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PETITIONER: ASHOK DULICHAND

       Vs.

RESPONDENT: MADAHAVLAL DUBE & ANOTHER

DATE OF JUDGMENT05/08/1975

BENCH: KHANNA, HANS RAJ BENCH: KHANNA, HANS RAJ BEG, M. HAMEEDULLAH GUPTA, A.C.

CITATION:  1975 AIR 1748            1976 SCR  (1) 246  1975 SCC  (4) 664

ACT:      Representation  of  People  Act,  1951-Section  123(4)- Statement relating to personal character or conduct-65(a) of Evidence Act-Secondary evidence-Photostat copy.

HEADNOTE:      The election  for Pandhurna  Constituency for  the M.P. legislative Assembly took place in March, 1970. There were 6 candidates who  contested the election. The main contest was between respondents  nos. 1  and 2.  Respondent  no.  1  was declared elected.  The appellant, a voter, filed an Election Petition  challenging  the  election  on  the  grounds  that respondent  no.   1  published   and  circulated  a  leaflet containing defamatory and false averments against respondent no. 1  and it  was  calculated  to  prejudice  the  election prospects of  respondent no.  2. The  leaflet it was alleged contained the statement of fact about the personal character or conduct  of respondent  no. 2.  In  the  leaflet  it  was mentioned that  respondent no.  2 committed  rape and he was carrying on with another woman. The ties of respondent no. 2 were stated to have driven his wife into insanity. Reference was also made to some other shady and unethical activities.      Before the  High Court  the appellant  wanted to file a photostat copy  of  the  manuscript  of  the  leaflet  which according to  the appellant was written by respondent no. 1. The High Court did not admit the aforesaid photostat copy in evidence on  the ground  that there was no sufficient reason for allowing  the appellant  to lead secondary evidence. The High Court  also held  that though the material contained in the leaflet related to the personal character and conduct of respondent no.  2, the  appellant failed  to prove  that its contents were  false to  The knowledge  of respondent no. 1, and he  did not believe them to be true and that, therefore, the corrupt  practice  defined  in  section  123(4)  of  the Representation of the People Act was not proved.      While dismissing the appeal this Court held: ^      Under  section   65(a)  of  the  Indian  Evidence  Act, secondary evidence  may been  of the existence, condition or contents of a document when the original is shown or appears to be  in the possession or power of the person against whom

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the document is sought to be proved or when a person refuses to produce  it. There  was no  affidavit that  the  original document  was   in  possession  of  respondent  no.  1.  The photostat copy  appeared to  the High  Court to be not above suspicion. In  view of all the circumstances, the High Court rightly came  to the  conclusion that no foundation was laid by the appellant for leading secondary evidence in the shape of photostat  copy. There  is no  evidence on record to show that the  contents of the leaflet were false. The respondent no. 2  was not  examined as a witness. No other evidence was also led  of any  person who  knew about  the  character  or conduct of  respondent no.  2 to  show that  the  statements contained in  the leaflet in question were false. Apart from the other  requirements, it  is of  the essence  of  section 123(4) of  the Representation  of the  People Act. 1951 that the impugned  statement of  fact in relation to the personal character or  conduct of  a candidate.  which is  alleged to have been published should be false [249D, F-250D]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1327 of 1973.      From the judgment and order dated the 21st July 1973 of the Madhya Pradesh High Court in Election Petition No. 36 of 1972.      N. M. Ghatate and S. Balakrishnan, for the appellant. 247      S. S. Khianduja, for respondent No. 1.      The Judgment of the Court was delivered by      KHANNA, J.-This appeal is directed against the judgment of Madhya  Pradesh High  Court whereby  that court dismissed the section  petition filed  by the  petitioner-appellant to challenge the election of respondent No. 1 to Madhya Pradesh Legislative  Assembly   from   Pandhurna   constituency   in Chhindwara district.      The election  for Pandhurna  constituency took place on March 8,  1972. There  were six candidates who contested the election. The  main contest was, however, between Madahavlal Dube respondent No. 1 and Dr. Ratanchand Mangalchand Sanghvi respondent No. 2. Respondent No. 1 was declared elected. The appellant,  who  was  an  elector  in  the  above  mentioned constituency,  filed  election  petition  to  challenge  the election of  respondent No.  1 on various grounds. It is not necessary to  set out  all the grounds because in the appeal before u,  only one  ground which  is the  subject matter of issue No.  10 has  been pressed  on behalf of the appellant. The allegation which gave rise to issue No. 10 was contained in para  13 of  the election  petition.  The  petition  was, however, ordered  to be  amended because  it did not contain full  particulars.   The  allegation  with  particulars  was thereafter contained  in para  13 of  the amended  petition. According to the appellant, respondent No. 1 or his agent or any other  person With  his consent  had got  published  and widely circulated  a leaflet  with the  caption "Sawal Janta Ke" purporting  to be  on behalf  of Pandhurna Matdar Sangh. The aforesaid  leaflet, according to the appellant seemed to have been  drafted by  respondent No.  1  and  was  full  of defamatory and  false averments  calculated to prejudice the election prospects  of respondent  No. 2.  The  leaflet  was stated to  have been  very widely circulated and distributed throughout the  consistency. Every  sentence of the leaflet, it was added, contained statement of fact about the personal character or  conduct of respondent No. 2 which was false to

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the knowledge  of respondent No. 1. Respondent No. I and his friends were  stated to have got the leaflet published under the psudonym of Pandhurna Matdar Sangh although there was no such  Sangh   in  existence.  The  name  of  the  press  and publisher’ s name was also not mentioned in the leaflet. The appellant also  mentioned the  places where and the names of persons through  whom the leaflets were alleged to have been distributed.      According to  the leaflet which has been marked Ex. P4, respondent No.  2 was  not a man of good character. The said respondent was  alleged to  have committed rape upon a nurse while he  was a  government doctor. He was also stated to be carrying on with another woman. The activities of respondent No. 2  were stated  to have  driven his  wife  to  insanity. Reference was  also made  to some  other shady and unethical activities in  which respondent  No.  2  was  stated  to  he indulging      Respondent No.  1 in  his written statement denied that he, his  agents or any other person with his consent had got published and  circulated the  leaflet in  question. It  was also denied by respondent 248 No. 1  that he  had drafted the aforesaid leaflet. According to respondent  No. 1, he had no connection with that leaflet and he  was unable  to make any statement about the truth or falsity of its contents. It was denied that the said leaflet was  widely   circulated  and   distributed  throughout  the constituency. The allegation that the leaflet was calculated to prejudice  the election prospects of respondent No. 2 too was denied.  Likewise, respondent  No.  1  denied  that  the different sentences  of the  leaflet contained  statement of fact about  the personal  character or conduct of respondent No. 2  which was false to the knowledge of respondent No. 1. According further  to the respondent, he came to know of the said leaflet  only some  weeks after  the election was over. The said  leaflet, it  was added,  appeared to have been got printed by  someone interested in respondent No. 2 to create a ground for filing an election petition. Issue No. 10 reads as under:      "10(a)    Whether the  leaflet with  the caption ’Sawal                Janta Ke’  was published by respondent No. 1,                his agents  or  any  other  person  with  his                consent?           (b)  Whether  the   respondent  No.   1  has   any                connection with the aforesaid leaflet?           (c)  Whether the material contained in the leaflet                relates to  personal character  of respondent                No. 2?           (d)  Whether the leaflet was widely circulated and                distributed throughout  the constituency  and                it was  calculated to  prejudice the election                prospects of respondent No. 27           (e)  Whether the  leaflet was  distributed at  the                places and  by the persons named in paragraph                13 of the election petition?           (f)  Whether all persons named in the paragraph 13                except  Shrimati  Kamla  Bai  Mohogaonkar  of                Mohogaon were active supporters of respondent                No. 2 ?                Whether any  corrupt practice  under  section                123(4) of  the  R.P.  Act  was  committed  in                respect of the above’!                Whether the  allegations made in paragraph 13                make  out   a  ground   for  challenging  the                election of  respondent No.  1 under  section

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              100(1) of the R.P. Act, 1951?"      The High Court decided issues 10(a) and (b) against the appellant on the ground that no evidence had been led by him in this behalf. On issue 10(c)? it was held, that though the material contained  in leaflet  P4 related  to the  personal character and conduct of respondent No. 2, the appellant had failed  to  prove  that  its  contents  were  false  to  the knowledge of  respondent No.  1 or  that he  did not believe them to be true. No corrupt practice as defined in section 249 123(4) of  the Representation  of the People Act was held to have been  proved issues  1(1) and (e) were held to be of no consequence in  view of the fact that it was not proved that respondent No.  1 was  guilty of  corrupt practice.  In  the result the election petition was dismissed.      In appeal  before us  Mr.  Ghatate  on  behalf  of  the appellant has  argued that  the appellant  wanted to  file a photostat copy  of  the  manuscript  of  leaflet  P4  which, according to  the appellant,  had been written by respondent No. 1.  The High Court, it is pointed out, did not admit the aforesaid photostat  copy in  evidence on  the  ground  that there was no sufficient reason for allowing the appellant to lead secondary  evidence. It is that order of the High Court which has  been the  main target  of the  criticism  of  Mr. Ghatate.      After hearing  the learned  counsel for the parties, we are of  the opinion that the order of the High Court in this respect calls  for no  interference. According to clause (a) of section 65 of the Indian Evidence Act, secondary evidence may be  given of  the existence,  condition or contents of a document when  the original is shown or appears to be in the possession or  power of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject  to, the  process of the Court, or of any person legally bound  to produce  it, and  when, after  the  notice mentioned in  section 66,  such person  does not produce it. Clauses  (b)  to  (g)  of  section  65  specify  some  other contingencies  wherein  secondary  evidence  relating  to  a document may  be given,  but we are not concerned with those clauses as  it is  the common  case of  the parties that the present case  is not  covered by  those clauses. In order to bring his  case within  the purview of clause (a) of section 65, the appellant filed applications on July 4, 1973, before respondent No. 1 was examined as a witness, praying that the said  respondent   be  ordered   to  produce   the  original manuscript of  which, according  to the  appellant,  he  had filed photostat  copy. Prayer was also made by the appellant that  in   case  respondent  No.  1  denied  that  the  said manuscript had been written by him, the photostat copy might be got  examined from  a handwriting  expert. The  appellant also filed affidavit in support of his applications. It was, however, nowhere  stated in  the affidavit that the original document of  which the  photostat copy had been filed by the appellant was  in the  possession of respondent No. 1. There was also  no other  material on  the record to indicate that the original  document was  in the  possession of respondent No. 1.  The appellant  further failed  to explain as to what were the  circumstances under  which the  photostat copy was prepared and  who was in possession of the original document at the  time its  photograph was  taken. Respondent No. 1 in his affidavit  denied  being  in  possession  of  or  having anything to  do with  such a  document. The  photostat  copy appeared to  the High  Court to  be not  above suspicion. In view of  all the  circumstances, the  High Court came to the conclusion that no foundation had been laid by the appellant

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for leading secondary evidence in the shape of the photostat copy. We  find no  infirmity in  the above order of the High Court as might justify interference by this Court. 250      The matter  may also  be looked  at from another angle. There is  no evidence on record to show that the contents of leaflet Ex.  P4 were  false. Respondent No. 2 in relation to whose personal character and conduct statements were made in leaflet P4  was not examined as a witness. No other evidence was also  led of  any person who knew about the character or conduct of  respondent No.  2 to  show that  the  statements contained in  leaflet in question were false. The High Court consequently arrived  at the conclusion that on the material on record it could not be held that the contents of the said leaflet were  false and  that respondent No. 1 believed them to be  false or did not believe them to be true. As such, no corrupt practice  as defined  in  section  123  (4)  of  the Representation of the People Act. 1951 was held to have been proved. A  corrupt practice,  according to  section  123(4), consists of  the publication  by a candidate or his agent or by any  other person, with the consent of a candidate or his election agent, of any statement of fact which is false, and which he  either believes  to be also or does not believe to be true, in relation to the personal character or conduct of any  candidate   or  in  relation  to  the  candidature,  or withdrawal, of  any candidate,  being a statement reasonably calculated to  prejudice the  prospects of  that candidate‘s election. Apart  from the  other requirements,  it is of the essence of the matter that the impugned statement of fact in relation to the personal character or conduct of a candidate which is  alleged to  have been  published should  be false. Unless the  said statement of fact is shown to be false, its publication would not constitute corrupt practice as defined in clause  (4) of  section 123  of the  Act. When  there  is complete absence  of any material on the record to show that the impugned  statement of  fact is false, no occasion would plainly alias  for remanding  the case  to the High Court to enable the  appellant to  produce in  evidence the photostat copy in  question with  a view  to show that the original of that had been written by the respondent.      There  is   no  merit   in  the  appeal.  The  same  is accordingly dismissed with costs. P.H.P.                                     Appeal dismissed. 251