  to  Shri  A.P. Varkey,  Ernakulam District Secretary of CPI (M) to  expunge the  offending  portion from the video cassette.   One  Shri A.P.   Varkey filed Criminal Misc.  Case No.920/1996  before the  High Court of Kerala seeking quashing of the  direction of the District Collector.  In the petition filed before the High  Court there was an admission contained that the  first respondent had written the script of video cassette and also directed and produced the same.  These averments were denied in  the written statement filed by the first respondent.  It was  submitted that what had transpired between the District Collector   and  Shri  A.P.   Varkey   and  what  were   the proceedings  taken  by  Shri A.P.  Varkey, were not  in  the knowledge of the first respondent but in any case he was not bound by the contents of the criminal petition filed by Shri A.P.   Varkey.   Shri  A.P.   Varkey  was  examined  by  the petitioner  as  P.W.2.   He stated to have made use  of  the cassette  ‘Vicharana’ during the election campaign on behalf of  CPI(M).  He also stated that the directives given by the

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District  Collector for removing the objectionable  portions from  the  video  cassette as pointed out  by  the  District Collector  were  complied  with  by removing  the  same  and thereafter   only  the  cassette   was  displayed.    During cross-examination  he  admitted  that the  contents  of  the criminal  petition  filed  in the High Court were  based  on hearsay  information.   He also admitted that  the  election propaganda  in  Trichur District had nothing to do with  the first  respondent  and  the  first  respondent  had  neither requested the witness or the Ernakulam District Committee of the  party for any help in election propaganda on behalf  of the  first respondent.  In spite of such admissions made  by the  witness,  the  so-called  admission  contained  in  the criminal petition Exhibit P3 has been held to be and used as a   piece  of  incriminating   evidence  against  the  first respondent  by  the learned Designated Judge.  Firstly,  the admission,  if any, was the admission of the witness and not the  admission  of  the  first  respondent.   Secondly,  the witness  had  itself discredited the worth, if any,  of  the so-called admission by stating that it was based on hearsay. Thirdly,  if the witness was not speaking the truth then the witness  had stood discredited.  The witness was examined by the  petitioner and by holding him to have been  discredited an  inference  against the first respondent could  not  have been drawn by the High Court.

     Having dealt with the principal testimony of the three actors we may now deal with Sunny Joseph, P.W.22.  According to  him  he had shot only a part of the video film and  that too  at  the location of a hotel.  None associated with  the shooting  at other locations has been examined on behalf  of the  petitioner.  Sunny Joseph stated in the examination-in- chief  itself  that the producer of the film  was  Sukumaran Nair.   He had paid the remuneration to the cameraman.   Mr. Bennie was the director of the video film and had instructed the  witness  for  shooting of the  film.   He  specifically denied  having  been  instructed for shooting by  the  first respondent  or  anyone  at his behest.  He also  denied  the suggestion  that  the  cassette was scripted,  produced  and directed  by  the  first respondent.  In  our  opinion,  the evidence brought on record by the petitioner himself through his  own  witness  Sunny Joseph, P.W.22  was  sufficient  to demolish the case of the petitioner insofar as it related to the corrupt practice attributed to the first respondent.

     Let  us now deal with the third set of witnesses.   It was  only at the stage of trial that the election petitioner made  an attempt at adducing evidence of the contents of  an interview  telecast on Asianet Television wherein the  first respondent  was alleged to have claimed that he had made the film.   The  record of the interview was not  available  and could  not  be produced.  Neelan (PW 10 ) chief of the  News Division  of  Asianet did not depose to any admission as  to the video cassette having been made by the first respondent. He stated in the examination-in-chief itself that the record of interview was destroyed on account of time having elapsed and  it  was humanly impossible to remember the contents  of interview.  Another witness Abdul Razak (PW 20) was examined who claimed to have viewed the television interview telecast by  Asianet wherein the returned candidate had  participated and during the course of interview admitted that he was very confident  of winning at the election as he had succeeded in exposing  the communal fascist forces before the electorate. The  witness  went  on to say that the respondent  no.1  had during  the interview admitted to have written the script of

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‘Vicharana’   and   also  prepared   the   cassette.    When cross-examined,  the  witness  fumbled and  could  not  give details  of  the interview said to have been viewed by  him. He  could not give date of the interview viewed by him,  the name  of  the programme wherein the interview was  telecast, the  person who was interviewing the first respondent and so on.   Such piece of evidence has been relied on by the  High Court   for  the  purpose  of  inferring  an   incriminating admission  by the first respondent.  The first respondent in his statement did admit having participated in the interview telecast  by Asianet but did not admit having made any  such admission as was sought to be put in his mouth .

     The  infirmity  in the finding arrived at by the  High Court is writ large.  Firstly, an admission is a substantive piece  of  evidence  and  when the same was  relied  on  for proving a corrupt practice, it ought to have been pleaded in the  election petition so as to give the first respondent an opportunity  of meeting and explaining the same but this has not   been  done.   Secondly,  an  interview   telecast   on television would have been viewed by hundreds of persons yet the  petitioner could find only one person to depose to  the contents of the interview.  An admission put in the mouth of the  first  respondent and denied by him cannot be  believed unless  cogent and convincing evidence was adduced in  proof thereof.   Lastly, an alleged admission sought to be  relied on as an incriminating piece of evidence must be proved with precision.   Unless  the phraseology in which the so  called admission was couched is brought before the court, the court may  not be in a position to act upon it as an incriminating link  in  the  chain  of   evidence.   A  suggestion  denied constitutes no evidence.

     There  is no evidence adduced nor any material brought on  record  wherefrom  an inference that  the  cassette  was displayed  for  viewing by P.C.  Sahoo, K.T.   Bharathan  or Vijayan  at the instance of or with the consent of the first respondent  could  be  drawn.   It is not the  case  of  the petitioner  that  any one of the said three persons was  the agent  of  the  first respondent.  There  is  absolutely  no evidence  or  material  available on record to  connect  the first respondent with choosing of any of the locations where shooting  was done.  The inference in that regard appears to be  a  guess-work merely certainly not permissible when  the allegation  to be brought home is criminal or quasi-criminal in nature.

     The  first respondent who appeared in the  witness-box as RW1 has stated on oath that he had no part to play either in  the  preparation of the script or in the  production  or direction  of  the  film  ‘Vicharana’.   On  the  telephonic request  of Mr.  Sukumaran Nair who was the producer of  the cassette  ‘Vicharana’  he had extended some help to  him  by asking the actors to agree for acting in the film and he had also visited the shooting sites on two occasions.  He stated that  he had seen the video cassette only twice - once after the  polls  and second before filing the written  statement. The  video  film  was never displayed  in  the  constituency either at his instance or in his presence.  He denied having at  any time claimed to have produced or directed the  video film  or  written its script.  He stated that he was  not  a member  of the Communist Party (Marxist).  We have carefully read  the  statement of the first respondent and we  do  not find  his having been discredited in cross-examination.  His testimony inspires confidence.

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     Bennie  Tholath, (RW2) examined on behalf of the first respondent  is  the witness who had directed the video  film ‘Vicharana’.  He clearly stated that the persons involved in preparation  of  the script for ‘Vicharana’  were  Sukumaran Nair, Secretary to Shri V.S.  Achuthanandan, the then leader of  the opposition, Babu Pallissery, the District  Secretary of  the  DYFI,  Trichur  District and  Joseph,  a  freelance journalist.   The  witness  had  directed the  film  at  the instance of Sukumaran Nair.  He specifically stated that the first  respondent had no part to play in the preparation  of the script.  He further stated that the first respondent had done nothing particular in connection with the making of the video  film  ‘Vicharana’.  The witness further  stated  that normally  what is done by a coordinator in the production of a  film  was not done by the first respondent.  The  witness denied  any role having been played by the first  respondent either in the preparation of the script or in the production of  the  cassette  either as a writer or as  a  producer  or director insofar as the first respondent is concerned.

     In  the above state of evidence, we are definitely  of the  opinion  that  the  High Court  was  not  justified  in arriving  at a finding that the first respondent had  worked as  a  coordinator  of the cassette ‘Vicharana’  and  had  a substantial role to play in the production of the film.  The High  Court  was  also  not justified in  holding  that  the cassette ‘Vicharana’ was produced by the first respondent on the  basis  of a script prepared or suggested by  him.   The evidence  produced  by  the  petitioner  utterly  failed  to satisfy  the standard of proof required for bringing home  a criminal  or a quasi-criminal charge.  These findings of the High Court cannot be sustained and hence are set aside.

     There is also a sharp divergence between the pleadings and  the  proof.   In the petition the  petitioner  has  not alleged the actors in the film having been hired, engaged or even  introduced  to the producer by the  first  respondent. The  petition merely alleges the names of the actors playing in  the  film.  Yet the High Court has found a  case  proved which was not specifically pleaded.

     Para 4 of the petition alleges the script of the video cassette  ‘Vicharana’  to  have been written  by  the  first respondent and the film having been directed and produced by the  first  respondent.   The High Court has not  found  the video  film to have been directed and produced by the  first respondent.   The finding recorded by the High Court is that the  first respondent was co-ordinator in the production  of the  video  film.  What has been found is certainly not  the case  pleaded.   So  far  as the writing of  the  script  is concerned,  there is no evidence available on record to hold that  there was any script fully written available while the film  was under production.  The testimony of the  witnesses examined  on behalf of the petitioner and dealt with by  the High  Court in its judgment goes to show that there was only an  incomplete  script  available which had  left  room  for improvisation.   The High Court having viewed the video film proceeded  to apply a parity of reasoning and held that  the dialogues  recited by the actors in the video film could not have  been  so  recited unless there was  a  written  script available  and that goes to show that a fully written script was  in existence and available.  The written script has not been produced in the Court.  Certainly, there is no evidence adduced  to attribute authorship of the script, complete  or

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incomplete,  to the respondent No.1.  Even if the deficiency in the pleadings was ignored and all the findings arrived at by  the  High Court were accepted as correct, still, in  our opinion, the facts found may give rise to a strong suspicion of  the respondent No.1 having had something to do with  the production  of  the  video film  ‘Vicharana’  but  suspicion howsoever  strong  cannot  take the place of  proof  of  the charge of corrupt practice.

     The  High Court has no where found nor is it the  case of  the  petitioner  that the respondent  No.1  was  himself exhibiting  the  video film.  Similarly, the High Court  has not  arrived at a finding as to any particular named  person having  exhibited the video film as an agent of or with  the consent  of  the respondent No.1.  Earlier  summarising  the conclusions  arrived  at by the High Court, we have  already noticed  one  of  the  findings arrived at  that  the  video cassette  does not contain an appeal to garner votes on  the ground  of  religion  or the use of or appeal  to  religious symbol  for the furtherance of the prospects of the election of  the  returned candidate or to prejudicially  affect  the election  of any candidate.  Inspite of the hard labour  put in by the learned counsel for the appellant, he has not been able  to  dislodge  the abovesaid  finding.   The  principal ingredient  of sub sections (3) and (3 A) of Section 123  of the  Act  is therefore missing.  Having ourselves  read  the evidence, with the assistance of the learned counsel for the parties,  while we uphold this finding of the High Court, we have no hesitation in our mind also to record that the other findings  arrived  at  by the High Court in  favour  of  the election  petitioner cannot be sustained for want of  proper pleadings  and requisite evidence and hence are liable to be set aside.

     The  affidavit  filed by the petitioner in support  of the election petition as required by Rule 94 A also does not satisfy  the  requirement of proviso to sub section  (1)  of Section  83  of  the Act and Form No.  25  appended  to  the Rules.   The  several  averments relating to  commission  of corrupt  practice  by the first respondent as  contained  in paragraphs 4 to 12 and 16 of the petition have been verified as  true  to the best of " my knowledge and information "  - both,  without specifying which of the allegations were true to the personal knowledge of the petitioner and which of the allegations  were based on the information of the petitioner believed by him to be true.  Neither the verification in the petition  nor  the  affidavit gives any  indication  of  the source  of information of the petitioner as to such facts as were not in his own knowledge.

     The verification of the petition does not even satisfy the  requirement  of  Order  6  Rule 15  of  the  CPC.   The verification reads as under:

     VERIFICATION

     I,   R.P.Moidutty,   S/o.Abubakker   Haji,  aged   54, petitioner  in the above election petition do hereby declare that  the  averments in para 1 to 17 are true and made  from personal  knowledge  and on the basis of personal enquiry  I believe that all the averments made in para 1 to 17 is true.

     Signed  and  verified  in this the 21st day  of  June, 1996.

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     PETITIONER  :"  [Underlining supplied] All the averments made in paras 1 to 17 of the petition have been stated to be true  to the personal knowledge of the petitioner and in the next  breath the very same averments have been stated to  be based  on the information of the petitioner and believed  by him to be true.  The source of information is not disclosed. As observed by the Supreme Court in F.A.  Sapa etc.etc.  vs. Singora and others AIR 1991 SC 1557, the object of requiring verification  of an election petition is to clearly fix  the responsibility  for  the  averments and allegations  in  the petition  on the person signing the verification and, at the same  time, discouraging wild and irresponsible  allegations unsupported  by facts.  However, the defect of  verification is  not  fatal  to  the petition;  it  can  be  cured  [see: Murarka  Radhey  Sham Ram Kumar vs.  Roop Singh Rathore  and Ors.   AIR  1964 SC 1545, A.S.  Subbaraj vs.  M.  Muthiah  5 ELR  21  ].  In the present case the defect in  verification was  pointed  out  by raising a plea in that regard  in  the written statement.  The objection was pressed and pursued by arguing  the same before the Court.  However, the petitioner persisted   in   pursuing  the   petition   without   proper verification  which  the  petitioner should  not  have  been permitted  to  do.   In our opinion, unless  the  defect  in verification was rectified, the petition could not have been tried.   For want of affidavit in required form and also for lack  of  particulars, the allegations of  corrupt  practice could  not  have  been enquired into and tried at  all.   In fact,  the  present  one is a fit case  where  the  petition should  have  been  rejected  at   the  threshold  for  non- compliance  with  the  mandatory  provisions of  law  as  to pleadings.

     For the foregoing reasons, we do not find the ultimate finding arrived at by the High Court liable to be interfered with.   The  dismissal of the election petition by the  High Court  is  upheld  though for the reasons set  out  in  this judgment.  The appeal is accordingly dismissed.  No order as to the costs.