# Z46 ASHOK DULICHAND v. MADAHA VLAL DUBE & ANOTHER

- **Citation:** [1976] 1 S.C.R. 246
- **Court:** Supreme Court of India
- **Decided:** 1975-08-05
- **Bench:** H. R. Khanna, M. H. Beg, A. C. Gupta
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/z46-ashok-dulichand-v-madaha-vlal-dube-another-6492
- **Pages:** 5

## Headnote

Rcpresenta.tion of People Act, 1951-Section 123(4)--Statement relating to
personal character or conduct-65(a) of Evidence Act-Secondary evidenr:ePhotostat copy.
A
The election for Pandhurna Constituency for the 11.P. Legislative Assembly
took place in l\.1arch, 1970. There were 6 candidates who contested the electionr
The main contest waS between respondents nos. 1 and 2.
Respondent no. 1 was.
declared elected. The appellant, a voter, filed an Elect!.on Petition challenging
the election on the grounds that respondent no. 1 published and circulated a
C
leaflet containing defamatory and false averments against respondent no. 1 and
it was calculated to prejudice the election prospects of respondent no. 2.
The
leaflet it \vas alleged contained the statement of fact about the personal character or conduct of respondent no. 2.
Tn the leaflet it was mentioned that respondent no. 2 committed rape and he was carrying on \Vith another woman. The
·activ~ties of respondent no. 2 were stated to ·have driven his wife into insanity.
Reference \Vas also made to some other shady and unethical activities.
Before the High Court the appellant wanted to file a photostat copy of the
manuscript of the leaflet \Vhich according to the appellant was written by respondent no. I.
The High Court did not admit the aforesaid photostat copy in
evidence on the grOUJJ.d that there was no sufficient reason for allow:ng the appellant to lead secondary evidence. The High Court also held that though the material contained in the leaflet related to the personal character and conduct of respondent no. 2, the appellant failed to prove that its contents wen~ false to the
knowledge of respondent no. 1, and he did not believe them to be true and that,
therefore, the corrupt practice defined in section 123 ( 4) of the Representation of
the People Act was not proved.
While dis1nissing the appeal this Court held :
Under secti.on 65(a) of the Indian Evidence Act, secondary 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 person against whom
the document is ·sought to be proved or when a person refuses to produce it.
D
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There \\'as no affidavit that the ori~inal document was in possession of responF
dent no. 1. The photostat copy appeared· to the High Court to be not above suspicion. In view of all the circumstances, the High Court rightly came to the
conclusion that no foundation was 1aid by the appellant for leading secondary
evidence in the shape of _photostat copy. There is no evidence on record to show
that the contents of the leaflet were false. T·he respondent ne. 2 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 conta:.ned in the leaflet in question were false.
Apart from the other requirements,
it is of the essence of section 123(4) of the Representation of the People Act,
G
19-51 that the impugned statement of fact in relation to the personal character
or conduct of a Candidate which is alleged to have been published should be
false.
[249D, F-250D]
Cl\IL APPELLATE JURI'SDICTION: Civil Appeal No.
1327 of
1973.
From the judgment and order dated the 21st July, 1973 of the
H
Madhya Pradesh High Court in Election Petition No. 36 of 1972
N. lvl. Ghatate and S. Baldkrishnan, for the appellant.
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G
H
ASHOK v. MADAHAVLAL (Khanna,!.)
247
S. S. Khanduja, for respondent No. 1.

## Text

Z46
ASHOK DULICHAND
v.
MADAHA VLAL DUBE & ANOTHER
August 5, 1975
(H. R. KHANNA, M. H. BEG, A. C. GUPTA, JJ.]
Rcpresenta.tion of People Act, 1951-Section 123(4)--Statement relating to
personal character or conduct-65(a) of Evidence Act-Secondary evidenr:ePhotostat copy.
A
The election for Pandhurna Constituency for the 11.P. Legislative Assembly
took place in l\.1arch, 1970. There were 6 candidates who contested the electionr
The main contest waS between respondents nos. 1 and 2.
Respondent no. 1 was.
declared elected. The appellant, a voter, filed an Elect!.on Petition challenging
the election on the grounds that respondent no. 1 published and circulated a
C
leaflet containing defamatory and false averments against respondent no. 1 and
it was calculated to prejudice the election prospects of respondent no. 2.
The
leaflet it \vas alleged contained the statement of fact about the personal character or conduct of respondent no. 2.
Tn the leaflet it was mentioned that respondent no. 2 committed rape and he was carrying on \Vith another woman. The
·activ~ties of respondent no. 2 were stated to ·have driven his wife into insanity.
Reference \Vas also made to some other shady and unethical activities.
Before the High Court the appellant wanted to file a photostat copy of the
manuscript of the leaflet \Vhich according to the appellant was written by respondent no. I.
The High Court did not admit the aforesaid photostat copy in
evidence on the grOUJJ.d that there was no sufficient reason for allow:ng the appellant to lead secondary evidence. The High Court also held that though the material contained in the leaflet related to the personal character and conduct of respondent no. 2, the appellant failed to prove that its contents wen~ false to the
knowledge of respondent no. 1, and he did not believe them to be true and that,
therefore, the corrupt practice defined in section 123 ( 4) of the Representation of
the People Act was not proved.
While dis1nissing the appeal this Court held :
Under secti.on 65(a) of the Indian Evidence Act, secondary 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 person against whom
the document is ·sought to be proved or when a person refuses to produce it.
D
E
There \\'as no affidavit that the ori~inal document was in possession of responF
dent no. 1. The photostat copy appeared· to the High Court to be not above suspicion. In view of all the circumstances, the High Court rightly came to the
conclusion that no foundation was 1aid by the appellant for leading secondary
evidence in the shape of _photostat copy. There is no evidence on record to show
that the contents of the leaflet were false. T·he respondent ne. 2 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 conta:.ned in the leaflet in question were false.
Apart from the other requirements,
it is of the essence of section 123(4) of the Representation of the People Act,
G
19-51 that the impugned statement of fact in relation to the personal character
or conduct of a Candidate which is alleged to have been published should be
false.
[249D, F-250D]
Cl\IL APPELLATE JURI'SDICTION: Civil Appeal No.
1327 of
1973.
From the judgment and order dated the 21st July, 1973 of the
H
Madhya Pradesh High Court in Election Petition No. 36 of 1972
N. lvl. Ghatate and S. Baldkrishnan, for the appellant.
•
•
A
B
c
D
E
F
G
H
ASHOK v. MADAHAVLAL (Khanna,!.)
247
S. S. Khanduja, for respondent No. 1.
The Judgment of the Court was delivered by
KHANNA, J .-This appeal is directed
against the
judgment of
Madhya Pradesh High Court whereby that court dismissed the el~c
tion petition filed by the pelltioner-appellant to challenge the e_lection
of respondent No. 1 to Madhya Pradesh Legislative Assembly from
p,, ndhurna constituency in Chhindwara district.
The election for Pandhurna constituency took place on March 8,
i 972.
There were six capdidates who contested the election.
The
main contest was, however, between Madahav!al Dube respondent
No. 1 and Dr. Ratanchand Mangalchand Sanghvi respondent No. 2.
Respondent No. 1 was declared elected.
The appellant, who was an
elector in the above mentioned constituency, filed election petition to·
challenge the election of respondent No. 1 on various grounds. It
is not necessary to set out all the grounds because in the appeal before
us only one ground which is the subject matter of issue No. 10 has
been pressed on behalf of the appellant.
The allegation which gave
rise to issue No. JO was contained in para 13 of the electiou petition.
The petition was, however, ordered to be amended because it did'
not contain full particulars.
The allegation with
particulars was.
thereafter contained in para 13 of the amended petition. · According
to the appellant, respondent No. 1 or his agent or any other person
with his consent had got published and widely circulated a leaflet
with the caption "Sawal Jania Ke" purporting to
be ·on behalf of
Pandhurna Matdar Sangh.
The aforesaid leaflet, according to the
appellant, seemed to have been drafted by respondent
No. 1 and·
was full of defamatory and false averments calculated to prejudice
the eleclion prospects. of respondent No. 2.
The, leaflet was stated
to have been very widely circulated and distribu1ed throughout the
constituency.
Every sentence of the leaflet, it was added, contained
statement of fact about the personal character or conduct of respondent No. 2 which was false to the knowledge of respondent No. J.
Respondent No. l and his friends were stated to have got the leaflet
published under the psudonym of Pandhurna Matdar Sangh although
there was no such Sangh in existence.
The name of the press and·
publisher's. name was also not mentioned in the leaflet. The appellant
also men!Joned the places where and the names of persons through
whom the leaflets were alleged to have been distributed.
According to the leaflet which has been marked Ex. P4, respondent No. 2 was not a man of good character.
The said respondent
was alleged to have committed rape upon a nurse while he was a
government doctor.
He was also stated to be carrying on with an·
other woman.
The activities of respondent No. 2 were stated to have
driven his wife to insanity.
Reference was also made to some other
'hady and unethical activities in which respondent No. 2 was stated
to be indulging.
Respondent No. 1 in his written statement denied that he.
his
agents or. any other Person. wi'h his consent h3d got oublished and·
circulated the leaflet in question.
It was also denied by respondent
2 48
SUPREME COURT REPORTS
[1976] 1 s.c.R.
No. 1 that he had drafted the aforesaid leaflet.
According to respondent No. 1, he bad no connection with that leaflet and he was
unable to make any statement about the truth or falsity of its contents.
It was denied that the said leaflet was widely circulated and
distrib'U'ted througbout the constituency.
The
allegation that tbe
leaflet was calculated to prejudice the election prospects of respondent No. 2 too was denied. Likewise, respondent No. 1 denied that
the different sentences of the leaflet contained stateme,nt of fact about
the personal character or conduct of respondent No. 2 which was
false to Lhe knowledge of respondent No.
1. According further to
the respondent, he came to know of the said leaflet only some weeks
after the election was over.
The said leaflet, it was added, appeared
to have been got printed by someone interested in respondent No. 2
to create a .ground for filing an election petition. Issue No. 10 reads
as under :
•:JO(a) Whether the leaflet with the caption 'Sawal Janta
Ke' was published by respondent No. 1, his agents
or any other person with his consent?
(b) Whether the respondent No. 1 has any connection
with the aforesaid leaflet?
(c) Whether the material co,ntained in the leaflet relates
to personal character of respondent No. 2?
(cl) Whether the leaflet was widely circulated and distributed throughout
the constituency
and it was
calculated to
prejudice the election
prospects of
respondent No. 2?
( e) Whether the leaflet was distributed at the places and
by the persons named i,n paragraph 13 of the election petition?
(f) Whether all persons
named in the
paragraph 13
except Shrimati Kamla Bai Mohogaonkar of Mohogaon 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 respondent No, 1 under section 100(1) of the R.P. Act
1951?"
.
The High Court decided issues JO(a) and (b) against the appellant 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 contamcd 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
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ASHOK v. MADAHAVLAL (Khanna,!.)
2H
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 consequence in view of the fact that 1t was not proved that respondent
No. 1 was guilty of corrupt practice.
In the result
the elect10n
petition was disJ!lissed.
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
secondary evidence. It is that order of the High Court which has
been the main target of the criticism of Mr. Ghatate. '
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 concerned 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,
praying that the said
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 manuscript had been written by him, the
photostat copy
might be got
examined from a handwriting expert.
The appellant also filed affidavit in support of his applications. It was, however nowhere stated
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
copy appear.eel to the High Cou_rt to be not above suspicion. In view
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
the
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 appellant to produce in evidence the photostat copy in questian with a
view to show that the original of that had been written by the respondent.
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·
.
There is no merit 'in the appeal.
The .same is accordingly dismissed with costs.
iP.H.P.
Appeal dismissed.
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