P.V.B. Rao, J.
1. This appeal is against the order of the Election Tribunal (Mr. T. V. Rao, District Judge Puri) passed on a petition filed under Section 81 of the Representation of the People Act, 1951, (hereinafter called the Act) by a defeated candidate, Shri Banamali Patnaik for the Orissa Legislative Assembly from the Khurda Constituency during the elections held in 1957 praying to declare the election of the returned candidate Shri Prananath Patnaik as void.
2. The Election Tribunal by its order dated 20th November, 1957 declared the election of Shri Prananath Patnaik to the Orissa Legislative Assembly to be void on account of the corrupt practice committed by him under Section 123, Clause (4) of the Act and disqualified him from standing as a candidate for election to the House of Parliament or the State Legislative Assembly for a period of six years.
3. The Respondent-Petitioner was a candidate set up by the Congress Party while the Appellant-Opposite Party was set up by the Communist Party and they filed their nomination papers for the assembly seat for the Khurda Constituency. There was another candidate whose nomination was accepted, Shri Madhab Chandra Routroy, who stood as an Independent candidate but retired from the contest on 16-2-57 under the provisions of Section 55A of the Act. The polling took place on 4-3-57 and the result of the election was announced on 18-3-57 declaring the appellant as a successful candidate. He obtained 14577 votes and the respondent obtained 13491 votes. The petition was filed on 20-4-57 before the Commission.
4. The respondent-petitioner alleged in his petition that the appellant-opposite-party and his agents laid a plan to prejudice the prospects of the election of the respondent coming to know that the independent candidate Madhab Chandra Routroy would retire from the contest. In pursuance of that plan, it is stated, that a pamphlet dated 15-2-57 (Ext. 2) was circulated on behalf of the Communist party election board under the signature of its Secretary, Shri Sivaji Patnaik, alleging that the independent candidate was liable to be purchased by the Congress as he was only a Congress candidate in the guise of an independent.
The independent candidate Shri Madhab Chandra Routroy was the sitting member of the Orissa Legislative Assembly from Khurda Constituency elected on a Congress ticket in 1952 and as he was not given a congress ticket during the present election, he chose to stand as an independent candidate. It is further alleged that soon after the retirement from the contest by Shri Madhab Chandra Routroy on 16-2-57 a news item dated 19-2-57 (Ext. 5) was published in the Oriya daily, 'Malrubhumi', to the effect that the retiring candidate had been offered Rs. 20,000/- as bribe by the Congress to retire in favour of Shri Banamali Patnaik.
It is also stated that this news was published with the influence of Shri Chintamani Panigrahi an ex-Editor of the 'Matrubhumi' who stood as a Communist Party candidate for the Lok Sabha from the Puri Constituency in 1957. On 21-2-57, as alleged in the petition, another pamphlet (Ext. 4) was printed and published on behalf of the Communist party election board in the name of Shri Sivaji Patnaik asserting that the Congress had bribed Shri Routroy to make room for the Congress candidate Shri Banamali Patnaik as forecasted by the party previously and urged upon the elector not to vote for Shri Banamali Patnaik.
In this Pamphlet (Ext. 4) the news item published in the Matrubhumi was also referred to relating to the bribing of the independent candidate. It is further alleged that the appellant and his election agents organised and addressed public meetings in different parts of the constituency giving wide publicity to the alleged bribe to Shri Routroy by the Congress and also circulated the pamphlet dated 21-2-57 and thereby prejudiced the electorate against the respondent materially affecting the result of the election.
According to the respondent-petitioner's case, the appellant and his agents started and continued to make false statements of facts relating to the personal character and conduct of the respondent believing them to be false or at any rate not believing them to be true and this publication of false facts in relation to the personal character or conduct of the petitioner and in relation to his candidature was reasonably calculated to prejudice the prospects of the petitioner's election and was a corrupt practice committed by the opposite party under Section 123, Clause (4) of the Act.
5. The list of particulars appended to the election petition in part IV enumerated the different places where meetings were held by the appellant and his agents giving publicity to the alleged false statement of bribing Shri Madhab Chandra Routroy and circulating Ext. 4 at the several meetings. Consequently, the respondent-petitioner urged before the election tribunal that the election of the returned candidate, the appellant herein, was liable to be declared void under Section 100(1)(b) of the Act for the corrupt practice committed by him and his agents falling under Section 123, Clause (4) of the Act.
6. On 19-6-57 the appellant-opposite party filed a written statement alleging that he did not commit any corrupt practice alleged in the petition. He admitted the printing and publication of the pamphlet dated 15-2-57 under the signature of Shri Sivaji Patnaik on behalf of the Communist party election board, but denied printing and publication of the other pamphlet dated 21-2-57 in categorical terms.
He also denied any knowledge of the news item in the Matrubhumi as also that it was published at his instance or at the instance of his agents, and stated that Shri Chintamani Panigrahi had no hand in its publication and that the news item appeared in the Matrubhumi on a report from its own correspondent. He also stated that Ex. 2, the pamphlet dated 15-2-57 was not faithfully reproduced in the list of particulars some important words having been omitted from the same deliberately and that it was only an exhortation to the people to choose party candidates who have laid their election manifesto before their electorate in preference to the independent candidates who have no such manifesto of their own.
With regard to Ext. 4 dated 21-2-57 the appellant-opposite party specially stated that no such pamphlet was printed or published on behalf of the Communist party Election Board nor any publicity was given to such pamphlet by circulating it within the constituency or doing propaganda by the appellant and his agents in meetings addressed by them to the effect that Shri Madhab Ch. Routroy was bribed by the Congress to retire in favour of the Congress candidate.
According to his averment, he was not aware and did not know of the existence of such a pamphlet till a copy of the election petition was served on him and that he was surprised to know the allegations made therein. According to him he suspected that the pamphlet must have been manipulated by the defeated candidate Shri Banamali Patnaik and his agents subsequent to the election by antedating the same for the purpose of inventing false allegations against the returned candidate.
The holding of meetings giving publicity to the disputed pamphlet was also denied. Consequently the appellant-opposite party urged that no corrupt practice had been committed by him or by his agents.
7. The learned Tribunal held that the petition was not bad for non-joinder of Shri Routroy and was maintainable; that the appellant issued the pamphlet Ext. 2 alleging that the independent candidate was liable to be purchased by the candidate; that the appellant or his agents had no concern with the publication of Ext. 5, the news item in the 'Matribhumi;' that the appellant and his agents published false statements of facts relating to the personal conduct and character of the respondent; and that the meetings as alleged in the petition were held in which speeches were given and the pamphlets were distributed alleging bribery and corruption believing and knowing them to be falseand not believing them to be true which materially affected the election.
8. The learned counsel, Mr. G. Rath contended that the Tribunal was wrong in holding that Ext. 4 was got printed and published at the instance of the appellant by the Secretary of the Communist Party; that the Tribunal erred in holding that the allegation of bribery in Ext. 4 by the Congress Party and its publication was in relation to the candidature of the respondent; and that the Tribunal failed to record a definite finding that the allegation in Ext. 4 amounted to an allegation against the personal character of the respondent though it observed that the statement of bribery alleged against the Congress Party would affect the character of the candidate and was wrong in holding that the pamphlet (Ext. 4) was distributed at some of the meetings.
He also contended that the appellant or the Communist Party did not have any hand in the printing or publication of Ext. 4; that document was deliberately sot up and manipulated by the respondent after the result of the election was announced with the connivance and support of P.W. 2, the Manager of Kedar Gouri Press at Bhubaneswar in order to get the election of the appellant set aside; and that even assuming that the pamphlet was printed and published by the appellant and an allegation was made regarding the bribery knowing or believing it to be false, it was an allegation against the Congress and did not in any way amount to a false allegation of fact against the personal character of the respondent or his candidature.
He also urged that on the evidence and according to the allegation in the petition there was no categorical denial by the respondent or his witnesses that the Congress Party bribed Shri Routroy to the extent of Rs. 20,000/- in order to effect his withdrawal from the election. He submitted that the appellant was not guilty of any corrupt practice and that the order of the Tribunal ought to be set aside.
9. On the contentions raised before us by the learned counsel for both sides two points arise for determination --
(1) Whether the pamphlets, Exts. 2 and 4 were printed at the instance of the appellant-opposite party and were published and distributed by him and his workers; and
(2) Whether the said publications of Exts. 2 and 4 with the said allegations amount to statements of fact which are false and which the appellant either believed to be false or did not believe to be true, in relation to the personal character or conduct of the respondent or in relation to his candidature--and are reasonably calculated to prejudice the prospects of his election, to make the election of the appellant void under Section 123, Clause (4) of the Act.
10. The first contention of the learned counsel for the appellant is that Ext. 2 admittedly got printed and published by him does not contain any statements of facts which are false to the knowledge of the appellant and which affect the result of the election. He contends that the learned Tribunal did not appreciate and deal exhaustively with this aspect of the case relating to exhibit 2 but even avoided giving definite finding on the question.
Issue No. 3 is a general one to the effect whether the opposite party and his agents publishedfalse statements of facts relating to personal character and conduct of the petitioner. Issues 4 and 5 cover the case with reference to Ex. 2. Issue 4 is 'Whether the respondent issued a leaflet on 15-2-57 in the name of Shri Sivaji Patnaik alleging that the independent candidate is liable to be purchased by the Congress?' Issue 5 is 'Whether the leaflet dated 15-2-57 amounts to a denunciation of the personal conduct and character of the petitioner.'
The learned Tribunal dealt with Issue 4 in para 7 of the judgment and on the admission of the appellant and the evidence of R. W. 3 found that Ext. 2 printed and published by the appellant or his workers and it was distributed and answered the 4th issue in the affirmative. The Tribunal remarked that Issue 5 would be considered while discussing the same aspect with relation to Ext. 5, and Ext. 4 covered by issues 6 and 7. Issues 8 and 9 are 'whether the alleged meetings were held by the appellant's workers and whether speeches were delivered alleging bribery and corruption and pamphlets were distributed.
Issues 10 and 11 are whether the said false statements were made knowing them to he false and whether the election was materially affected. The learned Tribunal then dealt with the issues and found that the appellant or his agents were not connected in any way with the publication of Ext. 5 but the Ext. 4 was got printed and published by appellant and his agents, that the meetings as alleged were held by the appellant's party and false propaganda made which materially affected the election.
But in discussing these issues, viz., Issues 3, 5, 8 to 11 the learned Tribunal did not specifically deal with Issue 5 relating to Ext. 2 and practically lost sight of the reservation made in para 7 of the judgment.
In summing up the findings arrived at the end of the judgment in para 20 the learned Tribunal stated
'I hold that the respondent (opposite party) Prananath Patnaik har caused the publication of the pamphlet dated 21-2-57 bearing the heading 'Congressara Parajaya Sunichita Hela' containing a false statement of bribing the independent candidate Madhab Routroy by the Congress Party representing the Petitioner Banamali Patnaik to retire in his favour and this pamphlet was got printed by the Respondent's agent Chakradhar Singh Samanta with the consent of the respondent.
The respondent has given wide publicity to 'this pamphlet' by addressing meetings making such imputation and circulating 'the pamphlet' within the constituency. He and his agents are responsible for 'such publication of' false statements, knew that the statement was false or at least did not believe it to be true and they did so with a view to reasonably cause prejudice to the prospects of the petitioner's election. The publication of this false statement was made in relation to the candidature of the Petitioner being the representative of the Congress Party and thereby his prospects in the election were materially affected by imputation of bribery to the Congress-party.....'
(The underlining here into ' ' is mine). On this summing up of the findings it is clear that the learned Tribunal did not find that Ext. 2 an offending publication.Mr. Rath, the learned counsel for the appellant submits that Ext. 2, on a correct construction of its contents, does not contain false statements known or believed to be false regarding the candidature or the personal character or conduct of the Respondent. Mr. Rath contends that the clause in Ext. 2, 'or he is liable to be purchased even subsequently' refers to the contingency of Sri Routroy crossing the floor and joining the Congress party after he gets elected as an independent candidate and as such does not come under Section 123(4) as such a statement is only against the political conduct of the candidate and does not in any way affect the personal conduct or character or the candidature and that of the respondent-petitioner and that it does not affect the prospects of his election. Mr. Misra on the other hand contends that the said clause means that Sri Routroy is liable to be purchased before the election and as such it is covered by Clause 4 of Section 123. He submits that Ext. 2, Ext. 5 and Ext. 4 are to be viewed as the results of a preconceived plan to prejudice the Congress candidate in the election. In view of the facts that the learned Tribunal found that the appellant or his workers had no concern with the publication of Ext. 5, that the Tribunal did not hold Ext. 2 was an offending publication, that the Tribunal stated in the judgment that Issue 7 relating to Ext. 4 was the main issue in the case that the Tribunal recorded a categorical finding in summing up its conclusions that it is by printing and publishing of Ext. 4 that the petitioner was prejudiced and in view of my opinion that the explanation and construction of the said clause by the appellant is reasonable I find that Ext. 2, the admitted pamphlet, does not amount to publication of a false statement knowing it to be false and does not affect the personal conduct or character or candidature of Sri Banamali Patnaik and did not prejudice him in the election.
11. The respondent-petitioner's case with reference to Ext. 4 is that it was printed and published at the instance of the appellant under a common plan beginning with the publication of Ext. 2, then the publication of Ext. 5 and finally the publication of Ext. 4, with the object of prejudicing him. It is further his case that all these three publications are similar and go to show that the hand of the appellant was behind these publications.
The printing and publication of the pamphlet Ext. 2 dated 15-2-57 in the name of Sivaji Patnaik, Secretary of the Communist Party Election Board was admitted by the appellant. Ext. 1 is the manuscript original produced by the Manager, Barunei Printing Press, Khurda where it was printed. R. W. 3 Sivaji Patnaik, the Secretary of the Communist Party Election Board admitted that the manuscript bore his sinature. It was also admitted by the appellant that the pamphlet was circulated by his agents and workers in the constituency.
But the appellant contends that the contents of the pamphlet were not correctly quoted in the copy appended to the election petition. The independent candidate Shri M. C. Routroy applied to the Returning Officer intimating his intention to retire from the contest on 16-2-57. There is a reference to the prospect of his retiring from contest in the pamphlet Ext. 2 which is dated 15-2-57. It is urged by the learned counsel for the respondent that this pamphlet was brought out after it was definitely known thatthe independent candidate was going to retire to use it as a weapon for prejudicing the prospects of the election of the rival candidate set up by the Congress. One of the sentences, as translated in the judgment of the Tribunal in Ext. 2 is as follows:
'We have been stating from before the independent candidate may retire from the contest at any moment or he is liable to be purchased even subsequently.' According to the learned counsel for the respondent, these words have a direct bearing on the retirement of the independent candidate alleged to have been won over by the rival candidate. But the learned counsel for the appellant replies that they mean that the independent candidate may be purchased even after the elections and not before the elections if he did not retire. It is the respondent's contention that these words in Ext. 2 have to be construed in the context in which the pamphlet was published and as the subsequent publication of the news item in the Matrubhumi (Ext. 5) dated 19-2-57 and the publication of the disputed pamphlet (Ext. 4) dated 21-2-57 in which there is a reference to the bribing of the independent candidate by the Congress to the tune of Rs. 20,000/-for making him to retire in favour of the Congress candidate are connected with the earliest pamphlet Ext. 2 and all the three publications were made in furtherance of a well laid out plan to prejudice the prospects of the election of the petitioner.
12. The news item (Ext. 5) bears the heading as translated in the judgment of the Tribunal 'Madhab Routroy has also gone astray (astray is the English translation for the Oriya word 'Bhulile') -- he vacted in favour of the Congress candidate Banamali Patnaik. 'This news item was published from the information supplied by the news paper's own correspondent from Cuttack on 18-2-57. It was mentioned in this news item that the independent candidate M. C. Routroy gave notice to the Sub-Divisional Officer, Khurda about his intention to retire from contest from the Khurda constituency; that Shri Banamali Patnaik was contesting the seat on behalf of the Congress party; that had Shri Routroy continued the contest there was no hope for success of Shri Patnaik; and that so it is understood that Shri Routroy was offered Rs. 20,000/- on behalf of the Congress to retire in favour of Shri Patnaik, in consequence of which there would be a straight fight between the Congress candidate Shri Banamali Patnaik and the Communist candidate Shri Prananath Patnaik.
The learned Tribunal opined that this imputation of bribing the independent candidate had direct bearing on the alleged offence of committing corrupt practice defaming the rival candidate. Mr. Rath submits that this observation is unwarranted in view of the fact that the learned Tribunal found categorically that the appellant had nothing to do with the publication of Ext. 5, after discussing the entire evidence with regard to the connection of the appellant to the publication of Ext. 5 in paragraph 9 of the judgment. Mr. Rath contends and I think with some force that the learned Tribunal did not take into consideration this finding that the appellant had nothing to do with the publication of Ext. 5 in coming to a final conclusion about the guilt of the appellant of a corrupt practice, and was mainly guided by the observation which he made before arriving at the finding regarding Ext. 5 the learned Tribunal categorically found.
'It is sufficient to hold that the publication of the news item (Ext. 5) in Matrubhumi cannot be held to be at the instance of the respondent. He has no hold on the Editorial staff of the newspaper and it has not been proved that he had sent the report for publication and the omission to examine the correspondent of Matrubhumi who sent the report clearly absolves the respondent of any responsibility for causing publication of the said news item. The news item appears to have been published on the own information supplied by its correspondent by the newspaper and the responsibility for such publication entirely rests on the Editor, Printer and Publisher and the correspondent who supplied such information.'
This finding of the learned Tribunal with regard to Ext. 5 militates against the case of the respondent-petitioner that the publications of Ext. 2, Ext. 5 and Ext. 4 are the results of a well laid out plan.
13. The pamphlet Ext. 4 is entitled 'Defeat of the Congress is certain. Madhab Routroy has been purchased,' as translated in the judgment of the Tribunal. The petitioner's case is that it was printed on behalf of the Communist party Election Board on 21-2-57. The respondent-petitioner relies upon this pamphlet to show the direct imputation of bribing the independent candidate M. C. Routroy by the Congress by payment of Rs. 20,000/- to retire in favour of Banamali Patnaik and that this pamphlet was widely circulated throughout the constituency causing prejudice to the prospects of the respondent's election. The contents of the pamphlet are as follows as translated in the judgment :
'The Communist party has been declaring from before that the independent candidate might be purchased at the last moment. A news item was published in the Daily Matrubhumi dated 19-2-57 that Madhab Routroy received Rs. 20,000/- from the Congress and retired in favour of the Congress candidate Banamali Patnaik. From this you can understand the policy of the Congress. You may now revive the Congress to senses as it is fighting its last battle.'
This pamphlet had been issued in the name of Sivaji Patnaik, The Secretary of the Communist party Election Board, Khurda and shows that it was printed at Kedar Gouri Press, Bhubaneswar. As already stated, the printing of this pamphlet by the Communist party had been categorically denied by the appellant who claimed that no such pamphlet ever came into existence during the election campaign and that he suspected that it was printed subsequent to the elections by the petitioner by antedating it as he was defeated in the elections. The appellant also denied of having made any such propaganda about bribing the independent candidate by the Congress Party or Banamali Patnaik either by circulation of such pamphlet or by addressing meetings within the constituency by himself or by his workers.
It is stated by the learned Tribunal in the judgment that the petitioner denied of any such bribe having been paid to Madhab Routroy for causing his retirement by himself or by his party. This observation does not appear to be correct as neither in the petition nor in his evidence the respondent-petitioner categorically denied the payment of Rupees twenty thousand to Madhab Routroy by the Congress. Before discussing the evidence with regard to the printing and publication of Ext. 4, the learned Tribunal observed that there was no allegation much less any proof on behalf of the appellant-opposite party to show that Madhab Routroy was actually bribed by the Congress for causing his retirement as alleged in the pamphlet. Mr. Rath rightly contends that this was a wrong assumption made by the learned tribunal and that the burden of proving that no bribe was given by the Congress to Madhab Routroy was on the respondent-petitioner, and the finding on issue No. 7 by the learned Tribunal is consequently vitiated by this assumption and approach to the evidence in the case.
The learned Tribunal is, in my opinion, also wrong in observing that it was not necessary to examine the independent candidate who was a rival to the petitioner to prove the reasons for his retirement when it was not asserted by the appellant that the statement of fact of such bribing to the independent candidate was true. The learned Tribunal also observed before going into the evidence on this matter.
'There can be no manner of doubt that the imputation of bribing the independent candidate by the Congress Party represented by the petitioner Banamali Patnaik is not true and that it was also not believed to be true by the respondent (appellant) and if such a false imputation has been made by the respondent (appellant) it certainly amounts to corrupt practice prejudicing the prospects of the elections of the petitioner.'
This observation also before dealing with the evidence is not warranted and is not supported by any evidence. Mr. Misra, learned counsel for the Respondent contended that in the petition it was stated that the allegations in the pamphlet, Ext. 4, are all false and so the petitioner had denied the truth of the allegation of bribery, that he also stated in the evidence that the said allegations are false. But in my opinion, as in this case the allegation of bribery in the pamphlet forms the gravamen of the charge of corrupt practice on which the election of the appellant is to be declared void, there should be categorical assertion in the petition that no bribe was given by the Congress to Sri Routroy as also in the evidence of the respondent.
Further it is admitted by the respondent in his evidence that Sri B. Das, Dr. H. K. Mahatab and Sri Nityananda Kanungo were members of the Financial Sub-Committee appointed by the all India Congress Committee and it was incumbent on the respondent to have examined any one of them to disprove the allegation of bribery by the Congress. The finding of the learned Tribunal on issue No. 7 on this account also is vitiated.
14. On this question of the printing and publication of Ext. 4, apart from the evidence of the petitioner-respondent and the appellant-opposite-party, the respondent examined P. W. 2 Purna Chandra Mitra and the appellant examined R. W. 3, Sivaji Patnaik, R. W. 8 Hadu Mohapatra, R. W. 9 Chakradhar Singh Samant, R. W. 14 Pitabas Jena and R. W. 20 Satyasundar Misra. Harihar Kar was examined as Court witness No. 1.
15-17. (His Lordship then examined the evidence and during such examination referring to the evidence of the appellant's witness Chakradhar Singh Samant stated:)
The corroboration relied upon by the learnedcounsel for the appellant arises only if the story given out by this person is accepted as true. He being in the position of an accomplice to forgery and bribery, the question of corroboration comes in and it can be said that there is corroboration of the accomplice's story only if the evidence of this witness is accepted as true. But if his evidence is such that the story given out by him cannot be accepted, I do not think any amount of corroboration can make his story credible. Corroboration is required of an accomplice's evidence only to enable the Court to convict an accused as it is not prudent to base a conviction on the uncorroborated evidence of an accomplice. Corroboration by itself cannot make the story of the accomplice acceptable when on the face of it it has to be rejected. In my opinion, the learned Tribunal rightly rejected the evidence of this witness.
The evidence of R.W. 8 Hadu Mohapatra also cannot be accepted, as he does not speak of seeing Chakradhar actually travelling in the jeep with Banamali Patnik, but only of seeing them talking together in front of the house of Chakradhar, R.W. 3 Sivaji Patnaik denied of getting printed or getting published any pamphlets other than Ext. 2 and some other pamphlets earlier wherein the policy of the Congress was criticised. He is said to have recorded the proceeding of the meeting of the Election Board deciding the work to be done in the campaign including the publication of pamphlets and holding meetings for doing propaganda.
The minutes of the proceedings of the election Board had not been filed in the case although the appellant admitted in the first instance that they must have been preserved. Lakshman Patnaik, R.W. 19 stated that the proceedings of each meeting were not recorded in a book but noted on a piece of paper by the Secretary and that he presumed that these papers might not have been preserved after the election. Sivaji Patnaik has not stated anything on his point of destruction of the proceedings book. He admitted that he used to write originals of the printed pamphlets issued by the parties and that he did not think it necessary to produce the originals which also indicate that they were available in the Election Board Office.
The learned Tribunal therefore came to the conclusion that had these proceedings books been produced into Court, they would have gone against, the appellant relating to the printing of Ext. 4 and hence they had been withheld. The learned counsel for the appellant strongly contended that these documents are not relevant and they need not be produced unless they are summoned for, which was not done by the respondent and consequently the learned Tribunal came to a wrong conclusion in drawing an adverse inference against him on the non-production of these documents. He relied on a decision of the Judicial Committee of the Privy Council in the case of Mt. Bilas Kunwar v. Desraj Banjit Singh, 42 Ind App 202: (AIR 1915 PC 96) (A). In this case the Judicial Committee of the Privy Council observed at page 206 (of Ind App): (at p. 98 of AIR).
'The High Court Judges 'attach great significance' to the non-production of the books showing the accounts of the general estate, and appear to draw an inference therefrom adverse to the plaintiff's claim; any such inference is, in their Lordships' opinion, unwarranted. These books do not necessarily form any part of the plaintiff's case; it is of course possible that some entries might have appeared therein relating to the bungalow. But it is open to a litigant to refrain from producing any documents that he considers irrelevant; if the other litigant is dissatisfied it is for him to apply for an affidavit of documents, and he can obtain inspection and production of all that appears to him in such affidavit to be relevant and proper.
If he fails so to do, neither he nor the Court at his suggestion is entitled to draw any inference as to the contents such as is made in the High Court that the books if produced would have shown rent credited to Jagmar or set off against some claim against her. They related to a different property, and the possibility of entries relating to the bungalow therein is very remote, but even if it had been greater, the Court was not entitled to draw any such inference. It is for the litigant who desires to rely on the contents of documents to put them in evidence in the usual and proper way; if he fails to do so no inference in his favour can be drawn as to the contents thereof.'
But according to these observations, they apply only if the documents in question are irrelevant for the question under consideration. The records of the Communist Party Office in the face of the evidence of the appellant and Sivaji Patnaik in the ordinary course should contain entries relating to the publication, printing or otherwise of any pamphlets on behalf of the party. This evidence and the entries relating thereto are relevant for the purpose of the enquiry in this case. It is the duty of the appellant to file those documents to support his case that he or the Communist Party or his office bearers had nothing to do with the printing and publication of Ext. 4. Consequently in my opinion, the decision in 42 Ind App 202: (AIR 1915 PC 96) (A), does not apply to the facts of this case. On the other hand, the Judicial Committee in the case of Murugesam Pillai v. Gnana Sambandha Pandara Sannadhi, ILR 40 Mad 402: (AIR 1917 PC 6) (B), held,
'Though the onus was on the lender to show that the loan was made for the purposes of the mutt and was a necessary expense of the institution itself, yet where the debt had been so recognized as binding, and dealt with on that basis, their Lordships were of opinion that there was a sufficient body of evidence that the loan was 'made for purposes binding on the mutt: and there was no evidence to the contrary.
'In favour of this view it was an important fact that the account books of the mutt were not produced in which it is the habit of the head or manager to make entries with much detail and elaboration forming a current record on the financial side of the history of the institution. The parties to a suit should bring before the Court their best evidence; and when it is not produced the Court is justified in concluding that it would, if brought into Court, not support the case of the party omitting to produce it.'
Their Lordships observed,
'There is, it may be added, one element in the case to which their Lordships attach great weight,There is a certain body of evidence that the loan was made for the purposes of the mutt; there is none to the contrary; but a more important question that even the balance of the oral evidence appears to be: What do the books of the mutt disclose upon the subject?. It is the habit of the heads or managers of these institutions to have books kept, and the entries are usually made in much detail and with much elaboration. They form a current record, on the financial side, of the history of the institution.
'A practice has grown up in Indian procedure of those in possession of important documents or information lying by, trusting to the abstract doctrine of the onus of proof, and failing accordingly to furnish to the Courts the best material for its decision. With regard to third parties, this may be right enough; they have no responsibility for the conduct of the suit but with regard to the parties to the suit it is, in their Lordships' opinion, an inversion of sound practice for those desiring to rely upon a certain state of fact to withhold from the Court the written evidence in their possession which would throw light upon the proposition.
The present is a good instance of this bad practice. It is proved in the case by the first witness that 'the mutt has regular fair day-books; they are not now before the Court; ledgers are also maintained in the mutt.' These ledgers and daybooks were in the possession of the defendants or those of them who were heads of the institution, and they are not put in evidence.
The proposition that these defendants challenged was that the expenses incurred had been incurred for the mutt and were necessary for its purposes. The best assistance to a Court of Justice would have been a scrutiny of these documents, and their Lordships feel free to conclude that if they had been by their entries confirmatory of the defendants' view the defendants would have brought them into Court. This part of the case, which in their Lordships' view is of considerable importance, is not referred to in the High Court.'
This decision and the observations made by their Lordships of the Judicial Committee directly apply to the present facts. The appellant's witnesses admitted in the evidence that the Communist Party and its officers were maintaining proceedings of the work done such as printing and publishing of leaflets, holding of meetings etc. The appellant's case before the Tribunal was that Ext. 4 was not printed by him or by his party and that it was not distributed at the meetings.
These two facts according to the evidence of the appellant's witnesses should have been proved by the production of the books. On the non-production of such books, in my opinion, the learned Tribunal rightly is entitled to draw an adverse inference. The reasons given by the learned Tribunal for rejecting the evidence of the appellant on this point are, in my opinion, reasonable.
18. But the rejection of the evidence of the appellant does not lead to the inference that the evidence of the respondent on this point should be accepted. The burden of proving that the pamphlet was actually printed on 21-2-57 by the appellant or at his instance or by the Communist Party heavily rests on the respondent petitioner. P. C. Mitra, P. W. 2 does not appear to me to be a truthful witness of any status. He was discharged by the proprietor. He lodged a case against him by reporting at the Bhubaneswar P. S.
There are also charges and counter-charges between the proprietor and P. W. 2 in the newspaper the Samaja dated 11-9-57 as can be seen from Ext. F, 30-8-57 (Ext. D) and 4-9-57 (Ext. 8), and counterreport dated 16-9-57 by P. W. 2 in the Samaja. Harihar Kar C. W. 1 deposed that P. W. 2 had not taken away any materials of the press or any records but only that he had not rendered accounts before leaving the press. The learned Tribunal did not attach any importance to the dispute between the proprietor and the Manager saying that it cannot have any bearing over the printing of the pamphlet which had been duly entered in the order book court Exhibit I. But Harihar Kar wrote in Ext. A that he suspected some mischief was done with regard to the printing of Ext. 4 this being his earliest statement.
19. On this view of the evidence and the contentions of the respective parties with regard to the printing of Ext. 4, I am of opinion that the evidence of the respondent and his witnesses, for the reasons given above, cannot be accepted. I am also of the view that the evidence on the respondent's side of P. W. 2 and Court witness No. 1 also does not appear to be true versions of all what happened. In my opinion P. W. 2 is not a witness to truth. Harihar Kar was not summoned by the Petitioner in the first instance. Petitioner's father helped Chakradhar's father in the litigation. Petitioner appears to have interested himself in getting a grant of land to Chakradhar.
The notice sent by the Anchal Adhikari about the grant or selection of land to Chakradhar on the eve of his examination in Court is significant. The evidence on both sides regarding the printing of Ext. 4 is worthless evidence and cannot be accepted. Under these circumstances and for the reasons stated, I am of opinion that the petitioner on whom the burden of proving the printing and publication of Ext. 4 on 21-2-57 rests has not discharged the burden. I therefore hold that the petitioner failed to prove that it was the respondent or the Secretary of the Communist Party that got Ext. 4 printed on on 21-2-57.
20. Mr. Rath next contends that the learned Tribunal erred in drawing an inference of a plan to prejudice the election of the respondent on the strength of the publications Ext. 2 and Ext. 4. The learned Tribunal held as already observed that the respondent had nothing to do with the publication of Ext. 5. The appellant's case of preconceived plan was mostly based upon the part alleged to have been played by the appellant in the publication of Ext. 5 and the contents of the same. The Tribunal did not accept that Ext. 5 was published at the instance of the appellant or his workers.
It is the contention of Mr. Rath that taking advantage of the heading of the pamphlet in Ext. 2 and the heading of the news item in Ext. 5 the Respondent got Ext. 4 printed with the heading it bore in order to make it appear that these three publications are practically interconnected and when the case of the respondent was not accepted with regard to Ext. 5, the learned counsel submits theTribunal erred in corning to a conclusion that there is a previous plan with regard to the publication of these pamphlets. In my opinion, the contention of the learned counsel js well founded, especially in view of my finding that the respondent failed to prove that Ext. 4 was printed on 21-2-57.
21. The next point which is connected with the above is about the holding of the meetings in the several villages where the pamphlet Ext. 4 is said to have been distributed and a propaganda made that Shri Routroy was bribed by the Congress. On this point the petitioner examined several witnesses P. Ws. 3 to 9 and the appellant-opposite-party examined R. Ws. 1, 2, 4 to 6 and 10 to 12. The petitioner alleged in his petition that meetings in this respect took place in nine villages, but adduced evidence only with regard to five villages.
In none of the meetings, the petitioner was present. According to the evidence of the petitioner's witnesses on the point, on 26-2-57 a meeting was convened at Nirakarpur addressed by Shri Sashi Sekar Mohapatra R. W. 1 and Shri Binod Behari Patnaik R. W. 2, two practising lawyers at Khurda and members of the Communist Party in which they are said to have proclaimed openly that Shri Madhab Routroy had been bribed by the Congress party. It is also stated that the pamphlet Ext. 4 was circulated among the persons attending the meeting. Another similar meeting on the same day is said to have been convened at Golbai and Narangarh where the respondent Shri Prananath Patnaik and his agent Shri Lakshman Patnaik are stated to have given publicity to the alleged bribing of the independent candidate.
On 27-2-57 meetings are said to have been held at Kuradhilo and Podadih addressed by the appellant and Shri Sivaji Patnaik in the same manner mentioned above. On the same day at Muktapur and Haladia, Chakradhar Singh Samant is stated to have distributed the pamphlet and told the people about the bribing of Madhab Routroy. On 2nd and 3rd, March 1957 it is stated that Shri Gangadhar Paikray, an important leader of the Communist Party held meetings at Podadih, Ostapur, Kotapalla and Golbai giving publicity of the pamphlet in question.
On the other hand, the witnesses for the appellant-opposite-party denied that any meeting was held at Nirakarpur on 26-2-57. The witnesses admitted that on the 24th of February, a meeting was held at Nirakarpur after distributing a leaflet (Ext. 6) in which the names of Shri Sashi Sekhar Mohapatra R. W. 1 and Shri Binod Behari Patnaik R.W. 2 were mentioned as President and speaker. R.Ws. 1 and 2 denied distribution of the disputed pamphlet Ext. 4 or defaming the petitioner by making imputation of bribing Madhab Routroy.
There is one important witness examined on the side of the respondent-petitioner which deserves careful scrutiny. He is Ananda Chandra Rath (P. W. 6) who is the Headmaster of Nirakarpur High English School. He stated in his evidence that leaflets were distributed for holding meeting on the 24th by the Communist Party, but due to rain it was postponed to 26th and on the latter day the meeting was addressed by R.Ws. 1 and 2 and the pamphlet Ext. 4 was distributed by Digambar Harichandan a Communist worker. But he admittedin his evidence that he did not attend the meeting but received the pamphlet from Digambar on 26th. He also stated to have read the Matrubhumi news item relating to the bribing of the independent candidate and to have drawn the attention of Shri Banamali Patnaik when he came there subsequently about the allegations made against him to which Banamali Patnaik replied that they were all false propaganda made by the appellant.
The learned Tribunal on this evidence came to the conclusion that whether the meeting was held on 24th which was a Sunday as claimed by R.Ws. 1 and 2 or on 26th as stated by P.W. 6 the fact remained that after the printing of the pamphlet Ext. 4, the meeting was convened at Nirakarpur and the pamphlet must have been circulated to achieve the object of getting it printed so urgently. This is a mere surmise. P.W. 6 is also a man interested in the Congress party as he applied for a congress ticket for the assembly in 1951 elections although he was not granted the same. The learned Tribunal observed that his evidence also could not be said to be completely disinterested, but stated that there was no reason to disbelieve him when he stated that he received the pamphlet circulated by the workers of the Communist Party.
This conclusion of the learned Tribunal in my opinion is based upon the surmise, that the pamphlet must have been distributed whether the meeting was held on 24th or on 26th. It is difficult for me to accept the evidence of P.W. 6. The meetings at Golbai and Narangarh on 26th are stated to have taken place by P.W. 4 Raghunath Chhotray and P.W. 8 Gopinath Mohapatra. They deposed that the appellant personally addressed the meeting alleging the bribe paid to Madhab Routroy by Banamali Patnaik and that Lakshman Patnaik distributed the pamphlet Ext. 4. On the side of the appellant, it is stated that no meeting was held at Narangarh and Golbai on 26th as he held a meeting at Bajpur on that day which is near Khurda. R.W. 17 Kasinath Routroy, the Secretary of the Gram Panchyat stated that a meeting at Bajpur was held at 6.30 P.M. and he also stated that no pamphlet was distributed at the meeting and no defamatory statements were made against the Congress candidate. R.W. 19 Lakshman Patnaik also stated to the same effect. R.W. 12 Agadhu Mohapatra and R.W. 4 Hari Naik denied the meetings at Golbai and Narangarh on the 26th.
Regarding the meetings at Pudadiha and Kuradhilo P.W. 3 Lingaraj Panda and P.W. 7 Bata Krishna Panda stated that the meetings were held there by the Communist party-men, while R.W. 5 Gopinath Das and R.W. 16 Nilamani Patnaik on behalf of the appellant denied the meetings. Though these witnesses for the respondent-petitioner claimed to have received the pamphlets distributed at the meetings, the pamphlets were not produced by them. Except P. W. 6 no witness for the petitioner produced a copy of the pamphlet Ext. 4.
With regard to the meeting at Haldia alleged to have, been convened by Chakradhar Singh Samant, the appellant contended that Chakradhar was working at Haripur and Muktapur at the other end of the constituency and could not have come to Haldia a distance of more than 30 miles to address such meetings. P.W. 5 Parikhit Bhanj and P.Ws.Kulamani Bhanj stated that Chakradhar visited their places 5 or 6 days before the poll, distributed the pamphlet containing the defamatory matter and did propaganda work. R.W. 6 Dhaneswar Bhanj and RAY. 11 Gangadhar Bhanj as also R.W. 9 Chakradhar Singh Samant denied what was stated by the above witnesses. There are many discrepancies in the evidence of all these witnesses for the petitioner about the holding of the meetings. The last meeting alleged to have been held is just on the eve of the polling addressed by Shri Gangadhar Paikray, an influential leader of the Communist Party.
He is stated to have done much propaganda about the bribing of Madhab Routroy for his retirement and distributing the pamphlet. R.W. 18 is Gangadhar Paikroy and he denied having made any such propaganda but admitted that he only made hurried tour through different villages contacting influential voters for canvassing votes for the Communist candidate. As far as the holding of these meetings is concerned, the learned Tribunal rightly observes 'There is simply oath against oath.' But curiously the Tribunal came to the conclusion that during the meetings addressed by the appellant and his agents, subsequent to the publication of the pamphlet Ext. 4, reference was made to the bribing of Madhab Routroy as reported in the Matrubhumi dated 19-2-57 and they gave wide publicity of such statement of fact knowing that it was not true.
This finding, as stated by the learned Tribunal, appears to have been based upon the circumstances and the manner in which the propaganda was carried on by the Communist party having taken the advantage of the retirement of the independent candidate from contest to use it as a handy weapon to discredit the rival Congress candidate. In my opinion, this conclusion of the learned Tribunal is only a surmise. P.W. 6 has not attended the meeting and received the pamphlet in the meeting. Under these circumstances, I am of opinion that the petitioner failed to prove conclusively that meetings were organised and held by the Communist party members in the several villages to make propaganda relating to the bribery and distribution of the pamphlet Ext. 4.
Taking, these two points about the printing and publishing of Ext. 4 and the distribution of Ext. 4 at the several meetings together, on my findings that the respondent-petitioner failed to prove either the printing or publication of the pamphlet Ext. 4 on 21-2-57 or the several meetings held subsequent to that date and the distribution of the pamphlet, the appellant opposite party cannot be held guilty of publishing a false statement through his agents with his consent about the bribing of the independent candidate by the Congress for causing his retirement in favour of the petitioner.
22. This conclusion is enough to dispose of the appeal. But as the learned counsel for the appellant has raised some other points. I will notice them and record my conclusions regarding the same. Mr. Rath contends that the respondent failed to prove the falsity of the statement regarding the bribe. I have already observed that no member of the Financial Sub Committee appointed by the All India Congress Committee was summoned to testify to the falsity of giving a bribe of Rs. 20,000/- to Mr. Routroy and the account books of the FinancialSub Committee were not filed. The petitioner also did not categorically say that the allegation that the-Congress bribed the independent candidate to the extent of Rs. 20,000/- was false. The general statement in the petition that the allegations contained in the pamphlet are false is, in my opinion, not enough to challenge the contents of the pamphlet. Mr. Misra submitted that the petitioner was the General Secretary of the Provincial Congress Committee and his statement that the allegations in the pamphlet are false is enough. But in my opinion it is not enough as the evidence of the members of the Financial Sub Committee and its account books which are not filed are the primary pieces of evidence on this matter.
23. The learned counsel for the appellant next contended that even assuming that such a statement that the Congress bribed the independent candidate to the extent of Rs. 20,000/- was given due publicity knowing or believing it to be false, is true, it would not amount to a corrupt practice under Clause 4 of Section 123. Section 123(4) is as follows :
The publication by a candidate or his agent or by any other person, 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, or retirement from contest, of any candidate being a statement reasonably calculated to prejudice the prospects of that candidate's election.'
Mr. Rath contends that the imputation alleged by the Communist Party must be in relation to the personal conduct or character of the candidate in order to prejudice the prospects of the candidate's election. All the witnesses for the petitioner including the petitioner himself as also exhibits 2, 4 and 5 are, according to the learned counsel, to the definite effect that it was the Congress that bribed Rout Roy in order to enable his withdrawal. Mr. Rath therefore submits that even if the imputation that the Congress bribed the independent candidate is false it cannot, by any stretch of imagination, be said to be in relation to personal conduct or character of Sri Banamali Patnaik as the said imputation is against the Congress and not against the Respondent.
24. Mr. Rath in support of his contention relies upon the case of Cumberland, Cockermouth Division Case (1901) 5 O'M and H 155 at p. 164 (C). In this case it was observed at page 159
'Now, it must be noted that what the Act forbids is this : You should not make or publish any false statement of fact in relation to the personal character or conduct of such candidate; if you do, it is an illegal practice. It is not an offence to say something which may be severe about another person, nor which may be unjustificable, nor which may be derogatory, unless it amounts to a false statement of fact in relation to the personal character or conduct of such candidate; and I think the Act says that there is a great distinction to be drawn between a false statement of fact, which affects the personal character or conduct of the candidate, and a false statement of fact which deals with the political position or reputation or action of the candidate.
If that were not kept in mind this statute would simply have prohibited at election times all sorts ofcriticism which was not strictly true, relating to the political behaviour and opinions of the candidate. That is why it carefully provides that the false statement, in order to be an illegal practice, must relate to the personal character and personal conduct. One can easily imagine this kind of thing. To say of a person that he was a fraudulent bankrupt, it would be necessary, probably, to give examples; but that sort of thing would, undoubtedly, be within this statute.'
Though in Exhibit 4 and the propaganda carried on by the appellant and his workers the statement was to the effect that the Congress bribed the independent candidate to the extent of Rs. 20,000/- and it is not stated that Banamali Patnaik bribed the independent candidate yet under the circumstances present in this case it is difficult to separate the two things.
Banamali Patnaik was the General Secretary of the Provincial Congress Committee during the period the election campaign was going on. Mr. Misra therefore contends on behalf of the respondent that if the pamphlets, stated that the Congress bribed Mr. Rout Roy it follows that it is a statement that Mr. Banamali Patnaik was to some extent responsible for the bribe and as such it would be a false statement regarding the personal character and conduct of the candidate. In Halsbury's Laws of England at page 227 it is stated
'The words will be interpreted according to their real and true meaning, and not necessarily according to their literal sense. One should see what the passage meant to convey. The question to be determined is what according to the circumstances is the true meaning which the reader would press upon the statement which will depend on the occasion or the publication, the person publishing, the person attacked and the readers intended to be addressed.'
In this case the occasion for the publication is the election campaign. The person publishing as alleged is a Communist candidate at the election. The person attacked is Banamali Patnaik, another candidate on behalf of the Congress and who is the General Secretary of the Provincial Congress Committee and if under such circumstances it is stated that the Congress bribed the independent candidate, Rout Roy a sum of Rs. 20,000/- I think it is an imputation against the candidate and affects his personal character and conduct and is calculated to prejudice him in the election.
25. Mr. Misra also relies on a decision in the case of Bayley v. Edmunds, Byron, and Marshall, ((1895) 11 TLR 537) (D), in support of his contention that the impugned pamphlet is an attack against the personal character and conduct of the respondent. The impugned passage in the above case is as follows :
'In connexion with this election it must also be remembered that Mr, Baylay's firm who own the Digby and Manners Colliery, locked the men out of their pits for six weeks, until stocks were cleared out and coal had reached the fabulous price of 22s. to 23s. a ton at the pit. Then the late member for Chesterfield found his 'conscience' would not allow him to starve the 'poor miner' any longer.'
The Master of the Rolls said that in his opinion
'This paragraph which had been taken from a newspaper and published in a leaflet for distribution among the electors during the time of an election, went beyond the line. The meaning of it was that Mr. Bayley hypocritically, feeling in his conscience that he was doing wrong, for the purpose of making large profits for himself, locked out his workmen for a certain length of time, knowing that he would thereby starve them, and not caring whether he starved them or not, and that then some time afterwards he found that his conscience reproved him, and resolved that he would not starve them any longer. He thought that the Act was only intended to strike at something which was derogatory to personal character, but in his opinion this statement was derogatory to the plaintiff's personal character and was therefore within the Act.'
In the Case of North Louth, (1911) 6 O'M and H 102 (E), at page 162, Gibson J. observed:
'A politician for his public conduct may becriticised, held up to obloquy; for that the statutegives no redress. But when the man beneath thepolitician has his honour, veracity and purity assailed he is entitled to demand that his constituentsshall not be poisoned against him by false statements containing such unfounded imputations.'
Shri Banamali Patnaik being the Congress candidatefor the election and he being then also the GeneralSecretary of the Provincial Congress Committee theimputation that the Congress bribed the independent candidate to make him withdraw from thecontest it is certain that his constituents the electorswould be poisoned against him and consequentlysuch an imputation is in relation to the personalcharacter and conduct.
26. Under these circumstances I am of opinion that the impugned pamphlet and the publication can be construed to be in relation to the personal character and conduct of the candidate, Banamali Patnaik.
27. Mr. Rath then contended that the learned Tribunal erred in holding that the disputed imputation is a statement in relation to the candidature of the candidate, though it may not strictly be in relation to his personal character and conduct. The learned Counsel submits that in coming to this conclusion the learned Tribunal did not discuss how the imputation amounts to a statement in relation to the candidature. His contention is that the word 'Candidature' as used in the Act refers only to the fact of standing for election and as such the imputation cannot be in relation to the candidature, though it may be in relation to the result of the election. 'Candidature' is not defined anywhere in the Act. According to Section 32 of the Act a person qualified to be chosen to fill a seat under the Constitution is a candidate. The word 'Candidature' occurs in the Act in Section 37 which deals with the withdrawal of candidature. It says
'Any candidate may withdraw his candidature by a notice in writing .....'
These two sections put together show that 'candidature' means the fact of standing for election. 'Candidature' refers to the fact of standing for election from the date a candidate announces his intention to stand for election till the election is complete or withdrawal is made if it is done before the election. In the case of Krishnaji Bhimarao Antrolikar v. Shankar Shantaram More reported in 7 El LR 100 (F), it was observed at page 117
'Now candidature has been described as the bundle of rights and qualifications which entitles a person to stand as a candidate in a particular constituency as well as the factum of his being a candidate. It is one thing to say that a certain statement affects the chances of a candidate at the election and quite another to say that it is in relation to his candidature itself.
The words following that clause, viz. 'Or withdrawal of any candidate' make the meaning clear. In our opinion, the statement to come within the meaning of Section 123(5) of the Representation of the People Act, 1951 it must relate to the right or the qualifications or the factum of the candidate as such.'
I am accordingly of the view that the contention of Mr. Rath is correct and the learned Tribunal erred in holding that the disputed statement was in relation to the candidature of the candidate. As already found by me the learned Tribunal is not correct in saying that the imputation may not strictly be in relation to his personal character or conduct. I am, therefore, of opinion that the imputation that the Congress bribed Mr. Routroy Rs. 20,000/- in order to enable Sri Ranamali Patnaik to be elected is not an imputation ralating to the candidature of Sri Banamali Patnaik.
28. In conclusion my findings are as follows :
(1) Ext. 2, the pamphlet dated 15-2-57 does not amount to publication of a false statement knowing it to be false and does not affect the personal conduct or character or candidature of Sri Banamali Patnaik and did not prejudice him in the election;
(2) The appellant, opposite party or his workers or agents are not responsible in any way in the printing and publication of the news item in the Matrubhumi (Ext. 5);
(3) The appellant's case that Ext. 4 was a fraudulent document having been printed after the elections were over with the object of getting his elections set aside has not been proved;
(4) The respondent-petitioner failed to prove that Ext. 4 was printed on 21-2-1957 at the instance of the appellant by his workers, Sivaji Patnaik and Chakradhar Singh Samant at Kedar Gouri Press in Bhubaneswar;
(5) The respondent-petitioner has also failed to establish that the allegation contained in Ext. 4 to the effect that the Congress Party paid Rs. 20,000/-to Sri Routroy is false;
(6) The respondent-petitioner also failed to prove that the appellant and his workers made any propaganda that the Congress bribed the independent candidate Sri Routroy Rs. 20,000/s
(7) The imputation contained in Ext. 4 and in the propaganda made by the respondent's workers amounts to a statement in relation to the personal character and conduct of Sri Banamali Patnaik; and
(8) The said imputation cannot be held to be in relation to the candidature of Sri Banamali Patnaik.
29. On these findings it follows that the election petition filed by Sri Banamali Patnaik must bedismissed as the burden of proving a corrupt practice is on the petitioner, and the election of the appellant cannot be declared void. In the result, therefore, the appeal is allowed and the order of the learned Tribunal is set aside. Under the circumstances present in this case, I direct that each party will bear his own costs throughout.
R.L. Narasimham, C.J.
30. I agree with my learned brother in respect of his findings Nos. (1), (2), (3), (4), (5), (6) and (8).
31. The facts to be ascertained are-- (i) whether Ext. 4 was printed on the 21st February, 1957 at the instance of the appellant Sri Pran Nath Patnaik and (ii) whether the pamphlet contains a false statement. It is obviously the duty of the petitioner-respondent to establish affirmatively these two facts by clear and cogent evidence. I entirely agree with my learned brother that the evidence adduced by the petitioner is unsatisfactory and cannot be relied on. His principal witness is P.W. 2 and, as rightly pointed out by my learned brother, that witness can hardly be believed without corroboration which is totally wanting in this case. The pamphlet Ext. 4, asserted that the retiring candidate Sri Routrai was given a bribe of Rs. 20,000/- by the Congress Party and thus induced to retire. The petitioner has not asserted, either in his petition or even in his evidence that the Congress Party did not offer any such bribe to Sri Routrai. He has made only a general statement that the pamphlet is false.
The persons who handled Congress funds at the relevant time who alone are competent to say that a sum of Rs. 20,000/- was not offered to Sri Routrai, were not examined. Nor were the accounts of the Congress Party produced before the lower Court. Sri Routrai was also not examined to show that no such sum was offered to him. Hence, the petitioner's case must in any case fail, even though the appellant opposite party has not succeeded in establishing affirmatively the specific case which he put forward, namely, that Ext. 4 is a forged document, fabricated long after the election, by the petitioner Sri Banamali Patnaik, with the help of Chakradhar Singh Samant (witness No. 9 for the opposite party).
32. I am however unable to agree with my learned brother that the imputation contained in Ext. 4 is a statement in relation to the 'personal character and conduct' of Sri Banamali Patnaik. It is true that Sri Banamali Patnaik was the Congress candidate and was also the General Secretary of the Provincial Congress Committee in 1956. He was also a member of the Election Committee of the Congress. It was not stated in the pamphlet Ext. 4, that Sri Banamali Panaik induced the Congress Party to pay Rs. 20,000/- to Sri Routrai.
It was urged, however, that in view of his important position in the Provincial Congress Committee the impression which an average voter will gain on reading the pamphlet would be that it was Sri Banamali Patnaik who induced the Congress to pay the said sum. If the pamphlet had specifically referred to Sri Banamali Patnaik's position in the Congress Committee and his influence over the administration of the funds by the Committee, such an inference may be made. But the pamphlet says nothing about his position in the Committee and merely refers to him as the 'congress candidate'.
It will be too farfetched to say that an average voter in the constituency must have known that Sri Banamali Patnaik was a prominent and influential member of the Congress Committee and that he could induce the Congress to divert its funds in support of his candidature by buying over his rival. Hence on a fair construction of Ext. 4, I would hold that though there was some imputation against the Congress Party it cannot be held to be an imputation against the 'personal character and conduct' of Sri Banamali Patnaik even though he was described as the party's candidate in the constituency. This question however is academic in view of the decision of my learned brother on the other questions with which I am in full agreement.