Judgment

ALAGIRISWAMI, J.:- The appellants are two voters of the Dakala constituency who challenged the election of the 1st respondent to the Puniab Legislative Assembly on many grounds out of which only the charge of corrupt practice under Ss. 123 (3) and 123 (3A) of the Representation of the People Act now survives for consideration. Respondents 2 and 3 are the unsuccessful candidates. The charge of corrupt practice is based on the publication of a pamphlet, about the nature of which there is no dispute and the contents of which are therefore unnecessary to be set out. It is admitted that if the publication of the pamphlet either by the successful candidate or his election agent or anyone else at the instance of either of them is proved the election has to be set aside.

2. The publication was sought to be proved by the evidence of C.W.1. the proprietor of the printing press where it was printed, C.W. 2 in whose name it was printed as well as of P.W, 2. The evidence of R.W. 5 was relied upon to prove that the pamphlet was sent to the Sub-Divisional Magistrate as required under S. 127A of the Representation of the People Act and received by her on the l2th March. Ext. P-W. 1/4 was put forward by the appellants as the manuscript which was used for printing the pamphlet. This is purported to be signed by the successful candidate as well as C.W. 2, Jathedar Ram Singh, in whose name the pamphlet is published and P.W. 1, Bedi Raghbir Singh. On the other hand the printer, C.W. 1 produced another manuscript ExtC.W. 1/1 as the one from which the pamphlet was printed. There is also a tape-recorded conversation between the 1st respondent and Bhagwant Singh, the husband of the 2nd respondent, who was also her counsel in the election petition, from which the 1st respondent tried to make out that he was wholly unaware of and surprised at his signature in Ext. P.W. 1/4. His main argument before this Court was that the whole thing has been brought about by collusion between the 2nd respondent, Bedi Raghbir,Singh P.W. 1, Nichhatar Singh C.W. 1 and Jathedar Ram Singh C.W. 2. The learned Judge held:

(1) that he had no doubt that the pamphlet was printed from Ext. P.W. 1/4:

(2) that Ext. C.W. 1/1 had been manufactured for the purpose of this petition: ,

(3) that the figures

"20 X 30 = 5000"

4

on Ext. P.W. 1/4 are in the handwriting of Nichhatar Singh;

(4) that the signature of the successful candidate on Ext. P.W. 1/4 appears to be his;

(5)that the production of Ext. C.W. 1/1 by Nichhatar Singh and the tape-recorded conversation show an anxiety on the part of 1st respondent to steer clear of his signature on Ext.P.W. 1/4;

(6) that this anxiety could be because he had in fact signed such a poster as it was not his case that he ever signed any blank paper; and

(7) that he was not, however, sure of the existence of the poster.We are of opinion that conclusions 1 to 6 of the learned Judge set out above are borne out by the evidence on record and do not therefore consider it necessary to set out at length the evidence to support those conclusions. Conclusion No. 7 is rather curious in view of his earlier conclusions and his observation that from what he had stated earlier i.e. conclusions 1 to 6, he was clear in his mind that the poster was not printed before the poll is completely non sequitur. The learned Judge then goes on to say that the strongest reason for this conclusion is the absence of any complaint by respondent No. 2, and that the evidence as to the distribution of the poster is oral and untrustworthy. That is how he has disposed of the whole question regarding the printing of the poster. We are unable to agree that absence of complaint by respondent No. 2 necessarily leads to that conclusion. We are of opinion that the conclusion arrived at by the learned Judge is wholly unsustainable especially in view of his categorical findings recorded earlier.

3. The 1st respondent s case was one of complete denial of the allegations in the petition regarding t