Kerala High Court
V.R.Soji vs Veena George on 14 May, 2016
Author: A.M. Shaffique
Bench: A.M.Shaffique
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
WEDNESDAY, THE 12TH DAY OF APRIL 2017/22ND CHAITHRA, 1939
El.Pet..No. 7 of 2016 ()
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PETITIONER(S):
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V.R.SOJI
S/O RAGHAVAN, AGED 47 YEARS,
VAZHAVILAYIL HOUSE, MEZHUVELI P.O.
PATHANAMTHITTA P.O. PIN-689 507
BY ADVS.SRI.V.V.SIDHARTHAN (SR.)
SRI.ARUN.B.VARGHESE
SRI.BENOY K.KADAVAN
SRI.JAYKAR.K.S.
SRI.KAROL MATHEWS SEBASTIAN ALENCHERRY
RESPONDENT(S):
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1. VEENA GEORGE
MEMBER OF KERALA LEGISLATIVE ASSEMBLY,
ARANMULA CONSTITUENCY, VELASERI,
PALAMUTTATHU, MYLAPARA P.O.
PATHANAMTHITTA DISTRICT - 689 671.
ADDL.R2 SREEKANTH M. VALLAKKOTTU,
AGED 44, S/O BHARGHAVA PANICKER,
VALLAKOTTU HOUSE,
ULLANNOOR PO, KULANADA,
PATHANAMTHITTA DISTRICT
(ADDL.R2 IS IMPLEADED VIDE ORDER DT 24.10.2016 IN IA 4/2016)
BY ADV. SRI.GIBI.C.GEORGE
BY ADV. SRI.JEPH JOSEPH
BY ADV. SRI.M.K.DAMODARAN (SR.)
BY ADV. SRI.MURALI PURUSHOTHAMAN, SC,ELE.COMMN.
BY ADV. SRI.SIJO PATHAPARAMBIL JOSEPH
ADDL 2 BY ADV. SRI.V.PHILIP MATHEWS
THIS ELECTION PETITION HAVING BEEN FINALLY HEARD ON 3-03-
2017, THE COURT ON 12/4/2017 DELIVERED THE FOLLOWING:
EP NO.7/2016
APPENDIX
PETITIONER'S WITNESSES
AW1: JOSEPH K.M.
AW2: V.R.SOJI.
AW3: V.P.BABU
AW4: ABRAHAM V.V.
AW5: GEORGE JOSEPH
RESPONDENTS' WITNESSES
RW1: KOSHY OOMMEN
RW2: BIJU MATHEW
RW3: VEENA GEORGE
RW4: MATHEWS P.JACOB
PETITIONERS' EXHIBITS
EXT.A1: THE PAMPHLET ISSUED IN THE NAME OF AKHILA MALANKARA
ORTHODOX ALMAYA VEDI.
EXT.A2: PHOTOGRAPH POSTED BY THE RETURNED CANDIDATE IN HER FACE
BOOK ACCOUNT THAT SHE IS DELIVERING A SPEECH ON A PODIUM USED BY THE
PRIEST KEEPING THE HOLY CROSS AND HOLY BIBLE AND OHER RLEIGIOUS BOOKS
ON HER SIDE
EXT.A3: ENGLISH TRANSLATION OF FORM 26 SUBMITTED BY THE RETURNED
CANDIDATE BEFORE THE RETURNING OFFICER AT THE TIME OF FILING
NOMINATION PAPER.
EXT.A4: TRUE COPY OF THE COUNTER AFFIDAVIT DATED 14.5.2016
SUBMITTED BY THE PETITIONER BEFORE THE RETURNING OFFICER 113-ARANMULA
CONSTITUENCY.
EXT.A5: TRUE COPY OF THE COMPLAINT DATED 7/5/2016 SUBMITTED BY
THE PETITIONER BEFORE THE DISTRICT ELECTION OFFICER, PATHANAMTHITTA.
EXT.A5(a): PHOTOGRAPH POSTED IN THE FACEBOOK ACCOUNT OF VEENA
GEORGE.
EXT.A5(b): PHOTOGRAPHS ADDED BY VEENA GEORGE IN FACEBOOK ACCOUNT.
EXT.A6: TRUE COPY OF THE EXPLANATION DATED 12/5/2016 SUBMITTED BY
THE ELECTION AGENT OF THE RETURNED CANDIDATE.
EP NO.7/2016 -2-
RESPONDENTS' EXHIBITS
EXT.R1: LETTER DATED 22.11.2016 ISSUED BY THE SENIOR MANAGER,
FEDERAL BANK, CHANDANAPPALLY BRANCH.
EXT.R2: COPY OF INCOME TAX RETURNS FOR THE ASSESSMENT YEARS 2015-
16 OF MR.MATHEWS P. JACOB.
EXT.R2(a): COPY OF INCOME TAX RETURNS FOR THE ASSESSEMNT YEARS 2016-
17 OF MR.MATHEWS P.JACOB, MENTIONED IN THE ELECTION PETITION.
EXT.R3: INTEREST CERTIFICATE DATED 19.1.2017 ISSUED BY THE SENIOR
MANAGER OF FEDERAL BANK, CHANDANAPPALLY BRANCH FOR THE PERIOD 1.4.12
TO 31.3.2013 EVIDENCING COLLECTION OF TDS FROM IN RESPECT OF NROSB
ACCOUNT BEARING NO.12014100000857.
EXT.R3(a): INTEREST CERTIFICATE DATED 19.1.2017 ISSUED BY THE SENIOR
MANAGER OF FEDERAL BANK, CHANDANAPPALLY BRANCH FOR THE PERIOD 1.4.13
TO 31.3.2014 EVIDENCING COLLECTION OF TDS FROM IN RESPECT OF NROSB
ACCOUNT BEARING NO.12014100000857.
EXT.R3(b): INTEREST CERTIFICATE DATED 19.1.2017 ISSUED BY THE SENIOR
MANAGER OF FEDERAL BANK, CHANDANAPPALLY BRANCH FOR THE PERIOD 1.4.14
TO 31.3.2015 EVIDENCING COLLECTION OF TDS FROM IN RESPECT OF NROSB
ACCOUNT BEARING NO.12014100000857.
EXT.R3(c): INTEREST CERTIFICATE DATED 19.1.2017 ISSUED BY THE SENIOR
MANAGER OF FEDERAL BANK, CHANDANAPPALLY BRANCH FOR THE PERIOD 1.4.15
TO 31.3.2016 EVIDENCING COLLECTION OF TDS FROM IN RESPECT OF NROSB
ACCOUNT BEARING NO.12014100000857.
COURT EXHIBITS
EXT.X1: DEPOSIT ACCOUNT OPENING FORM OF SRI.GEORGE JOSEPH
(FEDERAL BANK)
EXT.X2: A PRINT OUT SHOWING A QUERY BY THE BANK AND THE ANSWER
EXT.X3: EXTRACT OF THE STATEMENT OF ACCOUNT OF A/C NO.
12014100000857 FROM 2/6/2007 TO 1/12/2016 (FEDERAL BANK
LIMITED.
EXT.X4: EXTRACT OF THE STATEMENT OF ACCOUNT.
EXT.X5: EXTRACT OF THE STATEMENT OF ACCOUNT.
EXT.X6: RETAIL LOAN APPLICATION FORM OF FEDERAL BANK SUBMITTED BY
DR.GEORGE JOSEPH
EXT.X6(a): APPLICATION FORM FOR RETAIL LOAN:CO-BORROWER/CO-
OBLIGANT/GUARANTOR/POA HOLDER SUBMITTED BY SMT.VEENA George.
//True Copy//
PS to Judge
Rp
"C.R."
A.M. SHAFFIQUE, J.
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E.P.No.7 of 2016
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Dated this, the 12th day of April , 2017
J U D G M E N T
This election petition is filed to declare the election of the 1st respondent, Smt.Veena George from the Aranmula Legislative Assembly Constituency (hereinafter referred to as 'the Constituency') of the Kerala State Legislature to be void under Section 100(1) (d) (i), Section 100(1)(d) (iv) and 100(1)(b) of the Representation of the People Act, 1951 (hereinafter referred to as 'the RP Act'). Section 100 (1) reads 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) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act or the Government of Union Territories Act, 1963 (20 of 1963); or
(b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or
(c) that any nomination has been improperly rejected;
or EP No.7/16 -:2:-
(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected--
(i) by the improper acceptance of any nomination, or
(ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent, or
(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or
(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, the High Court shall declare the election of the returned candidate to be void."
2. The short facts involved in the election petition are as under:
The petitioner is an elector of the constituency. The election was held on 16/05/2016 and result was declared on 19/05/2016. The 1st respondent Smt.Veena George has won the election and the total number of votes obtained by her was 64,523 as against the nearest candidate Adv.Sri.K.Sivadasan Nair who got 56,877 EP No.7/16 -:3:- votes. The election petition raises two specific grounds. One is that the returned candidate has not disclosed the details of the Bank account of her spouse in Form No.26 submitted at the time of delivering nomination paper in terms of Rule 4A of the Conduct of Election Rules, 1961 (hereinafter referred to as 'the 1961 Rules') and secondly, she was involved in the corrupt practice of demanding vote on the ground that she belongs to Orthodox Syrian Christian community.
3. First allegation is regarding non-disclosure of the details of Bank account of her spouse in Form 26. The petitioner contends that Mr.George Joseph, husband of the returned candidate, is a teacher by profession in a Higher Secondary school and is on leave. He is serving as the Secretary of Malankara Syrian Christian Association for the last 10 years. He is operating a Non Resident Ordinary Savings Bank (NROSB) account in the Federal Bank Limited, Chandanappilly Branch with Account No.12014100000857 and the address is shown as Yatheem Group, P.O Box No.50571, Dubai, UAE. The other parties EP No.7/16 -:4:- in the joint account are Mathews P. Jacob and Helen Mary Mathews. It is contended that the aforesaid three persons are jointly operating the account and it is an either or survivor account. The petitioner also narrates the details of the Bank transactions undertaken by the spouse of the returned candidate. Allegation is that on 13/06/2015 `1 lakh, on 28/07/2015 `3 lakhs, on 24/08/2015 `5 lakhs, on 18/12/2015 `5 lakhs and on 24/3/2016 `50,000/- was deposited from the Housing Loan Account No.12017300002367 maintained at the same branch. It is alleged that the returned candidate, being aware of the aforesaid Bank account of her spouse had deliberately suppressed the said fact in Form 26. The petitioner has filed a counter affidavit before the Returning Officer on 14/05/2016 pointing out that the respondent has suppressed the Bank account details aforementioned in Form 26 filed by her. It is contended that, on account of such non-disclosure and suppression, voters of the Constituency could not form their opinion about the candidate's antecedents, which resulted in misinformation and thereby EP No.7/16 -:5:- influencing the voters. Further, the nomination of the respondent was improperly accepted by the Returning Officer and therefore the election of the returned candidate is to be declared void for the improper acceptance of the nomination as provided under Section 100(1)(d)(i) of the R.P.Act.
4. Secondly, it is stated that the returned candidate's spouse Sri.George Joseph, the Secretary of the Malankara Association, is very influential in the administration of the church of the Malankara Metropolitan. It is contended that the total voters in the Constituency, around 19000 voters, belong to the Orthodox community. The Secretary of the Malankara Association has control over the Priest as well as over the Church administration. The allegation is that the returned candidate used the Orthodox community to vote in her favour on the ground of religion and community. In order to substantiate the same, the petitioner had projected the following aspects:
i) That the returned candidate had used the face book for election campaign and used face book for canvassing votes on EP No.7/16 -:6:- the ground of religion and community. She posted a photograph in her face book account in which it is depicted that she is delivering a speech on a podium used by the Priest and keeping the Holy Cross and Holy Bible and other religious books on her side.
ii) Another instance pointed out is that the returned candidate had posted other photographs in the face book account showing that she had entered in other religious institutions and canvassed votes. Allegation is that the photographs have been uploaded by the returned candidate herself or with her consent and knowledge. Sri.Koshy Oommen, an active LDF worker and member of Managing Committee has posted her photographs in the face book in order to canvass the voters of the Orthodox community.
iii) Yet another contention is that the returned candidate, along with her spouse had visited Orthodox Churches at Ullannur and Othera and distributed pamphlets and her photograph amongst the people who were in the Church at that time. The EP No.7/16 -:7:- pamphlets are printed and published by K.V.Abraham, President, Akhila Malankara Orthodox Almaya Vedi. It is contended that one Babu.V.P had informed the petitioner that on 15/05/2016 at about 8.30 a.m he had seen the returned candidate and other persons including her spouse at St.Mary's Orthodox Valiapally, Ullannur and circulated the pamphlets and the photographs. Petitioner further states that one Joseph K.M., who is the Secretary of St.Mary's Orthodox Church, Othera informed him that on 15/05/2016, between 11 a.m and 12.30 noon, the returned candidate with her spouse and certain other persons visited the Church and circulated copies of the photographs and other materials. These instances, according to the petitioner, amounts to a corrupt practice as contemplated under Section 100(1)(b) of the R.P.Act.
5. During the pendency of the petition, another candidate in the election to the Constituency was also impleaded as additional 2nd respondent.
6. In the written statement filed by the returned EP No.7/16 -:8:- candidate, she denied the aforesaid allegations. In regard to the allegation that the returned candidate did not disclose the details of the Bank account of her spouse, it is contended that the account does not relate to Mr.George Joseph. The account holders are Mathews P.Jacob and Helen Mary Mathews. Sri.George Joseph, her husband and Mr.Mathews P.Jacob are relatives. Mr.Mathews P Jacob is the grandson of the paternal aunt of the respondent's husband. Mr.Mathews P.Jacob is the General Manager of the Yateem group and he is an income tax assessee. Mr.George Joseph was only operating the account for and on behalf of Mr.Mathews P.Jacob, as he was abroad. To the knowledge of the respondent, he was never a joint account holder. Therefore, according to the respondent, non-disclosure of the account of the Federal Bank does not amount to any situation warranting rejection of the nomination paper. The respondent also denied the financial transactions stated in the election petition. In regard to the other allegations, it is stated that respondent's husband has no control over the Priest and Church EP No.7/16 -:9:- Administration. The Malankara Orthodox Syrian Church was an episcopal church administered as per the provisions of the 1934 Church Constitution which has been upheld by the Supreme Court. The Malankara Metropolitan is the supreme authority of the church in all respects subject to the Church constitution and the Association Secretary only acts according to the directions of the Malankara Metropolitan and Managing Committee and he has no independent right or power. She also denied that she had used her face book for canvassing votes on the ground of religion and community. She did not post the photographs in the face book depicting the delivery of a speech in a podium nor did she use religious symbol or names for canvassing votes. According to her, she delivered a speech, in Beharin Orthodox Church on 14/06/2015 in connection with blood donation awareness programme. At the relevant time, she was a Journalist and was well known to the voters of the Constituency even before the election process. She had worked in different TV channels including Kairali, Manorama News, Indiavision, TV news and EP No.7/16 -:10:- Reporter. She had visited various places inside and outside India to attend various cultural and other programmes. On her visit to Beharin for a programme, she had also gone to the Orthodox Church and delivered a speech in connection with blood donation awareness programme. According to her, the photograph which was produced along with the election petition was posted in the face book by One Siju and later by Sri.Koshy Oommen on 30/03/2016, much before she was declared as a candidate, without her knowledge and consent. She submitted the nomination only on 29/04/2016. She had no control over the action of Sri.Koshy Oommen. It is further contended that there are several Christian churches, who nurtures ill-will to the Orthodox church and there are large number of voters belonging to Pentecostal group opposing the episcopal churches. Majority of voters in the Constituency would not tolerate such photographs. She also denied the fact that she had posted other photographs which show that she had entered other religious institutions and canvassed votes. According to her, such postings are without her EP No.7/16 -:11:- knowledge and consent. At any rate, it was not published or posted in the official face book page of the respondent. She also denied the fact that she had gone either to Ullannur Orthodox church or the Church at Othera, as alleged nor did she circulate any photograph or pamphlet, as alleged. According to her, she did not canvass any vote on the ground of religion. She feigned ignorance in regard to the publication of pamphlets by Almaya Vedi. She denied having used the Orthodox community to vote in her favour nor on the ground of religion and community.
7. The 2nd respondent also filed a counter affidavit supporting the returned candidate.
8. On the basis of the pleadings, though a preliminary objection has been raised regarding maintainability of the election petition, by a separate order dated 25/10/2016, it was found that the election petition was maintainable.
9. The issue that arises for consideration has been framed as under:-
Whether the election of the respondent has to be declared EP No.7/16 -:12:- void under Section 100(1)(d)(i), 100(1)(d)(iv) and 100(1)(b) of the R.P.Act?
10. On behalf of the petitioner five witnesses were examined as AW1 to AW5. The respondent relied upon the evidence of four witnesses who were examined as RW1 to RW4. The petitioner relied upon Exts.A1 to A6 and the respondents relied upon Exts.R1 to R3(c). Exts.X1 to X6(a) were marked as Court exhibits.
11. AW1 is a resident at Othera in Pathanamthitta District. which is part of the Constituency. According to him, he is a member of the St.Mary's Orthodox Church at Othera, which is one among the parish church of Malankara Orthodox Sabha. In his chief examination, he says that the returned candidate, along with her husband and three other persons, had come for election campaign at Othera St.Mary's Orthodox Church on 15/05/2016 at 11 a.m. They had come to the office along with certain other members of the Church and they asked for votes producing a pamphlet and photograph. The pamphlet was marked as Ext.A1 EP No.7/16 -:13:- and photograph was marked as Ext.A2. According to him, he was given Exts.A1 and A2. When he was asked whether they asked for vote for the 1st respondent, his answer was in the affirmative. He deposed that, they asked for votes stating that the candidate was the member of Malankara Orthodox Sabha and he was asked to vote in her favour. In cross-examination, he submitted that he was an active member of the Congress and he was the Panchayat member. During the election, he had campaigned for Sri.Sivadasan Nair, the defeated Congress candidate. In cross- examination, he further deposed that he used to sit in a side room of the Church and there were others who were either members of the Church or Office bearers. There were also persons who had come to Church for prayers. The service was over by 12.20 a.m and they had come after service. He further deposed that the members of the Managing Committee and those connected with the Church used to remain in the Church for some more time. He used to leave the Church by 12 noon. According to him, about 20 persons were there when the 1st respondent, along with others, EP No.7/16 -:14:- had come. There were persons who were not Congress Members. He further submitted that his wish was that Congress should win the election.
12. AW2 is the petitioner himself. He submitted that he is the Congress worker and Secretary of Pathanamthitta Congress committee. He is the expenditure agent of Sri.Sivadasan Nair, the defeated candidate. According to him, the returned candidate has suppressed the Bank account of her spouse maintained at the Federal Bank which was a NRO SB account. He deposed that, in addition to the 1st respondent's spouse, one Mathew P. Jacob and Smt.Helen Mary Mathews were the joint account holders. He has stated that the present signature of all the three persons are available in the Bank. He further deposed that he received information regarding the face book photograph from his computer and also he received information regarding the distribution of the photograph and pamphlet from certain persons who had attended the Church aforementioned. During cross- examination, he submitted that he cannot give the details of the EP No.7/16 -:15:- persons who had given the information regarding the Bank account of Sri.George Joseph. He obtained the particulars regarding the distribution of pamphlet and photograph from the persons who were present in the church on 15/05/2016.
13. AW3 is the voter of the said constituency and part of Malankara Orthodox Sabha, Ullannur. He had given evidence stating that, on 15/05/2016, when he had gone to the Church, he saw the 1st respondent and her husband in the compound of the Church and they were giving notices and photographs requesting for votes. He was called and told that he, being an orthodox member, should vote for her. Her husband also stated that he is the Secretary of the Orthodox Sabha and AW3 should vote for the 1st respondent. He was also given a notice and photograph. According to him, he did not like the manner in which the campaign for election was being conducted and therefore he called the petitioner, who came after about half an hour and he handed over the photograph and notice to the petitioner. He identified the pamphlet as Ext.A1 and the photograph as similar EP No.7/16 -:16:- to Ext.A2.
14. AW4 is the Branch Manager of the Federal Bank of Chandanappilly branch. He produced a deposit account opening form as Ext.X1. According to him, the said form was obtained by the Bank from Sri.George Joseph (spouse of 1st respondent). The account number is 12014100000857. There is no date in the said document. It was taken on 02/09/2007, on which date, he was not the Manager. He deposed that the date was given to him by the Information Technology Department of the Bank. Ext.X2 is the account details of Sri.George Joseph. He deposed that there was an earlier account as shown in Ext.X1, which was in the name of Mathews P. Jacob and Helen Mary Mathews. Sri.George Joseph joined as an operator. Other than Ext.X1, there is no other document in the Branch to show that Sri.George Joseph was only operating the Bank account. He further deposes that Sri.George Joseph has personal account in the Branch and he does not remember the account number. He also produced Exts.X3 and X4 which are the extract of statement of accounts relating to the EP No.7/16 -:17:- NRO SB account. He deposed that the aforesaid account number was originally taken as NRO account in the name of Mathews P. Jacob and Helen Mary Mathews. Sri.George Joseph's name was added to that account. To a specific query, he admitted that normally a power of attorney or a letter of authorisation is received by the Bank to permit a person to operate an account. He further deposed that no such authorisation or power of attorney was obtained and the account was being operated by Sri.George Joseph and others. The account statement with reference to account No.1201730000 2367 is produced as Ext.X5. In cross examination, he submits that on a perusal of Ext.X1, it will not be seen that it is in the name of George Joseph. Ext.X2 certificate is taken from the computer system of the Bank. He admitted Ext.R1 document which is a letter dated 22/11/2016 issued by the Bank to Mr.George Joseph. He admits that the name of George Joseph is not shown as account holder in X3 and X4. The owner of the money in the NRO account will be the account holder and in the case it is Mathews P. Joseph and Helen Mary EP No.7/16 -:18:- Mathews. He further deposes that Sri.George Joseph is the operator in the above referred account. He also deposes that normally Bank will not permit operation of accounts with such incomplete applications.
15. AW5 is the husband of 1st respondent. He deposed that he was working in a school and he was on leave for the last 9 years. He is the Secretary of Malankara Syrian Christian Association. He has a share in Family Optics at Palarivattom and Kalamasserry. According to him, he is not the account holder in the document shown to him as X1. However he admits that he is the George Joseph mentioned in X1 and he admits his signature in X1. He denied that the account number shown in X1 is his account. He was aware of the said Bank account and he used to operate the said account as and when required. He further deposes that he is not aware of all the transactions in Exts.X3 and X4. According to him, he was given cheque by Sri.Mathews P. Jacob and Helen Mary Mathews. In addition to that he was given amount as loan. He further states that the address of the account EP No.7/16 -:19:- holders shown in Exts.X3 and X4 are that of Yatheem Group. In cross examination, he says that he cannot take any amount for his own purpose and while signing Ext.X1 he was told that it was only a document for operating the account. He deposed that he can only withdraw such amounts which are authorised by Mathews P. Jacob and thereafter informed to him. He was permitted to withdraw amounts by the account holders for construction of house and for agricultural activities. He further submits that Ullannur Church is about 80 kms away from his residence and Othera Church is about 30 kms away from his residence. He used to go to Angadikkal St.George Church for prayers which is his parish church and only about 2 kms away.
16. RW1 is Sri.Koshy Oommen. According to him, he does not know the 1st respondent personally but he knows her husband. He knew the 1st respondent as a news reader. He identified Ext.A2 photograph as that of Smt.Veena George. He deposed that his facebook account in his name is used by all his family members. The photograph appeared in the facebook EP No.7/16 -:20:- during March, 2016. He had not exhibited the photo in the facebook. Later he found that the photograph was available in the facebook. According to him, his children might have put the photograph in the facebook account and he does not know for what purpose. In cross examination, he says that he is the managing committee member of Kottarakkara Punalur Diocese which comes under Orthodox Sabha.
17. RW2 is a member of Orthodox Sabha and he usually attends the church at Ullannur. According to him, there are 209 families attached to the said church. All the members know each other. He is a member of Idavaka Committee. He had gone to the church on the previous day of election of 2016 which was a Sunday known as Pentecost day. He deposed that on Pentecost day there will be additional service which will extend upto 12.30 noon and thereafter also there will be service. On the said date, he had not seen Veena George or her husband coming to the church for campaigning. According to him, if they had come, he would have known about it. He knows V.P.Babu, AW3 and when a EP No.7/16 -:21:- question was asked whether V.P.Babu had come to the church on the said day his answer was that he did not see him. In cross examination, he admitted that he participated in an election to the Block Panchayat as a candidate of Communist Party Marxist (CPM) and he lost the election.
18. RW3 is the 1st respondent. She had spoken in terms with the written statement filed in the case. She deposed that she was involved in student politics during her studies. She was a school leader twice and member of Student Federation of India (SFI) during her college studies at Government women's college. After Post Graduation, she worked as a journalist, and was a lecturer at Catholicate college for about two years. Ext. A3 is the English translation of the affidavit which she has filed in which she had given all the details of her assets and liabilities including that of her spouse. According to her, the account number shown in paragraph 3 of page 5 of the election petition does not belong to her husband and therefore she did not include the said account number in Ext. A3. The said account is in the name of her relative EP No.7/16 -:22:- Mathews P Jacob and his wife Helen Mary Mathews. She got the information about the account, when allegations were made in the election petition. She further deposed that she and her husband used to go for election campaigning in the house of the relatives. The election programs and campaigning are charted by the Left Democratic Front (LDF). Each day's program has been fixed and charted and the campaigning was done accordingly. She further deposed that on the previous day of election she has not done any public campaigning and she had not gone to Ullannur or Othera churches, as alleged in the election petition. She states that she had not gone to the said churches for campaigning whereas on the previous day of election she had gone to their family church, it being a special day. She had gone to the said church along with her husband as it was Pentecost day. She further deposed that she has a facebook account. She was invited to attend a program in the year 2014 by Malayalee Association. During that time she was invited to a nearby church in connection with the function relating to blood donation and the EP No.7/16 -:23:- photograph Ext.A2 was taken at that time. She further deposed that the photograph was uploaded in the Facebook account by a person named Siju in the year 2014 and she had not uploaded the same. She also denied the fact that Sri. Koshy Oommen had posted the photograph in a Facebook account as he had taken a stand against her in the election. In regard to Ext. A5 photograph she deposed that it was taken while she was standing on the public road, and the photograph which formed part of Ext.A5 was taken in the midst of a festival, during election campaigning. According to her, the photographs were not uploaded by her and it is not available in her Facebook account. In regard to Ext.A1, she deposed that she does not know who had published the same and she does not know an organisation by name Almaya Vedi. In cross examination she further deposed that though she is not a member of CPM, but the emblem was given by CPM. She deposed that among the account holders in Ext. X1 the third named person is George Joseph. The said account number is not shown in Ext. A3. She denied knowledge about the fact as to whether George EP No.7/16 -:24:- Joseph had deposited `9 lakhs on 7/7/2014. She admits that her husband is a partner in an optical shop at Palarivattom and Kalamassery. She denied having any collaboration with Yatheem group in regard to the conduct of the said shops. She admits that she is a member of the Sabha and she believes in Christian religion. In cross-examination she reiterates that Ext.A2 photograph had come to her notice after she received a copy of the election petition. It is stated that at the time of giving Ext. A6 she was not aware that Ext.A2 photograph was posted by Siju. She further deposed that she does not personally know Sri. Koshy Oommen and her photograph was posted without her knowledge or approval. She reiterates that she had not asked for vote by being a member of the Sabha. According to her if she had asked for vote on the basis of being a member of Sabha, majority of the other religions and factional members will vote against her. She further deposed that if she had campaigned as a member of Malankara Sabha, she would have lost the election as the Jacobite faction and the majority of the voters would have turned against EP No.7/16 -:25:- her. She denied knowledge about any organisation by name Almaya Vedi. According to her she was aware of the fact that no campaigning can be done in the name of religion.
19. RW4, in his evidence has stated that the first respondent's husband is his mother's uncle's son. He is working as the General Manager of Yatheem group at Dubai. He travels a lot in connection with his official duties. He is a permanent resident at Chandanapally and he has a house there. He has a non resident external account at State bank of Travancore and Federal bank and Chandanapally as well as an ONR account. He has two accounts at Federal bank Chandanapally. One is NRE account and the other ONR account, which is operated by him and his wife. In regard to ONR account he has authorised Sri.George Joseph to operate the account. According to him he has authorised Sri. George Joseph since his parents are old and was not in a position to handle any expenditure and the day-to-day requirement. He has a farm and money was required for construction activities also. George Joseph used to operate the EP No.7/16 -:26:- account only after getting his confirmation through Bank. During 2010 he had gone to the Bank and informed the officials about his difficulty and he was informed that he and his wife can authorise somebody else to operate the account as per the guidelines issued by the Reserve Bank. He and his wife had given a written letter to the Bank authorising Sri.George Joseph to operate the account. He denies having seen Ext. X1, but he identifies the signature in the said document as that of Sri.George Joseph. He admits that Ext.X3 is the account maintained by him with Federal bank. He says that the transaction in Ext.A3 are at his instance and as authorised by him. He further deposes that when money is available in the ONR account, he used to ask Sri.George Joseph to take the amount from this account and give it to his son who is studying for M.B.B.S. He further deposed that he is an income tax payee and the returns are filed in respect of the ONR account. He produced the income tax returns for the years 2015-2016 and 2016-2017 which are marked as Exts.R2 and R2(a) and TDS certificates are produced as Exts.R3 to R3(c). In cross- EP No.7/16 -:27:- examination he submits that the account was opened by him and his wife and it is possible to make a resident of India joint account holder. The said situation changed since July last. The account is either or survivor and the first account holder shall be a Non Resident Indian. According to him there is no legal impediment in giving a power of attorney to operate NRO account. He had not given any such power of attorney to Sri. George Joseph. He denied the question that he did not give power of attorney to Sri. George Joseph since he was a joint account holder. According to him he was asked by the Bank to give a written letter which he had given. He further deposed that the said letter was given in the year 2010 and he can enquire with the bank as to whether any such document is available in order to produce the same. He further deposed that he does not know under what circumstances the Bank Manager deposed before court that no such letter had been issued. According to him he remember to have issued such a letter. He further deposed that he never treated Sri. George Joseph as a joint account holder and he does not think that the EP No.7/16 -:28:- Bank would permit the same. He denied the fact that he has included in the income tax returns the money belonging to Sri.George Joseph. The amounts which he had given to him had been deposited and also the amounts which was the revenue derived by him from slaughter tapping of rubber plants. He also denied the pointed question that the amounts shown in Ext.X3 belongs to him, his wife and George Joseph. He also denied the suggestive question that George Joseph was made a joint account holder to enable him to deposit his money in the joint account. He further answered that he has no benefit by doing so. He further deposed that money was taken from the Bank only when he or his wife issues cheques. He further denies the fact that there is an arrangement between Yateem group and George Joseph in connection with optical business.
20. Heard learned senior counsel Sri. V.V.Sidharthan duly assisted by Adv. Arun Varghese on behalf of the petitioner, learned senior counsel Sri.M.K.Damodharan appearing for the 1st respondent and Adv. Philip Mathews appearing for the 2nd EP No.7/16 -:29:- respondent.
21. Before proceeding further it will be useful to give a brief narration of the case law relied upon by either side.
22. Learned senior counsel Sri.Sidharthan had placed reliance upon the following judgments:-
(i) Abhiram Singh v. C.D.Commachen (2017 (1) KLT 229 (SC). In this case, the Constitution Bench held that even after amendment to Section 123(3) of RP Act, an appeal in the name of religion, race, caste, community or language is forbidden. In other words, the religion, race, caste community or language would not be allowed to play any role in the electoral process and if an appeal is made on any of those consideration, the same would constitute a corrupt practice.
(ii) In Peoples Union for Civil Liberties (PUCL) and another v. Union of India (AIR 2003 SC 2363), the Apex Court while declaring Sec.33B of the R.P Act as illegal, null and void held that Article 19(1) (a) provides for freedom of speech and expression which covers in its fold, right of the voter in having EP No.7/16 -:30:- knowledge about the antecedents of the candidate who is contesting the election. It is further held that the disclosure by a candidate entering the electoral contest in regard to the assets and liabilities shall serve as a check against misuse of power. Reference is also made in this judgment to Union of India v. Association for Democratic Reforms and another [AIR 2002 Supreme Court 2112].
(iii) Krishnamoorthy v. Sivakumar and others [(2015) (3) SCC 467]. This judgment is cited for the proposition that once corrupt practice is proved in an election trial, the High court is bound to declare election of a returned candidate as null and void.
(iv) Kisan Shankar Kathore v. Arun Dattatray Sawant and others [2014 (14) SCC 162]. This case deals with the lapse on the part of the candidate in not disclosing the required information while submitting the nomination paper. The Apex Court, having taken note of the earlier judgments held that when the information is given by a candidate in the affidavit filed along EP No.7/16 -:31:- with the nomination paper and objections are raised thereto questioning the correctness of the information or alleging that there is non-disclosure of certain important information, it may not be possible for the Returning Officer at that time to conduct a detailed examination. Such an enquiry can be only at a later stage and the appropriate stage would be in an election petition as in the instant case, when the election is challenged. Once it is found that it was a case of improper acceptance, as there was misinformation or suppression of material information, one can state that question of rejection in such a case was only deferred to a later date. When the Court gives such a finding, which would have resulted in rejection, the effect would be same, namely, such a candidate was not entitled to contest and the election is void.
(v) Ramanbhai Ashabhai Patel v. Dhabi Ajitkumar Fulsinji and others [AIR 1965 Supreme Court 669]. This judgment is relied upon to emphasise that Cross is a symbol associated with Christianity. Perusal of the judgment would show EP No.7/16 -:32:- that the question considered by the Apex Court was whether the election symbol star which is described as dhruva star in the pamphlets published and distributed by the candidate or its agent amounts to a corrupt practice. While considering the above matter at paragraph 12, the Apex Court only observed that "Similarly, if they are told that they should cast their vote for a particular candidate whose election symbol is associated with a particular religion just as the Cross is with Christianity, that will be using a religious symbol for obtaining votes." This sentence is only cited as an example and cannot be treated as a decision that Cross symbol is connected with Christianity.
(vi) S.Harcharan Singh v. S.Sajjan Singh and others (AIR 1985 SC 236). While considering what amounts to corrupt practice, the Apex Court observed that the line has to be drawn by the Court between what is permissible and what is prohibited after taking into account the facts and circumstances of each case interpreted in the context in which the statements or acts complained of might have been made. It is further observed that EP No.7/16 -:33:- the Court has to examine the effect of the statement made by the candidate upon the minds and feelings of the ordinary average voters of the country.
(vii) Birbal Singh v. Kedar Nath (AIR 1977 SC 1). This was a case in which the Apex Court was considering as to whether distribution of a pamphlet and news paper containing scurrilous editorial by the election agent of the candidate amounts to corrupt practice. It was held that interested witnesses are not necessarily false witnesses though the fact that the witness has a personal interest and stake in the matter must put the court on its guard. The evidence of the witnesses must be subject to closer scrutiny and the court may in a given case may be justified in rejecting such evidence, unless it is corroborated from an independent source. It is further observed that even interested witnesses may be interested in telling the truth to the Court. Therefore the Court must assess the testimony of each important witness and indicate its reasons for accepting or rejecting it. A broad and general comment that a particular witness is an EP No.7/16 -:34:- election agent of a candidate and cannot therefore be relied upon is not a judicial assessment of evidence.
(viii) Dr.(Smt.)Shipra v. Shri Shanti Lal [AIR 1995 Rajasthan 50]. This judgment is relied upon to contend that the object of verification in an election petition is to test the genuineness and authenticity of the averments made in the election petition and to fix responsibility for the allegations made on the person who verifies it and to ensure that false allegations are not made recklessly. Referring to the judgment in F.A.Sapa v. Singora [AIR 1991 SC 1557], it is held that it is not essential that the verification clause on the foot of the election petition or the affidavit accompanied to the election petition should disclose the grounds or the source of information in regard to the averment or allegation which are based on the information believed to be proved. Reference is also made in the judgment to K.M.Mani v. P.J. Antony [AIR 1979 SC 234] wherein the Apex Court has held that it is enough for the election petitioner to say that the averments made in the paragraphs are true to his/her EP No.7/16 -:35:- information.
23. Sri.M.K.Damodaran, learned Senior counsel placed reliance upon the following judgments:-
(i) M.J.Jacob v. A.Narayanan and Others [(2009) 14 SCC 318]. In this case, the question was whether the contents of the pamphlet published by the candidate's election agent was false which amounts to a corrupt practice under Section 123(4) of the R.P.Act. While deciding the case, it was held that, the basic principle in law relating to election and election petitions is that the mandate of the people as expressed in the election results should ordinarily be restricted by force and the election of a successful candidate should not be lightly set aside.
(ii) Tukaram S. Dighole v. Manikrao Shivaji Kokate (AIR 2010 SC 965). This was a case in which the election was sought to be nullified on the ground that there was an appeal to the voters to vote on communal ground which amounts to a corrupt practice by producing a cassette. It was held that the authenticity of the cassette as well as the accuracy of the EP No.7/16 -:36:- speeches were not proved. It was however held that to prove the charge of corrupt practice, a mere preponderance of probability would not be enough. There would be a presumption of innocence available to the person charged. The charge shall have to be proved to the hilt, the standard of proof being the same as in a criminal trial.
(iii) Kalyan Kumar Gogoi v. Ashuthosh Agnihotri and another (2011) 2 SCC 532. In this case also, the Apex Court was considering the nature of evidence that has to be adduced in an election petition. The Apex Court highlighted on the danger in considering hearsay evidence. It was held that the election of a returned candidate should not be normally set aside unless there are cogent or convincing reasons and the success of a winning candidate at an election cannot be lightly interfered. It was further held that the volume of opinion expressed in judicial pronouncements preponderates in favour of the view that the burden of proving that the votes which are not cast would have been distributed in such a manner between the contesting EP No.7/16 -:37:- candidates and it would have brought about the defeat of the returned candidate lies upon the one who objects to the validity of the election. Therefore, the standard of proof to be adopted while judging the question whether the result of the election in so far as it concerns a returned candidate is materially affected, would be proof beyond reasonable doubt or beyond the fail of doubt.
(iv) In Shambhu Prasad Sharma v. Charandas Mahant (AIR 2012 SC 2648), it was held that if the defect alleged in the affidavit disclosing information of the candidate is not of a substantial character, making acceptance of nominations illegal and no averment is made that the improper acceptance of nomination of the returned candidate has materially affected the result of the election, the petition has to be dismissed.
(v) In Mangani Lal Mandal v. Bishnu Deo Bhandari (2012) 3 SCC 314, it is held that, it is essential for election petitioner to aver and prove by pleading material facts that result of election of the returned candidate was materially affected by such breach or non compliance.
EP No.7/16 -:38:-
(vi) In Rajendra Kumar Meshram v. Vanshmani Prasad Verma and another [(2016) 10 SCC 715], it was held that only if improper acceptance of nomination materially affects the result of the election, the election can be declared as void.
24. Learned counsel Sri.V.Philip Mathews also relied upon various judgments, but only those judgments which are relevant for the above case are considered.
(i) Chhedi Ram v. Jhilmit Ram and Other [(1984) 2 SCC 281]. This judgment is relied upon for the proposition that under Section 100(1)(d) of the R.P.Act the election of a returned candidate shall be declared to be void only if the High Court is of the opinion that the result of the election in so far as it concerns the returned candidate has been materially affected by the improper acceptance of the nomination and the burden of establishing the same is upon the person impeaching the election.
(ii) In Shambhu Prasad Sharma (supra), the Apex Court held that every departure from the prescribed format cannot be EP No.7/16 -:39:- made a ground for rejection of nomination.
(iii) In Arikala Narasa Reddy v. Venkata Ram Reddy Reddygari and another [(2014) 5 SCC 312], the Apex Court held that the instructions in a hand book issued by the Election Commission is binding on the returning officers.
(iv) In Narender Singh v. Mala Ram and another [1999 (8) SCC 198], the Apex Court held that in the matter of appreciation of evidence in election disputes, the general principle is that the onus to prove the essential fact which constitute the cause of action is upon the person making it. What would be the evidence sufficient to prove a particular fact depends upon the circumstance of each case. When the evidence adduced is capable of drawing an inference either way, the view that is favourable to the returned candidate will have to be preferred. It is further held that in election disputes, emotions of the public are raised and opinions are sharply divided between groups. In such circumstances, oral testimony in favour of one or the other party is easy to be adduced. But the same will have to EP No.7/16 -:40:- be critically examined. The oral evidence therefore is to be assessed with a great deal of care.
(v) In Dr.Vimal (Mrs.) v. Bhaguji and Others (1996 (9) SCC 351], the Apex Court held that the evidence in election matters relating to corrupt practice should be clear, cogent, satisfactory, credible and positive to establish the charge of corrupt practice. Until and unless the evidence is absolutely credible and positive and can stand the test of scrupulous scrutiny and would lead to one irresistible conclusion and unimpeachable result that the corrupt practice under Sections 123(3) and 123(3- A) was committed, the court should desist from making any finding on corrupt practice.
(vi) Anil v. Babu M. Palissery (2006 (4) KLT 809) wherein it is held by this Court that the affidavit required as part of right to information of the electors cannot form the foundation to set aside an election.
25. First contention raised by the petitioner is based on the allegation that the returning officer has improperly accepted the EP No.7/16 -:41:- nomination of the returned candidate. Reference is made to section 100(1)(d)(i) and (iv) of the Act. As per Section 100 (1)(d)
(i), improper acceptance of any nomination is a ground for declaring the election of the returned candidate to be void, provided the result of the election in so far as it concerns a returned candidate has been materially affected by such improper acceptance of the nomination. This position of law is well settled in the judgment of the Apex Court in Shambhu Prasad Sharma (supra). It is further held in Mangani Lal Mandal (supra) and Rajendra Kumar Meshram (supra) that it is for the election petitioner to aver and prove by pleading material facts that the result of the election of the returned candidate was materially affected by such non compliance. The position is also well settled in an earlier judgment of the Apex Court in Chhedi Ram (supra). In Kisan Shankar Kathore (supra), the Apex Court held that, if it is not be possible for the Returning Officer to reject an improper nomination, such an enquiry can be done at a later stage, that is at the time when the election is challenged in an election petition EP No.7/16 -:42:- and the Court can consider the fact as to whether non disclosure of such information amounts to suppression of material information and whether the nomination could have been rejected by the Returning Officer. A contention had been raised by the learned counsel for 1st respondent that the Handbook issued by the Election Commission is binding on the Returning Officer as held in Arikala Narasa Reddy (supra) and as per the Handbook issued to the Returning Officer, it was not open for the Returning Officer to reject the nomination on the alleged ground. But as already held by the Apex Court in Kisan Shankar Kathore (supra), in an election trial, it is possible for the petitioner to prove that acceptance of the nomination was improper on account of non disclosure. Apparently, disclosure of a bank account of a candidate or his/her spouse is also required to be mentioned in Form 26. The question to be considered would be whether the 1st respondent's spouse had a Bank Account which was not disclosed and whether such non-disclosure has materially affected the election of the returned candidate. The contentions urged by the EP No.7/16 -:43:- petitioner has to be considered in the light of the above principles. A form of affidavit has been prescribed in the 1961 Rules and Rule 4A indicates that the candidate or his proposer shall at the time of delivering to the returning officer the nomination paper, also deliver to him an affidavit sworn by the candidate before a Magistrate of First class or a notary in Form
26. Clause 7 of Form 26 relates to the details of movable assets which includes bank accounts as well. Petitioner's contention is that at the time of delivering the affidavit to the Returning Officer, the true translation of which is marked as Ext.A3, the particulars of joint account of 1st respondent's spouse in the Federal bank has not been mentioned. The Apex Court in Kisan Shankar Kathore (supra), held that the directions issued by the Court and guidelines by the Election Commission are with the purpose that the citizens have fundamental right to know about the candidates contesting the elections. It casts an obligation on the candidates to furnish information regarding the criminal antecedents, educational qualifications and the assets held by the candidate, EP No.7/16 -:44:- his/her spouse and dependent children. In cases where a detailed enquiry is needed in regard to whether a nomination should be accepted or not, it would depend upon the outcome in an election petition to ascertain whether the nomination was properly accepted or it was a case of improper acceptance. If it is found that it was a case of improper acceptance as there was misinformation or suppression of material information, one can only state that the question of rejection in such a case was only deferred to a later date and when the Court gives such a finding, the election becomes void as the candidate was not entitled to contest the election. It is in this background that the petitioner had contended that non disclosure of the aforesaid account in the affidavit of the first respondent in Form 26 has resulted in improper acceptance of the nomination. Petitioner has a case that on having come to know about the existence of the bank account maintained by the spouse of the returned candidate, he had filed counter affidavit before the Returning Officer.
26. On the other hand, the 1st respondent has denied the EP No.7/16 -:45:- aforesaid fact and it is argued that no materials are produced and sufficient pleadings are not available to prove the aforesaid fact. According to the 1st respondent, Ext.X1 is an incomplete document and that apart all the witnesses had clearly indicated that AW5 was only operating the account. Only the petitioner has a case that it was a joint account. It is further argued that no steps were taken to prove the contents of Ext.X3 and how the transactions had taken place. It is also contended that there was no specific pleading and the best evidence was not produced. Reference is also made to judgment of the Apex Court in Peoples Union for Civil Liberties (PUCL) (supra) wherein it was held that the Election Commission's orders relating to disclosure of assets and liabilities will still hold good and continue to be operated. Reference is also made by the learned counsel to the Hand Book for Returning Officer published during the year 2016, which is issued by Election Commissioner of India wherein guidelines are prescribed in the matter relating to rejection of nomination papers. It is mentioned that the nomination paper can EP No.7/16 -:46:- be rejected if the prescribed affidavit has not been filed at all by the candidate. However if it is filed but is found or considered to be defective or containing false information the nomination should not be rejected on the said ground. Learned counsel also placed reliance on the judgment in Arikala Narasa Reddy (supra), wherein the Apex Court held that the instructions contained in the hand book for Returning Officer are issued by the Election Commission in exercise of its statutory functions and therefore it is binding on the Returning Officers. Reference is also made to judgment in Anil (supra) wherein it is held that the affidavit required as part of right to information of the electors cannot form the foundation to set aside an election. It is therefore argued that even if the nomination paper of the 1st respondent does not contain the aforesaid account, there is no improper acceptance of nomination, which cannot be a reason to declare the election void. It is further contended that there is no pleading or evidence to hold that the election has been materially affected on account of the alleged infirmity.
EP No.7/16 -:47:-
27. On a consideration of the evidence adduced by the parties, initially it has to be considered whether from the materials on record, it could be discerned whether Sri.George Joseph was a joint account holder in respect of an account at Federal Bank, Chandanapally. There is no dispute about the fact that, existence of the said account was not mentioned in the affidavit filed along with the nomination paper. Ext.A3 is the translation of the said affidavit. There is also no dispute about the fact that Sri.Mathews P. Jacob, RW4 and his wife were the joint account holders in respect of the said account. As far as George Joseph is concerned, according to the 1st respondent, he was only permitted to operate the account and was not the joint account holder. The documents relied upon by the petitioner to prove the said fact is Exts.X1, X2 and X3. Ext.X1 is an account opening form which contains the signature of Sri.George Joseph. He had admitted his signature in the said document. X1 contains a Customer Id, account number and the signature. In the last page of Ext.X1, the address of the declarant is seen, but no other EP No.7/16 -:48:- details are filled up in the said form. The Bank Manager, when examined as AW4 has stated that the account holders are Mathews P Jacob and Helen Mary Mathews. Ext.X1 is an account opening form, which was taken on 2/9/2010 and other than Ext.X1 there is no other document to show that George Joseph was operating the account. RW4, the joint account holder does not know anything about Ext.X1. He says that he had not given any power of attorney to George Joseph to operate the account, whereas he has given a letter to the Bank, to permit George Joseph to operate the account. He also says that customer ID is allotted by the Bank to account holders. When examined as AW5, George Joseph deposed that he was only operating the Bank account. Ext.X2 is a print out showing a query by the Bank and an answer. The query was 'please inform the date on which George Joseph cust id 3586738 is added in account 12014100000857"
and the answer was "The custid is seen added on 02.09.2010".
Ext.X3 is the extract of the statement of account of A/c No.12014100000857 from 2/6/2007 to 1/12/2016. Ext.X3 is EP No.7/16 -:49:- produced to prove the withdrawals from the said account. Ext. X3 contains certain withdrawals by George Joseph ie `17 lakhs on 5/7/2013, `13 lakhs on 6/7/2013, `6,96,763/- on 7/7/2014, `5 lakhs on 31/12/2015 and `1 lakh each on 12/7/2016 and 31/8/2016 by Family Optics. The account also shows that a cheque issued by George Joseph is presented for collection, through the said account. Though in the pleadings certain banking transaction was referred to as sub paragraphs (a) to (e) of paragraph 3, no attempt was made by the petitioner to prove the said fact, whereas during evidence an attempt is being made to indicate that certain transactions as evident from Ext. X3 would prove the fact that Sri.George Joseph is a joint account holder. Exhibit X1, the main document relied upon by the petitioner will not help the petitioner to prove that Sri.George Joseph was a joint account holder. The bank manager who is examined as AW4 does not support the above version. AW5 Sri.George Joseph, does not support the petitioner, whereas he categorically had given evidence stating that he was only operating the account. RW4, EP No.7/16 -:50:- Sri.Mathews P. Jacob who is the joint account holder also did not support the contention that Sri.George Joseph is a joint account holder. One aspect which is highlighted or behalf of the petitioner is with reference to the customer identity as shown in Ext. X1. The number shown is 3586738. In fact, Ext.X6 is the loan application form of AW5, submitted to the Bank for availing a loan. It is mentioned that he was having banking with Federal Bank since 20/11/1996 and the customer ID is 3586738 and the account number is 12010100071641. It is therefore clear that Sri.George Joseph was having a customer ID of his own, which by itself will not prove that he was a joint account holder along with RW4. Exhibit X2 would only prove that the customer ID of George Joseph is added in account 12014100000857 on 2/9/2010. There is no material to indicate that the customer ID was added to the account as a joint account holder or as a person operating the account. On an over all consideration of the materials placed on record it cannot be concluded that Sri.George Joseph was a joint account holder along with Mr. Mathews P Jacob and his wife. The EP No.7/16 -:51:- fact that certain transactions are seen operated by Sri.George Joseph, by itself cannot be understood to arrive at a conclusion that he was a joint account holder. Two things are relevant, one is that there is no pleading that on account of Sri.George Joseph receiving amounts from the aforesaid account, he becomes a joint account holder and secondly he was not questioned about any of the said transactions when he was examined as a witness. Of course certain questions were put to RW4. According to him George Joseph was dealing with all transactions on the basis of his instructions. RW4 did not consider George Joseph as a joint account holder. Further AW5 in his evidence has categorically mentioned that he was only operating the Bank account. AW5's evidence is on the side of the petitioner. He is not declared hostile. Under such circumstances, his evidence has to be accepted as a whole. Once his evidence is accepted, it has to be found that he was only operating the Bank account on behalf of the account holders. The oral evidence which has now been made available in the case clearly points out to the fact that Sri.George EP No.7/16 -:52:- Joseph was only permitted to operate the Bank account and he was not a joint account holder. Since he was not a joint account holder, there was no necessity for the 1st respondent to disclose the said fact in the affidavit filed before the Returning Officer. Having found that there is no evidence to indicate that Sri.George Joseph was a joint account holder, there is no reason to consider the question whether such non disclosure has materially affected the election of the returned candidate. Therefore, it has to be found that the petitioner has failed to prove the ingredients of Section 100(1)(d)(i) and (iv).
28. The next allegation is with reference to publication and distribution of Exts.A1 and A2. Ext.A1 is a pamphlet published by an organization by name Akhila Malankara Orthodox Almaya Vedi. The allegation is that the above pamphlets were circulated among the parish members of St.Mary's Orthodox Valiyapalli, Ullannur and St.Mary's Orthodox Church, Othera. Ext.A2 is a photograph of the returned candidate obtained from the facebook account of petitioner, which shows that she is delivering a speech on a EP No.7/16 -:53:- podium used by the priest of a Church. According to the petitioner, the photograph shows that there is a holy cross, holy bible and other religious book on the table beside her. Petitioner also has a case that a complaint has been submitted to the District Election Officer regarding the aforesaid fact which is produced as Ext.A5 for which the election agent of the returned candidate has submitted an explanation dated 12/5/2016 which is produced as Ext.A6. The contention of the petitioner is that by such publication of the pamphlet and photograph, the intention was to seek vote on the basis of religion. As per Section 100(1)(b) of the RP Act, if the High Court is of opinion that any corrupt practice has been committed by a returned candidate or his election agent, or by any other person with the consent of a returned candidate or his election agent, the election can be declared to be void. Corrupt practices is defined under Section 123 and section 123(3) reads as under:-
"123. Corrupt Practices- The following shall be deemed to be corrupt practices for the purposes of EP No.7/16 -:54:- this Act-
(1) xxx
(2) xxxx
(3) The 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, race, caste, community or language or the use of, or appeal to, religious symbols or the use of, or appeal to, national symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate."
To substantiate the above contention, petitioner placed reliance upon the evidence of AW1, AW2 and AW3. Before proceeding further, it will be useful to understand the nature of evidence that might be required in such cases. It is settled law and as held by the Constitution Bench In Abhiram Singh (supra) that an appeal in the name of religion, race, caste community or language is forbidden and would amount to a corrupt practice. However, as held in M.J.Jacob (supra), it has to be considered whether the publication made by the candidate amounts to a corrupt practice EP No.7/16 -:55:- warranting declaration of the election result as void. In Tukaram S. Dighole (supra), it was held that the corrupt practices has to be proved not on a mere preponderance of probability. Normally, there is a presumption of innocence available to a person and the charge has to be proved to the hilt, the standard of proof being the same as in a criminal case. In Kalyan Kumar Gogoi (supra), the Apex court cautioned the danger in considering hearsay evidence and it is held that standard of proof to be adopted would be proof beyond reasonable doubt. In Narender Singh (supra), Apex Court held that if the evidence adduced is capable of drawing an inference either way, the view that is favourable to the returned candidate will have to be preferred. The oral testimony in favour of one or the other party will have to be critically examined before arriving at a finding. In Dr.Vimal (supra) it was held that unless and until the evidence is absolutely credible and positive, and can stand the test of scrupulous scrutiny and would lead to one irresistible conclusion, and unimpeachable result, that the corrupt practice had been EP No.7/16 -:56:- committed, the court should desist from making any finding on corrupt practice. On these principles, the evidence on record has to be evaluated.
29. In the nature of pleadings, initially it has to be considered whether 1st respondent is responsible for Exts.A1, A2, A5(a) and A5(b). Ext.A1 is a bulletin published by an organisation by name Almaya Vedi. Petitioner could not adduce any evidence to connect Almaya Vedi with the petitioner other than contending that the said organisation also supported the Sabha. Ext.A2 is a photograph of the 1st respondent obtained by the petitioner from facebook. The picture would show that there is a cross and a candle. Picture was taken inside a church. According to the respondent, the photograph was taken at Baharin much prior to the date of declaration of election and the photo was posted in the facebook account of a person by name Siju, followed by another person Koshy Oommen (RW1). There is no evidence to indicate that the 1st respondent had posted the said photograph. Apparently petitioner is not sure that the 1st respondent has EP No.7/16 -:57:- posted the said photograph as he contends that, it is with her consent that Sri.Koshy Oommen has posted A2 along with A5(a) and A5(b). Sri.Koshy Oommen is examined as RW1. According to him, he did not know the 1st respondent personally. He knows her husband. He knew the 1st respondent as a news reader. He deposed that facebook account in his name is used by all his family members. The photograph appeared in the facebook during March, 2016. He had not exhibited the photo in the facebook. Later he found that the photograph was available in the facebook. According to him, his children might have put the photograph in the facebook account and he does not know for what purpose. In cross examination, he says that he is the managing committee member of Kottarakkara Punalur Diocese which comes under Orthodox Sabha. His evidence does not indicate in any manner that he had posted those photographs with the consent of the candidate. In the absence of any evidence to connect 1st respondent with publication of A2, A5(a) and A5(b) in the facebook, it has to be assumed that posting of those EP No.7/16 -:58:- photographs in the facebook is not by her or with her consent. As far as Ext.A1 is concerned, it is a publication which indicates that the ruling Government was acting against the interest of Malankara Sabha. They have made a request to the believers to decide whether Malankara sabha should suffer the victimization for another five years. According to them, they do not want any illegal favours from Oommen Chandy (the Chief Minister) or from any one and the request is made for the persons of Malankara Christians to use the mandate for the sabha. Apparently, nothing is stated regarding the candidature of the 1st respondent in Ext.A1 nor there is a call for voting in favour of the 1st respondent. The crux of the article is that the Congress ministry which was the ruling front had acted against the interest of the Sabha and therefore they should not vote for the Congress.
30. The corrupt practice pleaded is on the basis that copies of Ext.A1 bulletin was being circulated by the first respondent and certain others along with Ext.A2 photograph. Ext.A2 is a photograph of the 1st respondent taken from the facebook of EP No.7/16 -:59:- AW2. As already indicated the photograph shows that the first respondent was delivering a speech by the side of certain books and a cross. Only a portion of the cross is visible. The contention of the petitioner is that as held by the Apex Court in Ramanbhai Ashabhai Patel (supra), cross is a symbol connected with Christianity. I have already opined that the said judgment cannot be taken as a decision on whether cross is a symbol of Christianity or not. But in general parlance, cross is considered to be a symbol of Christianity which alone has been stated by the Apex Court. Learned counsel for 2nd respondent submits that there are different types of crosses all over the world and therefore merely because a portion of the cross is seen in the photograph does not indicate that the request is made to vote on the ground of religion. As already stated there is no material in the case to indicate that 1st respondent had posted the photograph in her facebook account as alleged by the petitioner. Therefore, it is not possible to conclude that the photograph was posted by the 1st respondent for the purpose of election. In her evidence, RW3 has EP No.7/16 -:60:- clearly stated that she has not posted the photograph. Even otherwise, a photograph showing a candle and a cross by itself would not indicate that the 1st respondent was asking for vote on the ground of religious sentiments.
31. Question would be whether A1 and A2 were distributed by the 1st respondent as alleged by the petitioner. It is argued that even if a single appeal is made to vote on the ground of religion, the same would result in corrupt practice. Reference is made to the judgment in Dr.Ramesh Yeshwant Prabhoo v. Prabhakar Kashinath Kunte and others [(1996) 1 SCC 130]. In Ismail v. P.C.Thomas and others (2006 (4) KLT 831) the election was held as void on account of the corrupt practice in requesting for vote on the ground of community and religion. Two witnesses were examined to prove the said fact, AW1 Sri.Joseph K.M. and AW3 Sri.V.P.Babu. The cross examination of these witnesses would reveal that they are closely associated with the opposite faction. In the chief examination they deposed that the 1st respondent and her husband along with a few other persons EP No.7/16 -:61:- had come to the church and demanded vote by stating that they are members of the Sabha and therefore the other Sabha members should vote for them. This fact is disputed by the 1st respondent by examining herself as a witness as RW3 and a person at Ullannur, RW2. According to the 1st respondent if she had asked for vote as a member of Malankara Sabha it would have been to her disadvantage. In her evidence she had stated that she was a member of Students Federation of India (SFI) during her college days. After studies, she was working as a Journalist and she is well known on account of the fact that she had been a news reader in Kairali channel, Manorama news, India Vision, Reporter channel etc. Therefore, people in the locality knows her as a journalist and also as a person associated with LDF. According to her, if she campaigned as if she is a member of the Sabha, she would not have won the election, since majority of the voters in the constituency are from the major community. To prove the above contention, the petitioner examined only two persons who were admittedly showing allegiance to Congress EP No.7/16 -:62:- party which was the next rival defeated candidate. Their evidence can only be treated as an interested version. Respondent as RW3 and her husband who was examined on the side of the petitioner as AW5 had stated that on the previous day of election, they did not go to Othera or Ullannur church, whereas they had gone to Angadikkal St.George Church which is their parish church and about 2 kms from their house. AW5 has further stated that it was a Pentecost day and he was in the church along with his wife from 7.30 a.m to 11.30 a.m. Though the statement has been given by AW5 in cross examination, he is a witness summoned from the side of the petitioner and therefore his evidence has to be taken for granted when compared with the evidence given by AW1 and AW3. The Apex Court in Birbal Singh (supra) has held that interested witnesses are not necessarily false witnesses though they may have a personal interest in the matter. Therefore, their evidence should be closely scrutinized and the evidence could be either rejected or the Court can look for corroboration from an independent source. On analysis of their evidence, as already EP No.7/16 -:63:- indicated that they are members of the Congress party, and even in their evidence it is stated that several other persons who are non Congress persons were also present in the premises of the respective Churches. No such independent witnesses are examined. AW1 and AW3 had given evidence stating that they were present in the respective Churches and immediately after 1st respondent and their group left the church, they gave the information to AW2. According to AW2, the petitioner, his knowledge is based on the information given by AW1 and AW3. The question to be considered is whether Exts.A1 and A2 were published by the 1st respondent or any person with her consent. On an appreciation of the entire evidence on record, I am of the view that the evidence of AW1 and AW3 cannot be accepted in the absence of any corroborative evidence from at least some independent witnesses. As far as AW2, petitioner is concerned, he has even submitted before Court that he is unable to disclose the source of information he received in regard to the bank statement of the 1st respondent's spouse. Unless it is found by EP No.7/16 -:64:- this Court that there was a publication of Exts.A1 and A2 by the 1st respondent, it may not be possible to arrive at a finding that she had asked for vote on the basis of religion. In fact the 1st respondent had even examined a witness RW2 who says that he was present in the Church and the 1st respondent or her husband had not come there during the relevant time. Therefore, I am of the view that evidence is lacking in the case to arrive at a conclusion that Exts.A1 and A2 were distributed by the 1st respondent or by any person with her consent. Therefore the allegation that the 1st respondent had asked for votes on the basis of religion is totally unfounded. Further, the Supreme Court has given sufficient caution in the matter relating to declaring an election void. In M.J.Jacob (supra) and Kalyan Kumar Gogoi (supra), Apex Court had indicated that the basic principle in law relating to election and election petitions is that the mandate of the people as expressed in the election results should ordinarily be respected by Courts and the election of a successful candidate should not be lightly set aside. In Tukaram S. Dighole (supra), it EP No.7/16 -:65:- is held that there would be a presumption of innocence available to a person charged for corrupt practice and the charge have to be proved to the hilt, the standard of proof being same as in a criminal trial. An overall consideration of facts arising in the case does not lead to the conclusion that the 1st respondent, her agent or her spouse along with the members of her faction had distributed Exts.A1 or A2 in the church as contended. There is reason to believe the version of the 1st respondent.
32. That apart there is no evidence to prove the fact that the result of the election, in so far as it concerns the returned candidate, has been materially affected on account of the alleged improper acceptance of nomination, or by any corrupt practice.
33. Though learned counsel for the 1st respondent had raised certain contentions on the format of the relief prayed for and the manner in which documents were attested, having regard to the fact that I have already decided the case on merits, there is no necessity to consider the said contentions. EP No.7/16 -:66:-
34. Under such circumstances, I do not think that the petitioner has made out a case for interference by this Court in the Election Petition. Accordingly, the issue raised is found against the petitioner.
The election petition is hence dismissed. However, in the circumstances of the case, without any costs.
Sd/-
A.M. SHAFFIQUE, JUDGE Rp/jsr //True copy// PS to Judge