Case: Guruji Shrihar Baliram Jivatode Vs. Vithalrao &amp; Ors

caused to get Exhibits 55 and 56 printed and published and completely ignored the true effect of the statements contained therein. It proceeded on the erroneous impression that every false or unjustified criticism of a candidate amounts to a contravention of Section 123 (4). Dealing with Exhibits 55 and 56 this is what the learned trial Judge observed:"To say against anybody that he is responsible for imposition of a tax without justification through that persons selfish and pretentious friend like the President of the Municipal Council is, to say the least, to suggest that person is the direct cause of harassment on account of such taxation on poor people. It is said in the third paragraph of the pamphlet and then there is a direct allegation against the petitioner that it is the petitioner who caused the cultivators in the Rajura Taluq to be burdened with the expense of fixing the border stones and that in doing so the petitioner Vithalrao Dote has solely secured an advantege for Abid Hussain Thekedar. In the fourth paragraph, it is categorically alleged that the petitioner Vithalrao Dhote has exploited and harassed poor people in order to benefit his, i.e., Vithalrao selfish and pretentious friends and such harassment has caused untold miseries. That these allegations are scurrilous does not admit of any doubt. They are defamatory per se. Every citizen is entitled to be presumed to be innocent until contrary is proved. If, therefore, an allegation of a personal character is made against anyone, it is the maker of the allegation who has to establish that there is truth in the allegation." It is clear that the High Court failed to examine the effect of the statements contained in Exhibits 55 and 56 by the tests prescribed in Section 123 (4). Further, there is no proof in this case that the statements contained in Exhibits 55 and 56 are reasonably calculated to prejudice the election of the respondent. The trial Court did not give any finding to that effect. 14. This leaves us with the question whether the appellant and announced in his election meetings that the first respondent had a share in the profits earned by Abid Hussain in the matter of fixing boundary stones. The High Court has held that the appellant made that accusation while addressing election meetings at two places. If that finding is correct then undoubtedly there is a contravention of Sec. 123 (4) but after carefully examining the material on record we have come to the conclusion that that finding in unsustainable. 15. The election petition was filed on April 11, 1967. That petition merely set out what according to the petitioner are the contents of Exhibits 55 and 56. It is not stated therein that apart from the statements contained in those pamphlets any other false statement of fact relating to the personal character or conduct of the first respondent had been made either by the appellant or his supporters. The allegation that the appellant in his election meeting had stated that the first respondent had a share in the profits earned by Abid Hussain in the matter of fixing the boundary stones is not mentioned there. An application to amend the election petition was made on June 24, 1967. In that application also there is no reference to the allegation in question. The election petition was again amended on 3-7-1967. It was only then the following allegation was made:"He (the appellant) was falsely alleging that the petitioner was or had actively helped Abid Hussain for his selfish ends to make illegal gains and thus allege falsely corrupt motives to him." Even this allegation is vague. That apart, it is a highly belated allegation. It appears to be an afterthought. It is not necessary for us to decide in this case whether such an amendment could have been permitted after the limitation for filing the election petition had expired. But the very circumstance that the allegation in question was made several months after the election petition, was filed by itself casts serious doubt on the veracity of that allegation. This circumstance was completely overlooked by the High Court. 16. The witness who spoke in support of the said allegation are the first respondent (P. W. 2), P. W. 9, Arjan Kashinath Masirkar and P. W. 12, Nazir Hussain Akbar Ali. So far as P. W. 2 is concerned, he is undoubtedly an interested witness. In the circumstances, mentioned above, his evidence can gave little pursuance value. So far as P. W. 9 is concerned on his own showing he was highly interested in the 1st respondent and the Congress Party. As elicited during his cross-examination he was a Congress candidate for election as a Sarpanch and as a member of the Panchayat Samiti. The appellants cousin was his rival in that election. Admittedly, during the last election he canvassed for the respondent. Under these circumstances much reliance cannot be placed on the testimony of this witness. Then we come to the evidence of P. W. 12. During his cross-examination this is what he stated:"I have not received a summons. Vithalrao had asked me to produce the register where the hire of cycles is noted and that is how the chits which I have filed came with the register...." His evidence is to the effect that the appellant while presiding over the meeting at Rajura on February 13, 1967 stated that the first respondent had a share in the contract for fixing of border stones which was procured for him by Vithalrao. When he was cross-examined about that meeting this is what he stated:"I dont remember who was the President of the meeting, I will not be able to name at this distance of time the names of persons from the town or the villagers who were listening at the meeting. I will not be able to name a single person from amongst these." Obviously he is a procured witness. No reliance can be placed on his evidence.

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

Explanation:
0[ds]4. The bulk of the evidence adduced in this case relates to the controversy whether the appellant was responsible for the printing and publication of Exhs. 55 and 56. The High Court has accepted the case of the first respondent that the appellant was responsible for printing and publishing those pamphlets. We have been taken through that evidence and we agree with the High Court on that aspect of the case. It is not necessary to deal with evidence as we are opinion that the statements contained in those pamphlets do not amount to corrupt practice under section 123 (4) of the Act. Section 123 (4) reads:8. It is trite to say that the burden of providing every one of the ingredients of the corrupt practice alleged is on him who alleges it. If he fails to establish any of them to the satisfaction of the Court he must failHaving been elected in the first general elections, Shri Vithalrao Dhote would work for the benefit of the people and develop the backward Rajura Taluka was our expectation. But the people of Rajura Taluka have been utterly disappointed by Shri Vithalrao Dhote. In this taluka the High School which was there in the times of Nizam is the only High School in whole of Rajura Taluka till today. Shri Vithalrao Dhote could not construct a single pucca road. Could not supply electricity to any village anywhere. Could not make arrangements for watering agriculture. In this taluka though there are thousands of acres of fallow land, for distributing it to landless, no effort was made by Shri Vithalrao Dhote. In the last five years no work for the benefit of the people has been done by Vithalrao DhoteIt is clear that the High Court failed to examine the effect of the statements contained in Exhibits 55 and 56 by the tests prescribed in Section 123 (4). Further, there is no proof in this case that the statements contained in Exhibits 55 and 56 are reasonably calculated to prejudice the election of the respondent. The trial Court did not give any finding to that effectThe High Court has held that the appellant made that accusation while addressing election meetings at two places. If that finding is correct then undoubtedly there is a contravention of Sec. 123 (4) but after carefully examining the material on record we have come to the conclusion that that finding in unsustainable15. The election petition was filed on April 11, 1967. That petition merely set out what according to the petitioner are the contents of Exhibits 55 and 56. It is not stated therein that apart from the statements contained in those pamphlets any other false statement of fact relating to the personal character or conduct of the first respondent had been made either by the appellant or his supporters. The allegation that the appellant in his election meeting had stated that the first respondent had a share in the profits earned by Abid Hussain in the matter of fixing the boundary stones is not mentioned there. An application to amend the election petition was made on June 24, 1967. In that application also there is no reference to the allegation in question. The election petition was again amended on 3-7-1967.