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2019 DIGILAW 57 (KER)

K. P. Mohammed v. Abdul Razak

2019-01-17

K.ABRAHAM MATHEW

body2019
JUDGMENT : Election to the 14th Kerala Legislative Assembly was held on 16.5.2016. The respondents contested the election from Koduvally Constituency. The first respondent was an independent candidate supported by the Left Democratic Front (LDF) and the second respondent was the candidate of the Indian Union Muslim League, a constituent of the United Democratic Front (UDF). The first respondent was declared elected by a margin of 573 votes. While he polled 61,033 votes, the second respondent polled 60,460 votes. The petitioners were two voters of the constituency. They challenge the election of the first respondent on the ground of corruption as defined in sub section of Section 123 of the Representation of the People Act, 1951 (hereinafter referred to as 'the Act'). 2. With the assistance of one N.K.Suresh, who was the counting agent of the first respondent and area committee member of the CPM, a constituent of the Left Democratic Front (LDF), the first respondent prepared a script containing false and baseless allegations against the second respondent on the basis of which he wanted to make a video programme to be exhibited at various places in the constituency. The first respondent and N.K.Suresh entrusted the script to one Mohammed Sinan. Accordingly, he made a video programme at Honey Bee Studio at Koduvally owned by one Shabeel. In the video programme a telephonic interview is shown to have been given by one Muhammed Easa. The subject matter of the interview was the character and conduct of the second respondent. The video programme consists of the speech of one Sulfikkar Elettil. The speech contains an allegation that there was a proposal to felicitate Muhammed Easa, who used to do many charity works in the constituency and the second respondent thwarted the attempt to organize the programme. This is false. In 1997-98 the local Panchayat extended financial help to the tune of Rs.35,000/- to one Puliyullathil Muhammed for construction of a house. Initially, he was paid only Rs.15,000/-. On the basis of the allegation that two employees of the Panchayat misappropriated the balance amount of Rs.20,000/-a case, C.C. No.29 of 2000, was filed in the court of the Judicial Magistrate of First Class-I, Thamarassery. Puliyullathil Muhammed, who was examined as PW1, testified that he had received the whole amount and he had no complaint against anyone. Accordingly, the two accused were acquitted on 31.8.2011. Puliyullathil Muhammed, who was examined as PW1, testified that he had received the whole amount and he had no complaint against anyone. Accordingly, the two accused were acquitted on 31.8.2011. The second respondent was the Panchayat Member from the locality in which Puliyullathil Muhammed was residing. In the video programme referred to above allegation was raised that the second respondent was guilty of misappropriation of the amount of Rs.20,000/-, which was payable to Puliyullathil Muhammed as the second instalment of the amount sanctioned to him. This is absolutely false. This video programme was screened on a television set installed in a vehicle at various centres in the constituency. It was at the instance and with the consent and knowledge of the first respondent the video programme was created and screened. The false allegations raised against the second respondent adversely affected his reputation, which resulted in his losing many votes. It is this corrupt practice that caused his defeat in the election. On these allegations the petitioners pray for setting aside the election of the first respondent and for declaration that the second respondent is the duly elected candidate. 3. The contentions in the written statement : The petitioners were not entitled to vote in the election held to the Koduvally constituency. They have no locus standi to file this petition. The requirements of Section 81, 82 and 117 of the Act have not been satisfied. There were defects in the petition at the time of its institution. The registry returned it to cure the defects. It was re-presented after the period prescribed for filing the Petition. So it is barred by Law of Limitation. Materials required to attract Section 100(1) and Section 101 of the Act are not pleaded. Full particulars of the allegations are not given in the petition. So Section 123 of the Act is not attracted. The affidavit filed along with the Petition is not proper. There is no proper verification of the Petition. The allegation that along with some others the first respondent prepared a script containing false and baseless allegations against the second respondent and on the basis of it a video was prepared and it was screened at various places in the constituency is false. There is no truth in the allegation that the first respondent had given consent to screen the alleged video at public places. 4. There is no truth in the allegation that the first respondent had given consent to screen the alleged video at public places. 4. This court framed the following issues for trial : 1. Whether the petition is maintainable? 2. Whether the petition is barred by limitation? 3. Whether the court has got power to return the petition to cure the defects and on such return of the petition if represented will extend the period of limitation to entertain the petition? 4. Whether the petition presented is in conformity with the mandatory provisions of Section 81, 82, 83 and 117 of the Representation of People Act? 5. Whether the copies served to the respondents are in conformity with the Provisions of Representation of People Act? 6. Whether the petition is liable to be rejected for noncompliance of the provisions of Representation of People Act in respect of documents to be supplied to the respondents? 7. Whether the petition is bad for non compliance of filing of affidavit as contemplated under Order 15(4) of the Code of Civil Procedure? 8. Whether the petitioners have locus standi to file the election petition? 9. Whether the averments in the petition disclose any cause of action to maintain the petition? 10. Whether the first respondent is responsible for the preparation and propagation of the video programme mentioned in the petition to tarnish the personal character of 2nd respondent and thereby committed undue influence on the voters? 11. Whether the video programme made based on the script was screened through out the constituency with the consent of the first respondent his authorised election agents? 12. Whether the first respondent or his election agents and others with the consent of the first respondent and his election agent committed corrupt practice as defined under Section 123(2) and 123(4) of Representation of People Act? 13. Whether the 2nd respondent would have been elected as return candidate but for the publication of the video programme with false propagation against the personal character of the 2nd respondent which influenced the voters against him and in favour of the first respondent? 14. Whether the election of the first respondent is liable to be set aside for any of the grounds mentioned in the election petition? 15. Whether the petitioners are entitled to relief to declare the 2nd respondent as return candidate from Koduvally constituency? 16. Reliefs and costs? 5. 14. Whether the election of the first respondent is liable to be set aside for any of the grounds mentioned in the election petition? 15. Whether the petitioners are entitled to relief to declare the 2nd respondent as return candidate from Koduvally constituency? 16. Reliefs and costs? 5. Issue Nos.1 to 7 were heard as preliminary issues. The findings on those issues were challenged in the Supreme court in Civil Appeal No.10863 of 2017. The appeal was dismissed. Thereafter, PW1 to PW20 were examined and Exhibits A1 to A14 and Exhibits X1 to X16(a) and MO1 to MO9 were marked on the part of the petitioners. Exhibits C1 series also were marked. (Exhibits A7 and A10 are one and the same document). RW1 was examined on the part of the first respondent; no documents or material objects were marked on his part. No evidence was adduced by the other respondents. Issue No.8: The first respondent contends that the petitioners have no locus standi to file the petition. The allegation that the petitioners were voters of the Koduvally constituency is specifically denied in his objection (written statement). The first petitioner was examined as PW1. He has deposed that he and the second respondent were voters of the Koduvally constituency; they are residents of Koduvally constituency. This stands unchallenged. Exhibits X12(a) and X13(a) are Voters' List relied on by them to prove that they were voters of the constituency. Learned counsel submits that the above documents cannot be acted upon since they are not certified copies. They were produced from the custody of the District Collector and marked through PW10 who was the returning officer of Koduvally constituency. There was no objection to their marking. Mode of proof of a document cannot be challenged unless its marking is objected to when it is tendered in evidence, which is the legal position settled by this court and the Supreme Court, the last decision being Sonu @ Amar v. State of Haryana ( AIR 2017 SC 3441 ). The unchallenged testimony of PW1 an Exhibits X12(a) and X13(a) prove that the petitioners were voters of Koduvally constituency. They have locus standi to file the Petition. The issue is found in favour of the petitioners. Issue No.9: The first respondent contends that the pleadings of the petitioners do not disclose any cause of action. The unchallenged testimony of PW1 an Exhibits X12(a) and X13(a) prove that the petitioners were voters of Koduvally constituency. They have locus standi to file the Petition. The issue is found in favour of the petitioners. Issue No.9: The first respondent contends that the pleadings of the petitioners do not disclose any cause of action. The cause of action alleged in the Election Petition is that the first respondent along with his agent published a statement which he believed to be false and it related to the personal character and conduct of the second respondent and it prejudiced the prospects of the latter. It is specifically alleged that at the instance of the first respondent a video was screened at different places in the constituency raising false allegations against the second respondent. 6. The corrupt practice alleged in the petition falls under sub section 4 of Section 123 of the Act, which is extracted below: “(4) The publication by a candidate or his agent or by any other person with the consent of a candidate or his election agent, of any statement of fact which is false, and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate or in relation to the candidature, or withdrawal, of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidate's election.” 7. The learned counsel for the first respondent submits that the facts stated in the election petition do not contain the particulars which should have been stated in it. He relies on the decisions of the Supreme Court in R.M. Seshadri v. C.Vasantha Pai and Others ( AIR 1969 SC 692 ), Azhar Hussain v. Rajiv Gandhi (1986 (Supp) SCC 315), Shivajirao B.Patil Kawekar v. Vilasrao D. Deshmukh (2000) 1 SCC 398 ) and M.Chandra v. M.Thangamuthu and Another (2010) 9 SCC 712 ). In the first decision the Supreme Court held that election petition should contain complete particulars of the allegation. In the second decision the court held that the material facts should be set out in the petition. In the third case the court held that full particulars of the allegations should be clear and precise. In the first decision the Supreme Court held that election petition should contain complete particulars of the allegation. In the second decision the court held that the material facts should be set out in the petition. In the third case the court held that full particulars of the allegations should be clear and precise. In the last case the court held that the election petition must clearly and unambiguously set out of the material facts which the petitioner relies on and it must reveal a clear and complete picture of the circumstances and should disclose a definite cause of action. 8. This court in Mohammed Riyas P.A. v. M.K.Raghavan and Others ( 2010 (2) KHC 539 ) has enumerated the allegations which should be stated in the pleadings to constitute corrupt practice as defined in Section 123(4) of the Act. This court held: (1) publication of a statement of fact by a candidate, or his agent or any other person with the consent of the candidate or his election agent (2) the statement of fact is false (3) the candidate believes it to be false or does not believe it to be true (4) the statement of fact is in relation to the personal character or conduct of any candidate or the candidature or withdrawal of any candidate, and (5) the statement is one reasonably calculated to prejudice the prospects of the other candidate's election. 9. As noted above, the allegation of the petitioners is that a video was screened at various places in the Koduvally constituency raising false allegations against the second respondent. The date on which and the time and the place at which the video was allegedly screened are disclosed in the petition. The circumstances are also disclosed. I do not find any merit in the contention that the particulars stated in the Election Petition are not complete or that material facts are not set out in it. Material facts which are necessary to attract Section 123(4) of the Act are disclosed in the Election Petition. 10. Learned counsel also has argued that the affidavit filed by the petitioners along with the Election Petition is not a proper one. Material facts which are necessary to attract Section 123(4) of the Act are disclosed in the Election Petition. 10. Learned counsel also has argued that the affidavit filed by the petitioners along with the Election Petition is not a proper one. The learned Senior Counsel appearing for the petitioners relies on the decision of the Supreme Court in G.M.Siddeshwar v. Prasanna Kumar (2013) 4 SCC 776 ) in support of his argument that the affidavit satisfies the requirements of the proviso to Section 83 (1) of the Act. The section provides that the election petition shall be accompanied by an affidavit in the prescribed form in support of the allegation of the corrupt practice and the particulars thereof. Form 25 is the Form of Affidavit prescribed by Rule 94(A) of the Rules framed under the Act. The affidavit filed by the petitioners satisfies the requirements of the above statutory provisions. The issue is found in favour of the petitioners. Issue Nos.10 to 14: These issues relate to the allegation of screening of a video containing false statements with regard to the character and conduct of the second respondent. They are so intertwined that it is convenient to consider them together. 11. The petitioners allege that from 10.5.2016 to 14.5.2016 a video containing false statements against the second respondent was screened at different places in the constituency; the screening was on a television set fixed in a vehicle owned and driven by PW17 Binumon. 12. A perusal of the Election petition shows that the substance of the false allegations contained in the video are: (a) The second respondent demanded bribe for sanctioning Plus Two batches in M.J. Higher Secondary School, Vattoli. (b) The second respondent thwarted the attempt of the people of the locality to facilitate a philanthropist by threatening him not to attend the function organised to facilitate him, and (c) The second respondent misappropriated a part of the fund allotted to PW16 Puliyullathil Muhammed for construction of a house. 13. The first petitioner who was examined as PW1 has no direct knowledge about the allegations contained in the Election Petition as to the screening of the video. 14. The petitioners rely on the testimony of PW2, PW4, PW5 and PW20 to prove that a video containing false statements against the second respondent was screened at different places in the constituency. 15. 14. The petitioners rely on the testimony of PW2, PW4, PW5 and PW20 to prove that a video containing false statements against the second respondent was screened at different places in the constituency. 15. PW2 is the General Secretary of the Muslim Youth League in Thamarassery Grama Panchayat. On 12.5.2016 at about 8.25 p.m. he saw a video being screened on a television set installed in the vehicle bearing registration No.KL 11 AK 9565 owned and driven by PW17 Binumon. On 12.5.2016 while he was returning home PW4 saw the video being screened at Vavad at 9.35 p.m. On 12.5.2016 at about 5 p.m., at Pullalloor PW5 saw the video being screened. On 12.5.2016 at Elettil Vattoli at about 6 p.m., PW20 saw the video being screened. The screening took place at public places. These facts are disclosed in the affidavit filed by the witnesses in lieu of their examination-in-chief. It is further disclosed in the affidavit that at every place there was a large crowd watching the screening of the video. 16. The evidence of PW2, PW4, PW5 and PW20 is substantially the same so far as the incident is concerned. In the video three characters appeared. They were PW13 N.K.Suresh, PW14 Sulfikar and PW16 Puliyullathil Muhammed. 17. It is the submission of the learned counsel for the first respondent that on the basis of the oral evidence the court shall not enter a finding in favour of the petitioners. So long as there is no law demanding proof of corrupt practice by documentary evidence the court cannot hold that oral evidence is not sufficient to prove the petitioners’ case. Section 59 of the Indian Evidence Act provides that all facts except the contents of documents or electronic records may be proved by oral evidence. According to the learned counsel for the first respondent an Election Petition is just like a criminal case and the burden of proof is on the petitioners and they should establish their case beyond reasonable doubt. He relies on the decision of the Supreme Court in R.M.Seshadri v. C. Vasantha Pai and Others ( AIR 1969 SC 692 ) N.C.Zeliang v. Aju Newmai and Others ( AIR 1981 SC 8 ) Ram Singh and Others v. Col. He relies on the decision of the Supreme Court in R.M.Seshadri v. C. Vasantha Pai and Others ( AIR 1969 SC 692 ) N.C.Zeliang v. Aju Newmai and Others ( AIR 1981 SC 8 ) Ram Singh and Others v. Col. Ram Singh ( AIR 1986 SC 3 ) Thakur Sen Negi v. Dev Raj Negi and Another ( AIR 1994 SC 2526 ) and Shivajirao B.Patil Kawekar v. Vilasrao D. Deshmukh (2000) 1 SCC 398 ) in support of his argument. In these decisions the Supreme Court held that an Election Petition is like a criminal case and the degree of proof required to establish the allegation of corruption is the same as in a criminal case. In M.Chandra v. M.Thangamuthu and Another (2010) 9 SCC 712 ) the Apex Court held that though it is not a criminal case it is no less than a criminal proceedings with regard to the proof required to be furnished to the court by the petitioner. In R.M. Seshadri v. C.Vasantha Pai and Others ( AIR 1969 SC 692 ) the Apex Court held that the respondent is entitled to benefit of doubt. 18. In Magraj Patodia v. R.K.Birla and Others ( 1970 (2) SCC 888 ) the Supreme Court held : “Suffice it to say that evidence must be cogent and conclusive. It is true that as observed in Dr.M.Chenna Reddy v. V.Ramachandra Rao and Another that a charge of corrupt practice cannot be equated to a criminal charge in all respects. While the accused in a criminal case can refuse to plead and decline to adduce evidence on his behalf and yet ask the prosecution to prove its case beyond reasonable doubt such is not the position in an election petition. But the fact remains that burden of proving the commission of corrupt practice pleaded is on the petitioner and he has to discharge that burden satisfactorily. In doing so he cannot depend on preponderance of probabilities. Courts do not set at naught the apparent verdict of the electorate except on good grounds.” 19. It is also the submission of the learned counsel for the first respondent that without corroboration evidence of the petitioners shall not be accepted. In doing so he cannot depend on preponderance of probabilities. Courts do not set at naught the apparent verdict of the electorate except on good grounds.” 19. It is also the submission of the learned counsel for the first respondent that without corroboration evidence of the petitioners shall not be accepted. For this proposition he relies on the decision of the Supreme Court in Thakur Sen Negi v. Dev Raj Negi and Another ( AIR 1994 SC 2526 ) and Joseph M.Puthussery v. T.S.John and Others (2011) 1 SCC 503 ). The same view has been taken by a learned single Judge of this court in Velayudhan Nair v. Ramakrishnan (1985 KHC 425). This is only a rule of caution administered by courts because of the nature of the the proceedings and the consequences which flow from its result. 20. The petitioners have produced mobile phones which are said to contain the video of the programme allegedly screened on the television set installed in the vehicle used by the first respondent for electioneering. 21. PW2 has deposed that he recorded screening of the video on his MO1 mobile phone at Andona. Admittedly, it is not seen in MO1 mobile phone at present. He has deposed that he deleted it 'for want of space'. The mobile phone was sent for expert opinion. Exhibit C1 is the report. The report says that the laboratory did not have the facility to retrieve the deleted contents (if any). So, as of now, MO1 is of no use to prove the allegation of the petitioners. 22. Another mobile phone produced by the petitioners to prove the screening of the video is MO2. PW2 claims that he transferred the video programme recorded on his MO1 mobile phone to MO2 mobile phone belonging to PW3 Abdul Raoof. Admittedly, it is not an original record. Learned counsel for the first respondent objected to the court's acting upon MO2 on the ground that it has not been proved in accordance with the provisions in Section 65B of the Indian Evidence Act. 23. Secondary evidence of the contents of a document is admissible only if the party proves existence of the original document. In this case there is no proof of existence of the original of the contents of MO2. So MO2 cannot be acted upon. 24. 23. Secondary evidence of the contents of a document is admissible only if the party proves existence of the original document. In this case there is no proof of existence of the original of the contents of MO2. So MO2 cannot be acted upon. 24. Yet another mobile phone produced by the petitioners to prove their case is MO4 belonging to PW4Shabeer Ali. He has deposed that he recorded the screening of the video programme at Vavad on his MO4 mobile phone. It was screened in the court. But the expert who examined the mobile phone did not see it in the mobile phone, the reason for which s not known. MO4 is of no use to prove the petitioners' case. 25. For the reasons stated above, MO1, MO2 and MO4 mobile phones do not serve any purpose. 26. According to the petitioners MO1 mobile phone was used also to record an interview PW5 Faisal had with PW17 Binumon, who was the owner and driver of the vehicle bearing registration No.KL 11 AK 9565 which was used for screening the video by the first respondent. In the interview PW17 Binumon allegedly admitted that the controversial video was made at Honey Bee Studio and it was screened on the television set, set up in his vehicle and that the contents of the video had been seen by the first respondent before it was screened in public. This cannot be used as a substantive evidence. The statement of PW17 recorded on MO1 mobile phone, which is at best a previous statement of his, can be used under Section 145 of the Indian Evidence Act for contradiction. PW17 Binumon denied making such a statement and the statement recorded in MO1 phone was used by the petitioners for contradiction. It will only prove that his testimony on this point cannot be accepted. That will not establish the allegation of corrupt practice. 27. PW5 has deposed that he had an interview with PW15 Mohammed Sinan also. The former claims to have recorded it in MO2 mobile phone. In the statement the latter allegedly admitted that consent of the first respondent had been obtained before the disputed video was screened in public and the first respondent congratulated him for making the video. The statement of PW15 also is not a substantive evidence since he is not a party to the proceedings. In the statement the latter allegedly admitted that consent of the first respondent had been obtained before the disputed video was screened in public and the first respondent congratulated him for making the video. The statement of PW15 also is not a substantive evidence since he is not a party to the proceedings. It also can be used only for contradiction under Section 145 of the Indian Evidence Act. PW15 denied having made such a statement and he was confronted with his previous statement recorded on the MO2 mobile phone. This will only prove that his evidence on this point cannot be acted upon. That will not prove the issue involved in the case. 28. There are some other pieces of evidence relied on by the petitioners to corroborate the oral evidence of PW2, PW4, PW5 and PW20 that the controversial video had been screened in public. One of such pieces is Exhibit X2 complaint filed by PW18 Aravindan, who was a worker of the United Democratic Front, the candidate of which was the second respondent. The complaint was filed before the Dy.S.P. Thamarasserry. His complaint was that an offending video was screened in public by the first respondent. Exhibit A10 is the receipt issued by the Dy.S.P. for the complaint, which was filed on the next day of the alleged date of screening of the video in public. Exhibit X2 proves that immediately after the alleged screening of the controversial video a complaint was lodged with regard to it. To some extent this probabilises the petitioners’ case that there was screening of a video of offending nature. It is immaterial that the police did not take any action or give the reasons for it. 29. In the controversial video there is a statement of PW16 Puliyullathil Muhammed, whose money was allegedly misappropriated by certain persons. The controversial video contains a conversation between him and PW13 N.K.Suresh, who was the Secretary of the Kizhakkoth Local Committee of CPI(M) which supported the candidature of the first respondent at the election. The controversial video showed that after PW16 stated that his money was misappropriated, PW13 N.K.Suresh said that it was misappropriated by a worker of the Muslim Youth League who 'assisted' the then ward member of the local panchayat. The controversial video showed that after PW16 stated that his money was misappropriated, PW13 N.K.Suresh said that it was misappropriated by a worker of the Muslim Youth League who 'assisted' the then ward member of the local panchayat. This was followed by the statement of PW16 Puliyullathil Muhammed that the person who misappropriated the money shall not win the election from that constituency. Then PW13 Suresh added that it was against the welfare of the people to elect the man who misappropriated Rs.20,000/- while he was a ward member of the panchayat and picked the pocket of the public as their representative. This clearly is a statement that the second respondent was the person who misappropriated the amount allotted to PW16 by the panchayat for construction of his house. It is not the case of the first respondent that the allegation is true. In other words, admittedly, the allegation is false. 30. PW13 and PW16 denied making the controversial statements. I have no doubt that PW13 N.K.Suresh is not a reliable witness. He has given false evidence. At the fag end of the cross-examination of PW16, he impliedly admitted making the controversial statement. His only case is that he was not aware that it was being recorded. This corroborates the evidence of PW2, PW4, PW5 and PW20 that the controversial statement was screened in public. Admission of PW16 goes a long way to establishing the allegation of the petitioners. 31. Yet another piece of evidence relied on by the petitioners to corroborate the evidence of PWs 2, 4, 5 and 20 is the evidence of the first respondent, who was examined as RW1. He denied the screening of the controversial video in pubic during his electioneering and his involvement in making such a video. The first respondent would say that a video was screened by him during his electioneering. But that was screened in family gatherings and the contents of it were the development works carried out by him. To the questions put to him in the cross-examination whether the video was exhibited on a screen fitted in the vehicle bearing No.KL 11 AK 9565 throughout Koduvally constituency from 10.5.2016 to 14.5.2016 there was no denial. He just pleaded ignorance. But later he admitted that the video was screened on a television set, set up in a vehicle in Koduvally town. He just pleaded ignorance. But later he admitted that the video was screened on a television set, set up in a vehicle in Koduvally town. He added that there were eight videos and they were made at Honey Bee Studio which belonged to PW19 Shabeel U.K. RW1 deposed that 'they' were screened with his permission. He further stated that to screen the videos he had obtained the permission of the Chief Electoral Officer. According to him the videos were in the custody of his agent Balakrishna Kurup. These videos have not been produced in the case. 32. The learned Senior Counsel appearing for the petitioners would submit that as the first respondent admitted screening video in a vehicle during his election campaign its production would have disproved the petitioners’ case and its non-production compels the court to draw an adverse inference against him. He would further submit that under Section 106 of the Evidence Act since the contents of the video which the first respondent claims to have screened is in special knowledge, the burden is on him to prove its contents. For this he relies on the decision of the Supreme Court in R.Puthunainar Alhithan and Others v. P.H.Pandian and Others (1996) 3 SCC 624 ), Vikramjit Singh @ Vicky v. State of Punjab (2006) 12 SCC 306 ) and Joseph M.Puthussery v. T.S.John and Others (2011) 1 SCC 503 ). 33. On the other hand, the learned counsel for the first respondent would submit that the initial burden on the petitioners is not shifted by the provision in Section 106 of the Indian Evidence Act. In support of this argument he relies on the decision of the Supreme Court in Vikramjit Singh @ Vicky v. State of Punjab (2006) 12 SCC 306 ) and Joydeb Patra and Others v. State of West Bengal (2014) 12 SCC 444 ). There is no controversy about it. Unless the petitioners have discharged the initial burden, Section 106 Indian Evidence Act is not applicable. The difference between Sections 101 and 106 Indian Evidence Act is that the former is applicable before the trial starts and the latter in the course of the trial. 34. Though RW1 stated that he had obtained the permission of the Chief Electoral Officer to screen his video it has not been produced. There is no evidence that such a permission was granted. 34. Though RW1 stated that he had obtained the permission of the Chief Electoral Officer to screen his video it has not been produced. There is no evidence that such a permission was granted. When he was asked in the cross-examination whether he could produce it, his response was that he would enquire about it. He admitted screening a video. His evidence that he had obtained the permission of the Chief Electoral Officer for screening it is false. It means that without getting the permission of the Chief Electoral Officer he had screened the video. If it was not an offending one, he would have certainly obtained the permission of the Chief Electoral officer. 35. In Kundan Lal Rallaram v. Custodian, Evacuee Property, Bombay ( AIR 1961 SC 1316 ) a three judge bench of the Supreme Court held that a party, who is in custody of a document which would prove his case, shall produce it notwithstanding the fact that he was not asked to produce it by the opposite party. Withholding such a piece of evidence on the theory of burden of proof compels the court to take an adverse inference against him. This was followed by the Supreme Court in M.S.Narayana Menon @ Mani v. State of Kerala and Another ( AIR 2006 SC 3366 ). The learned Senior Counsel is right in saying that an inference that if the video admitted screened by the first respondent had been produced, it would have been infavourable to him -flows from its non production by him. 36. Now the next question is whether there was consent of the first respondent to screen the controversial video. In the course of cross-examination he (RW1) admitted that he had seen the video which was screened during his election campaign before it was screened. It also came out in evidence that it was with his approval the video was screened. 37. PW13 N.K.Suresh who was the counting agent of the first respondent deposed that at all elections misappropriation of the fund allotted to PW16 Puliyullathil Muhammed for construction of a house was a topic of discussion. In other words, that was a topic of discussion at the election held in 2016. In his re-examination it was brought out that the discussion was about misappropriation of money by the employees of the panchayat. This can never be true. In other words, that was a topic of discussion at the election held in 2016. In his re-examination it was brought out that the discussion was about misappropriation of money by the employees of the panchayat. This can never be true. How misappropriation of money of PW16 by the employees of the Panchayat became relevant at the election in which none of them was involved? Suppression of true facts by PW13 is evident. He is not a trust worthy witness. He has given false evidence with the intention of helping the first respondent. 38. Only PW2 and PW4 saw the video in full. They have deposed that the first allegation in it was that the local Panchayat had made a request to minister Soopy, but it was rejected “because of the interference of a person who was office bearer of Koduvally Mandalam League and resident of Elettil Vattoli and who is a master.” The unchallenged testimony of PW1 proves that the second respondent was known by the name Razak Master. But the testimony of PW2 or PW4 does not disclose what the request was. For this reason this allegation cannot be held to be a false one or that it had significance. 39. In the video screened by the first respondent there was a background announcement in the form of a question “who demanded bribe for allotment of Plus Two batches to M.J.Higher Secondary School, Vattoli.” This was followed by a speech of PW14 Sulfikkar, who admittedly was a worker of CPI(M), a constituent of the Left Democratic Front. The testimony of PW14 indicates that he is seen in the controversial video. He pretended that he did not know how it happened to be recorded. When it was suggested to him that the controversial video was screened during the election campaign of the first respondent, there was no denial. His response was that he did not see it. He stated that no video was screened in a vehicle used by the first respondent for electioneering, but one video showing the “activities of the first respondent while he was President of the Block Panchayat” was screened at 'family gatherings'. This has been proved false by the evidence of the first respondent himself, (RW1) who admitted that a video was screened at Koduvally on a television set fixed in a vehicle. I have no doubt that the evidence of PW14 is false. This has been proved false by the evidence of the first respondent himself, (RW1) who admitted that a video was screened at Koduvally on a television set fixed in a vehicle. I have no doubt that the evidence of PW14 is false. He has suppressed the truth. 40. In the cross-examination of PW2 and PW4 there was a suggestion that their testimony is false. But their credit could not be impeached. 41. The third allegation which allegedly contained in the controversial video related to the first respondent's preventing one Muhammed Easa, a philanthropist who gave financial assistance to a blind school from attending a function organized to felicitate him in Koduvally constituency. The video described the first respondent as a person who was opposed to the development of the constituency. This is not a statement, if at all true, which can be called a corrupt practice. 42. The last allegation allegedly raised in the video related to the misappropriation of fund allotted to PW16 Puliyullathil Muhammed for construction of a house. PW2, PW4, PW5 and PW20 have given evidence relating to this allegation. Their testimony is substantially the same. 43. It is not in dispute that in or about 1998 the local panchayat allotted fund to PW16 Puliyullathil Muhammed for construction of a house and there was an allegation that certain persons misappropriated a part of it. 44. The sum and substance of the testimony of PW2, PW4, PW5 and PW20 is this: The controversial video showed PW16 Puliyullathil Muhammed making a statement relating to the allegation of misappropriation of fund allotted to him by the panchayat. The video showed PW13 N.K.Suresh making a speech. He said : “Rs.20,000/-was misappropriated by a worker of the Muslim Youth League who was the helper of member of that ward and others.” PW13 N.K.Suresh extended help to PW16 to find out the truth. Then, the video showed, PW16 declaring that he “cannot join hands' with the person who misappropriated the money. At last PW13 Suresh was shown 'exhorting people to vote for the first respondent and not to vote for the person who misappropriated money and 'picked the pocket of the public'. 45. In the cross-examination of PW2, PW4, PW5 and PW20 nothing was brought out to show that their testimony is false. True, there was a suggestion that their evidence is false. 45. In the cross-examination of PW2, PW4, PW5 and PW20 nothing was brought out to show that their testimony is false. True, there was a suggestion that their evidence is false. Suggestions made in the cross-examination of witnesses do not become proof. They only indicate the case of the party on whose behalf the cross-examination is done. 46. Learned counsel for the first respondent maintains that PW2, PW4, PW5 and PW20 are interested witnesses and on the basis of their evidence a finding cannot be entered against the first respondent. 47. PW2 is General Secretary of the Muslim Youth League in Thamarasserry Grama Panchayat. PW4 was a member of the Muslim Students Federation, which apparently is the students wing of the Muslim League. But now he is not even a sympathizer of Muslim League. PW5 is a supporter of the United Democratic Front, a constituent of which is Muslim League and he campaigned for the second represent in the 2016 election. PW20 deposed that he is not a member of any political party. He admitted that his wife was a director (wrongly recorded as member in the deposition) of the Valiyaparambil Co-operative though she is not a political worker. He explained that the seat was reserved for women and there was no one to contest for that seat, which was why she stood as a candidate. 47A. Merely because the above witnesses were workers or sympathizers of Muslim League, the court cannot reject their testimony which has not been shown as not acceptable otherwise. But the rule of prudence dictates that the court should seek for corroboration. 48. To prove the allegation in the Election Petition that the controversial video was made on the basis of the script written by the first respondent with the assistance of PW13 N.K.Suresh, no evidence has been addressed. 49. The video was allegedly made by PW15 Mohammed Sinan at the Honey Been Studio of Koduvally owned by PW19 Shabeel 50. PW15 Mohammed Sinan is a professional videographer. He works for Honey Bee Studio. In his examination in chief he denied having made a video in connection with the election of 2016. He was sought to be contradicted by his former statement allegedly recorded by PW5 Faisal in MO6 mobile phone. PW15 Mohammed Sinan is a professional videographer. He works for Honey Bee Studio. In his examination in chief he denied having made a video in connection with the election of 2016. He was sought to be contradicted by his former statement allegedly recorded by PW5 Faisal in MO6 mobile phone. The response of PW15 was this : “What I said now (as recorded in MO6) is that the video programme was approved by the first respondent.” He added: “It was for Honey Bee I did the work.” Again he said in the box: “it was Abdulrasakh, Karatt (first respondent) who congratulated me.” This is an unequivocal admission that he made a video and it was approved by the first respondent. 51. PW19 Shabeel also admitted that he did 'some work' for the first respondent in connection with his election campaign. The work was 'Videography'. 52. Now the testimony of the first respondent (RW1). He pretended that he does not know whether PW19 Shabeel is the owner of Honey Bee Studio and PW15 Mohammed Sinan is his employee. In the proof affidavit filed by RW1 in lieu of his examination in chief he states: “it is true that Left Democratic Front Koduvally constituency Election Committee had entrusted certain printing designing and printing works with Honey Bee Studio for my campaign in the election 2016”. It implies that no video was made for him by Honey Bee Studio. 53. What was the video made by Honey Bee Studio. PW15, PW19 and RW1 deposed that the subject matter of the video made for RW1 (first respondent) was the development work done by him earlier. He was president of Koduvally Cooperative Housing Society. He was asked in the cross-examination what development works he had done in that capacity. His response: “I granted loan to several persons”. He was representative of the people from a Ward in Koduvally Grama Panchayat for five years. But he does not remember what development works he did during that period. 54. In 2005-2010 he was a representative of the people in a ward in the Grama Panchayat. He claimed that during that period there was construction of roads and houses and electrification of houses. But he cannot mention the names of the roads or the particulars of the beneficiaries. He was once elected to Koduvally Block Panchayat. 54. In 2005-2010 he was a representative of the people in a ward in the Grama Panchayat. He claimed that during that period there was construction of roads and houses and electrification of houses. But he cannot mention the names of the roads or the particulars of the beneficiaries. He was once elected to Koduvally Block Panchayat. He said 'my development works included works relating to hospitals, schools, water supply, construction of roads etc. He did not give any particulars. His evidence that the video depicted his development works is false. 55. RW1 said that the number of the videos made by Honey Bee Studio was eight. He did not spend any money for it. He added, 'it is shown in my account. In the same breath he said, “I do not remember whether the amount spent for it has been entered in the accounts submitted to the District Electoral Officer”. He does not know from where the television set was hired for screening the video. Exhibit X1 is the statement of accounts submitted by him to the District Electoral Officer. He admitted that every page of it bears his signature. But when he found it difficult to explain certain facts, he stated that he doubted whether Exhibit X1 is the statement of accounts he filed. It was brought to his notice that he did not produce any bill along with his statement of accounts for hiring the television set, his response was that what he understood is that it had been produced. 56. The testimony of RW1 that he did not spend any amount for the making of video is proved false by the deposition of PW19, Shabeel, the owner of Honey Bee Studio. When PW19 was asked what was the matter in the video made for RW1 (first respondent), he said that it was the development works done by him (RW1) and he charged Rs.75,000/-for it. PW19 has no doubt that he issued 'bills' for the payment of Rs.75,000/-. But Exhibit X1 statement of accounts does not disclose payment of any amount to PW19 for making a video. Why was the payment conceded? The only inference is that the first respondent wanted to conceal the making of the video. PW19 has no doubt that he issued 'bills' for the payment of Rs.75,000/-. But Exhibit X1 statement of accounts does not disclose payment of any amount to PW19 for making a video. Why was the payment conceded? The only inference is that the first respondent wanted to conceal the making of the video. It surely compels the court to take the view that the nature of the video was such that he did not want the Election Commission to know that he made the video. 57. RW1 (first respondent) has given false evidence ad nauesum. He has suppressed the truth and projected falsehood. False explanation given by accused in his examination is sufficient to draw an adverse inference against him and to tilt the scale as held by the Supreme Court in Tanviben Pankajkumar Divetia v. State of Gujarat ( AIR 1997 SC 2193 ), State of Maharashtra v. Suresh (2000) 1 SCC 471 ) and Jagroop Singh v. State of Punjab ( AIR 2012 SC 2600 ). Worse is the case in a quasi judicial proceedings like an Election Petition. 58. To sum up, testimony of PW2, PW4, PW5 and PW20 that a video raising thoroughly false allegations against the second respondent was screened throughout the constituency a few days before the election is acceptable. When a person makes a statement under oath, it shall be accepted and acted upon unless there is something to show that the statement is not true. Their testimony is corroborated by the facts brought out in the deposition of PW16, PW18 and RW1 (first respondent). RW1 has admitted that a video was made with his consent and it was screened throughout the constituency. He has given false evidence as to the contents of the video. In his statement of accounts submitted before the District Electoral Officer the making of the video is concealed, the reason for which is that he did not want to create any evidence for its making and screening. Suppression of the truth and projection of falsehood by the first respondent and his agents including PW13 N.K.Suresh also is a circumstance corroborating the testimony of PW2, PW4, PW5 and PW20. Suppression of the truth and projection of falsehood by the first respondent and his agents including PW13 N.K.Suresh also is a circumstance corroborating the testimony of PW2, PW4, PW5 and PW20. The enthusiasm to conceal the truth shown by PW19 Shabeel, the owner of Honey Bee Studio where the controversial video was made, and by PW15 who made the video also is a matter to be taken into consideration in appreciating the evidence. The allegation of the petitioners that the first respondent with the help of PW13 N.K.Suresh, PW14 Sulfikar and PW16 Puliyullathil Muhammad made a video raising the false allegation that the second respondent misappropriated money belonging to PW16 and it was screened throughout the constituency stands proved beyond doubt. 59. Did it influence the voters and affect the prospects of the second respondent? If it could not have such effect, why did the first respondent do so. Moreover, it came out in the evidence of PW13 N.K.Suresh that the allegation of misappropriation of money was a topic of discussion at the election of 2016. The margin of difference in the votes polled by the first and second respondents was 573 votes. The inference is that the video had the effect which the first respondent wanted it to have. The conclusion is that he is guilty of corrupt practice and it affected the result of the election to the prejudice of the second respondent. The election of the first respondent is liable to be declared void. 60. In the petition there is a prayer to declare that the second respondent is the candidate duly elected. Having regard to the facts of the case the prayer is refused. 61. The issues except issue No.15 are found in favour of the petitioners. Issue No.15 is found against them. In the result, this Petition is allowed in part and the election of the first respondent to the 14th Kerala Legislative Assembly held on 16.5.2016 from Koduvally Constituency is declared void.