Z46 ASHOK DULICHAND v. MADAHA VLAL DUBE August 5 & Anr.

(f) Whether all persons named in the paragraph 13 except Shrimati Kamla Bai Mohogaonkar of Moho gaon were active supporters of respondent No. 2 ? Whether any corrupt practice under section 123( 4) of the R.P. Act was committed in respect of the above'! Whether the allegations made in paragraph 13 make out a ground for challenging the election of respon dent No, 1 under section 100(1) of the R.P. Act . 1951?" The High Court decided issues JO(a) and (b) against the appel lant on the ground that no evidence had bee,n led by him in this b~balf .. On issue lO(c), it was held, that though the material con tamcd 10 leaflet P4 related to the personal character and conduct of respondent No. 2, the appellant had failed to prove that its contents we~e false to the knowledge of respondent No. 1 or that he did not believe them to be true. No corrup• practice as defined in section A B c D E F G H • ASHOK v. MADAHAVLAL (Khanna,!.) 2H A B c D E F G H 123(4) of the Representation of the People Act was held to have oeen proved. Issues lO(d) and .Ce) were held to be of no conse quence in view of the fact that 1t was not proved that respondent the elect10n No. 1 was guilty of corrupt practice. petition was disJ!lissed. In the result ln appeal before us Mr. Ghatate on behalf of the appellant bas argued that the appellant wanted to. file a photostat copy, of the manuscript of leaflet P4 which, accor?mg to the. a.l'pella_nt, hail b~n written by respondent No. 1. The High Court,_ 1t !S pomted out, did not admit the aforesaid photostat copy m evidence on the ground that there was no sufficient reason for allowing the appellant to lead It is that order of the High Court which has secondary evidence. been the main target of the criticism of Mr. Ghatate. ' praying that the said After hearing the l~arned counsel for the parties, we are of the opinion that the order of the High Court in this respect catls for no interference. According to clause (a) of section 65 of the Indian Evidence Act, seco.ndary evidence may be given of the existence, condition or contents of a document when the original is shown or appears to be in the possession or power of the persoru against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not. produce it. Clauses (b) to (g) of section 65 specify some other contingencies wherein secondary evidence relating to a document may be given, but we are not con cerned with those clauses as it is the common case of the parties that the present case is not covered by those clauses. In order to bring his case within the purview of clause (a) of section 65, the appellant filed applications on July 4, 1973, before respondent No. 1 was examined as a witness, respondent be ordered to produce the original manuscript of which, according to the appellant, he had filed photostat copy. Prayer was also made by the appellant that in case respondent No. 1 denied that the said manu script had been written by him, the photostat copy might be got examined from a handwriting expert. The appellant also filed affi It was, however nowhere stated davit in support of his applications. in the affidavit that the original document of which th~ photostat copy h_ad been filed by the appellant was in the possession of respondent No. l. There was also no other material on the record to indicate that the original document was in the possession of respondent No. 1. The appellant further failed to explain as to what were the circnms ~ances un?er which th_e. photostat copy was prepared and who was m possess10n of the ongmal. doc.ument at the time its photograph was taken. R~spondent. No. 1 m h~s affidavit denied being in possession of or havmg anythmg t_o do with such a document. The photostat In view copy appear.eel to the High Cou_rt to be not above suspicion. of all the circumstances, the High Court came to the conclusion that no. found~tion had been laid bv the appellant for leading secondary ~v1dence m the shape of the .Photostat copy. We find no infirmity m th: above order of the High Court as might justify interference by this Court. :250 SUPREME COURT REPORTS [1976] 1 S.C.R. ------- · The matter may also be looked at from another angle. There is .no evidence on record to show that the conten'.s cf leaflet Ex. P4 were false. Respondent No. 2 in relation to whose personal charac .ter and conduct statements were made in leaflet P4 was not examined .as a witness. No other evidence was also led of any person who .knew about the character or conduct of respondent No. 2 to show .that the statements contained in leaflet in question were false. The High Court consequently arrived at the conclusion that on the m~te­ rial on record it could not be held that the contents of the said leaflet were false and that respondent No. 1 believed them to be false or did not believe them to be true. As such, no corrupt practice as defined in section 123 (4) of the Representation of the .People Act, 1951 was held to have been proved. A corrupt practice, according to sec_tion 123(4), consists of 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 of 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 that candidate's election. Apart from the other requirements, it is of the essence of the matter. that the impugned statement of fact in relation to personal character or conduct of a candidate which is alleged to have been. published should be false. Unless the said statement of fact is shown to be false, its publicatism would. not constitute corrupt practice as defined in clause ( 4) of sedion 123 of the Act. When there is complete absence of any material on the record to show that the .impugned statement of fact is false, no occasion would plainly arise for remanding the case to the High Court to enab'e the appel lant to produce in evidence the photostat copy in questian with a view to show that the original of that had been written by the res- pondent. . · - There is no merit 'in the appeal. The .same is accordingly dis missed with costs. iP.H.P. Appeal dismissed. B c D E • ·-· .~ .... · l...i • . I 11