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Badri Prasad Vs. Satish Kumar Sharma - Court Judgment

LegalCrystal Citation
SubjectElection
CourtRajasthan High Court
Decided On
Case NumberMisc. (Election) Appeal No. 59 of 1963
Judge
Reported inAIR1964Raj184
ActsRepresentation of the People Act, 1951 - Sections 123(4); Evidence Act, 1872 - Sections 114; Code of Civil Procedure (CPC) , 1908 - Order 6, Rule 2
AppellantBadri Prasad
RespondentSatish Kumar Sharma
Appellant Advocate M.B.L. Bhargava and; J.P. Jain, Advs.
Respondent Advocate R.K. Rastogi, Adv.
DispositionAppeal allowed
Cases ReferredLachman Singh v. Harpranash Kaur
Excerpt:
- - 1. this is an appeal under section 116a of therepresentation of the people act, 1951, (herein-after, to be referred to as the act) by badri prasad,an unsuccessful election petitioner, against the orderof the election tribunal, alwar, dated may 31,1963, dismissing his election petition no. his defence, however, is that the passages contained in the documents complained against are neither statements of fact nor they relate to the personal character of conduct of the petitioner. --1) it is a sound principle of natural jusitce that the success of a candidate who has won at an election should not be lightly interferred with but at the same time this is also of almost importance for the healty growth of parliamentary system of government and of true democracy that the purity of the.....chhangani, j. 1. this is an appeal under section 116a of therepresentation of the people act, 1951, (herein-after, to be referred to as the act) by badri prasad,an unsuccessful election petitioner, against the orderof the election tribunal, alwar, dated may 31,1963, dismissing his election petition no. 92 of1962. the petitioner badri prasad was a contesting candidate for a seat in the rajasthan legislative assembly from the bansur constituency. therewere six-other contesting candidates including therespondent satis kumar, sharma. election washeld in february 1962 and the counting of votestook plate on february 26, 1962. the votes secured by the various candidates were as follows :--1.shri satish kumar sharma183972.shri badri prasad gupta121483.shri bhawani shanker2614.shri ram.....
Judgment:

Chhangani, J.

1. This is an appeal under Section 116A of theRepresentation of the People Act, 1951, (herein-after, to be referred to as the Act) by Badri Prasad,an unsuccessful election petitioner, against the orderof the Election Tribunal, Alwar, dated May 31,1963, dismissing his election petition No. 92 of1962. The petitioner Badri Prasad was a contesting candidate for a seat in the Rajasthan Legislative Assembly from the Bansur Constituency. Therewere six-other contesting candidates including therespondent Satis Kumar, Sharma. Election washeld in February 1962 and the counting of votestook plate on February 26, 1962. The votes secured by the various candidates were as follows :--

1.Shri Satish Kumar Sharma183972.Shri Badri Prasad Gupta121483.Shri Bhawani Shanker2614.Shri Ram Narain4145.Shri Shiv Charan8106.Shri Sada Ram8387.Shri Heer Lal608

The rspondent Satish Kumar Shama was declared duly elected from the aforesaid assembly constituency by the Returning Officer. The petitioner Badri Prasad submitted an application under section 80 of the Act to the Election Commissioner of New Delhi, Challenging the validity of the election of the respondent. In his petition, he had taken a number of grounds enumerated in para 5(a), (aa), (b), (c), (d), (e) and (f) but during the hearing of the appeal he relied only on two instances of corrupt practices detailed in para 5 (a). It is, therefore, unnecessary to set forth the various grounds of corrupt practices relied upon by the petitioner in the election petition and it would suffice to say that the petitioner-appellant's case surviving for consideration at this stage is that the respondent - the successful candidate has shortly before the polling of the votes published two leaflets mentioned at serial number 1 and 2 which are marked E. 6 and Ex. 10 containing stat4ements of acts with regard tot eh personal character or conduct of the petitioner Badri Prasad which were false and which the respondent Satish Kumar believed to be false or did not believe to be true and that the statement. Were calculated to prejudice the prospects of the petitioner Badri Prasad at the election.

2. The petition was referred for trial by the Election Commissioner to the Election Tribunal, Alwar, under section 86 of the Act. The respondent denied the allegations of corrupt practices made against him. He admitted that the bulletins Nos. 1 and 2 as also two others Nos. 3 and 4 were got printed and published by him. His defence, however, is that the passages contained in the documents complained against are neither statements of fact nor they relate to the personal character of conduct of the petitioner. Such passages were neither false nor the respondent believed them to be false.

The petitioner's case further is that what was alleged in these bulletins was believe by the respondent to be true on the basis of informations received from various sources inlcuding many new-papers, reports, pamphlets and speeches of prominent persons. According to the respondent the allegations were against the corruption and demoralization in the ranks of Congress party and the functioning of the administration under the said party in general.

3. On the pleadings of the parties, the Tribunal framed as many as 59 issues, the relevant issues for the purposes of this appeal being Nos. 3, 5, 6 and 9, which read as under:--

(3) Whether the statements contained in bulletins 1 to 4 enumerated in the table given in para 5(a)(i) are false and the respondent believed them to be false or did not believe to be true?

(5) Whether the objected portions of bulletins 1 to 9 as given in Schedule 'A' are statemens of fact and relate to the personal character and conduct of the petitioner?

(6) Whether the said statements were calculated to prejudice the prospect of petitioner's election and actually misled a large number of electors?

(9) Whether the actions of the respondent as alleged in para 5(i)(a) amount ot corrupt practice under Section 123(3) of the R.P. Act?

4. The petitioner examined 38 witnesses and produced 38 documents, while the respondent examined 71 witnesses and produced 104 documents.

5. After considering the evidence of the parties the Tribunal dismissed the election petition. In its order, the learned Member of the Tribunal prefaced the discussion of the case on merits by laying down the following principles guiding the determination of election cases and the correct mode of approach to them:--

1) It is a sound principle of natural jusitce that the success of a candidate who has won at an election should not be lightly interferred with but at the same time this is also of almost importance for the healty growth of parliamentary system of Government and of true democracy that the purity of the election process should be realously safe-guarded in the sense that the people do not get elected by fiagrant breaches of the election laws or by corrupt practices.

2) The petition was referred for trial by correct conclusion the Tribunal observed in the second instance that it is of greatest importance to know that the charges of corrupt practice are quasi-criminal in character and the criterion to assess the evidence either in a criminal case or in a case for setting aside election is the same.

3) That in case of allegations of corrupt practices the burden of proof is on the petitioner. It never shifts and the standard of proof to discharge this burden is the same as in criminal cases, that is the matter requiring proof should be established beyond any reasonable doubt.

6. Considering the case in the light of the abouve principles, the Tribunal recorded the following findings in respect of Ex. 6 and Ex. 10:--

1) The Tribunal considered Ex. 6 under twoheads which shall be hereinafter be referred to as

Part A and Part B, Part A readingfrom ^^,slks u to fodsxh ugh**]and Part B reading from ^^fiNys pqukoksto [kre djks**Part A was treated under two heads to be referred to as A I and A 2; Part AIreading from ^^,slk u toto iMh** and Part A2 reading from ^^;glgh gS to fodsxhugh**- As regards Part AI, the

tribunal observed that the imputation and insinuation for distributing coats and blankets was towards the Gurgas of the petitioner, and cannot be said to be an imputation in relation to the personal character and conduct of the petitioner. Part A-2 was held not to be a statement of fact, but simply an opinion not hit by Section 123(4). The Tribunal discussed the evidence of the parties as to the falsity or truth of the statement and. recorded a decision in favour of the respondent. The con-elusion was finally summed up as follows :

'The objected portion i. e., Part A-1 already referred to in bulletin Ex. 6 is neither a statement of fact, nor is it prpved to be false. So also it is not proved on behalf of the petitioner that this statement if at all it can be said to be a statement of fact was false to the belief of the respondent.'

7. With regard to Part B reading from^^fiNys pqukoks to[kre djks** of thisbulletin, the tribunal's finding is that this is nothing but an opinion and by no stretch of imaginationit can be said to be a statement of fact'.

8. The eventual conclusion of the Tribunal is that the contents of Ex. 6 cannot be taken to be a corrupt practice under Section 123(4) of the Act.

9. As regards Ex. 10, the Tribunal discussedthe various portions under four heads, marked Ato B, C to D, E to F and G to H. With regardto the portion marked A to B the Tribunal r.fterreferring to the evidence came to the followingconclusion :

'Thus it becomes very clear from the above documentary and oral evidence on record that the respondent as so many other persons of Alwar, bad a bona fide belief that the accounts of Nehru Fund were not being rendered by Shri Sobharam and the persons of his group including the petitioner Shri Badri Prasad. As Shri Badri Prasad contested the election on Congress ticket and as he was alsoadmittedly a member of the D.C.C. Alwar, he was in duty bound to render the accounts of the Nehru Fund. At least with this background the respondent or any Other person who contributed to the fund could have reasonably asked the petitioner as to what became of that big amount of Nehru Fund or where it lay deposited.'

The Tribunal in this connection repelled the argument advanced on behalf of the petitioner-appel-lant that the account books Ex. 32 to Ex. 38 pro-duced by the Chairman of the District Congress Committee, Alwar, at the instance of the respondent should be treated as evidence and on their basis the petitioner appellant's liability to account should be negatived. The Tribunal substantially recorded a finding that the correctness of the accounts cannot be accepted.

The Tribunal also took the-view that the portion marked A to B in Ex. 10 was not a statement of fact which the respondent could be said to have made in relation to the personal character and conduct of the petitioner and that it concerned the congress the party of Badri Prasad. It was further held that the petitioner has not been able to prove that the statement was false or was not true to the belief of the respondent. In this connection the Tribunal emphasised the fact that the petitioner failed to take any criminal action against the culprits under Section 171(g) of Indian Penal Code and to publish a counter bulletin, and relied upon Mehta Gordhandas Girdharlal v. Chavada Akbar Dalumiyan, 7 Ele LR 374 (Bom), Savitri Devi v. Prabhawati Misra, 15 Ele LR 358 (All), Chikati Parasuram Naidu v. Vyricherla Chandra Chudamani Dev 13 Ele LR 66 (Ele Tri Rajahmundry) and even quoted a passage from the last mentioned case.

10. Portion C to D in Ex. 10 was treated as a matter of opinion only. The finding with regard to portion E to F was also recorded against the petitioner but inasmuch as the appellant has joined no controversy on this aspect of the case, it is unnecessary to make any detailed reference to it The portion G to H was also consideibd an expression of opinion only. Thus the publication of Ex. 10 was also not treated as a corrupt practice within the meaning Of Section 123(4) of the Act.

11. For the purposes of this appeal no reference needs to be made on the findings of various other points considered and decided by the Tribunal.

12. Mr. M. B. L. Bhargava, appearing for the petitioner appellant raised no controversy as to the propositions that the success of a candidate at an election should not be lightly interfered with and that the proof required in establlshing the corrupt practice is one that is required to establish a criminal offence. He, however, strongly submit-ted that with regard to the corrupt practice of making a false statement falling within Section 123 Sub-section (4) the approach of the Courts should be different from the one with regard to other corrupt practices. According to him, the burden being on the petitioner to prove the negative some evidence by the petitioner of his agents denying the acts imputed to them may be considered sufficient to discharge the burden initially lying upon him and to shift the bunion on the opposite party to prove the circumstances to dislodge the denials of the petitioner or his agents.

A number of cases which shall be presently noticed were relied upon in support of his contention. It being so, it was strenuously argued by Mr. Bhargava that the Tribunal did not ap- proach the case from a correct angle and consequently its findings are vitiated. Mr. Bhargava read before us the relevant portions of the evidence on record and contended that the evidence on the record is sufficient to prove that the statements made in Ex. 6 and Ex. 10 are false and that the petitioner believed them to be false or did not believe them to be true and that these statements are reasonably calculated to prejudice the profpects at the election and what the publication of the statements contained in Ex. 6 and Ex. to is cor-nipt practice/within the meaning of Section 123(4) ofthe Act.

13. Mr. R. K. Rastogi appearing for the respondent, supported the judgment of the Tribunal and countered the various argument advanced on behalf of the petitioner appellant. They will be noticed as and when necessary or appropriate.

14. At the outset it will be proper to examine the legal position.

15. A reference to language of Section 123(4) of the Act shows that the burden of proving that the statement of fact made is false and that the maker believed is to be false or .jid not believe it to be tree, has teen placed on the petitioner. The corresponding English Law is contained in Section 9(1) of the English Representation of the People Act, 1948 and reads as follows :

'Any person who, or any director of any body or association corporate which, before or during an election, shall, for the purpose of affecting the return of any candidate at the election, make or publish any false statement of fact in relation to the personal character or conduct of the candidate shall be guilty of an illegal practice, unless he can show that he had reasonable grounds for believing and did not believe, the statement to be true.'

In Anjaneya Reddy v. Gangi Reddy, 21 Ele LR 247 (Mys) a Division Bench of the Mysore High Court had an occasion to consider the precise nature of burden and the proper mode of approach under Section 123(4) of the Act and the true legal position was expressed in the following terms :

'At first sight it appears as if there are material differences between the English law and Indian law in the matter of establishing the corrupt practice of making false statements during election. The English law requires the petitioner to prove that the statement of facts made is false. Once that is established it is for the opposite side to establish that the maker of that statement had reasonable grounds for believing and in fact he believed the same to be tfue. But in this country the burden of proving that (i) the statement of fact made is false and (ii) the maker believed it to be false or did not believe it to be true, is placed on the peti-tioner. But on an examination it will be found that the difference is only in the approach and emphasis and does not touch the substance of the matter. This would be clear if we bear in mind the fact that the petitioner is required to prove a negative and further that when a fact is especially within the knowledge of any person the burden of proving that fact is upon him.'

This case went in appeal to the Supreme Court in Gangi Reddy v. Anjaneya Ready, 22 Ele I.R 261 (SC) and it was contended before the Supreme Court that the High Court though in form had correctly stated the proposition, in fact and substance arrived at the findings on the ground that the appellant before the Supreme Court had not proved the said fact. The Supreme Court overruled this objection. After referring to Sections 101 and 102 of the Evidence Act. which deal with the burden of proof, their Lordships stated the position as thus :

'The burden of proof has two distinct meanings, viz., (i) the burden of proof as a matter oflaw, and pleading and (ii) the burden of proof as a matter of adducing evidence. Section 101 deals with the former and Section 102 with the latter. The first remains constant and the second shifts. In the present case, the burden of proof, in the first. sense, certainly lies on the first respondent but he has examined himself and has specifically stated in the evidence that he has neither committed the murder nor has he been guilty of any violent acts in his political career. He also placed before the Court the circumstances, namely, the situation created by the murder of Narayanaswamy and the possible impact of that murder on the poll which was scheduled to take place in a few days there-after, indicating thereby a clear motive on the part of the appellant to make false allegations against him. A Court of first instance or an appel-late Court is entitled to accept his evidence. If so, the Onus shifts on the 'appellant to prove those circumstances, if any, 'to dislodge the assertions of the first respondent. The appellant has failed to put before the Court any facts to establish either that the first respondent did in fact com-mit the murder or any other acts of ivolence in the past or to give any other circumstance's which made him bona fide believe that he was so guilty. In the circumstances the Court is entitled to say that the burden of proving the necessary facts had been discharged by the first respondent.'

16. In Bhim Rao v. Ankush Rao, 22 Ele LR385 (Bom) Mudholkar, J. as he was then speaking.on behalf of a Bench of the Bombay High Courtindicated the proper approach in the follcrwing terms:

'Just as a person who is standing his trial foran offence before a Court of law is presumed tobe innocent unless he is shown to be guilty, similarly, in our opinion, when a person's characteris assailed he must be presumed to be of goodcharacter until and unless it is proved that he isof a bad character. No doubt the section is soworded that the petitioner in the election petitionmust show that the allegations made against himwere false but that provision is a general provision. Where the allegation concerns the characterof a person, the ordinary, presumption of law mustprevail. If that be the correct legal position, theburden would be upon the person who has madedefarnatory allegations concsrning the character ofanother to prove that they are ture.'

This in a way tends to lighten the burden on thepetitioner and increase the same on the respondent.

17. In Khubchand Baghel v. vIDYACHARAN Shukla,AIR 1963 Madh Pra 336 the 'Madnva Pradesh HighCourt cautioned the need of carrying the analogyof the criminal proceedings too far and avoidingconfusion or abstract considerations of the questionof burden of proof. Repelling an argument thatthe Bombay decision reported in 22 Ele LR 385(Bom) is in conflict with the Supreme Court decision in 22 Ele LR 261 (SC) the learned Judges laid down the rules as follows.

'But to prove something that is logically negative, the petitioner is only to begin by taking the oath and asserting that he Mas not done it. Thereupon it falls to the person makirig these allegations to confront' him and show that he has done it, or that he has surrounded himself withcircumstances that put him on explanation. In the latter event it becomes now the turn of the petitioner tp give his explanation or rebut. Thus the 'burden' so called as it were moves from side toside; all the time the initial burden of establishing the case, that is, the burden under Section or of the Evidence Act lies on the petitioner. It may be that there is a burden properly so called of proving a statement that is logically negative; but the manner of proving it is a mere denial. A personcan prove that he has not killed somebody else and has not thrown the corpse into the river by merely asserting that he Eas not done so. Now it is for the person alleging to confront him with the facts of a positive nature whereupon the former has to explain or rebut. All this is clear; but at times loose usage creates an apparent confusion which can however bs cleared by examining the matter properly.'

18. In the ast, I may refer to a decision oi the Supreme Court ia Mohansingh v. Bbanwarlal,Civil Appeal No. 530 of 1963; D/- 3-10-1963: (AIR 1964 SC 1366) which has not been reported sofar but a copy of which has been made available to us by the learned counsel for the appellant. In that case the facts found were as follows :

'The person responsible for the publication of these two leaflets intended to convey that Bhan-warlal had deceived the agriculturists into partingwith the sum of RS. 28,000/- on the representation that licences for cultivation of opium would be obtained for them. The two leaflets also clearly imply that he misappropriated the fund collected by him. Bhanwarlal denied that he had utilised any fund collected from the agriculturists for his own purposes. He stated that some amounts of money were collected from cultivators of opium by the District Congress Committee and receipts were given by the District Congress Committee in respect of those collections on behalf of the District Congress Committee. He denied that he had misled the agriculturists or that he had misappropriated any amount, collected from the agriculturists. He asserted that the amounts collected from the agriculturists were for the District Congress Committee, and did in fact go to that body. On these facts, the Supreme Court held that the imputation was undoubtedly in relation to the ptisonal conduct of Bhanwarlal, and if the testimony of Bhanwarlal be accepted, the imputation must be held to be false. It was further observel that no attemptwas made at the trial to prove the truth of the imputations. It was further held that from the manner and the time of the publication of the leaf, lets the Court further concluded that the leafletswere published as a part of a political campaign to injure the prospects of Bhanwarlal at the election, and if without making an enquiry, about the collection of the amount of Rs. 28,000/- and the destination thereof, it was imputed against Bhanwarlal that he had defrauded the agriculturists and misappropriated the amount collected, the inference that the statement made was to the knowledge of the maker false or was not believed by him to be true, would readily be made''.

19. On an above review of the cases the correct principle that should guide the Tribunal and Courts may be broadly stated as follows :--

The initial burden of proving a corrupt practice even under Section 123(4) of the Act is on thepetitioner relying on it but in view of the weightyconsiderations, namely, (i) That the petitioner isbeing called upon to prove the negative; (2) Thatunder the general law the burden of proving factswithin the special knowledge of a person is on thatperson (3) That when defamatory imputations aremade under the general law, there is a presumptionof innocence, the burden of proving a corrupt practice under Section 123(4) of the Act must be considered of a light nature and that it may veryfrequently be discharged by somj prima facie evidence and that in some casss the burden may bedischarged by a simple denial of the petitioner ofthe conduct imputed to him. It should also beborne in mind that the analogy with a criminal caseshould not be carried too far It appears to methat the Tribunal did not approach the case correctly by taking a strict view of burden on thepetitioner and in observing that the burden nevershifts and this appears to have influenced hisfindings which therefore cannot be accepted atface value. It is, therefore, necessary to appriasethe evidence in the light of the principle indicatedabove.

20. I will first take up Ex. 6. It may be quoted in full as follows :--

vke vkneh lPpk vkSj bekunkj gS

dksV vkSj dacyksa ls oksV ugh feysaxs A

Jh cnzh izlknth dks psrkouh

Jhekuth]

vki ;dhu ekfu;s fd csbZeku vkSjfjLor[kksjh dk iwjk nkSjk njsjk gksus ij Hkh mlls iuius vkSj] mlus fo'oklj[kusokyks dh la[k;k cgqr FkksMh gS A vke vkneh fj'or vkSj csbZekuh dks ilUr ughdjrk A

lk/kkj.k O;kogkj ds vuqlkj pqukoyM+us okys dks ;k mlds lkfFk;ks dks ;g crkuk pkfg;s fd og fdl izdkj turk dksHkz'Vkpkj ds i=ks ls fudkyuk pkgrk gS ;k fdl izdkj lkoZtfud dkeks dks rFkklPkkbZ vkSj bZekunkjh dks izksRlkgu nsuk pkgrs gS A ,slk djds vki xqxZ ljs vkedksV vkSj dEcyks ls oksV [kjhnus dh ckr djrs gS A turk Hkq[kh gS csbZekuugh] raxh gS exj bZeku j[krh gS bldk C;ksjk vki vius Lis'ky xqxZ Jh y{ehukjk;.k[kaMsyoky lgkc ls iwNs fd rk- 9&1&62 dks vkyuiqj es dksV dEcyks dks fdlizdkj Bqdjk;k x;k vkSj fdl rjg Hkkx dj viuh thi idMuh iM+h-

;g lgh gS fd vki ds [ktkus esdksV vkSj dacyks dh Hkjekj gS exj ;kn jf[k;s fd mUgs ysus okys ugh feysaxs( turkHkw[kh vkSj uaxh yM+ tk;xh exj fcdsxh ughaA

vkius ekQh ;k ekxus dk ,d u;kjoS;k fl[kk gS loky ekQh dk ugh cfYd xqxkZjk; dh ekQh vkSj tkxhjs [kRe djus dkgS fiNys pqukoks es vkius gjlksjk es dle [kkbZ Hkh fd xqxZ fo'k'k dh vki vius lkFkdHkh ugh j[ksaxs exj gqvk D;k A xqxZ fnu nwj jkr pkSxuh Qys Qwy vkSj turk detksjgqbZ A bl dkj dje vkSj dle dh xqatkbl deh gS cYdh turk dk vafre QSlyk gS xqxkZ [kredjks-

lokZn;izsl] vyoj

lrh'k dqekj 'kekZ

,MokadsV

English translation of the above is as under :--

'A COMMON MAN IS TRUTHFUL AND HONEST. VOTES CANNOT BE SECURED BY MEANS OF COATS AND BLANKETS.

WARNING TO SHRI BADRIFRASHAJI. Sir,

Rest assured that dishonesty -and briberyare rampant and at their full swing, yet thenumber of people who believe in it and flourishthereby is far less. A common man does not likebribery and dishonesty.

According to the general code of conduct a person who fights elections or his associates should give out as to how they will emancipate the people from the evil of corruption and how do they intend to encourge works of public welfare and the cause of truthfulness and hortesty. Instead of this your, emissaries talk of purchasing votes by means of coats and blankets. The public though under the yoke of starvation, is not dishonest, though it is poor has got every regard for honesty. Shri Laxmi Narain Khandelwal, your special emissary will let you know this in fullest details as to how coats and blankets were contemptuously rejected in Alanpur on 9-1-62 and as to how he ran away and overtook his jeep.

It is true that there is plenty of coats and blankets in your store, but remember that you will not find a single person prepared to have them and the public would prefer to struggle with want of food and clothes but would not, at any cost, sell away her conscience.

You have adopted a noble method of apologising. There is no question of apology. What is needed today is putting an end to the 'Mafis' and Jagirs of your emissaries. During the last elections you had taken a vow at Harsura not to keep emissaries with you, but with what results Your emissaries flourished by leaps and bounds and the public went on becoming feeble. Thus there is very little scope for taking pious vows in the name of religion. The verdict of the public is 'Finish your so-called emissaries' (Gurgas)

SATISH KUMAR SHARMA

ADVOCATE'

In connection with this document, two preliminary controversies may be noticed at the outset. The first controversy is that while the petitioner appellant interprets the document to imply an actual offer of coats and blankets by satellite or henchman of the appellant Badri Prasad as also by his special, henchman Shri Laxmi Nararin whereas, Mr. Rastogi interprets it to imply a mereproposal or a talk without actual otter of coats and blankets. The second controversy is whether the reference in Ex. 6 to the Tillage Alanpur can be construed to include a reference to Madho's dhani near Tillage Alanpur. This controversy arises on account of the contention on behalf of the appellant that the scene of distribution or proposal for distribution of blankets and coats has been changed by the respondent from village Alanpar to Madho's-dhani at ths stage of evidence and that evidence produced to establish an offer or distribution of blankets and coats at Madho's dhani should not be considered as being in variance of the pleadings.

The determination of these preliminary controversies is bound to have bearing on the proper appreciation of evidence. Now it may be stated at the outset that a document should be read and interpreted as a whole. Construction of the portions of the documents treating them as separate entities is not the proper mode of construction.

21-22. The judgment proceedtd as under :). In this background the document lead as a whole should be reasonably interpreted to imply that the petitioner's supporters actually offered coats and blankets to secure votes. The first preliminary controversy should be decided in favour of the petitioner.

23. As regards the second point, the learnedcounsel for the respondent invited the Court's attention to the following portion of the statement ofthe witness Sheoram (DW/8) :

'Shri Laxmi Narain tad collected the prisons in village in Alanpur in the Dhani of Madha.' Madhararn (DW/go) stated -

'Badri Prasad petitioner had come to me also at my house in Alanpur in my Dhani at Tiraha'. He further stated -

'Laxmi Narain and Gyanchand came to ourvillage Alanpur and also to my dhani.'

Omkar (DW/22) at page 402 of the Paper Book has stated : --

'There are no houses other than those of relations of Madha in the Dhani of Madha in Alanpur.' Although the position was not prominently brought on record yet there seems sufficient room ior tha conclusion that Madha's dhani should be treated as a part of the Alanpur village and that on a liberal consideration of the case the evidence relied upon in connection with any incident at Madha's dhani cannot be ruled out of considera- tion. I must, however, add that the circumstances that the bulletin made a general statement and did not mention the particular place where Laxmi-narain made the offer will be a circumstance to be considered in properly appraising the evidence.

24. The preliminary controversies having been decided, I now propose to examine the various questions arising in connection with Ex. 6. The first question is whether 'Ex. 6 contains a statement in relation to the personal character or conduct of Badriprasad. The Tribunal appears to have treated Part Ai as statement of fact but has held that it relates to the Gnrgas, and cannot be said to be an imputation in relation to the personal character or conduct of Badri Prasad himself. As regards part A.2, the Tribunal's finding is that it isnot a statement of fact b*t is simply an opinion and is not hit by Section 123(4). of the Act. The Tribunal relied upon Smt. Sarla Devi v. Birendra Singh, AIR 1961 Madh Pra 127 and V. P. Shanm-gam v. Thangavelu, AIR 1958 Mad 240 in connection with its finding on Part A.

25. The bulletin read 'as a whole shows that the petitioner was shown in possession of a huge stock of coats and blankets. The petitioner was was also informed'that the votes cannot be secured by offer of coats and blankets., The bulletin also contains that the satellites of the petitioner, have been offerring coats and blankets in the public. The only reasonable interpretation of the document is that the petitioner has acquired a huge stock of coats and blankets and his workers are distributing them with his consent and connivance. This is a clear imputation in relation to the character and conduct of the petitioner. The Tribunal in ray opinion, has arrived at a wrong conclusion by referring to Smt. Sarla Devi's case, AIR 1961 Madh Pra 127 and V. P. Shanmugam's case AIR 1958 Mad 240.

In AIR 1961 Madh Pra 127, the first statement referred to the workers of the hut symbol party and the second to the Praja Socialist party. It was also found that the hut was the symbol o Praja Socialist Party which was a political party, [t was rightly held that imputation against the workers of the political party or the political party itself cannot be taken in relation to the personal character or character of the candidate who belonged to that party. The Madras case, AIR 1958 Mad 240 was a case under Section 171G, Indian Penal Code, and the decision was that the section does not apply to the written statement about persona who are not candidates.

The principle adopted in these two cases with reference to their facts cannot be properly applied to the facts of the present case. There is no reference in the present case either to a political party or its workers. The imputation is in respect of the petitioner working through his satellites. It will be useful in this case to refer to Inder Lal v. Lal Singh, AIR 1962 SC 1156, where their Lordships observed -

'Though it is clear that the statute wants to make a broad distinction between public and political character on the one hand and private character on the other, it is obvious that sharp and clear cut dividing line cannot be drawn to distinguish the one from the other. In discussing the distinction between the private character and the public character, some times reference is made to the 'man' beneath the 'politician' and it is said that if a statement of fact affects the man beneath the politician it touches private character and if it affects the politician, it does not touch his private character.'

Their Lordships then gave illustration where the distinction can be easily drawn and then observed that there may be border line cases where the statement may affect both the political and a man beneath the politician. Their Lordships on the facts of the case observed that the statement amounted to an allegation that the respondent No. 2 buys by offering bribes the votes of the opponents of the Congress. Bribery is itself a cor-rupt practice and if it is said against a candidate that he practices the corrupt practice of buying the votes of the opponents of the Congress by means of bribery, that clearly and unequivocally affects his private character, and their Lordships treated-this statement as falling within the purview of Section 123(4) of the Act.

26. In the light of what has been stated above, I have no hesitation in holding that the finding with regard to Part Ar arrived at by the Tribunal is clearly erroneous. The finding of the Tribunal with regard to Part A2 that it is a mere expression of opinion is also not justified. It is true that where the statements are general and are not related to concrete facts they may be treated as mere expression of opinion but in the present case the allegations against the petitioners have been made with reference to facts. The relevant facts appearing in the bulletin are that the petitioner had acquired a stock of coats and blankets and was trying to corrupt voters through his satellites and that previously the petitioner had taken oath not to be surrounded by the satellites but he has not maintained his promise. With reference to these facts it was sought to emphasise that the petitioner had acquired a huge stock of coats and blankets to distribute through his satellites and thus to corrupt the voters.

27. I cannot agree with the Tribunal that in this back ground Part A2 was a mere expression of opinion and was not a statement of fact. Parts A and A2 should be read together and the whole statement is one of fact and is in relation to the personal character or conduct of the petitioner. The question, therefore, has to be answered in favour of the petitioner. (After discussing some evidence on the question of the falsity of the statement, the judgment proceeds).

28-29. I must observe that the Tribunal has not approached the case from the right angle. The analogy of a criminal case in election matters has been carried too far and the presumption of innocence in relation to any defamatory insinuation has not been given any consideration. The appreciation of the evidence is superficial and unsatisfactory. The first matter in which the Tribunal went wrong is with regard to Ex. 5. The Tribunal pointed out in this connection 'that the file in which Ex. 5 was attached is not bound and there is no paging in the file. It appears that the papers in the file are tagged together.' It was also pointed out that the despatch register in which Ex. 5 was entered was not produced. Thirdly, it was emphasised that Ex. 5 does not bear any receipt or despatch number of the Transport Sub-Inspector, Alwar. The departments have their own system of keeping files and there is nothing to suggest that the file in which Ex. 5 was included was kept in variance with the system prevailing in the department. The absence of paging also cannot be very material.

Nothing was brought in the cross examination of Madanlal to discredit the genuine nature of Ex. 5. The fact that this petition was entered in the despatch register on the 10th January 1952 is indicative of its genuine nature. The entry of the despatch number should ordinarily be presumed to be correct in the absence of any evidence to thecontrary. The respondent did not choose it pro-per to cross examine the witness Madanlal withreference to the entry in the despatch, register nordid he insist on the production of the despatch register at the time of cross examination.

During the course of arguments Mr. Rastogiinvited our attention to some over-writings of thedate of despatch. With the agreement of the . learned counsel for both the parties we sent forthe despatch register of the Regional Transport Office, Jaipur in which Ex. 5 was entered at13674 on 10-1-62 and perused the same in the presence of the learned counsel for the parties. Thesuspicion of Mr. Rastogi on account of alleged.over-writing as to the date of despatch is rotat all confirmed by the perusal of the despatchregister and the entry in the register tallies with theendorsement on Ex. 5. In my opinion, Ex. 5 is agenuine and reliable document and it lends considerable assurance to the truth of the statement of Laxmi Narain (PW/37).

(After discussing the evidence (Paras 30-31) onrecord, the judgment proceeds).

32. In the light of what has been statedabove, my conclusion is that the Tribunal's approach was incorrect and that the evidence led by the petitioner prima facie establishes that Laxmi Narain was at Jaipur on the 9th and 10th January, 1962 and could not be present at village Alanpurand the statement in the bulletin Ex. 6 mentioning his presence in village Alanpur on the gth imput-ing an offer of blankets and coats to the villagersat Alanpur is wrong and that the burden shiftedon to the respondent to dislodge the assertions made by Laxmi Narain and the petitionr. (Afterdiscussing the evidence (Paras 33-39) of the respon-dent the judgment proceeded).

40. Coming to the second ground, no doubt, there are some observations made on the facts andthe circumstances of individual cases that an omis-sion on the part of a candidate to contradict state-ments made against him in time may be taken intoconsideration in determining the controversy as to the facts of publication of the statements as also the correctness of the statements but evidently nohard and fast rule can be laid down in this behalf.Each case has to be judged on its own facts andthe circumstances.

41. It may be pointed out that the respondent had clearly stated (see page 233 of the Paper Book) that he had refuted all the allegations madeagainst him in the speeches of Satish Kumar as well as for the matters contained in pamphlets Ex. 6 and Ex. 10 contradictions of the allegations-may be oral or written. I, therefore, do not feel justified to reject the petitioner's oral and documentary evidence with the help of such a priori reasoning.

42. The next point for determination iswhether the petitioner believed the statement under consideration to be false or did not believe it tobe true. The petitioner had, in the first instance, led evidence of Ganesh (PW/3) Matadin (PW/4), Onkar (PW/5). Ramnath (PW/6), Nathu (PW/7) Ganpat (PW/8) and Jokhi (PW/g). These witnesses as pointed out earlier, have stated that LaxmiNarain did not distribute any coats and blanketsin the village Alanpur. They have further statedthat they asked, Satish Kumar respondent why a statement that Laxmi Narain offered coats and blankets in the village Alanpur was circulated and that Satish Kumar respondent told them 'that such things are said in the matter of elections'. These statements suggest admission on the part of the respondent that he circulated false statements.

43. Mr. Rastogi has urged various grounds for disbelieving the evidence of these witnesses. In the first instance, it was pointed out that these persons stated to have voted for the petitioner. Thus, in a way they were the supporters of the petitioner, and if it were so then according to normal human conduct they could not be expected to come forward and give evidence against the petitioner towards whom they were genuinely well disposed. Reliance was placed in this connection upon Lachman Singh v. Harpranash Kaur, 19 Ele. L. R. 417 (Punj).

44. It was also pointed out that Jokhi (PW/9) has admitted that he had been staying at the house of Badri Prasad for three or four days prior to his statement. This according to Mr. Rastogi shows that interest of Jokhi and other witnesses of this type. Mr. Rastogi also pointed out that it is curious that this set of witnesses should be present when Matadin and Manohar Singh on behalf of the petitioner came to village Alanpur for making enquiries and also when Satish Kumar respondent made an admission before them. It was also urged that the reason given by them that they could be together on both the occasions on account of their fields being near to each other is wrong.

Reliance was placed in this connection uponthe statement of Madho Ram (DW/20) and theother witnesses produced by the respondent thattwo of them, namely, Nathu (PW/7) and Ganpat(PW/8) have no fields in village Alanpur but have their fields in village Samda and thatGanesh (PW/3) and Ramnath (PW/6) have theirfields about a mile distant from village Alanpurand Onkar (PW/s) and Jokhi (PW/g) have no jointwell in village Alanpur, Mr. Rastogi also pointedout that these witnesses stated that they hadremained for about half a day with Satish Kumarand throughout that period they had talks onlyon this matter.

45. Mr. Bhargava on the other hand has contended that these witnesses could normally be expected to make enquiries from Satish Kumar about the publication of Ex. 6. Their assemblage at the village 'chopal' on the occasion of the arrival of the candidates or their agents in connection with canvassing is also not unnatural. The statement of Madho and other witnesses with regard to the fields of these witnesses cannot be of any value inasmuch as these witnesses were not cross examined on that aspect of the case.

Mr. Bhargava also pointed out that the observations of Lachhmansingh's case, 19 Ele. LR 417 (Punj) cannot b.e extended to the facts of the present case. These witnesses were merely voters and not active supporters of Satish Kumar and, therefore there does not appear anything wrong in their corning in the witness box and stating the true position.

46. I am not prepared to reject the statements of these witnesses altogether and consider that these statements along with the circumstancesof the case are sufficient to discharge the burden placed on the petitioner to prove that the peti-tioner believed the statements to be false or did not believed it to be true. Considering the variouscircumstances in this connection, I may observe that the respondent had taken the following plea-

'Such passages were neither false nor the respondent believed them to be false. Whatever isalleged in these pamphlets was believed by the respondent to be true on the basis of informationreceived from various sources including many newspapers reports, pamphlets and speeches of prominent persons.'

No newspapers reports and pamphlets have beenbrought on record in support of the statement contained in Ex. 6. At the trial, the respondents case has been that he received information from Gyanchand (DW/24) and Madanaingh (DW/49) of the offer of coats and blankets at Madho's dhani by Laxmi Narain and that he then himself went for verification and after verification he got the bulletin published. Mr. Bhargava submitted inthis connection that the expression 'various sources including many newspapers reports, pamphlets etc' cannot include the result of such personal enquiry and consequently the evidence led by the respondent is in variance of the pleadings andshould be ruled out of consideration. While one may not go to the extent of interpreting the res-pondent's written statement so strictly yet the absence of the mention of the fact of personal enquiry in the written statement introduces a great weakness in the respondent's case and is a cir-cumstance which lends support to an inference that the petitioner had no sufficient reason to believe the truth of the statement made in Ex. 6.

Secondly, there is evidence to show that Alan-pur village was not favourably inclined to the petitioner. The leaders of the village were displeased with the petitioner for the reasons (1) that Badri Prasad was considered responsible for having released the water of Harsora Band and causing loss tothem, (2) and that he was also considered responsible for putting obstruction in the way of Col. Mansingh who was to be set up as a Gujar candidate and in whom the village Alanpur was interested. They were supporters of Satish Kumar. It is quite probable that such persons can go to the extent of supporting the petitioner by coming forward to make statement in his favour. At any rate, the respondent could not have relied upon the information of such witnesses for making impuia-tion of the nature contained in Ex. 6 when that information has been found to be false. Mr. Ras-togi in this connection emphasised the following circumstances to prove bona fide belief of the respondent in the truth of these statements-

1) That Laxmi Narain against whom theallegation was made is a man of doubtful reputa-tion. The respondent received information from his trusted workers including Gyanchand (DW/24) an Advocate, and Madansingh (DW/49) and he was quite justified in believing their statements.He also made a personal enquiry and verified the facts from the villagers of Alanpur. He alsonoticed that the workers of the petitioner had beengiven coats and blankets. Lastly, it was contended that there is nothing abnormal in an election campaign for a candidate or his agent, to use every kind of means to secure the support in a hostile area.

Now, so far as Madansingh is concerned, he is not on good terms with the petitioner. Gyaa Chand had no personal knowledge of the matter. His information was merely derivative and, therefore, can be of no great help to the respondent. Enquiry by the respondent was only from Madho and other interested persons, and no independent enquiry was instituted by him before making a defamatory statement. Considering the facts and the circumstances, I am not impressed by the case put forward by the respondent. This question is also, therefore, decid.ed in favour of the petitioner appellant.

47. On the determination of the various questions in the above manner, it is clear that the statement Part A of Ex. 6 is a statement in relation to the personal conduct and character of the appellant and is false and the petitioner believed it to be false or did not believe it to be true and that it constituted corrupt practice within the meaning of Section 123(4) of the Act.

48. Now coming to part B of Ex. 6, the allegations being more of a general nature the counsel for the appellant did not press the case inthis behalf. It is, therefore, unnecessary to deal with Part B of Ex. 6.

49. Now I take up Ex. 10. It reads asfollows :--

Jh cnzhizlknth tckc nsa A usg:QaM ds 8 yk[k :i;s fdldh tsc es gS A

1- NksVs vkSj cM+s gj vkneh dhtsc dks fupkSM dj tks fo'kky /ku jk'kh ia- ug: ds uke dks uhyke djds olwy dh xbZFkh og vkt fdlds [ktkus es tek gS A

2- D;k usg:th us vkns'k fHktok;kFkk fd eS cgqr lLrk gkyr gwa lnSo esjs fy;s vyoj ds gj NksVs eksVs vkneh dks [kqjpdjiSlk bdB~Bk fd;k tk; A

3- D;k ug:th dks okdbZ es eksrhvkSj ghjs pquk;s x;s Fks vkSj vxj ,slk Hkh Fkk rks ckj 2 v[kckjks ds vkSjehVhaxks ds t;sZ iqdkjus okyh mu iSlks dh ekfyd bl xjhc turk dks fglkc D;ks ughfn;k tkrk A

4- D;k ;s iSlk oksVsa [kjhnus dsfy;s ugh j[kk x;k gS A D;k iSlks ls oksV fey tk;sxs vkSj dkj fey tk;s rks D;k ;g[kqyk Hkz'Vkpkj ugh gS A

5- D;k O;hxr izpkj ds fy;sljdkjh ukSdj lokfj;ksa vkSj isVksy dks [kqys vke dke es ysuk vkSj dkuquh ,duSfrdrk ls fxjk gqvk ugh gS A

6- Jh cnzhizlknth ls ;s lokykr [kklrkSj is blfy;s iqNs tk jgs gS fd mUgksus bZekunkjh dk [kthZ pkSxk jgus dk QS'kucuk fy;k gS tc fd vkSj usrk cspkjs jkr fnujkr pwids Nkus es viuh csbekfu;ks dksrLyhe djus es grku ladksp ugh djrs A os Eycqdh us uke ij ;g lc dqN dj xqtjrs gSrks fQj detksj vkneh dks D;k g gS vkSj fQj turk dh vnkyr mls ltk D;ks u ns A

jktiwrkuk izsl] vyoj A

lrh'kdqekj 'kekZ

Translated into English it reads as following -

SHRI EADRI PRASADJI TO PLEASE. REPLY WHO HAS POCKETED EIGHT LACS OF RUPEES OF THE NEHRU FUND ?

1. With whom is lying that huge amount of money which was raised by selling the name of Nehruji in auction and by squeezing the pockets of the people, big and small,

2. Did Nehruji send a word that money should be raised by scraping the pocket of all sundry people of Alwar as he was hard of money.

3. Whether Nehruji was really made a peck up pearls and diamonds and assuming it to be so why was the money not accounted for to its real owner, the poor public at large, who had been repeatedly urging for the same through the Press and at the Stage.

4. Has not this money been earmarked for purchasing votes? Whether votes could be secured through money and, if so, is it not open corruption?

5. Is it not illegal and far below morality to use openly the public sevants, the transport and the petrol of the Government for the individual publicity.

These questions are particularly being asked from Shri Badri Prasad Ji as he has put on a cloak of honesty, whereas other poor leaders do not much hesitate to confess their dishonesty, at least in camera. They have the courage of doing all this under their assumed helplessness. What right a poor person has got then? Why should not the people's court then punish such a person'?

(After giving some facts (Paras 50-54) for a proper appreciation of the document, the judgment proceeds).

55. Now, the first controversy between the parties relates to the proper meaning to be given to Ex. 10. According to the respondent Ex. 10 does not make any insinuation of embezzlement or misappropriation against the petitioner. His stand is that there was a good deal of dissatisfaction in the public of the Alwar District over the non-rendition of the accounts of the Nehru Fund and Sobha Ram and others, leaders of the Con-gress, were being held responsible for non-rendition of accounts. Badri Prasad sought election on the Congress Ticket. The public at large was anxious to be acquainted with the accounts of the Nehru Fund and the respondent merely expressed the opinion of the public by calling upon Badri Prasad, who was contesting election on behalf of the Congress party, to clarify the party's position in this behalf. This has also been the view of the Tribunal.

I regret, I cannot agree that Ex. 10 can be treated such a simple and harmless document. AN-analysis of Ex. 10 will show that Badri Prasad was asked to pointed question as to who had pocketed 9 lacs of the Nehru Fund in the top line-In the first paragraph it was pointed out that the money was collected by selling Nehru's name and by squeezing the pockets of the people. In the second paragraph the impropriety of collecting such a fund was indicated. In the third para, the impossibility and improbability of such an expenditure having been incurred in connection with Shri Nehru's visit was pointed out and in the fourths para, it was asked whether that money has been ear-marked for purchasing votes and it was also asked whether securing votes in that manner would. amount to corruption. Leaving para 5 out of consideration since no arguments were advanced to us on behalf of the appellant, para 6 seeks to justify why the various questions have been addressed to the petitioner and points out that the petitioner has hypocritically put a cloak of honesty and even though dishonest and though a weaker than others, he is not prepared to admit his dishonesty even in the private.

It may be mentioned here that the respondent in Ex. 10 did not make insinuations direclty and has adopted the mode of putting questions. The Tribunal relying upon the authority of a few cases accepted the argument on behalf of the petitioner that indictments in question form though Indirect are more effective than the direct insinuations and that the question form is frequently employed to emphasise a defamatory statement and not for the purpose of eliciting information. Having said so far, the Tribunal divided the documents in parts and considering them or less in isolation, recorded a decision against the petitioner. I have already given the findings of the Tribunal earlier and they need not be repeated. I must however observe that the tribunal fell into error in considering the various parts in isolation and failing to give adequate consideration to the implication of the document read as a whole which have been indicated' above.

The Tribunal also failed to properly appreciate the fact that in the document there is no reference to the Congress party or to Badri Prasad in his capacity as leading member of the Congress. Reference is obviously to him in his personal capacity. The document even avoids reference to Shri Sobharam, whose responsibility even on the respondent's evidence should have appeared greater to the respondent. In my opinion, the interpretation of Ex. 10 by the Tribunal is laconic and unsatisfactory. On a reasonable reading of the document as a whole, I hold differing from the Tribunal as also the learned counsel for the respondent that it was intended to convey and was bound to convey to an average voter that the petitioner has been responsible for either misappropriating the amount of the Nehru Fund or utilising it for a different purpose including the objectionable purpose of purchasing votes with that fund. There is thus a suggestion of embezzlement as also the commission of corrupt practice. The document thus contains a statement in relation to the personal character or conduct of the petitioner.

56. Now there is no evidence whatsoever that the petitioner had any custody or power of disposalover the fund. As pointed out above, before the election the responsibility was being placed upon Sobha Ram. The petitioner, has denied the conduct imputed to him and there was nothing brought out in cross-examination to show that he had anything to do with the fund. The statement of fact can, therefore, be easily treated to be a false one.

57. Mr. Rastogi, however, emphasised only the following points to connect Badri Prasad with the embezzlement-

1. That Badri Prasad had stated (see page 241 of the Paper Book) that the accounts were ready within two months after the samellan and District Congress Committee, Alwar and anybody else could see them if they desired. This according to Mr. Rastogi is obviously a false 'statement.

2. That Badri Prasad falsely stated that in the meeting of December which took place in Gir-dhar Ashrarna near Company Gardens, Alwar, and in the meeting which took place in January Lala Kashiram and Mahendra Shashtri had not raised any objection in connection with the rendition of the accounts of the Nehru fund.

3. That Badri Prasad denied having made any collection in the Nehru fund and merely stated to have rendered some help. This is contrary to the evidence of some of the witnesses of the respondent.

58. As regards the accounts position, I think it proper to observe that on the record of the present case lot of material has been brought against Sobha Ram in particular and his group to some extent. Shri Sobha Ram is neither a party to this case nor has he appeared as a witness. It will be. therefore, hardly proper to pronounce any final opinion in the matter but I cannot help observing that looking to the manner in which the coupons were issued, the manner in which the rendition of accounts was delayed in spite of repeated protests, it may be stated that all was not well and that the conduct of some of the leaders of the party was not what it should have been. I also do not accept the statement of the petitioner in this connection but I fail to understand how a statement of this type made in an election mattel much after the controversy can be treated to con-nect the petitioner with the non-rendition of the accounts in the absence of any positive evidence.

59. Similarly, I am not impressed with the truth of the statement of Badri Prasad that Lala Kashiram and Mahendra Shashtri had raised no objection in connection with the rendition of the accounts at the meetings of December and January, 1961 at Girdhar Ashram near company gardens but that also can be easily attributed to lapse of memory or a desire of being soft towards his colle-gues like Shri Sobha Ram, and, therefore, need not warrant an inference of the petitioner's association in the improper utilisation of the Nehru fund.

60. Similarly, nothing turns upon the denial made by Badri Prasad in having actually collected the money. It has been amply brought on record that Laxminarain was responsible for collections in Bansur Tehsil. According to some of the respon-dent's witnesses some payments were made in the presence of the petitioner. According to one witness Sobhraj Singh (D W/18) Badri Prasad himself received the payment. Be that as it may, denial of actual collection by Badri Prasad cannot lead to an inference of his having committed embezzlement after the collection of the fund,

61. Mr. Rastogi, however, made an alternative argument that Badri Prasad should be treated as having committed embezzlement at the collection stages. According to him there is some evidence to show that some payments were received by Badri Prasad coupled with his complete denial should be sufficient to infer embezzlement. There is no force in this submission. The document also did not refer to any embezzlement at the collection stage. Throughout the case before the Tribunal no case was made out of embezzlement at the collection stage. The petitioner also was not cross-examined with regard to the various payments alleged to have been received by him and was not called upon to explain. It is impossible to justify the truth of the statement in Ex. 10 on such a case.

I am quite clear that the statement contained in Ex. 10 is false. I may also add that even with regard to the liability for accounting even on the evidence of the respondent the primary responsibility for non-rendition of the accounts was upon Sobha Ram. The other document in question however, does not make any reference to Sobharam or the other persons associated with Sobharam. It indicates exclusive liability of the petitioner, A statement to be true must also avoid material suppression and concealment. Looked at from any angle, Ex. 10 cannot be treated as a document containing true statement.

62. It requires no great argument to show that the respondent believed it to be false. The respondent had seen the correspondence, and had attended the meeting convened by Shri Vyas and in this background the denials of the petitioner of the conduct imputed to him should readily lead to the inference that the respondent believed the statement to be false or did not believe it to be true. It appears to me that there was some dissatisfaction over the non-rendition of accounts in the masses at Alwar and the respondent thought it proper to exploit dissatisfaction by attempting to fix exclusive liability upon the petitioner.

63. From the conclusion reached above, itfollows that the election of the respondent is liable to be declared void under Section 101(b) read with Section 123(4) of the Act.

64. I, therefore, accept the appeal, set aside the order of the Tribunal and declare that the election of respondent Satish Kumar the successful candidate to the Rajasthan Legislative Assembly, from Bansur constituency is void for corrupt practices under Section 123(4) of the Act.

65. The substance of the decision may be intimated to the Election Commission and the speaker of the Rajasthan Legislative Assembly. An authenticated copy of the decision may also be sent to the Election Commission in due course. The Election Commission shall take steps for holding bye-election in the Bansur constituency.

I.N. Modi, J.

66. I generally agree with the judgment proposed to be delivered by my learned brother Chhangani J. and have nothing useful to add.


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