Judgment

BACHAWAT, J.- This appeal is directed against a judgment of a single Judge of the Madhya Pradesh High Court setting aside the election of the appellant to the Madhya Pradesh Legislative Assembly from the Sagar City constituency.

2. At the last general election to the Legislative Assembly from the Sagar City Constituency there were six contesting candidates. The appellant, the Congress candidate, secured 17,068 votes, respondent No. 1, the P.S.P. candidate secured 12, 193 votes, four other candidates secured much lesser number of votes. The appellant was declared elected. Respondent No. 1 filed an election petition and alleged a number of corrupt practices on the part of the appellant. The High Court found that the corrupt practice under Section 123(4) was proved and set aside the election. The High Court found that the other charges were not proved.

3. The charges against the appellant under Section 123(4) is that with his consent statements of facts which were false and which the appellant did not believe to be true in relation to the personal character or conduct of respondent No. 2 calculated to prejudice the prospects of his election were published in Hindi in the issues of New Rocket Times, dated the 6th, 9th, 10th, 13th, 18th and 19th February, 1967 (Exs. P-6, P-5, P-4, P-3, P-2, and P-1 respectively) and the issues of Agami Kal, dated the 4th, 19th and 20th February (Exs. P-7, P-9 and P-10 respectively). The learned Judge held that the publications were made with the appellant s consent and that the papers were distributed at his instance on the eve of the election. We are unable to agree with this finding.

4. In the petition the charge was that both the papers were financed by the appellant and that the editors of New Rocket Times and Agami Kal were his benamidars. In his examination-in-chief, respondent No. 1 said that PW 43 Bakar Mia, told him that the entire expenses of the publication of the New Rocket Times were borne by the appellant. In cross-examination he said that he was informed by PW 36 Ghanshyam Das, some time before the election that the appellant paid Rs. 1,000/- to the editors of each of the papers for his advertisement. PW 36 Ghanshyam Das, the editor of the paper "Denik Rahi" said that a press conference called by the appellant on January 20, 1967 at the residence of Sri Krishna Selot and attended by PW 36, PW 35 Madansingh, editor of Sagar Times, RW 23 Jai Narain, editor of Agami Kal and CW 1, Badal Singh, editor of New Rocket Times, the appellant stated that RW 33 and CW 1 had agreed to publish in their papers all his advertisements as also all articles to be supplied by RW 34 Laxminarayan Trunkwala for the entire election at a settled remuneration of Rs. 1,000/-each and that the appellant had also agreed to purchase 1,000 copies of each of the papers. The story appears to us to be false. If the bargains had already been made with RW 23 and CW 1 it was not necessary to call them at the conference. Nor was it necessary to make a public announcement of the bargain at a press conference. The charge that such an agreement was made with the editors of the two papers was not made in the petition and is an afterthought. PW 36 also said that on January 20, the appellant agreed to pay him Rs. 1,000/- for issuing advertisements in his paper as remuneration and accordingly he published advertisements in his paper from January 24 to February 16, that a week after the agreement the appellant sent Rs. 300/- to Sri Krishna Selot through RW 11 Sunder Lal and desired that the money be paid to him (PW 36), but that he refused to accept the money, and insisted on full payment. We do not believe this story. Had there been such a dispute in the last week of January PW 34 would not have continued to publish the advertisements till February 16. PW 36 did not make any demand on the appellant in writing for Rs. 1,000/- nor file any suit against him. RW 11 denied that he brought Rs. 300/- from the appellant. PW 35 did