P. K. Balasubramanyan, J. - (1.) This is an appeal under Section 116A of the Representation of the People Act, 1951 (hereinafter referred to as the Act). The appellant was the petitioner in the election petition filed before the High Court. The appellant and the respondent contested from 94 - Erandol Assembly Constituency in Maharashtra in the general elections held on 5-9-1999. The respondent was declared elected. The appellant, so to say, was the runner up. The appellant filed the election petition before the High Court of Bombay, Aurangabad Bench, under Section 80 of the Act seeking a declaration that the election of the respondent was vitiated since the respondent was guilty of corrupt practices as defined in Section 123 (4) of the Act. Various statements said to have been made by the respondent during the election campaign were put forward as amounting to corrupt practices, before the High Court. The respondent denied some of the statements, pleaded that none of them amounted to corrupt practice within the meaning of the Act and that there was not even adequate pleading of corrupt practices so as to justify the election petition even going to trial. The High Court rejected the preliminary objection raised by the respondent and proceeded to try the election petition. The High Court found that the appellant has not established the corrupt practices imputed to the respondent and has not been able to successfully challenge the election of the respondent. Thus, the election petition was dismissed. It is this dismissal that is challenged in this appeal.
(2.) Though as noticed above, various statements allegedly made by the respondent or his supporters were put forward as constituting corrupt practices, before us, only four instances and statements were urged as constituting corrupt practice. The first was, the statement made by one Subhash Deorao Patil to the effect that the appellant had taken money while voting for the Rajya Sabha elections. The said allegation was made by Subhash Deorao Patil in the presence of the respondent and it was urged that it must be taken to have been made with the consent of the respondent. The other three statements were attributed to the respondent himself and according to the appellant the respondent had alleged that the appellant had distributed money to voters for securing their votes; that the appellant was drunkard and that he had indulged in unfair practices to pass his examinations in his earlier days. These statements were false to the knowledge of the respondent and they related to the personal character of the appellant and these statements were reasonably calculated to prejudice the prospects of the appellants selection. It may be stated that the Court which tried the election petition, came to the conclusion that the appellant had not established his case based on these aspects and dismissed the election petition. Learned counsel for the appellant attacked the findings of the trial court and learned counsel for the respondent defended the findings and sought dismissal of the appeal.
(3.) 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. i. The statement attributed to Subhash Deorao Patil In the election petition it was averred that Subhash Deorao Patil who was a leader of the Bhartiya Janata Party (BJP), spoke at an election meeting held on 31-8-1999 at the instance of the respondent, a Shivsena candidate, at Village Salva, Taluka Dhargaon, District Jalgaon. The meeting was attended by approximately 2500 voters. It is alleged that Subhash Deorao Patil made a speech lasting 3 to 4 minutes. The respondent, the winning candidate, came to the dais while Subhash Deorao Patil was in the midst of his speech. After the respondent had taken his seat on the dais, Subhash Deorao Patil made the following statement:, "Money, when he remained with alliance in Zila Parishad, he took money, Money. This is very important thing. I am telling the citizens who are going. Money from the elections to Rajya Sabha is there. He has taken money for voting as a voter. This money belongs to us. It is ours. He has not earned it from home." The election petition after setting out the above, proceeded to say that this statement was made in the presence of the respondent and with his consent. The respondent in the speech he subsequently delivered, did not disassociate himself from the above statement and did not protest against it in any manner. According to the election petition, it was clearly stated that the petitioner had accepted money for voting for the candidates in the election to the Legislative Council. He was a sitting Member of the Legislative Assembly. The Members of the Legislative Assembly are also voters for the election to the Rajya Sabha. It was a clear statement that the appellant had accepted money for voting in those elections. The statements made by Subhash Deorao Patil with the consent of the respondent were clearly false and the maker of the statement as well as the respondent believed it to be false and never believed it to be true. The statement was in relation to the personal character or conduct of the appellant and it was a statement reasonably calculated to prejudice the prospects of election of the appellant. It cast a reflection on the appellant as a person who takes bribe for voting and for supporting alliance in Zila Parishad, Jalgaon. In support of this allegation, a certified copy of the video cassette of the speech delivered by Subhash Deorao Patil delivered in Marathi, along with the English translation was produced.;