2005 Supreme(SC) 825

2005(4) Supreme 627
Supreme Court of India
(From Bombay High Court)
R.C. Lahoti, CJI & G.P. Mathur & P.K. Balasubramanyan, JJ.
Mahendra Singh —Appellant
versus
Gulab —Respondent
Civil Appeal No. 6908 of 2003
Decided on 10-5-2005
Counsel for the Parties :
For the Appellant : Shekhar Naphade, Sr. Advocate, Shivaji M. Jadhav, Advocate.
For the Respondent : U.U. Lalit, Sr. Advocate, Sudhanshu Choudhary, S.S. Shinde and V.N. Raghupathy, Advocates.

Important point
The burden to prove the corrupt practice as contemplated by Section 123(4) of the Representation of the People Act is on the election petitioner.

Headnote:Representation of the People Act, 1951—Sections 80 and 123(4)—Cor­rupt practices—Publication by a candi­date or his agent of any state­ment or fact which is false in relation to the personal character or conduct of any candidate, being a statement calculated to prejudice prospects of election of that candidate—Statement attributed to a leader of Bhartiya Janata Party who spoke at an election meeting in the presence of respondent, the win­ning candidate—Respondent in the speech he subsequently delivered did not disassociate himself from the above statement and did not protest against it—It was stated that appellant petitioner had accepted money for voting for the candidates in the election to the Legislative Council—High Court found that there was neither pleading nor evidence that the speech delivered materially affected the election in question—Dismissal of election petition filed by appellant on ground that he had failed to establish any corrupt practice by respondent—Whether any ground is made out for interference with the dismissal of the election petition—(No).

       Held : Section 123 of the Act describes what are corrupt practices. Sub-section (4) thereof says that 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 or fact which is false, and which he either believes to be false 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 the election of that candidate, amounts to a corrupt practice. In the light of this position, we shall now deal with the effect of the four statements, one attributed to a supporter of the respondent and the other three to the respondent himself. (Para 3)

       As a fact, the High Court found that the respondent was no doubt occupying a seat in the dais at the moment the particular statement was made by Subhash Deorao Patil, but then, the respondent had arrived on to the scene while Subhash Deorao Patil was midway through his speech. There was, there­fore, no sufficient material to infer that the respondent had consent­ed to the above statement being made by Subhash Deorao Patil or that the respondent had induced Subhash Deorao Patil to make such an alle­gation. The Court found that though the respondent was a candidate of the BJP-Shivsena alliance, the fact remained that the respondent was a member of the Shivsena whereas Subhash Deorao Patil was a member of the BJP. According to the High Court, the appellant did not have the needed control over Subhash Deorao Patil. The High Court thereafter relied on the relevant decisions of this Court referred to in the judgment under appeal and came to the conclusion that the statement attributed could not be said to be a corrupt practice indulged in by the respondent. The High Court noticed that the respondent had deliv­ered his speech after conclusion of the speech of Subhash Deorao Patil but had not specifically repudiated the statement. But even then, the Court held that there was no adequate material to find that this amounted a corrupt practice. The Court also did not enter a finding that the statement was a false statement made to the knowledge of the respondent or his agent. It noticed that there was not even a plea that the prospects of the appellant in the election was materially affected by the above statement. (Para 5)

       The burden to prove the corrupt practice is on the election peti­tioner, the appellant before us. Considering the materials made avail­able and the arguments raised before us, it cannot be said that the High Court was in error in finding that the appellant has not estab­lished a corrupt practice as contemplated by Section 123(4) of the Act by the making of the above statement by Subhash Deorao Patil. The statement is seen to be vague and not very precise. It is seen that it was a sporadic statement made by the leader of a party which was in alliance with the party of the returned candidate. The statement was one made by that leader during the course of his speech in a meeting for which the respondent, the returned candidate, arrived in the middle of that speech. There is no evidence attempted by the appellant to show that any of the listeners at the meeting formed an adverse impression about the appellant and the statement had caused harm to the prospects of the appellant at the hustings. In such a situation, it is not possible to disagree with the High Court, when it held that the appellant has failed to establish that the above statement made by the Subhash Deorao Patil can be taken to be a statement made with the consent of the respondent, the returned candidate, knowing it to be false and that it has affected the election prospects of the appel­lant. Thus, on the whole, this aspect urged by the learned counsel for the appellant is seen to be not acceptable to upset the finding of the High Court in that regard. We feel that there is no adequate pleading or evidence to find the respondent guilty of corrupt practice on this score. (Para 7)

       On going through the statement as a whole, we are not satisfied that there is any justification in interfering with the conclusion of the trial court that the said allegation also does not amount to a corrupt practice. Learned counsel for the appellant also could not bring to our notice any material on the basis of which we could disagree with the conclusion arrived at by the trial court. On an anxious consideration of all the four aspects thus urged before us in the light of the pleadings, the evidence and the findings recorded by the High Court, we are satisfied that no ground is made out for interference with the dismissal of the election petition filed by the appellant on the ground that he had failed to establish any corrupt practice by the respondent in terms of Section 123(4) of the Act. (Paras 11 and 12)