Case: Nepal Chandra Roy Vs. Netai Chandra Das and Others

practitioner. It is in evidence that the former has been criticising the latter as a quack. The acceptance of the evidence of witness No. 4 by the learned Judge, was even on the reasons given by him quite unjustified. It is not necessary for us to discuss this matter elaborately because even according to the learned Judge this witness could not even bear to hear the name of Congress being uttered in his presence and that the witness made a very unfavourable impression on the Court. The learned Judge has also stated that the general demeanour of witness No. 4 in the witness box was unsatisfactory. The learned Judge has also held that witness No.3 Ramesh Chandra Dutta, who also speaks to Ex. B, was also an ardent supporter of the third respondent and his evidence has to be treated with considerable caution. The Court has further observed that if it has to decide only on the basis of the evidence of witnesses Nos.3 and 4, it would have to face considerable difficulty in deciding in favour of the election petitioner. In spite of all the above observations, the learned Judge has held the witnesses Nos.3 and 4 could by believed when they speak to having gone to the dispensary of witness No.7 on receipt of a copy of the pamphlet Ex. 3 and that witness No. 7 admitted that he is the author of the same as he had got necessary particulars from the appellant. The story given by these witnesses, in our opinion is very fantastic and totally unbelievable. It is difficult to believe that Dr. Sailendra Mohan Roy, witness No. 7 would have spoken to such things as stated by these witnesses. Therefore, it follows that the acceptance of the evidence of witnesses Nos. 3 and 4 and the rejection of the evidence of Dr. Sailendra Mohan Roy, witness No. 7 by the learned Judge was not justified. We have gone through the evidence of Dr. Sailendra Mohan Roy, and in out opinion his evidence is quite natural and acceptable. From the above discussion, it follows that Ex. B was not printed by witness No. 7 either himself or at the instance of the appellant.33. The allegations in sub-paragraphs (l) and (m) of paragraphs 7, in out opinion are thoroughly fantastic. A reading of the evidence of the witnesses who speak to having been shown a copy of the said deed by the appellant containing incomplete particulars and the appellant making allegations against the respondent No. 1, and calling him a debauch cannot be believed. The evidence of the witnesses walking into the office of the appellant on getting copies of Ex. B to find out the nature of the transaction relating to the property purchased by the third respondent is very artificial and tutored. It is equally fantastic to allege that the appellant would have called the third respondent a debauch and that in the presence of the election petitioner when the appellant was stated to be in his round soliciting votes for him. It is also equally fantastic that the appellant would have referred to the character of the third respondent to a person like the election petitioner who was known to be an ardent supporter of the third respondent. We have already referred to the observations of the learned Judge that most of the witnesses called by the election petitioner were not only partisan and tutored but also reckless and without any respect for the oath they had taken in the witness box. For instance in discussing the question whether the appellant had an election office at No. 5, Jadulal Malik Road and where the posters Exs. A and C were printed and circulated, the learned Judge was prepared to accept the evidence of one Gajju, who has been characterised by the Court as a despicable character and anti-social element. The court was prepared to believe the evidence of one Deo Narain Chawdhary, an employee of the Official Receiver, in whose in-charge the press was at the relevant time, notwithstanding the fact that the witness admitted that Gajju and rowdy element and a dangerous character and that he was terribly afraid of Gajju.34. Regarding another witness of the election petitioner, namely, witness No. 3, the Court has observed that it had considerable doubt whether the appellant would have taken witness into his confidence to the extent claimed by the latter as he was an incorrigible supporter of the third respondent. Regarding Swaran Pratima Bai, who has given evidence on the side of the appellant and has spoken to the fact that she was working in the election office at No. 6, Jadulal Malik Road, the Court having held that she did work for the appellant in the mid term election, brushed aside her evidence on the sole ground that she was not able to give correctly the total number of booths in her area.35. After having so criticised the evidence adduced on the side of the election petitioner as mentioned earlier, the learned Judge was not justified in acting on such evidence and setting aside the election of the appellant. In our opinion, the finding of the learned Judge with reference to the allegations contained in sub-paragraphs (j), (k), (l) and (m) of Paragraph 7 of the election petition cannot be sustained, and we accordingly hold that the appellant is not guilty of any corrupt practice.36. Before we conclude it is necessary to state that there is no allegation that the appellant made any statement reasonably calculated to prejudice the prospects of the third respondent in the election. There is no evidence let in this regard. The learned Judge has also not considered at all this aspect and given a finding one way or the other. We are referring to this aspect because under Section 123(4) of the Act this is one of the essential ingredients to be established. In this respect also the judgment of the learned Judge suffers from a serious defect.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]We are not inclined to agree with the view of the learned Judge that the appellant is guilty of the corrupt practices found against him and referred to above. In our opinion, the appellant is not guilty of any corrupt practice. The judgment of the learned Judge is hereby set aside and the appeal allowed. The reasons for this order will be given in due course. Suitable directions regarding costs will be given along with theis in the premises not clear to which posers allegation has been referred to and the said charges are therefore vague and untenable. This respondent is not aware and he does not admit if the respondent No. 3 or any of his supporters at any meeting challenged the truth or veracity of the contents of the said poster or the allegedanswers elicited by the learned Judge, in out opinion, are totally irrelevant to the point under consideration. The function of the court was to find out whether in Ex. A there were any statements of facts relating to the personal character or conduct of the third respondent and if so whether those statements were false. This the Court has miserably failed to do.18. It is seen from the evidence of the third respondent as well as of the other witnesses that the statements of facts contained in Ex. A are absolutely correct. The plot number has been correctly given, it has been described properly, its extent has been correctly give, the true sale consideration has been stated and the date of registration has also been correctly given. That the date of registration falls within the tenure of office of the United Front Government is absolutely irrelevant. There is no statement in Ex. A which is not true. The facts mentioned in Ex. A are all the same as even found by the learned Judge himself and borne out by the copy of the registration document Ex. N. Ex. N. does not contain any statement which is in conflict with Ex. A. The sale consideration, the identity of the plot, the names of the purchaser and the vendor and the date of the document as given in Ex. A tally in all respects with the particulars contained in Ex.this answer it is clear that the very person, who according to the election petitioner is portrayed as a dishonest person, has categorically stated to the court that at any rate so far as he was concerned there is no such impression created in his mind.21. The second feature in the evidence of this witness is that he does not dispute the correctness of the statements made in Ex. A regarding the description of the properties and their extent, value and the date of the document. In fact no suggestion has been made even by the counsel for the election petitioner that the statements contained in Ex. A are false. We do not propose to refer to the evidence of other witnesses to the effect that Ex. A does not contain the date of the auction and that the balance consideration has to be paid in 14 annual instalments and that the consideration has been paid by third respondent from his professional earnings.22. The evidence referred to above clearly indicates that none of the statements contained in Ex. A is false; none of the statements relate to the personal character or conduct of the thirdout view, none of the statements in Exs. A and C are statements in relation to the personal character or conduct of the third respondent. On the other hand, they are mere statements regarding the purchase of the property by the third respondent and they contain correct and accurate facts. No part of those statement isthe same reasons given by us with regard to Exs. A and C we hold that the statements regarding the property in Ex. B are also true and they do not relate to the personal character or conduct of the third respondent. From the above discussion it follows that one of the essential ingredients to constitute corrupt practice is lacking in this case as we have held that there is no statement in Exs. A to C in relation to the personal character or conduct of the third respondent. Even assuming that they are such statements, they are true and no part of the statements is false. But in our view they are only statements of fact giving particulars relating to the purchase of the property by the third respondent which facts are true.25. In the view that we have expressed above, it really becomes unnecessary to discuss the further question whether Exs. A, B and C were printed, published and circulated by the appellant or by any other person with his consent or by his election agent. But any how we will also consider those aspects and express our opinion.In our opinion, the approach made by the learned Judge is totally erroneous. Mr. A. K. Sen, learned counsel for the appellant, relied on the provisions of Sectionof the Act and according to him he nature of the evidence contemplated therein has not been adduced by the election petitioner. There is a considerable force in this contention of Mr. Sen. It is not necessary for us to base out decision on thewith the provisions of that section alone. In cases where a candidate wants to have pamphlets or posters printed surreptitiously for election purposes, the provisions of Sectionmay not have been complied with. But in this case so far as we could see it is not the case of the election petitioner that the posters Exs. A and C were got surreptitiously printed at Imperial Art Cottage. In fact no such suggestion has been made to the three witnesses mentioned above. On the other hand, the evidence of some of those witnesses clearly shows that it was the Manager who was giving directions regarding the printing of those posters and also directing the workmen to expedite the printing on the ground that the work was urgent. None of the witnesses have stated that any secret instruction was given by the Manager in this regard. On the other hand the work was done openly in the presence of various other workmen in the press. Under these circumstances Sectionof the Act should have been invoked by the learned Judge.30. In this case there is no controversy that Subhash Kumar Dhar, the Manager of the Imperial Art Cottage, had been summoned by the election petitioner to produce the Job Register, Bill Register, Ledger and Bill Books of the Company.Sinha, counsel for the first respondent admitted that the best evidence, that Exs. A and C were printed in the Imperial Art Cottage, would have been to have before the Court the evidence of the Manager supported by necessary documentary evidence admittedly brought by him on summons. But the counsel pressed for accepting the evidence of the three witnesses, namely, witnesses Nos. 9, 11 and 13. We are not inclined to accept this contention of the learnedthose circumstances, without summoning the Manager and the Receiver and having the books of the press placed before the Court, it was not open to the respondent No. 1 herein to ask the Court to give a judgment in his favour merely on the ipse dixit of the three workmen who are admittedly members of a particular Union. In our opinion, the evidence of the three witnesses, namely, witnesses Nos. 9, 11 and 13 is absolutely useless and is of a partisan nature and their evidence has been got up for the purpose of this case. It is highly improbable that when the press is in charge of a Receiver and there is a Magistrate who is looking after the day to day work in the press, that these three workmen would have got these things printed surreptitiously. It is not even the case of the electionstory given by these witnesses, in our opinion is very fantastic and totally unbelievable. It is difficult to believe that Dr. Sailendra Mohan Roy, witness No. 7 would have spoken to such things as stated by these witnesses. Therefore, it follows that the acceptance of the evidence of witnesses Nos. 3 and 4 and the rejection of the evidence of Dr. Sailendra Mohan Roy, witness No. 7 by the learned Judge was not justified. We have gone through the evidence of Dr. Sailendra Mohan Roy, and in out opinion his evidence is quite natural and acceptable. From the above discussion, it follows that Ex. B was not printed by witness No. 7 either himself or at the instance of thehave already referred to the observations of the learned Judge that most of the witnesses called by the election petitioner were not only partisan and tutored but also reckless and without any respect for the oath they had taken in the witness box. For instance in discussing the question whether the appellant had an election office at No. 5, Jadulal Malik Road and where the posters Exs. A and C were printed and circulated, the learned Judge was prepared to accept the evidence of one Gajju, who has been characterised by the Court as a despicable character andelement. The court was prepared to believe the evidence of one Deo Narain Chawdhary, an employee of the Official Receiver, in whosethe press was at the relevant time, notwithstanding the fact that the witness admitted that Gajju and rowdy element and a dangerous character and that he was terribly afraid of Gajju.After having so criticised the evidence adduced on the side of the election petitioner as mentioned earlier, the learned Judge was not justified in acting on such evidence and setting aside the election of the appellant. In our opinion, the finding of the learned Judge with reference to the allegations contained in(j), (k), (l) and (m) of Paragraph 7 of the election petition cannot be sustained, and we accordingly hold that the appellant is not guilty of any corrupt practice.Before we conclude it is necessary to state that there is no allegation that the appellant made any statement reasonably calculated to prejudice the prospects of the third respondent in the election. There is no evidence let in this regard. The learned Judge has also not considered at all this aspect and given a finding one way or the other. We are referring to this aspect because under Section 123(4) of the Act this is one of the essential ingredients to be established. In this respect also the judgment of the learned Judge suffers from a serious defect.