N.L. Untawalia, J.
1. This is an appeal under Section 116A of the Representation of the People Act, 1951 - hereinafter called the Act from the judgment and order of the High Court of Madhya Pradesh dismissing the appellants's Election Petition bled to challenge the election of respondent No. 1. Toe said respondent was elected to the Legislative Assembly of Madhya Pradesh from the Churhat Assembly Constituency defeating many other candidates including one Shri Shyamlal his nearest rival candidate by a majority of 5,890 votes. The poll was held on 11-3-1972. The election of respondent No. 1 was challenged in the High Court on many grounds which were controverted by the said respondent. Several issues were framed at the trial of the Election petition and decided against the appellant. At the time of the hearing of this appeal only some of the issues were pressed and not all. We shall, therefore, very briefly state the relevant facts in relation to those issues only. Since we find that this appeal is without any substance, we shall mention the relevant issues pressed for our consideration in this appeal, the decision of the High Court on them and briefly discuss the points urged on behalf of the appellant to assail the decision.
2. Many charges of corrupt practices such as bribery, undue influence, threats etc. were leveled against respondent No. 1, his agents or workers within the meaning of Sub-section (1)(A) of and Sub-section (2) of Section 123 of the Act. The case of the appellant in the election Petition is this. Respondent No. 1 paid on 5-3-1972 a sum of Rs. 500/- to one Manbodhi Kurmi who was said to be hit worker at village Barigama and a prilling agent. Manbodhi distributed Rs. 500/- with the consent of respondent No. 1 on the same date to many voters with the object of inducing them to vote for respondent No. 1 Manbodhi wrote a letter on 6 3 1972 asking respondent No. 1 to send him Rs. 600/ more for payment to certain other electOrs. It is further said that one Indramani Prasad of Dhanaha who was the agent and worker of respondent No. 1 distributed money to the electors on 8-3-1972 with the object of inducing them to vote for respondent No 1.Similarly one Kedarnath resident of Dhumma who also was an agent and worker of respondent No. 1 with his consent distributed Rs. 1,000/ to the electors of village Dhumma. He also demanded a turn of Rs. 1,000/- by writing a letter dated 8-3-1972. Fourteen persons were named in the election petition to whom money was paid by Kedarnath between 5-3-1972 and 8-3-1972.
3. The appellant further averred that respondent No. 1 was guilty of having indulged in corrupt practice under Section 23(2) of the Act in as much as he, his agents and workers with his consent threatened the electors and interfered with the fee exercise of their electoral rights to cast votes in favour of the candidates of their choice. The threat specially to them was to refrain from voting in favour of Shri Shyamlat. Particularly in this regard the allegation was that one Rao Saheb of Rampur Naikin who was an agent and worker of respondent No. 1 with his consent published a pamphlet with the caption 'Churhat Kehatra Ke Matadataon so appeal'. The pamphlet was widely circuited by Shankereshwsi Pratap Singh son of Rao Saheb of Rampur in many villages of his influence.
4. Respondent No. 1 denied the various allegations of corrupt practices made against him, his agent or workers.
5. The decision of the High Court was assailed in this appeal in respect of four sets of issues only. We shall proceed to state and discuss such set of issues ??? in this judgment.
6. The first set of issues in relation to the commission or corrupt practice, through Manbodhi Kurmi is as follows;
1 (a) What on 5-3-1972 the respondent No. 1 paid Rs. 500/ to Manbodhi Kurmi for being distributed to the electors of village Barigama to induce them to vote for respondent No. 1?
(b) Whether on the same date the said sum of Rs. 500/- was actually distributed by Manbodhi Kurmi with the consent of respondent No. 1 to lokhai Kol, Ramana Kol and others mentioned in paragraph 5(A) (i) of the petition with the object of inducing the electors to vote for the respondent?
(c) Whether Manbodhi Kurmi was agent and worker of respondent No. I on 5-3-1972?
2. Whether on 6 3.1972 Manbodhi sent a letter to the respondent No 1 calling for a sum of Rs. 600/ for payment of a sum of Rs. 100/ each to the electors mentioned in paragraph 5(A) (ii) of the petition in pursuance of an earlier promise to pay such an amount with the consent of the respondent No. 1?
Manbodhi acted as a polling agent for respondent No 1 on 11-3-1972 at some booth. He was so appointed by one of the trusted workers of respondent No. 1 to whom signed blank forms for appointing polling agents has been entrusted. It was not, however, proved that Manbodhi had worked for respondent No. 1 at the time of canvassing of the voter or bad distributed any money to the electors for inducing them to vote for respondent No. 1 The letter dated 6-3-1972 said to have been written by Manbodhi has not been found to be a genuine document. It appears to us that the whole drama in connection with the said letter was engineered by or on behalf of the appellant with the help of Shyamlal and his associates. It was a fantastic story that such a letter was written by Manbodhi and was successfully intercepted so as to reach the hands of the election petitioner. This Court is loathe to interfere with the findings of fact recorded by the High Court chiefly when such findings are based on appreciation of the oral evidence. Having perused the judgment of the High Court and the relevant pieces of evidence of certain witnesses examined on behalf of the appellant and respondent No. 1 we could see no infirmity in the decision of the issued aforesaid.
7. Great stress was laid on behalf of the appellant for drawing adverse, inference against respondent No. 1 for non examination of Manbodhi to controvert the facts alleged by the appellant's witnesses in their evidence. It appears to us that the part played by Manbodhi in the drama of bringing into existence the letter purported to he dated 6-3-1972 was such that respondent No. 1 could not be expected to take the risk of examining him as his witness in court: No onus was cast upon him to prove any such fact that would entitle the court to draw an adverse inference against him for non-examination of Manbidhi: In the alternative it was submitted that Manbodhi ought to have been examined as a court witness. We do not think that on the facts and in the circumstances of this case the court was obliged to do so.
8. The next set of issues is the following :
3(a) Whether indramani Prasad was the agent and worker of the respondent No. 1 on 9-3-1972?
(b) Whether on the said date Indramani Prasad with the consent of respondent No. 1 distributed money to the electors of village Dhanaha specified in paragraph 5(8) of the petition ?
9. The High Court has found that Indramani Prasad was a polling agent and a counting agent of respondent No. 1. But it has not been proved that be was a worker of respondent No 1. Nor has the High Court found the charge of distribution of money to the electors by Indramani Prasad to be proved: A scene of the drama is found in this set of issues also. The story is that Indra mani Prasad had come to Bankelal Singh, P W 8 and had given him a number of pamphlets for being distributed in the Constituency. Among these was found one pamphlet Ext P 4 over which there was a writing said to be in the hand of Indramani Prasad. The writing was on account of money distributed to 11 persons. It was not signed by Indramani Prasad but purported to contain the acknowledgements of the receipt of money by various electOrs. Many of them were examined as witnesses on behalf of respondent No. 1. Only one was examined on behalf of the appellant. He was Bhagwandin, P W 9 The High Court has held that it was very doubtful whether the writing on the pamphlet P-4 were in the pen of Indramani Prasad. It was not proved to be so. We see no justifiable reason to enable us to upset the findings of the High Court in regard to the alleged commission of the corrupt practice of bribery by respondent No. 1 through Indramani Prasad. No adverse inference was at all drawn against respondent No. 1 for non-examination of Indramani Prasad as a witness in the case.
10. The next set of issues are the following :
4(a) Whether Kedavnath was an agent and worker of respondent No. 1 during the period from 5-3-1972 to 8-3 1972?
(b) Whether during the period from 5-31972 to 8 3-1972 Kedarnath with the consent of respondent No. 1 distributed a sum of Rs. 1,000/' to the electors of the village Dhumma specified in paragraph 5(c) of the petition?
(c) Whether Kedarnath further demanded a sum of Rs. 1,000/- for being distributed among the electors in order to induce them to vote for the respondent No. 1 no letter dated 8-3-1972 ?
11. The High Court has rightly rejected the evidence adduced on behalf of the appellant with reference to these issues also. At in the case of Manbodbi to also regard to Kedarnath in a dramatised fashion a letter is said to have been written by him on 8-3-1972 demanding a sum of Rs. 1,000/ from respondent No. 1 for being distributed among the electors in order to induce them to vote for him. This letter is also said to have been intercepted and ultimately reached the hands of the appellant. It is Ext. P5. Such a crude attempt to prove charges of bribery was bound to fail and has rightly failed in the High Court.
12. The last and the fourth set of issues decided against the appellant and pressed for our consideration ii the following :
8(a) Whether Rao Saheb Rampur Naikin was an agent and worker of respondent No. 1
(b) Whether Rao Saheb Rampur Naikin with the consent of respondent No. 1 published a pamphlet under a caption 'churhat Khetra Ke Matadataon Se Appeal' and thereby exercised undue influence on the electors
(c) Whether between 3-3-1972 to 9-3-1972 the aforesaid pamphlet was widely' distributed in all the villages which originally comprised the Ilaka Rampur by Shankereswar Pratap Singh son of Rao Saheb Rampur Naikin
9. Whether Sankereshwar Pratap Singh was agent and worker of the respondent No. 1 during the period and he distributed the pamphlets with the consent of respondent No. 1
10. Whether respondent No. 1 in the company of Sankereshwar Pratap Singh distributed the aforesaid pamphlet in villages Rampur, Murtala, Baghwar, Sikargaoj, Bagher, Amlal and Kandhwar on 8 3-1972
11. Whether on 8-3-1972 Sankereshwar Pratap Singh threatened the voters of villages Kandhwar, Bagher and Dabaiya Tola be longing to Thakur community, that they would be ex communicated if they voted for the independent candidate Shyamlal and did not vote for the respondent No. 1
12. Whether the aforesaid threats were given by Shankershwar Pratap Singh with the consent of respondent No. 1 in his presence and bearings?
13. Whether Rao Saheb Rampur Naikin threatened the Thakur voters of village Rampur on 7-3-1972 that they will be ex-co mmunicated if they did not vote for the respondent No. 1
14. Whether these threats were given by Rao Saheb Rampur Nai kin with the content of respondent No. 1 for furtherance of his election?.
15. Whether the aforesaid threats were given by Rao Saheb Ram- pur Naikin at a meeting convened on 7 3 1972 in which the persons mentioned in paragraph 7(f) of the petition were specially called
16. Whether the respondent No. 1 thus committed corrupt practice of undue influence under Section 123(3) of the Representation of the People Act for furtherance of bis election, and as such bis election is liable to be set aside. ?
The High Court has held :
(1) There is no doubt that a pamphlet (Ext. P-7) was published and the publisher was shown to be Rao Saheb of Rampur'
(2) It is not true that the Rao Sabeb an old man moved in the company of respondent No. 1 to help him in the election.
(3) That the pamphlet, published by Rao Saheb of Rampur or purporting to have been published on bis behalf was not meant to advance the case of respondent No. 1 at the election.
13. It is not necessary to state all the findings of the High Court which were against the appellant. Suffice it to say that no fact in regard to the above issues was found in favour of the appellant by the High Court to prove the charge of exercise of undue influence under Section 123(2) of the Act. We may rest content by merely observing that the High Court has rightly found that the contents of the pamphlet (Ext P-7) were not such as to prove the case of undue influence under Section 123(2). The contents are quoted in the judgment of the High Court. We find no threat or words in the pamphlet to enable us to hold that undue influence i.e. to say any direct or indirect interference or attempt to interfere on the part of respondent No. 1 was exercised or made with a free exercise of any electoral right. The pamphlet did not plead the case of respon dent No. 1 or his party on whose ticket he was contesting the election. We have, therefore, no difficulty in rejecting the argument put forward on behalf of the appellant in this regard too.
14. For the reasons stated above, the appeal fails and is dismisied. The appellant must pay costs in this appeal to respondent No. 1.