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PETITIONER: OM PRAKASH

       Vs.

RESPONDENT: LALCHAND AND ANOTHER

DATE OF JUDGMENT: 14/08/1969

BENCH: HEGDE, K.S. BENCH: HEGDE, K.S. RAY, A.N.

CITATION:  1970 AIR 1889            1970 SCR  (1) 886  1969 SCC  (2) 533

ACT:    Representation   of   the  People  Act,  1951,   s.   123 (4)--Corrupt  practice--Allegations  of  smuggling   against candidate  in  poster--Candidate  also called  an  abnoxious person--Allegations   are  in  relation   to  the   personal character  and  conduct  of  candidate  within  meaning   of section--Evidence  Act s. 45--Experts  seldom  agree--Courts must form its own conclusions.

HEADNOTE:    The  first respondent was the winning candidate  from  an assembly constituency in Hissar District of Haryana State at the mid-term election held in May, 1968.  The appellant  who was one of the losing candidates filed an election  petition urging  the following grounds in its support: (1)  that  the poster Exhibit PWI was against the personal character of the appellant  and  therefore  constituted  a  corrupt  practice within  the meaning of s. 123(4) of the  Representation  ore the  People  Act, 1951; (2) That the religious head  of  the Namdhari  sect issued an appeal and a farman  and  therefore the  provisions contained in s. 123(2) were  attracted;  (3) That the first respondent was guilty of corrupt practice  of bribery  by  having given Rs. 20,000 in cash to one  of  the candidates  for contesting the election.  The  petition  was dismissed  by  the High Court.  In appeal this  Court  found that  the allegations in grounds Nos. (2) and (3)  aforesaid were  not  proved by the evidence on record.   Allowing  the petition on ground No. (1),     HELD:   (i)   The   evidence   in   the   present   case established--first   that  Exhibit  PWI/1   was   published, secondly  that  respondent No. 1 got the  same  printed  and published, thirdly that the statement therein--to the effect that  the  appellant was indulging in smuggling and  was  an obnoxious person--was in relation to the personal  character and  conduct ore  the appellant, fourthly that the statement was  false,  and  fifthly that the same  was  calculated  to prejudice  the prospects of the appellant’s  election.   The appeal  therefore  had  to be accepted on  the  ground  that respondent  No.  1  was guilty  of  corrupt  practice  under section 123(4) of the Act. [892 H893 B]     (ii)  It is rare for two. experts to. agree in cases  of

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disputed   signature.  The  Court  has  to  arrive  at   the conclusion  in  the  light  of  the  entire  evidence.   The signature of respondent No.. 1 on the manuscript of  Exhibit PWI/I was sufficiently proved by the evidence of  witnesses. [891 (G-H]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION:  Civil Appeal No.. 32  of 1969.     Appeal  under  s.  116-A of the  Representation  of  the People Act, 1951 from the judgment and order dated  November 19,  1968 of the Punjab and Haryana High Court  in  Election Petition No. 14 of 1968.     H.L.  Sibal,  Ram Sarup, S.C. Mahanta, K.C.  Sharma  and J.C. Talwar, for the appellant.  Naunit Lal, for respondent No. 1. 887 The Judgment of the Court was delivered by     Ray,  J.   This is an appeal against  the  judgment  and order dated 19 November, 1968 of the High Court of Punjab  & Haryana  at Chandigarh dismissing the election  petition  of the appellant.     The   appellant   contested  the  Assembly   seat   from Ellenabad Constituency in the District of Hissar in the mid- term  election held in May, 1968.  The appellant  challenged the  election of Lalchand, the first respondent.  The  other defeated candidate in the election was the second respondent Prithvi  Raj.   The appellant obtained  15,485  votes.   The successful  candidate  Lalchand  secured  20,816  votes  and Prithvi  Raj  obtained 5,726 votes.  The polling was  on  14 May, 1968.  The results were announced on 16 May, 1968.     At  the hearing of the appeal counsel on behalf  of  the appellant  canvassed three grounds.  First, that the  poster being Exhibit P.W. 1/1 was against the personal character of the  appellant and therefore constituted a corrupt  practice within the meaning of sub-section (4) of section  123 of the Representation of the People Act, 1951 (hereinafter referred to  as  the Act).  Secondly, the religious  head  Sat  Guru. Jagjit  Singh  of the Namdhari sect issued an appeal  and  a farman  and thereby the provisions contained in  sub-section (2)  of section 123 of the Act are attracted.  Thirdly,  the respondent Lalchand is guilty of corrupt practice of bribery by  having  given  Rs. 20,000/- in cash to  Prithvi  Raj  to contest the election.     I shall at the outset deal with the second and the third grounds.   Counsel  on  behalf  of  the  appellant   pressed allegations  contained  in  sub-paragraphs (b)  and  (d)  of paragraph  10 of the petition which were to the effect  that Sat Guru Jagjit Singh issued a farman on or about 20  April, 1968  to the effect that it was the Guru’s desire  that  all followers   should oppose the appellant who. was the son  of Choudhury  Devi Lal an enemy of Namdhari Guru.  Further,  if any  of  the followers did not obey the  farman  they  would stand  ex-communicated  and  their  ’Prasad’  would  not  be accepted in the Gurdwaras and that they would be spiritually censured  by naming them as traitors of Dharma and  befallen persons  in Sabha’s of Namdharis.  In sub-paragraph  (d)  of paragraph  10  of  the petition it was alleged  that  on  21 April,  1968 the followers of Namdhari sect were  called  to Sant Nagar where, a big Dewan of Namdharis was convened  and Sat Guru Jagjit Singh made a speech there that he had  taken a  vow  to defeat the appellant because he was  the  son  of Choudhury  Devi  Lal  whose family was an  avowed  enemy  of

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Namdhari  sect  and that it should be treated as  a  vow  by every Namdhari. 888     The  respondent  Lalchand  denied  that  there  was  any meeting and further denied that there was any farman.     The  appellant,  it may be stated,, did not  adduce  any documentary  evidence  in support of the  allegations.   The appellant’s  entire  case was based on oral  evidence.   The appellant  relied on the oral testimony of P.W. 29 and  P.W. 30.   P.W. 29 Ram Dayal was formerly a member of the  Punjab Legislative Assembly. Ram Dayal was formerly a member of the Congress  Committee.  He  resigned  from  the  Congress  and contested  the  seat  as an  independent  candidate  against Choudhury  Devi Lal and won the election in the  year  1957. An  election  petition  was  filed  by  Choudhury  Devi  Lal against  the  witness Ram Dayal.  Ram Dayal  was  eventually unseated  as  a result of the decision of  this  Court.  The witness  Ram  Dayal helped the respondent  Lalchand  in  the election of 1967 and also. in the mid-term ’election in  the month of May, 1968.  The witness Ram Dayal spoke of the  Sat Guru  Maharaj  having  exhorted the Namdharis  to  vote  for Lalchand  and  warned them about the  consequences  if  they failed  to do so. The witness also spoke of the  meeting  at Rania village  on 28 April, 1968.  It is indeed strange  and significant   that  Ram  Dayal  who.  supported   respondent Lalchand and also. attended meetings on his behalf came  and gave   evidence  in  favour  of  the  appellant  about   the utterances  of Sat Guru Jagjit Singh of the  Namdhari  sect. It  is  extremely  unsafe  and  hazardous  to  rely  on  the uncorroborated and isolated oral testimony of such a person.     P.W.  30 Parma Nand Sharma spoke of the meeting at  Sant Nagar  on  21 April, 1968 and said that  Guru  Jagjit  Singh spoke at the meeting and proclaimed that it was the. duty of every  Namdhari to vote for respondent Lalchand and any  one who  violated  the  said  Guru’s  direction  would  be   ex- communicated   from   the Panth.  In  cross-examination  the witness   Parma  Nand  Sharma  said that  he  came  to  give evidence  in favour of the Congress because he was  summoned to. appear as a witness and therefore he spoke the truth. It is obvious that when one speaks truth one does not  proclaim it.  It  is  obvious  that  the  witness  in  view  of   his antecedents wanted to sound truthful because he came forward to give evidence in favour of the appellant.     On  behalf  of  the appellant  reliance  was  placed  on Exhibit  P.W.  24/2 to show that there was a meeting  on  21 April,  1968.  The appellant relied on the  dairy  entry  of Gurbhajan Singh being Exhibit P.W. 24/2 beating the date  21 April  1968  in  support of the contention  that  there  was intrinsic  evidence  in the dairy entry, that  there  was  a meeting on 21 April, 1968 where Sat Guru Jagjit Singh spoke, and the said entry is in the following terms :--                      "Asa  Di war was recited at  Sh.  Jiwan               Nagar.  He (Sant Sahiba Singh) remained  there               for the whole day.               889               He listened for some time difficulties of  the               Singhs  who had collected there from  outside,               at 7 p.m. he appeared before the Sadh   Sangat               assembled at  Muharanwali Dharamsala Santnagar               and  made  an appeal to the audience  to  cast               their   votes  in  favour  of   Ch.   Lalchand               independent     candidate     of     Ellenabad               Constituency  and  return  him  as  successful               candidate.  Then  he came back to Jiwannagar". The  diary entry is to the effect that the Sat  Guru  Jagjit

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Singh  appeared before the Sant Nagar Assembly.   The  diary entry  does not mention about any alleged utterance  by  Sat Guru Jagjit Singh at the said meeting.     Exhibits  P.W.  24/1  and P.W. 24/2  are  two  pamphlets containing  articles.  Counsel for the appellant  relied  on the  pamphlets to prove that the meeting was held where  Sat Guru  Jagjit Singh spoke.  Both the articles were  published after  the  election had been held on 16 May,  1968.   These articles  suffer  from the vice of counting  into  existence under  deliberate motive.  We are unable to accept the  oral evidence  that  there was any meeting on 21 April,  1968  as alleged  by  the appellant and that Sat  Guru  Jagjit  Singh spoke at the meeting, to cast votes in favour of  respondent Lalchand  under threat of divine displeasure  and  spiritual censure.     Counsel  on  behalf  of  the  appellant  contended  that respondent  Lalchand  was guilty of offences  under  section 123(1)  of the Act by having given Rs. 20,000/- in  cash  to respondent Prithvi Raj to contest the election.  There is no documentary evidence  insupport of the allegation.  The oral evidence  is that of P.W. 11, P.W. 12 and P.W.  13.   Kanshi Ram, P.W. 11 said that he was Kumhar and there was a meeting of  the  Kumhars on 30 March, 1968. It was  decided  that  a Kumhar should be made a member of the Legislative  Assembly. He also said that the Kumhars decided at the said meeting to put up respondent Prithvi Raj as a candidate.  Kanshi  Ram’s further  evidence was that Bawa Bit Singh paid Rs.  20,000/- to  Prithvi Raj for election  expenses. Kanshi Ram said that the payment was in the presence of respondent Lalchand.  Jot Ram, P.W. 12 said that he was a Kumhar and his evidence  was also  that Bava Bir Singh paid Rs. 20,000 to Prithvi Raj  in the  presence  of Lalchand.  Rawat, P.W. 13 who was  also  a Kumhar   said  that  Bawa  Bir  Singh  paid Rs. 20,000/-  to Prithvi  Raj in the presence of Lalchand.  The gist  of  the offence  under sub-section (1) of section ’23 of the Act  is that there has to be ’a gift by a candidate or his agent  or by  any other person with the consent of a candidate or  his election agent of any gratification; to any person with  the object of inducting a person to stand or not to stand as.  a candidate at the election. 890 The  elements required to constitute an offence  are  first, that  the gift has to be by a candidate or his agent  or  by any  other  person.  Secondly, the gift is to  be  with  the consent of the candidate or his election agent and the third important  element is that the gratification is to. be  made with  the  object,  directly or indirectly,  of  inducing  a person  to  stand or not to stand in the election.   In  the present  case, there is no. evidence to hold that  any  gift was  made  by  the candidate or his agent or  by  any  other person  with  the  consent of  the  candidate,  namely,  the respondent  Lalchand.  Secondly, there is no  evidence  that gratification  was  made  with the object  of  inducing  the respondent  Prithvi  Raj  to  stand or not  to  stand  as  a candidate.     Counsel  on  behalf  of  the  appellant  contended  that respondent  Lalchand  was guilty of  ’corrupt  practices  as mentioned in subsection (4) of section 123 of the Act.   The four  elements in subsection (4) are, first, that there  has to be a publication by the candidate or his agent or by  any other  person  with  the consent of  the  candidate  of  any statement of fact.  The second element is that the statement of  fact is false and a candidate or his agent or any  other person  either believes  it to be false or does not  believe to be true.  Thirdly, the publications is in relation to the

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personal character and conduct of any candidate.   Fourthly, the  statement  is reasonably calculated  to  prejudice  the prospects of that candidate’s election.     P.W.  35,  Lachhman Das was the Manager,   Kwality   Art Printers.    He spoke of a poster which was printed  in  his Press.  He identified the Exhibit P.W. 1/1 as a copy of  the poster which was printed in his Press.  He said that Exhibit P.W. 34/2 was a manuscript of Exhibit P.W. 1/1.  He  further said that the pamphlet was printed on the asking of Lalchand who  was identified by the witnesses Muni Lal Azad  and  Jai Gopal  Verma.  Lachhman Das said that Muni Lal Azad and  Jai Gopal  Verma signed the manuscript Exhibit P.W. 34/2 in  his presence.,  The further evidence was that 10,000 co.pies  of the poster were printed in the said Press. It was  suggested in  cross-examination that the poster was  printed after  14 May, 1968.  P.W. 36 Jai Gopal Verma identified Exhibit  P.W. 34/2 as a manuscript of the poster and further said that the witnesses identified Lalchand.  Jai  Gopal Verma proved  his signature on Exhibit P.W. 34/2.  Jai  Gopal Verma said  that Lalchand  accompanied him to the Kwality Art Printers.   Jai Gopal  Verma  further identified the signature of  Muni  Lal Azad.   It was also  suggested to Jai Gopal  Verma that  the poster  was  printed after  14 May, 1968.  Muni   Lal  Azad, P.W. 37 said that he accompanied Jai Gopal Verma to  Kwality Art  Printers along with respondent Lalchand.   He  admitted his signature on Exhibit P.W. 34/2. 891     Counsel on behalf of the respondent Lalchand   contended that Lachhman Das was neither the  Printer nor the Publisher and  that  Lachhman  Das joined the Press in  the  month  of April,  1968.  Lachhman Das was a disinterested person.   He sent  a copy of the poster to. the Chief Electoral  Officer. The letter to the Chief Electoral Officer Exhibit P.W.  34/1 was in a sealed cover.  It was opened in this Court.  It was proved  by  Muni Lal Jain, Accountant in the office  of  the Chief  Electoral Officer. He proved that Exhibit  P.W.  34/1 was the letter received from Kwality Art Printers on 2  May, 1968.  The witness Muni Lal Jain further proved the  receipt of said letter in the office of the Chief Electoral Officer, on 2 May, 1968.  Muni Lal Jain identified the signatures  of the  clerks Jagmohan Saran Verma and D.N. Arora  on  Exhibit P.W.  34/1.   Muni Lal jain  proved Exhibit  P.W.  34/2  and Exhibit  P.W. 34/3 which were the enclosures received  along with Exhibit P.W. 34/’1.     Counsel on behalf  of the respondent Lalchand  Contended that the rubber stamp of the Chief Electoral Office bore the date  22 May, 1968 and there was intrinsic evidence to  show that  the first digit 2 was smudged with carbon  ink.   This argument  cannot be accepted because of the dominant  reason that  no  such suggestion was made to the witness  from  the Electoral  Office  or  any other witness on  behalf  of  the appellant.   If  such a  case had been made,  the  appellant would have had an opportunity of dealing with it.     Counsel  on behalf of the respondent Lalchand  contended that  the  receipt book and the bill register  book  of  the Press  were not produce.d.  Lachhman Das, the Accountant  of Kwality  Art  Printers was not asked to produce  either  the receipt book or the bill book.  There was some dispute as to whether  the signature of Lalchand on the manuscript  poster Exhibit  P.W. 34/2 was genuine or not.  Ratan Lal  Aggarwal, P.W.  58   said   that   the  signature  of  the  respondent Lalchand  on Exhibit  P.W.  34/2 was a  genuine   signature. The  respOndent’s  ’witness No. 2, A.S. Kapoor said that the signature  of  Lalchand  of  Exhibit P.W. 34/2 was  not  the same  as  the.  admitted signature of Lalchand  and  in  the

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opinion  of the witness the signature on Exhibit  P.W.  34/2 was "the work of a person who was well skilled in the art of traced  forgery".   It is rare for two experts to  agree  in cases of disputed signature.  The Court has to arrive at the conclusion  in the light of the entire evidence.  Jai  Gopal Verma  said  that  Lalchand appended his  signature  in  his presence.  That portion of the evidence of Jai  Gopal  Verma was  not impeached in cross-examination.  Lachhman Das,  the Accountant  of  the  Kwality  Art  Printers  said  that  the pamphlet  was  printed at the request of  Lalchand  who  was identified by Muni Lal Azad and 892 Jai  Gopal Verma.  This portion of the evidence of  Lachhman Das was also not challenged in cross-examination.     The poster on which the appellant relied is Exhibit P.W. 1/1. Exhibit P.W. 1/1 is as follows:       "Appeal  to the Voters of the Ellenabad  Vidhan  Sabha Constituency. Election            (Rising Sun)           Symbol Brothers:               Just after one year election is being held.  I               hope  will get more support from  public  than               before.   Because  you  have  seen  the  ’Adlu               Badlu’ policy of  Ch. Partap Singh son of  Ch.               Devi Dayal, Ch. Devi Lal has put up the second               son as a candidate because of this fear.   The               deeds  of  Om Prakash are well  known  to  the               public.  Under the auspices of his father  Ch.               Devi  Lal, he had been indulging in  smuggling               and  today he is asking for votes in the  name               of  his father.  I hope the people  will  show               the  face  of  defeat  to  such  an  obnoxious               person.   My election  symbol is  rising  sun,               put stamp only on that. Yours   LAL CHAND KHOD, Ellenabad Constituency".     Ganga  Dhar Sharma, P.W. 31, said that a  memorandum  of appeal  in  favour of respondent Lalchand was  printed.   He spoke of Exhibit. P.W. 34/1.  The appeal which was published and  distributed is Exhibit P.W. 34/2 which is the  same  as Exhibit  P.W. 1/1.  This appeal leaves no. room   for  doubt that  there were allegations against the personal  character and conduct of the appellant Om Prakash who was described as "having been’ indulging in smuggling".  In the said  appeal, it  was   further said that the appellant was  an  obnoxious person.     Various witnesses, P.Ws. 14, 16, 18, 19, 21, 23, 29,  30 and 31 gave evidence of the distribution and publication  of the appeal.  They identified Exhibit P.W. 24/1 which is  the same  as Exhibit P.W. 34/2 and the evidence of  distribution and publication is overwhelming.     The  evidence  in the present  case  established  beyond any  measure of doubt first that Exhibit P.W. 1/1  which  is the same as Exhibit P.W. 34/2 was published, secondly,  that Lalchand  got the same printed and published, thirdly,  that the statement 893 was  in relation to the personal character  and  conduct  of the appellant, fourthly, the statement is false and fifthly, the  same was calculated to prejudice the prospects  of  the appellant’s election.     For  these reasons we are of opinion that the appeal  is to  be  accepted on the ground that respondent  Lalchand  is guilty of corrupt practice under section 123(4) of the Act.

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   The  appeal  is ’allowed with costs throughout  and  the election of the respondent Lalchand is declared void’. G.C.                                        Appeal allowed. 894