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2009 DIGILAW 498 (KER)

Umesh Challiyil v. K. P. Rajendran

2009-06-17

THOTTATHIL B.RADHAKRISHNAN

body2009
Judgment : 1. Petitioner challenges the election of the respondent as a Member of the Kerala Legislative Assembly from No.67, Kodungalloor Assembly Constituency, the polling for which was held on 29-4-2006. The results were declared on 11-5-2006. The respondent, the returned candidate polled 53197 votes while the petitioner polled 50675 votes. The respondent K.P. Rajendran, thus, won by a margin of 2522 votes over the petitioner Umesh Challiyil. 2. The election of the respondent is challenged on the ground that he and his election agent and other agents, with the consent and knowledge of the election agent, published leaflets, posters etc. touching the personal character of the petitioner, the contents of which are false and false to the knowledge of the persons who made and published them. The allegations are made on the premise that the respondent is guilty of corrupt practice in terms of section 123(4) of the Representation of the People Act, 1951, hereinafter referred to as the "Act". 3. The petitioner alleges that Ext. P-1 notice with the caption "within five years of Umesh Challiyil 's Rule itself Kodungalloor Town is in the grip of goondas and attackers", was published in the name of "Janapaksham and that there is no entity by such name. It is alleged that Ext. P-1 leaflet was distributed by Sasi, an active worker of LDF, who was a polling agent of the respondent in Mathilakam area. That leaflet was allegedly delivered to Thajudeen and other voters, Sasi along with Ajayan (R. W. 3) is alleged to have distributed Ext. P-1 pamphlet to Sajesh (P.W. 3) and Mohan, among others. It is alleged that such publication and distribution of Ext. P-1 was with the consent, knowledge and active participation of R. W.1, the election agent of the respondent and it was he who deputed them for election work. A complaint in relation to the publication of Ext. P-1 was lodged with the Election Observer and consequently, Ext. P-4 F.I.R. was registered. It is pleaded that the contents of Ext. P-1 and its publication amount to corrupt practices falling within section 123(4). 4. The next contention of the petitioner is that Ext. P-2 with the caption "Umesh Stories" (Umesh Kadhakal) was published in the name of Samskaara Prasidheekarana Samithi, also a fake organisation. It is contended that Ext. P-4 F.I.R. was registered. It is pleaded that the contents of Ext. P-1 and its publication amount to corrupt practices falling within section 123(4). 4. The next contention of the petitioner is that Ext. P-2 with the caption "Umesh Stories" (Umesh Kadhakal) was published in the name of Samskaara Prasidheekarana Samithi, also a fake organisation. It is contended that Ext. P-2 contains spurious attack on the personal character of the petitioner accusing him of getting drunk and lying under a banyan tree near the Civil Station and that the name of the petitioner has been shown as that person in Column No. 4 of that leaflet. It is alleged that Column No. 5 of Ext. P-2 contains reference to the petitioner speaking in a public meeting, drunk. In Column No. 8 of Ext. P-2, there is accusation of the petitioner offering money and liquor to voters, it is contended. The allegation is that the said leaflet prepared in D.T.P. was distributed in different areas of Kodungalloor Constituency and in Methala area. It is pleaded that on 26-4-2006 at about 4 p.m. one Purushothaman distributed it near an STD booth at Vayalambam in Methala Panchayat. It is alleged that the said Purushothaman was a polling agent of the respondent and therefore, the distribution was done with the consent and knowledge of R.W 1, the election agent of the respondent. It is alleged that Ext. P-2 was received byP.W. 5, Jagadeesan and that R.W. 1, the election agent of the respondent was mainly instrumental in printing and publishing Ext. P-2. It is also alleged that the allegations in Ext. P-2 are made in relation to the personal character and conduct of the petitioner, unrelated to his political activities and that the respondent's election agent R.W 1 and other agents of the respondent knew that the statements contained in Ext. P-2 are false. It is further alleged that the said notice was sent by post by the LDF workers at the behest of R.W. 1, the election agent of the respondent and one Kumara Kurup had obtained it through post as per Ext. P-5 postal cover. 5. The petitioner has further pleaded that a poster with the caption "Mandane Veno, Manthriye veno" (Need, a Fool or Minister) with big size photograph of the petitioner printed underneath, was erected in different parts of the constituency. Ext. P-3 is a photograph showing that. P-5 postal cover. 5. The petitioner has further pleaded that a poster with the caption "Mandane Veno, Manthriye veno" (Need, a Fool or Minister) with big size photograph of the petitioner printed underneath, was erected in different parts of the constituency. Ext. P-3 is a photograph showing that. It is alleged that one such poster was put up at 11 a.m. on 25-4-2006 by salu, s/o. P.A.Gopi, who is the Municipal Chairman of Kodungalloor, belonging to the Communist Party of India along with LDF workers, including Sri C.K. Gopalakrishnan, who was also a polling agent of the respondent. It is alleged that the said poster was put up in chappara in front of the house of P.A. Gopi, along with the printed posters of the respondent. The said poster was also allegedly put up in Eriyad area of the constituency by Pradeep, an active LDF worker and an agent of the respondent in connection with the election. The putting up of the poster by salu and Gopalakrishnan was allegedly witnessed by Lohithakshan and the putting up of the poster in Eriyad Panchayat by Pradeep was witnessed by Kunju Moideen and such poster was put up by Majeed in Thiruvallur junction and that such act of Majeed was witnessed by Unnikrishnan (P. W. 9). It is alleged that Majeed was working as an agent of the respondent in connection with the election. It is contended that Ext. P-3 poster contains personal reference about the conduct and character of the petitioner and describes him as a fool, which is an attack on his personal character and that his photograph is also printed with the poster. 6. In his written statement, the respondent has denied the allegations against him and his election agent and has contended that the entire propaganda materials for the respondent (LDF candidate) were published by R.W 1, his election agent on behalf of the LDF Election Committee and his name is shown as the printer and publisher in such notices. It is pleaded that no such notice or other material contains any personal allegation against the petitioner and that the respondent or his election agents had never depicted the petitioner as a drunkard or a person indulging in undesirable activities. It is pleaded that no such notice or other material contains any personal allegation against the petitioner and that the respondent or his election agents had never depicted the petitioner as a drunkard or a person indulging in undesirable activities. It is specifically contended that only a photograph of the alleged poster, "want a fool or a Minister", is produced and the same is devoid of any evidentiary value and credibility worth acceptance. The respondent, apart from denying the allegations regarding the alleged publications, has specifically contended that the respondent or his agents never attacked the personal character of the petitioner, who is a friend of the respondent and both of them were members of the 11th Kerala Assembly during 2001-2006 and that they maintained a cordial relationship. The respondent has asserted that he does not have any malice towards the petitioner. It is specifically contended that it is learnt that the petitioner has many rivals, adversaries and enemies in and around Kodungalloor and if at all any of them has resorted to mud-slinging against the petitioner, the respondent is, in no way, responsible for the same. 7. Following the order of remit made by the Hon'ble Supreme Court of India, setting aside the order rejecting this election petition and after completion of pleadings, the learned counsel appearing on both sides were heard on the question of settlement of issues. The following issues were settled for trial: (i) Did the election agent of the respondent or workers, with the knowledge and consent of the said election agent, publish false statements in relation to the personal character and conduct of the petitioner, reasonably calculated to prejudice the prospect of the petitioner's election, as pleaded in the Election Petition? If so, do those publications fall within the purview of section 123 (4) of the Representation of the People Act, 1951? (ii) Do Annexures C and D leaflets contain allegations of a personal character as regards the petitioner? If so, are they false? Were such leaflets distributed by the election agent or other agents and workers of the respondent? (iii) Were posters, as stated in para 4 of the election petition, put up or erected by the election agent of the respondent or by agents or workers of the respondent, with the consent of the respondent's election agent? If so, are they false? Were such leaflets distributed by the election agent or other agents and workers of the respondent? (iii) Were posters, as stated in para 4 of the election petition, put up or erected by the election agent of the respondent or by agents or workers of the respondent, with the consent of the respondent's election agent? (iv) Was any notice published by aanapaksham distributed by the active workers of the Left Democratic Front, including a polling agent of the respondent, with the consent and knowledge of the election agent of the respondent? (v) Was Annexure A leaflet published by the agents and activists of the first respondent with knowledge and consent of the election agent of the respondent? (vi) Did the election agent of the respondent or any person acting with his consent and knowledge, send printed material containing false allegations against the petitioner, through Annexure E cover, to the voters? (vii) Is the election agent of the respondent or any other person acting with his consent and knowledge, guilty of corrupt practices in terms of section 123 (4) of the Representation of the People Act, 1951? (viii) Is the election of the respondent liable to be set aside as pleaded in the election petition? (ix) Order and costs. 8. Annexure C is Ext. P-1, the leaflet with the caption "within five years of Umesh Challiyil's Rule itself Kodungalloor Town is in the grip of goondas and attackers". Annexure D is Ext. P-2 pamphlet with the caption "Umesh Stories". Annexure A is Ext. P-3 photograph showing, among other things, a poster which is stated to be with the caption "want a fool or a Minister". 9. Apart from Exts. P-1 to P-3 referred to above, Ext. P-4 FIR and Ext. P-5 postal cover, Exts. P-7 and P-8 files are produced by the officials. Ext. P-9 is an information given under the Right to Information Act. During the course of proceedings, a mini digital video cassette was produced. That is marked as Ext. P-6. On a commission issued by the Court, the said version has been copied into a DV disc and retained in safe custody of this Court. Ext. R-1 is the certified copy of judgment in C.C. 489/2006 of the Court of the JMFC, Kodungalloor. Exts. R-2 and R-3, as also Exts. P-10 to P-12 are newspapers of different dates. 10. P-6. On a commission issued by the Court, the said version has been copied into a DV disc and retained in safe custody of this Court. Ext. R-1 is the certified copy of judgment in C.C. 489/2006 of the Court of the JMFC, Kodungalloor. Exts. R-2 and R-3, as also Exts. P-10 to P-12 are newspapers of different dates. 10. The petitioner and his election agent deposed as P.W. 1 and P.W. 2 respectively and the election agent of the respondent was examined as R.W. 1, while the respondent did not testify before court. P.W. 8 is the election observer appointed by the Election Commission, P.W. 7 was the Returning officer and P.W. 11 was the Assistant Returning Officer. P.W. 3 Sajesh, P.W. 4Ajithan, P.W 5 Jagadeesan, P.W. 6 Lai, P.W. 9 Unnikrishnan and P.W. 10 Muraleedharan (C.I. of Police), R.W. 2 K.M. Mohammed Navas, Secretary of Lokamaleswaram LDF Local Election Committee, R.W. 3 Ajayan and R.W. 4 Majeed were examined. 11. Learned Senior Counsel for the petitioner argued, among other things, that Ext. P-1, Ext. P-2 and the presentation of a poster with the heading "Mandane veno, Manthriye veno" (want a fool or a Minister) are materials which amount to statements affecting the personal conduct of the petitioner and that the materials on record show that the petitioner has been able to prove that Exts. P-1 and P-2 were distributed by R.W. 1, the election agent of the respondent or other agent. Referring to various materials on record, it was pointed out that there is legal evidence in proof of such distribution. It was also pointed out that Ext. P-6 videograph corroborated by P.W. 6, who took that videograph and the other attendant evidence and circumstances clearly show that the respondent had utilised Exts. P-1 and P-2 shown to be printed by Janapaksham, in connection with his election work. It is argued that the margin of 2522 votes by which the respondent won over the petitioner would never have happened but for the use of materials like Exts. P-1 and P-2 and scandalous remarks affecting the personal character of the petitioner being made by the respondent's election agent and other agents and workers in the election campaign. 12. It is argued that the margin of 2522 votes by which the respondent won over the petitioner would never have happened but for the use of materials like Exts. P-1 and P-2 and scandalous remarks affecting the personal character of the petitioner being made by the respondent's election agent and other agents and workers in the election campaign. 12. On the question of burden of proof and evidentiary value of materials, the learned Cenior Counsel for the petitioner referred to the decisions in Sheopal Singh v. Ram Pratap (A.I.R. 1965 S.C. 677), Nepal Chandra Roy v. Netai Chandra Das & Others [1971 (3) S.C.C. 303], Harasingh Chavan Mohanty v. Surendra Mohanty [(1974) 3 S.C.C. 680], Samant N.Balakrishna v. George Fernandez (A.I.R. 1969 S.C. 1201) and Suryakant Venkatrao Mahadik v. Saroj Sandesh Naik [(1996) 1 S.C.C. 384]. 13. Per contra, the learned Senior Counsel appearing for the respondent argued that there were other candidates also in the fray and that there is no legal evidence of publication or distribution of Exts. P-1 and P-2 by the respondent, his election agent or any other agent or worker. Ext. P-6 videograph is criticised as a material which ought not to be acted upon in as much as the existence of such a videograph was not even pleaded in the election petition, though P.W. 6, the person who has allegedly taken that videograph, was friendly with the petitioner in as much as Ext. P-3 is stated to be a photograph taken by P.W. 6. It is argued that Ext. P-6 is of no evidentiary value and even if that material is relied on, it may only tend to show that the photograph occurring in Ext. R-2 newspaper report was widely used in the election campaign for the respondent. It was argued that the contents of Ext. P-1 do not amount to any allegation regarding the personal conduct and that there is no material of publication of Exts. P-1 and P-2. It is further pointed out that even if the caption "Mandane veno, Manthri ye veno" (want a fool or a Minister) in Ext. P-3 photograph was so placed, that could be treated either as a prank or it could also be considered as a comment regarding the conduct of the petitioner in the Assembly. P-1 and P-2. It is further pointed out that even if the caption "Mandane veno, Manthri ye veno" (want a fool or a Minister) in Ext. P-3 photograph was so placed, that could be treated either as a prank or it could also be considered as a comment regarding the conduct of the petitioner in the Assembly. The learned Senior Counsel for the respondent relied on the decision in Birbal Singh v. Kedar Nath (A.I.R. 1977 S.C. 1), on the question of appreciation of evidence of witnesses who may be apparently interested and the decision in Kanhaiyalal v. Mannalal (A.I.R. 1976 S.C. 1886), to show that corroboration should be found by contemporaneous independent documentary evidence. 14. Issue Nos. ii and iv. --These issues relate to the contents of Exts. P-1 and P-2 and as to whether the allegations therein relate to the personal character of the petitioner; and if so, whether they are false and as to whether Exts. P-1 and P-2 were distributed by R.W. 1, the election agent of the respondent or other agents and workers of the respondent. 15. Before going into the contents of Exts. P-1 and P-2, the evidence on the question whether any publication and distribution of those materials could be attributed to the respondent or his election agent, other agents or workers, needs to be considered. In his affidavit, the election petitioner, as P.W. 1, has stated that R.W. 1 and other agents of the respondent and his workers were engaged in a campaign of personal calumny against the petitioner by publishing various false statements in relation to his personal character and conduct with the object of prejudicing his prospects in the election and most of the publications made by R.W. 1 and distributed through the agents and workers of the respondent at the instance of R.W 1 and with his full knowledge and consent related to the personal conduct of the petitioner, by making personal allegations against him which are all false and which the respondent and R.W. 1, the election agent knew to be false. He stated that R.W 2 Mohammed Navas, an advocate and an office-bearer of local committee of the CPI, an agent of the respondent, reached near Modern Hospital in Kodungalloor town at about 10 a.m. on 22-4-2006, along with R.W. 1., the election agent, in an ash coloured Maruthi Zen Car No. TN 37V-8003, belonging to R.W 2 Mohammed Navas and they distributed some leaflets in the various shops in the nearby area and this was informed to the petitioner by F.W. 4 Ajithan who runs a stationery store near Modern Hospital, who received the pamphlet like many others. Exts. P-1 and P-2 are stated to be those pamphlets. 16. Ext. P-7(d) forming part of P.W. 8, Election Observer's file, is a complaint by the Chairman of the Election Committee of the petitioner. That complaint dated 22-4-2006 is made with reference to two notices, one of which is Ext. P-1 and the other, a notice which is not relied on in this election petition. That and Ext. P-1 are shown in those documents as published by Janapaksham, by stating that unpalatable truths which have to be disclosed in connection with the election, are being brought out by Janapaksham. Even in his cross-examination, P.W. 1 states that it was P.W. 4 Ajithan, a CPI (ML) worker who gave copy of Ext. P-1 to him. He has further stated that it was P. W.4 who gave him Ext. P-2 and that Exts. P-1 and P-2 were not given to him by P.W. 4 at the same time and that the petitioner got Ext. P-2 only later on. He stated that he did not make any complaint on the basis of Ext. P-2 and the complaint was only in relation to Ext. P-1. He further stated that the complaint about Ext. P-1 was made to P.W. 8, the Election Observer as against a printing press and was not made against any person involved in the distribution of Ext. P-1. P.W. 4 Ajithan, who is stated to have received Ext. P-1 and handed it over to the petitioner, has stated in cross-examination that Exts. P-1 and P-2 were distributed on 22-4-2006 and he felt that they were defamatory and containing allegations affecting the personal character of the petitioner. He says that he was pained by reading it and that he handed over Exts. P-1 and P-2 to the petitioner on that day itself. P-1 and P-2 were distributed on 22-4-2006 and he felt that they were defamatory and containing allegations affecting the personal character of the petitioner. He says that he was pained by reading it and that he handed over Exts. P-1 and P-2 to the petitioner on that day itself. He stated that it was R.W. 1, the respondent's election agent, sivanandan, who gave notices to him and that R.W. 1 was accompanied by R.W. 2 Mohammed Navas. With the said assertive statements of P.W. 4 that Exts. P-1 and P-2 were received by him and on the very same day he passed on both those materials to the petitioner and because he states that he was pained by the contents of Exts. P-1 and P-2 which, according to him, contain allegations affecting the personal character of the petitioner, there is no reason to assume that P.W. 4, if the story is true, would not have told the petitioner the identity of the persons from whom P.W. 4 got Exts. P-1 and P-2. This is the naturally expected common course of human conduct. It is all the more so because, P.W. 4, going by a reading of his deposition, has strong political and other ideological convictions and is a person who has spoken about the particular teachings of Sree Narayana Guru against consumption of alcohol. He is also a person who is well versed in matters relating to election scenario. If P.W. 4's version is to be believed, the fact that a complaint was made as Ext. P-7(d) by the Chairman of the Election Committee of the petitioner to the Election Observer without making any complaint against the contents of Ext. P-2, is quite surprising. Beyond that is the fact that Ext. P-7 (d) complaint proceeds as if the printer and publisher of Ext. P-1 and the other document complained of, in Ext. P-7 remain anonymous. That was all the more the reason why the identity of the persons, who were distributing the pamphlets, was extremely relevant for any action on such a complaint. Yet, the petitioner or his election agent P.W. 2 who made Ext. P-7(d) complaint, did not state anything about the identity of either R.W. 1 or R.. W. 2 of having distributed at least Ext. P-1. In so far as Ext. P-2 is concerned, the petitioner as P.W. 1 insists that he did not get Exts. Yet, the petitioner or his election agent P.W. 2 who made Ext. P-7(d) complaint, did not state anything about the identity of either R.W. 1 or R.. W. 2 of having distributed at least Ext. P-1. In so far as Ext. P-2 is concerned, the petitioner as P.W. 1 insists that he did not get Exts. P-1 and P-2 together and that he got Ext. P-2 only later on. He denied the suggestion that he did not make any complaint about Ext. P-2 because he never get such a document. 17. The petitioner's election agent P.W. 2 does not speak of even having known about the distribution of the contents of Ext. P-2. He stated that Ext. P-1 was brought to the notice of the UDF workers, many of whom had told about it, though he does not recall anyone by name. He stated that Sivanandan was named in that complaint. However, Ext. P-7(d) does not contain any such accusation against R.W. 1 Sivanandan, the election agent of the respondent. P.W. 8, the Election Observer Sri Y .E. Kerure whom P.W. 1, the petitioner has described as a "rough and tough" person and one who would not budge, has stated that the file contains the allegations made during the course of election campaign. 18. Having received Ext. P-2, its contents being different accusations touching the personal character of the person referred to therein, if the petitioner had any complaint, it is reasonably expected that he would have complained about its publication particularly when that was relevant in relation to the election campaign. Ext. P-7(d) complaint relating to Ext. P-1 and another notice actually led to the raid of a printing press and a resultant complaint leading to a criminal case in which neither the respondent nor R.W. 1, his election agent or R.W. 2 on whom the distribution of Exts. P1 and P-2 is alleged, was arrayed as accused. 19. As regards the distribution of Exts. P-1 and P-2, P.W.2, the election agent of the petitioner stated that Ajithan (P. W. 4) had not given him any notice or pamphlet and that he does not know whether the case generated on the basis of Ext. P-20 ended in acquittal. He spoke only about having received Ext. P-I through certain workers of UDF, about whose identity he was not able to state. P-20 ended in acquittal. He spoke only about having received Ext. P-I through certain workers of UDF, about whose identity he was not able to state. He stated that R.W. 2 Mohammed Navas is an advocate and his father is an elderly senior person at the Bar. He also stated that he does not remember having any poster, notice or pamphlet published in the name of R.W. 2, the election agent of the respondent, carrying any statement affecting the personal character of the petitioner. He pleaded ignorance of the suggestion that R.W. 1 was previously a member of National Council of CPI, though he had understood that he was not an invitee to the National Council of CPI. 20. Other than the alleged distribution of Exts. P-1 and P-2 by R.W. 1 and R.W. 2 near Modern Hospital, the publication with the caption "Umesh Stories" (Ext. P-2) is stated by P.W. 1 in his proof affidavit as having been distributed by Purushothaman, a polling agent of the respondent and received by P.W. 5 Jagadeesan and Anilkumar and one Sri Kumara Kurup, who later died, is alleged to have received a notice in Ext. P-5 cover. P.W. 5 Jagadeesan states in his proof affidavit, among other things, that he saw Purushothaman, a polling agent of the respondent distributing Ext. P-2 leaflet and he received that leaflet from Purushothaman. He states that he had informed the petitioner about the leaflet and that he was engaged by the workmen of the petitioner to drive a Tata Indigo vehicle for distributing materials at the time of election campaign and that after receiving remuneration as a driver during the time of that election, he has no connection with the petitioner. In cross-examination he denied the suggestion that his father Padmanabhan was a dependent of the petitioner's father and he is a dependent of the petitioner. He stated that the vehicle driven by him was used for commuting workers and also for carrying materials to different booth areas in connection with the election work of the petitioner. It is stated by P.W. 5 that except when others were traveling with him, he carried the materials by himself and when he received Ext. P-2 he was alone and was sitting in a tea shop belonging to Thilakan. It is stated by P.W. 5 that except when others were traveling with him, he carried the materials by himself and when he received Ext. P-2 he was alone and was sitting in a tea shop belonging to Thilakan. He stated that the said notice was distributed to other persons in that tea shop, though he does not recall their names. He pleaded ignorance as to whether the notice was given to Thilakan, the owner of the tea shop. He stated that Purushothaman, who was allegedly distributing the posters, was the agent in the polling station in the JD Sabha building. He also stated that he does not know who is the election agent of the UDF candidate. He further stated that he does not personally know whether Anil had got Ext. P-2 notice. He stated in his proof affidavit that he obtained Ext. P-2 on 26-4-2006 in cross-examination, he stated that he handed over Ext. P-2 to the petitioner on the next day of his receiving it. Reverting to the proof affidavit of P.W. 1, the petitioner does not state that he obtained a copy of Ext. P-2 from P.W. 5 Jagadeesan. 21. Anil, who is also alleged to have received Ext. P-2 from near the STD booth in Methala Panchayat, is not examined. The statement of P.W. 1, the petitioner, that P.W. 5 had obtained Ext. P-2, is only hearsay. While P.W. 5 says that he handed over Ext. P2 to P.W. 1, the petitioner has not testified to that effect. P.W. 5 was a driver of a vehicle which was put to use exclusively in the election campaign of the petitioner. P.W. 5 stated that he obtained Ext. P-2 while sitting in a tea shop belonging to Thilakan. He states that it was distributed to other persons in the shop, though he does not know whether Thilakan, the owner of the tea shop was given a copy of it. P.W. 5 stated that he obtained Ext. P-2 while sitting in a tea shop belonging to Thilakan. He states that it was distributed to other persons in the shop, though he does not know whether Thilakan, the owner of the tea shop was given a copy of it. Obviously, therefore, there could have been different persons whose versions, if tendered, would fall for consideration for corrobration of the version of P.W. 5, whose identity by itself is not credit worthy to be wholly relied upon, having regard to his deep involvement in the election work for the petitioner, though as a paid driver and owing to absence of corroboration at least by Anil about whom even P.W. 5 states in his proof affidavit, which statement would be only hearsay. Having regard to the quality of the evidence required to sustain an allegation of a corrupt practice in relation to an election, I am not inclined to accept the testimony of P.W. 5 by itself, regarding the distribution of Ext. P-2 in Methala Panchayat. 22. In paragraph 5 of his proof affidavit, the petitioner as P.W. 1 stated that a notice was published in the name of Janapaksham, a fake organisation and it was distributed by Sasi, an active worker of the respondent and his polling agent. That notice was allegedly distributed by Sasi on 21-4-2006 at about 5.30 p.m. in the Mathilakam area and one Thajudeen is stated to have received it.'fhe said notice was allegedly distributed by Sasi and Ajayan at about 6 p.m. on the same day in Perinjanam area and one Sajesh is stated to have received those leaflets apart from various other voters. The petitioner states that such distribution was made with the full knowledge and consent of R.W. 1, the election agent of the respondent. There is no corroboration whatsoever touching these aspects. 23. Ajayan, who is alleged to be involved in the distribution of the leaflet at Perinjanam, was examined as R.W. 3. He gave evidence that he was the booth agent, in his proof affidavit, he stated that he had not distributed Ext. P-1 and he saw Ext. P-1 for the first time as annexed to the election petition. He specifically denied the allegation that Sasi had distributed Ext. P-1 notice in Perinjanam area and Sasi is a clerk in a service cooperative bank. P-1 and he saw Ext. P-1 for the first time as annexed to the election petition. He specifically denied the allegation that Sasi had distributed Ext. P-1 notice in Perinjanam area and Sasi is a clerk in a service cooperative bank. Both Sasi and Ajayan, going by proof affidavit of Ajayan, are active workers of C'PI(M). He stated that Sasi was part of the Mathilakam Local Committee while he, Ajayan belongs to Kottanml ulam Branch ofCPI(_M). He also denied the allegation that he and Sajesh have distributed Ext. P-1 notice. 24. Though there is no serious dispute that the contents of Ext. P-2 contain statements affecting the personal character of the person referred to therein, in view of the findings that the publication or distribution of Exts. P-1 and P-2 is not proved, as pleaded by the petitioner, the argument on behalf of the respondent that Ext. P-1 does not contain any allegation affecting the personal character but is, at the most, a criticism to the law and order situation of Kodungalloor during the term while the petitioner was the MLA, is not necessarily to be gone into. Ext. P-1 states that during the five years of the petitioner as MLA, Kodungalloor Town was in the grip of goondas. It proceeds to state that during that period the police was not only inactive but the Congress-men were afraid to go to the police station, even though the Home Department was being held by the Congress Party. It is stated therein that goondas and their leaders were in friendship with police and were engaging by them and the MLA (the petitioner) became their henchman. The use of the term "henchman" in that notice and the further statement that the petitioner was in the forefront to prevent the transfer of incompetent police officials from Kodungalloor are criticised as matters affecting the personal character of the petitioner. But, it needs to be noticed that when Ext. P-1 is read as a whole, the context and setting in which the word "henchman" is used and the accusation levelled against the petitioner were directly relatable to his public conduct as an MLA. It is only a criticism of the law and order scenario in Kodungalloor and the conduct of the petitioner as the MLA in that situation. P-1 is read as a whole, the context and setting in which the word "henchman" is used and the accusation levelled against the petitioner were directly relatable to his public conduct as an MLA. It is only a criticism of the law and order scenario in Kodungalloor and the conduct of the petitioner as the MLA in that situation. The truth or otherwise of those statements is irrelevant because, they do not contain any statement affecting the personal character. They are only matters affecting the political and social personality and conduct of the petitioner while an MLA. Therefore, Ext. P-1 is not a document which would fall within the provisions of Section 123(4) of the Act. 25. Incidentally, it needs to be noticed that on behalf of the petitioner it was argued on the basis of some of the visuals available in Ext. P-6 that the respondent's electioneering programmes had used notices published by Janapaksham, the so-called fake organisation. Notwithstanding the fact that there is serious doubt as to the admissibility of the said videograph material, there is really no legal evidence to hold that Exts. P-1 and P-2 shown to be published by the Janapaksham (going by the inscriptions in those documents), were utilised by the respondent or his election agent or other agents or workers. This needs to be viewed in this perspective because Ext. P-7(d), as already noticed, discloses that there were other notices by Janapaksham, which were complained of, by the petitioner or his election agent to the Election Observer, but not attributed to the respondent or his election agent or agents. 26. For the aforesaid reasons, it is held that it is not proved that Exts. P-1 and P-2 were published or distributed by the respondent or his election agent or other agents or workers. Hence, issues ii and iv are answered against the petitioner. 27. Issue No.vi : There is no legal evidence to hold that the respondent, his election agent or other agents or workers had sent any printed material containing false allegations against the petitioner through Annexure-E (Ext. P-5) cover to the voters. The credibility of Annexure-E cover does not inspire confidence. Hence, issues ii and iv are answered against the petitioner. 27. Issue No.vi : There is no legal evidence to hold that the respondent, his election agent or other agents or workers had sent any printed material containing false allegations against the petitioner through Annexure-E (Ext. P-5) cover to the voters. The credibility of Annexure-E cover does not inspire confidence. The custody of the said cover by the petitioner and production of the same by him along with the election petition with no source being pointed out, coupled with the fact that Sri Kumara Kurup, the addressee, is reported to be dead, do not inspire acceptance of that material. Issue No.vi is accordingly answered against the petitioner. 28. Issue Nos. iii and v: These issues relate to the alleged putting up of posters in the nature of that which is disclosed by Ext. P-3 photograph. On the basis of the materials on record, it could be noticed that a photostat of a newspaper report is printed out and is pasted in a larger piece along with notices of the election symbol of the respondent. Ext. P-3 photograph shows that such a material is shown strung among the election materials spread on behalf of the respondent in a particular place. P.W. 6, A.B.Lal states that he is a freelance photographer and had taken videographs and photographs, including Ext. P-3. The petitioner as P.W. 1 would trace the source of Ext. P-3 to the said witness. The respondent or his election agent R.W. 1 does not dispute that the string of notices seen in Ext. P-3 contain notices of the respondent, including his picture and also the picture of his symbol. It is shown to be in a public place. It would not be safe to assume that some body could have placed the allegedly incriminating piece, namely, the photostat of the newspaper report with a written-on heading "Mandane Veno, Manthriye Veno" (Want a fool or a minister) in between the election materials of the respondent. In the normal course, the agents and workers of the respondent would not permit such things to happen. Therefore, I may assume that what is shown in Ext. P-3 under the heading "want a fool or a minister" was available as shown in Ext. P-3. In the normal course, the agents and workers of the respondent would not permit such things to happen. Therefore, I may assume that what is shown in Ext. P-3 under the heading "want a fool or a minister" was available as shown in Ext. P-3. In fact, what has emerged in the depositions of different witnesses who have touched upon this aspect, is that the said piece, as seen in Ext. P-3, is an enlarged version of a photograph in Ext. R-2 newspaper (Desabhimani dated 4th February, 2006), which shows, admittedly, the election petitioner dozing off in the Assembly, while an M.L.A. It also shows another M.L.A. looking at the petitioner who, in the photograph, is relaxing in an inclined posture with the ear phones in place. The said photograph in Ext. R-2 newspaper goes with the caption disclosing that the said photograph was taken while the Governor was addressing the House. This photograph, if one were to go through Ext. P-6 videograph produced by the petitioner, was profusely utilised by printing out its enlarged version on flex boards and placing it at different locations throughout the constituency. The petitioner has no complaint about the contents of that photograph. He does not deny that photograph. He does not say that he did not sleep or that the said photograph is a manipulated one. At any rate, he does not make any such attribute on the respondent or his election agent or agents or workers. What, according to him, is incriminating, is that the said newspaper report was photostated out and presented with the caption "want a fool or a minister". The petitioner does not really challenge the newspaper reports or the statements touching those reports, that he was found sleeping off while the Governor was addressing the Assembly. The word "fool" is used to indicate one who is wanting in wisdom. If you call someone a fool, you are indicating that you think he is not at all sensible and shows a lack of good judgment. The word "fool" is used, mainly to describe an action or person that is not at all sensible and shows a lack of good judgment. (See Chambers's Twentieth Century Dictionary and Collins Cobuild English Dictionary). The contextual addressing or description of a person as a fool could be, essentially, a criticism or a sarcastic comment on the basis of a shown conduct. (See Chambers's Twentieth Century Dictionary and Collins Cobuild English Dictionary). The contextual addressing or description of a person as a fool could be, essentially, a criticism or a sarcastic comment on the basis of a shown conduct. It having been shown that the petitioner's photograph appeared in newspaper showing him dozing off in the State Assembly, that too, while the Governor was addressing the House, it could only be within the realms ofpennissible, fair but sarcastic criticism of a citizen, to describe such an M.L.A. as a fool. That criticism is not necessarily to indicate that the person criticised is a weak minded one. It only indicates that his conduct in the context which generated such a criticism is to be commented on, in that manner. Such sarcasm is available as part of the rights of the citizenry to express openly, freely and fairly about the conduct of a person, particularly a public man. In that view of the matter, the mere supply of the caption "Want a fool or a minister" (Mandane veno, Manthriye veno) to the photograph of Ext. R-2(a) newspaper report cannot be treated as a publication of any statement of fact in relation to the personal character or conduct of the candidate. That criticism is only a statement in telation to the public conduct of the petitioner who was, then, an elected member of the Kerala Legislative Assembly and it could be treated only as a public comment on the conduct of the petitioner in having slept in the Assembly, for, no one expects a Member of the Assembly to excuse himself from the proceedings by being present in the House, yet sleeping. For the aforesaid reasons, I do not find any ground to hold that Ext. P-3 discloses any corrupt practice as alleged. The issue is found against the petitioner. 29. Issue Nos.i, vii and viii: For the reasons and conclusions in the issues dealt with above, the answer to all these issues lies against the petitioner and it is held that the election of the respondent is not liable to be set aside on any ground pleaded in the election petition. These issues are answered accordingly. In the result, the election petition fails. The same is accordingly dismissed. No costs. These issues are answered accordingly. In the result, the election petition fails. The same is accordingly dismissed. No costs. The substance of this decision shall be communicated to the Election Commission and to the speaker of the Kerala Legislative Assembly as required by section 103 of the Act. An authentic copy of this order shall also be sent to the Election Commission as prescribed.