DUA - (1.) , J.: - Mangi Lal Joshi has appealed to this Court under Section l16-A of the Representation of the People Act 43 of 1951 (hereinafter called 'the Act') from the judgment and order of the Madhya Pradesh High Court (Indore Bench) dismissing his election petition under Section 81 of the Act challenging the election of respondent No. 1 Krishnaji Rao Pawar, an ex-Ruler of the erstwhile Dewas Senior State, to the Legislative Assembly of Madhya Pradesh from the General Dewas Assembly Constituency No. 256 in the bye-election held in June 1968. This seat had fallen vacant on account of the death of Shri Hattesing, the successful candidate from this constituency in the General Elections held in February 1967. The appellant had contested the election on the ticket of the Indian National Congress whereas respondent No. 1 had contested it as an independent candidate. The charges on which the appellant's learned counsel has concentrated before us relate to :- (i) the alleged corrupt practice of publication of false statements relating to the personal character and conduct of the appellant; (ii) the incurring of election expenses in excess of the prescribed limit; and (iii) the alleged disqualifications of the respondent on the ground that he had a subsisting contract with the State within the contemplation of Section 9-A of the Act. The charge of bribery pressed in the High Court was not re-agitated in this appeal.
(2.) THE first point canvassed before us relates to the alleged corrupt practice of publication of false statement of fact in relation to the personal character or conduct of the appellant as contemplated by Section 123, sub-section (4) of the Act. Arguments on this point were confined to sub-issues (a), (b), (c), (d), (e), (f) and (g) of issue No. 5 and the relevant sub-issues of Issue No. 6. THE aforesaid sub-issues of Issue No. 5 covered the plea contained in paragraph 13 (b) (i) of the election petition. It was averred in that sub-para that at a public meeting held at about 8 P. M. on 13/06/1968, at Jawahar Chowk at which the returned candidate was present, Abdul Rehman Talib of Dewas, Kanhaiyasingh Thakur of Dewas, Kr. Virendrasingh, Deputy Minister of Labour Government of Madhya Pradesh and Khasherao Ghorpade of Dewas, in the course of their speeches, made statements relating to the personal character and conduct of the petitioner appellant which were false and which the speakers and the returned candidate either believed to be false or did not believe to be true and those statements were reasonably calculated to prejudice the petitioner / appellant's prospects of election. Abdul Rehman Talib was alleged to have said :- "No votes should be given to such Congress Candidate who has misappropriated the money." Kr.Virendrasingh was imputed the following statement :- "I have come from Labour Colony. Water tank is lying empty. All the money of water subscription has been misappropriated by Congress candidate INTUC, Mangilal Joshi. THE workers will not vote for him." Kanhaiyasingh Thakur was stated to have said :- "THE workers subscription has been misappropriated by INTUC Joshi. THEre is also a case pending against him in Court." Khasherao Ghorpade was alleged to have said:- "No votes be given to the corrupt candidate of Congress who has misappropriated workers' subscription money ... " The relevant parts of Issue No. 6 cover the plea contained in para. 13 (b) (ii) of the election petition. The controversy covered by this issue which now survives is confined to the statements alleged to have been published in the issue of the weekly 'Ranchandi' dated 16/06/1968. From that issue the following extracts published in connection with the election in question were relied upon by the appellant in support of the allegations of the corrupt practice: "Voters beware of Joshi misappropriator of the workers' subscription." "Corrupt Congress candidate Mangilal Joshi." "Appeal to remain careful of the misappropriator of mill workers' subscription, corrupt candidate Mangilal Joshi." According to the written statement on behalf of the returned candidate (Respondent No. 1 in this Court) all that the speakers at the meeting on 13/06/1968 in Jawahar Chowk had pointed but was that a prosecution was pending against Mangi Lal Joshi and that he was charged with embezzlement of the funds of the Mazdoor Sangh and of the donations of the workers. Though in the written statement the returned candidate denied that he had continued to be present at the meeting, the Court below held that he was present throughout and this finding in our view must be accepted. He also denied that the statement made by the speakers at the meeting had been made with his consent but in the circumstances of the case we would assume that he cannot disown those statements which were made in his interest and, therefore, they were in all probability made with his approval.
(3.) IN regard to the publication in 'Ranchandi' the respondent pleaded in the written statement that the Editor of the weekly used to publish election material on his own responsibility and that the respondent had no concern with the statements published therein. The subject-matter published in the issue of 16/06/1968 was stated not to have been published with the respondent's consent. He, however, proceeded, without prejudice, to add that the statements of fact contained therein were not believed by him to be either false or untrue. It is not disputed that on the evening of 13/06/1968 at about 8-00 P. M. an election meeting was actually held in Jawahar Chowk, Dewas, and it was called in support of the respondent's election and also that this meeting was addressed by Abdul Rehman Talib, Kr. Virendrasingh and Kanhaiyasingh Thakur. In regard to Khasherao Ghorpade, however, the respondent did not admit that he had addressed the meeting. The High Court after considering the evidence on the record and the arguments addressed before it came to the conclusion that Abdul Rehman Talib had, during the course of his address at that meeting, stated that Mangilal Joshi had misappropriated the amount of subscription realised from the labourers and that a case was pending in Court against him and no votes should be cast in his favour. In regard to Kr. Virendrasingh, the High Court came to the conclusion that the speech attributed to him had not been proved. About Kanhaiyasingh Thakur's speech also, the High Court accepted the evidence of the appellant's witnesses to the effect that Kanhaiyasingh Thakur had said that Mangilal Joshi had embezzled the amount realised by him as subscription from the labourers and a case in this connection was also going on against him in Court. The High Court took notice of the fact that Kanhaiyasingh Thakur was called as witness by the returned candidate and he was actually present in Court on 23/09/1969 but was given up. In regard to Khasherao Ghorpade, the High Court accepted the appellant's case that he had addressed the meeting in which he had stated that the appellant had misappropriated the money realised as subscription from the labourers. The High Court then considered the offending publication in the issue of 'Ranchandi' dated 16/06/1968. That Court after considering the material to which its attention was drawn observed that in this case the word 'corrupt' had been used in the context that Mangilal Joshi had misappropriated or embezzled the subscription amount of the labourers and that Mangilal Joshi's description as a corrupt person was intended to convey the fact that he had embezzled or misappropriated the subscription realised from the labourers. The use of word 'Bhrastachar' in this connection was held to connote a corrupt person. After considering some decisions of this Court on the construction to be placed on Section 123 sub-section (4) of the Act which were cited in the High Court, that Court came to the conclusion that the appellant had failed to prove that the impugned statements were false or were either believed to be false or not believed to be true by the speakers and the returned candidate. This conclusion was arrived at in the background of the fact that the criminal complaint had been filed against the appellant by one Lal Singh, as far back as July, 1965. Lal Singh appeared as witness for the Respondent as R. W. 13 in the High Court and proved his complaint from the original record of criminal case No. 52 of 1965 in the Court of Additional Magistrate (Jud.), Dewas. A certified copy of that complaint Exhibit D-1 was also placed on the record. According to that complaint it was alleged that Mangilal Joshi was the President of Dewas Mill Mazdoor Sangh and had held that office for the preceding 9 years. Several amounts relating to membership fee were stated to have been collected from the workers and the amount of several thousand rupees were neither deposited with the Mazdoor Sangh office nor entered in the related registers. It was principally on the basis of the pendency of this complaint that the High Court came to the conclusion that the appellant had not discharged the onus of showing that the offending statements of facts were false and were believed by the returned candidate, the speakers at the meeting in question and the Editor of 'Ranchandi' to be false or were not believed by them to be true.;