NARASINGH CHARAN MOHANTY versus SURENDRA MOHANTY

NARASINGH .CHARAN MOHANTY' v.

SURENDRA MOHANTY October 12, 1973.

[P. JAGANMOHAN REDDY, s. ~· DwiVEDI AND P. K. GoSWAMI, JJ.] Representation of the People Act, 1951-S. 123(3) and (4)-Corrupt prac-tice--Consent what b. · '

Practice and procedure-Pltadint!.

Press and Registration of Books Act, 1867-S. 1-Presumption that person whose fUlme was printed in the newspaper was the editor-It could be rebutted. . The election of the respondent was ·challenged by the appellant on the ground of corrupt practices under sub-ss. (3) and (4) of s. 123 of the Repre-c sentation of the People Act, 1951. The respondent was nominee of the Utkal Congre5s of which BP was the founder leader. The respondent was also the editor of an Oriya Daily published by the Kalinga Publications whose Chairman was BP. The election ·symbols of Utk.al Congress were Chatra (wheel) and Langala (plough). It was alleged that (i) the respondent had publi-- shed an editorial in his paper appealing to the religious symbol of Chakra and Langala. the mythological~ weapons associated with Jagan-nath and Balram the most worshipped· and esteemed deities. of Orissa for 0 the furtherance of the prospects of his election and for prejudicially affecting the election of other candidates; (ii) BP in public meeting appealed to the people invoking the religious symbol in the presence of the respondent with his consent and without any protest by him and that the respondent had published the report of the meeting in his paper and (iii) that the respondent made false statement of facts regarding the personal character and conduct of one of the defeated candidates and that this was published in the respondent's paper or with his consent by his subordinates. While conceding that he was the editor of the newspaper the respondent claimed Qlat he . was on leave at the relevant time and that he had nothing to do with the writing of the editorial or with the editing of the news reports. '

Dismissing. the appeal,

HEID: (i) Though s. 7 of the Press and Registration of Books Act, 1857 raises presumption that person whose name is printed in copy of the newspaper was the editor of every portion of that issue, that presumption might .be rebutted by evidence. ·In order to rebut this presumption the respondent will lfave to establish that he had nothing to do with the publication of either the editorial or the news report or that any of them was wntten and/or publish· ed without his tnowledge or without his consent. [47-G-H] ·

D. P. Mishra v. Kamal Narain Sharma [19711 3 S.C.R. 251, held inapplica-ble. · . ·

It is one of the accepted. principles that pleadings must contain and contain only statement in summary form of material facts on which the party bases hig claim or defence and facts which are merely evidence of material facts, though necessary to be proved at the trial, need not be pleaded; but if it is ·a 'material fact it ·should be pleaded. In the instant case the material facts had been stated and any omission to set out in the peadings the evidence that had been led to establisb. that the respondent was not concerned with the impugned corrupt practice could not be looked at with suspicion. [ 48H; of9A·Bl

(ii) Consent or agency could not be inferred from remote causes nor could it be inferred from mere close friendship or other relationship or political affi-H . liation between the respondent and BP. However close the relationship, unless there is evidence to prove that the person publishing or writing the editorial was authorised by the returned candidate or he had undertaken to be responsible for all the publications, no consent could be inferred. Since the publication of the respondent's speech had not been made with his consent, that publication, even

assuming its contents nad been proved, did not constitute corrupt practice.

(iii) [f amounts had been collected for any public l?urpose, asking the ~r­son collecting those amounts of those who we.re resp(_>nsJbk ~or the1! collection, to give an account, could not amount to an Imputation agatnst ~e1r person~! character. Men in public life, particularly those who collect momes for pubhc or charitable purposes ought not to be sensitive when there was demand to account for those ~mounts. lt might hurt the vanity ~r the ~go of .the .per~on from whom accounts were. asked, but it is far from bemg an tmputatlon aaa1nst the personal character or conduct of the person concerned. Such demand would refer to the public conduct of the person who was liable to render accounts and did not amount to cor11,1Pt practice. J55H. 56A·Bl

Civil Appeal No. 402 of 1972

CrvrL APPELLATE JURISDICTION :

Appeal from the judgment an4 order dated the 14th January, 1972 of the Orissa High Court in Election Petition No. ·s. of 1971.

Gobin Das, S. Mishra, P. H. Parekh and Sunanda Bhandare, for the appellant.

Frank Anthony, B. K. P. Sinha, Gokul Behari Mohanty, B. P. i\-laheshwari, Suresh Sethi and Sharad Manohar, for the respondent.

The Judgment of the Court was delivered by t

JAGANMOHAN REDDY, J.-The respondent-a nominee of the Utkal Congress of which Biju Patnaik an ex·Chief Minister of the Orissa State is the founder leader-was elected to the Lok Sabha from the Kendrapara parliamentary constituency in that State, by defeating two candidates. namely Surendranath Dwivedi-a nominee of the Praja Socialist Party-and Pradyamna Kishore Bal-a nominee of the Indian National Congress (R) Party. At this election the respondent Surendra Mohanty polled 1,23,680 votes, Surendranath Dwivedi 1 ,20, 707 votes and Pradyamna Kishore Bal I, 11,235 votes. The appel-lant-a voter in tha.t constituency-challenged the --election of the respondent on the ground that corrupt practices under sub-ss. ( 3) and ( 4) of s. 123 of the Representation of the People_ Act, 1951-here· inafter referred to as 'the Act'-which were detailed in sub-paragraphs (i) to (iv) of paragraph-S of the petition were committed by him a~dfor by h!s a~ents with his consent. The petition, after it was duly tned, was dtsmtsed by the High Court, against which this appeal bas been filed under s. 116A of the Act.

It may be mentioned that the respondent w~s at all material times, and even at the date of the election petition an editor of an Oriya Daily 'The. Ka~~nga' pu~lished by the Kalinga Publications whose Ch~trman ts BIJU Patnatk. As one of the· corrupt practices alleged agamst the respondent has relevance to the election symbol, it is necessary to state that the symbol allotted to the Utkal Congress was the ~ater w~eel (Chakra) and the plough (Langala). The corrupt pr~chces wh1ch have been set out in paragraph 5 of the petition and wh1c~ were alle_ged ~o have been committed by the respondent and{ or ~ts agents wtth hts consent can be divided into two broad cllte-gones :--

(I ) The appeal to the religious symbol, corrupt practice under sub-s. (3) of s. 123 of the Act; and

(2) Imputation against the personal character and con· duct of Surendranath Dwivedi, corrupt practice under sub-s. ( 4) of s. 123 of the A~t.

In respect of the first category the allegations are (i) that the respondent who was the editor of an Oriya Daily 'The Kalinga' pub-B lished in his paper dated February 15, 1971, an editorial appealing "to the religious symbol of Chakra and Lapgala the mythologicnl weapons associated with Jagannath and Balaram the most worshipped and esteemed deities in Orissa for the furtherance of the prospects of his election and for prejudically affecting the election of other candidates". (paragraph 5 (i) of the petition): (ii) that Biju Patnaik in public meeting held on February 15, 1971, at 5 P.M. had "appealed to religious symbol by saying that his party (Utkal Congress) was fu11y able to eradicate unemployment and poverty from the country by forming strong Government in the State with the help of the two powers Jagannath and Balaram whose weap-ons Chakra and Langala have been chosen by Utkal Congress as its symbol. The statement was made in the presence of the respondent with his consent and without any protest by him and was for the furtherance of the prospect of the respondent. ... "- (paragraph 5(iii) of the peti'!ion); and

(iii) that the respondent in his daily paper 'The Kalinga' dated February 19, 1971 had published report regarding th~ meeting held at Marshagha i on February 15, 1971, containing the aforesaid appeal to religious symbol as detailed in (i) above. (paragraph 5(iv) of the petition.

The allegations in respect of the second category are:-

(i) that on February 15, 1971 in public meeting held at 5 P.M. at Marshaghai the respondent made false state~ents of facts regarding the personal character and conduct of Surendranath Dwivedi to the following effect which the respondent believed to be false and! or did not believe to be true :-

"Shri Surendranath Dwivedi has not yet rendered account of the gift of one Iakb rupees from the Marwari Society, Bombay, and Rs. 25,000/· from the Prime Minister brought by him during the cyclone of 1967 for the relief of the people."

(paragraph 5 (ii) of the petition); and

(ii) that the report regarding the said meeting of rebruarv 1 ~, 1971 containing false statement in relation to the personal character or conduct of Surendranath Dwivedi as detailed above (in paracraph 5(ii) of the petition) was published in his daily oaner 'The Kalinga' dated February 19, 1971 by the respondent or with his consent by his subordinates.

It is stated that the statements of fact both in the speech and the report were false and that Sur~ndranath Dwivedi had not re.ceived .a~y money from the Marwari Society, Bombay or from t~e Pnme .MI.DlS· ter during the cyclone of 1967; that the respondent bemg an edttor of daily newspaper knew them to be false or at least he did not believe them to be true; and that the said false statement was reasonably calculated to prejudice the prospects of Surendranath Dwivedi's election.

The respondent in paragraph·8 of his written statement denied the allegations of corrupt practices said to have, been committed by him. In respect of the allegations in the first category-

(i) The respondent while admitting he was the editor of The Kalinga at all material times stated that he had nothing to do with the editorial of February 15, 1971 or with the publication of the news report of February 19, 1971, nor did he authorise or consent to any one publishing them nor those who published them were his agents. Even so the editorial did not appeal to religious symbol, but only by analogy to the secular myth of the Oriya people referred to them as symbols of development of industry and agriculture.(ii) 'The respondent wa~ not present at the time when Biju Patnailc spoke on February 15, 1971, at Marshaghai as he had to leave for another meeting for which he was already late and he was, therefore, not in position to either affirm or deny from his own knowledge as to what was stated by Biju Patnaik or as was reported in The Kalinga of February 19, 1971, and the speech of Biju Patnaik, even assuming that it was made, had only reference to st~ong Government in the State, and had no relevance to the prospects of the election of either the respondent or Dwivedi and that his alleged reference to the wheel and plough as weapons of deities to root out corruption and unemploy-ment being in illustration of the election symbol by way of analogy, did not amount to any religious appeal, and at any event the respon· dent had never consented to or authorised Patnaik to make such statement.

(iii) The respondent was not acting as editor of 'The Kalinga' at aU material times as due to his election he was absent on leave, nor did the daily have any correspondent at Marshaghai or any other place mentioned in the report. It was alleged that the report was submitted by some person interested describing himself as "from an informer", that what was spoken by him at the meeting of February 15, 1971 was misreported, and that he did not make the statement said to have caused. sensation. At any event, the report of the statements alleged to have been made by the respondent and Patnaik as stated earlier did not amount to a.ny appeal to religious symbol made for furtherance of the prospects of the election of the respondent, nor were they reasonably calculated to prejudice the prospects of eJection of Dwivedi.

-The allegations of corrupt practi~es in the second category were met with denials as under:-

(i) The respondent did not make any such statement at the meet-ing held at Marshaghai on February 15, 1971 as alleged in the election petition in paragraph S(ii) and at any event, assuming for the sake of argument that such !l statement calling on Dwivedi to render an 8 account of the amounts collected for public we).fare was made, it would, without further allegation of misappropriation of such funds, relate to· the public conduct of Dwivedi a,s responsible Member of Parliament and not to his personal character or conduct, and more so when he lets it be known to the public on his behalf that such accounts need be rendered to the donors only and not to the public. The respondent further averred that in the said meeting at Marshaghai held at about 7 P.M. on February 15, 1971 he had merely referred to public controversy as to the public· duty of Dwivedi to render nccounts of the money received by or through him for relief work from outside the State including the Bihar Relief Committee. The demand for such rendition of accounts of the money collected was replied to, not by Dwivedi as yet, but by some one of the Orissa Relief a-nd Rehabilita· tion Committee, to the effect that Dwivedi h~d no such duty. The respondent giving his opinion' on the said controversy at the meeting s:tid that in the circumstances he felt that :as an eminent man in public life it was Dwivedi's moral duty to render such accounts in public. The aforesaid s~ech of the respondent had been misreport· ed in the said issue of the. Kalinga in contents, though not in purport . or substance. In any event the statements of himself and Biju Patnaik having been made in the furtherance ·of the prospects of the Assembly elections could not be said to have been calculated to prejudice the prospects of Dwivedi's election. ·(ii) After stating what has been set out in vara. (iii) of the above denial, that is the denial in paragraph S(iv)(a) to (d) of the written statement of the allegations in paras (i), (ii) and (iii) of paragraph S <>!' m: petition .. the respondent s.tated that the impugned publication (t.e. tn the Kahnga of February 19, 1971) was neither in relation to the personal character and conduct of Dwived_i nor was it reasonably calculated to prejudice the prospects of election of Dwivedi.

. From the various allegations in th¢ petition an.d the denials in the wntten statement, the main points in contr()versy that emerge are-

(1 ) wheher Ext. 1 and Ext. 2 and the speech of Biju Patnaik apoealing to the religious symbol constitute corrupt practice.

(2) (a) If so, whether. Ext. 1 and Ext. 2 were published by the re~pondent or with his consent.

(b) If so. whether the speech delivered by Biiu Patnaik was with the consent of the respondent. (3) Whether the alleged speech made by the respondent Elt Marsbaghai on Februarv 15, 1971 asking Dwivedi to render an account of the . amounts collected for

relief funds is with reference to or makes imputation against the personal character or conduct or public conduct of Dwivedi.

( 4) Whether the report of the speech of the respondent asking Dwlvedi to render an account for the amounts collected for relief funds as appearing in the Kalinga of February 19, February 19, 19, 1971, (Ext. 2) was published by the respondent or with his consent.

of February 19, February 19, 19, 1971, (Ext. 2) was published by the respondent or with his consent. The case of the respondent is that while no doubt he was the editor of the Kalinga during the relevant period and his name was not only shown as such in the issues of February 15 and February 19, 1971, and there was no change in the declaration made by him under jthe Press and Registration of Books Act, 1867, he remained absent .and his work was done by J. Verma. In support of this contention he produced Jetter of January 15, 1971 (Ext. L) addressed to the Chairman of The Kalinga Press, Biju Patnaik, in which he stated that due to his preoccupation in the Lok Sabha election as candidate from the Kendrapara constituency, he would remain absent from the Headquarters with effect from January 19, 1971 till the .end of the elections, and during his absence J. Verma, the News Editor, would remain in charge of editing the paper as well as of editing the news reports. On this letter, which was sent for information, the Chair· man endorsed on the same day "As P.P.D." (as proposed) {Ext. Lf2). This letter with the endorsement of the Chairman was also endorsed as "Seen" by J. Verma R.W. 3 (Ext. L/3} on the same day. There-after the respondent states that he had nothing to do with the writing of the editorials or with the editing of news reports or with the publi· cation of the daily Kalinga from January 15, 1971 to August 1971.

The High Court disbelieved the evidence of the witnesses on behalf of the petitioner who said that they had attended the meeting held on February 15, 1971, at Marshaghai. On the other hand it believed the evidence of the witnesses produced on behalf of the respondent as also the respondent's own evidence that in the meeting held on February 15, 1971 the respondent had not stated as alleged nor having regard to the working arrangement~ as disclosed by Exts. L, L/2 and L/3 did he have any concern with the publication or the editorial Ext. 1 or the news report Ext. 2, nor can the consent or complicity of the respondent be presumed either in respect of Exts. 1 and 2, or in respect of the allel!ed speech made by Biiu Patnaik in 'the public meeting held at Marsha!lhai on February 15 1971. The High Court inter alia further held that in any event ' the alleged statement of the respondent asking Dwivedi to render accounts related to the public conduct of Dwivedi and ·not to his personal character or conduct. Tn view of these conclusions. the oetition was dismissed with cmt~.

. Before we deal with the evidence as to whether the Hi1!h Court w:1s Justified in the aooreciation of evidence. it would bt: ne-:e~~arv in th~ first instance to consider what it is thnt is required under the provisions

.A of the Act for unseating successful candidate on charges of corrupt. 'practice. Clauses (b) an~ (d)(ii) of sub-s. (1) of s. 100 of the Act deal with corrupt practices, while s. 123 of the Act sets out what shall be deemed to be corrupt practices. Qauses (b) and (d) (ii) of sub-s. (1) of s. 100 and sub-ss. (3) and (4) of s. 123 which are: relevant for the purposes of this appeal are as follows : "100(1). Subject to the provisions of sub-section (2) if the High Court is of _opinion-

(b) that any corrupt practice has been committed by returned candidate or his election agent or by any other person with the consent of returned candidate or his election agent; or (d) that the result of the election, in so far as it concerns returned candidate, has been materially afiected-(ii) by any coqupt practice committed in the interests of the returned candidate by an agent other than his election agent, or the High Court shall declare the election of the returned candidate to be void." "123. The following shall be deemed to be corrupt practices fo~ the purposes of this Act :-

(3) The appeal by candidate or his agent or by any other person with the consent of candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols or the use of, or appeal to, national symbols, such as the national flag or the national em-blem, for the fqrtherance of the prospects of the election of that canddiate or for prejudicially affect-F ing the election of any candidate.

( 4) The publication by candidate or his agent or by any other person, with the consent of 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 charac-G ter or conduct of any candidate, or in relation to the candidature, or withdrawal, of any candidate, being statement reasonably calculated to prejudice the prospects of that candidate's election."

In order to establish corrupt practice under the above provisions' the petitioner must prove-H (!) For the purposes of corrupt practice under sub-s. (3) of s. 123 of the Act that the statement is an appeal to the religious symbol and has been made (a) for

the furtherance of the prospects of the election of that candidate; or (b) for prejudicially affecting the elec· tion of any candidate; and

(II) For the purposes of corrupt practice under sub-s. (4) or (c). any pther person with the consent of the can-ment of fact is by (a) the candidate, ~r (b) his agent, or (c) any other person with the consent of the can-didate or his election agent; (d) that the statement is false and the candidate believes it to be false or does not believe it to be true; (e) that it relates to per-sonal character or conduct of candidate; and (f) that the statement is re·asonably calculated to preju· dice the .prospects of the candidate's election.

The word 'agent' under the Explanation to s. 123 of the Act includes an election agent, polling agent and any person who is held to have acted as an agent in connection with the election with the consent of · the candidate. If the corrupt practice is committed by the returned candidate or his election agent, under s. lOO(l)(b) of the Act the election is void without any further condition being fulfilled. But if the petitioner relies on corrupt practice committed by any agent other than an election agent, the petitioner must prove that it was · committed by him with his consent or with the consent of his election agent.

In Samant N. Balakrishna etc. v. George Fernandez and Ors. ~tc.(1 ) Hidayatullah, C.J ., dealing with different burdens of proof as to whether an offending statement was made by the candidate himself or by his agent. other than an election agent observed at p. 619 :

"There are many kinds of corrupt practices ......... But

the corrupt practices are viewed separately according as to who commits them. The first class consists of corrupt practices committed by the candidate or his election agent or any other person with the consent of the candi-date or his election agent. These, if established, avoid the election without any further condition being fulfilled. Then there is the corrupt practice committed by an agent other than an election agent. Here an additional fact has to belroved that the result of the election was materially affecte . We may attempt to put the same matter in easily understandable language. The petitioner may prove corrupt practice bv the candidate himself or his election agent or someone with the consent of the candidate or his. election agent, in which case he need not establish what the result of the election would have been without the corrupt practice. The expres· sion "Any other person" in this part will include an agent other than an election agent. This is clear from special provision later in the section about an agent other than an election agent."

(I) [19691 3 S.C.R. 603.

Bearing these requirements in view, we shall first consider whether Exts. 1 and 2, the editorial aild the news report respectively, were -published by the respondent or with his co~ent, and whether the speech delivered by Biju Patnaik was with the consent of the respon-dent. If it is not established that Exts. 1 and 2 were published by the respondent or with his consent, or that the speech delivered by Biju R Patnaik, even if it was an appeal to the religious symbol, was not made with the consent of the respondent, then no corrupt practice under sub-s. ( 3) of s. ,123 of the Act can b-~ hel.d. to be proved against the respondent.

There is no doubt, and it is not denied, that the respondent was at all material times the editor of the Kalinga in which the offending editorial (Ext. 1) and the news report (Ext. 2) were published on February 15 and 19 respectively. The learned_ Advocate for the peti· tioner contends that once this fact is established, then there is statu· tory presumption under s. 7 of the Press and Registration of Books Act, 1967, which could only be rebutted by the procedure contemplat-ed by the itatute itself, namely, s. 8A of that Act. Section SA of the Press and Registration of Books Act, 1867, provides that:

"If any person, whose name has appeared as editor on copy of newspaper, claims that he was not the editor of the issue on which his name ·has so appeared, he may, within two weeks of his becoming aware that his name has been so published, appear before District, Presidency or Sub-divisional Magistrate apd make declaration that his name was incorrectly published in that issue as that of the editor thereof, and if the Magistrate alter making such inquiry or causing such inquiry to be made as he may consider neces· sary is satisfied that such declaration is true, he shall certify accordingly, and on that certificate being given the provisions of section 7 shall not apply to that person in respect of that issue of the newspaper. The Magistrate may extend the period allowed by this section in any case where he is satisfied that such person was prevented by sufficient cause from appearing and making the declaration within that period."

It may be noticed that the provisions of ss. 7 and SA of the Press and Registration of Books Act, 1867, have to be complied with for the purposes of that Act, wherein penalties have been provided for omission to conform with the requirements of that Act. Though s. 7 raises presumption that- person whose name is printed in copy of the newspaper is the editor of every portion of that issue, that pre-sumption may be rebutted by evidence. In order to rebut this pre· sumption the respondent will have to establish that he had nothing to do wtih the publication of either the editorial or the news report or that any of them were written and or published without his knowledge or without his consent. In D. p. Mishra v. Kamal Narain Sharma & Ors.(l) after this Court had directed the giving of notice to Shukla

(1) [1971] 3 S.C.R. 257.

who was an editor, publisher and printer of Mahakoshal which pub-lished material relevant to the personal character as to why he should n~t be named under s. 98 of the Act. On notice being given by the H1~ Court Shu~a while admitting that he was the registered printer, pubhsher and editor of the newspaper in the record of the Press Regis· trar at the relevant time and that the offending material was published by !"fahakoshal, it was done without his knowledge as he had left the entire management of the newspaper with ·one Tarangi and did not himself come to learn about the publication until after the election petition was filed. The High Court accepted this plea. This Court while atlllfirming the decision of the High Court, further held that granting that there was close association between the appellant <ind Shukla, and even granting that Mahakoshal was exclusively carrying on propaganda on behalf of the appellan; unless there was evidence to prove that Shukla had either authori!ed the publication of the offending matter or had undertaken to be responsible for a11 the publications made in .the Mahakoshal, no inference that the offending publications were made with the knowledge and with the consent of Shukla ·could be drawn. It will have to be. seen whether on the evidence the respondent has bee nsuccessful in rebutting the presumption under the Press and Registration of . Books Act, 1867.

The respondent has produced Exts. 1, 1/2 and 1/3 to show that he was not discharging the duties as the editor of the Kalinga due to his preoccupation in the Lok Sabha election and in his absence J. Verma, the News Editor was discharging those· duties, namely, of writing ~ditorials and also editing the news reports. After his applica· tion dated January 15. 1971 (Ext. L) was seen by the Chairman and was taken note of by J. Verma both on the same day, the respondent did not have anything to do with the publication of the newspaper either with respect to the editorials or the news reports. J. Verma R W. 3 has admitted this document and has also admtited that from January 19' 1971, the respondent did not have anything to do with writing of editorials or publication of the Kalinga.

One of the complaints of the petitioner is that though the respon-dent in hls written statement denied that he had anything to do with the editorial dated February 15, 1971, that he had not authorised its publication nor was its publication by his agent. he did not mention the person who in fact wrote the editorial or that there was any authorisation in favour or some one else for that purpose. In our view. th~. pleadings clearly indicate the case of the respondent, namely, that he did not publ9.sh the impugned editorial, that it was not published by his agent nor did he authorise its publication. It is apparent from the denial that he did not publish the editorial, that some one el~e must have written and published it and that some one else was not authorised by him, nor did he write it. It is one of the accepted principles that pleadings must contain and contain only statement in summary form of material facts on which the party bases his claim

...... T-·

or defence and facts which are mer~y evidence of material facts, thoUgh necessary to be proved at _the trial, need not. be pleaded, but if itl is material fact it should be pleaded. In our view· material· facts as set out above have been stated, as ~uch any omission to set out in the pleadings the evidence that has been led in this case to establish that the respondent was not concerned ·with the impugned corrupt practice cannot be looked at with suspicion. .

J. Verma R.W. 3 has admitted in his evidence that he had been discharging the duties of the editor after the ·leavt of absence wa~ granted to t!te respondent. He no doubt stated that Surendra Mohanty (the respondent) did not proceed on leave in pursuance of the letter Ext. L but that he was allowed to remain absent as he had been busy in election work, and tqat during the respondent's absence he (Verma) was to remain in charge. four-pronged attack was made on the authenticity of Ext. L-fustly, that in the letter the words 'in Febru-ary' were struck out; and initialled by the respondent; secondly, that the endorsements on Exts. L/2 and L/3 by Biju Patnaik and J. Verma respectively W£re made on the carbon co.py and not on the original; thirdly, that tlie letter did not bear any outward or inward number; P and fourthly, the respondent had ipdicated.the d,uties which J. Verma had to discharge specifically, when .that. was· .nOt neces~ary·if he was taking over the functions of an e,ditor duril:).gthe .respondent's absence. None of these objections, in our view, would detract from the authen-ticity of the letter. What was sougbt to· be· ~ontended in respect of the first objection is that in January ·1971 when Jhe letter was· Written it was assuined that the elections would be held in February; · and consequently the respondent's absence from the headquarters was sought with effect from January 19, 1971 till the end of the elec· tiOns in February. It was only <>n February 1, 1971, that the Union Ministry. announced the dates for each phase of the elections for the parliamentary constituencies in the State of Orissa. The notification makes it clear that the date before which the elections should be com-F pleted was fixed as March 15, 1971. .From this fact it is sought to be contended that the respondent co"Uld only have come to know on February 1 that the eleetions would not be completed in February 1971 and consequently the words 'in February' were scored off some-time on or after February 1_, 1971. R.W. 3 J. Verma, however, stated that 'When the letter came to him with the endorsement of the Chair· man the words 'February' were scored off. If this statement is to be accepted, and there is n,o reason why it should not be, it would show dlat ·either the respondent or the Chairman Biju Patnaik may have unofllcially come to know of the programme of the elections. Even if the words 'in February' were scored off subsequently that does not advance the case of the petitioner any further, because that would cover the impugned editorial and the. news report (Exts. 1 and 2) , !both of which were published in Februray 1971 itself. If the respon· dent had to fabricate these documents for the purpose of facilitatin& his defence after the election petition was filed, he could have easily" JOt fresh letter typed and got the necessary endorsements thereon. No such attempt was made and the fact that letter with the words 'in 5-L447SupCI/74

SUPR.E.M! COU:RT 1\EPOR.TS

Februarf scored off was produced in evidence supports lts authenti-city rather than its being spurious. There is also no significance in the endorsements being made on the carbon copy of the letter, for it is ·quite possible that it was only the carbon copy of the letter that was sent to the Chairman, as sometimes it can ~. so sent ln~vert:ntly. This fact also lends assuranc~ to the evidence of J. Verma R.W. 3 and of the respond.ent. -

. There is also no force in the objeetion that th~t letter dated Januar} 15, 1971 does not bear; either outward cr inward number. When asked why the letter did not bear the number, the respondent replied that the record-keeper would be able to say why it was not numbered. It also appears from the ~vidence of Udayanath Misra R.W. 2, th~ Accountant in the Kalinga Publications that Ext. L is the letter from the Mana~g Editor, Surendra Mohanty (the respondent) to tho· Clairm,an and though he admitted that they maintained the Despatch and Receipt Registers in the Kalinga Publications' office, he was not asked ~ Jm?duce those registers to show that office copies also had to be diarlzed in the registers. R.W. 2 who was asked to produce the letter Ext. L.was even asked whether J. Verma R.W. 3 was acting as editor since January 19, 1971. He said that he was, and that Surendra Mohanty (the respondent) bad not joined the offico as editor since then. ·

It is, however, contended that the duties assigned to 1. Verma were superfluous, because on his own admission the general practice was that in the-absence of the editor, the seniormoot member writes· the editorials. If so the enumeration of the duties of I. Verma was being designedly made to cover U,!) !}le acts of the respondent and the · explanation to the contrary is unbelieVable. It. was also submitted that notwithstanding this make-believe arrangement, the respondent was in fact present on FebrUary 14 and February 18, 1971 at Cuttack from which an inference can be drawn that he must have written the editorial dated February 15, 1971 and was responsible forth~ news report dat.ed February 19, 1971. To question that Ext. L refers to writing of editorials, editing the paper and the news · reports, the respondent replied that the editor is not necessarily required to write the editorial and that is why it was mentioned in Ext. L that J. Verma should write the editorials and should not delegate the power to other junior member of the staff. The reference to editing of the news reports by J. Verma merely emphasised the normal· duti.::s he had to do, which indicated the work load. The respondent was again asked as to what was meant by editing the news reports to which his reply was that news reports received from the accredited correspondents in the Districts were scrutinised by him and that this work should be entru~ted to J. Verma and in any case th:re was no harm in emphasi~ing the total work load that had ·to be done by J. Verma during his absence. . .

The respondent was further asked whether his . predecessor Manmohan Misra was getting his pay when he was on leave, and th-:>ugi he said he did not know as to whether Mo.nmohan Misra was

asked whether his . predecessor

getting his pay during his absence on leave, he admitted that he was getting bis salary ~ the _editor betweeq Ianriary IS, 1971 and August 1971 and was gettmg bLS pay thereafter also. In our view the mere fact that the r~spondent was getting his salary during his leave of absence does not indicate that be was not on leave or that be was not permitted to be absent. No doubt he· admitted that he had returned _ to Cuttack on February 14, 1971 very late in the night as he had programme with Biju Piitnaik. This would show that be was not in position to write the editorial dated February 15, 1971, because the editorials are written and sent each day by the afternoon for bdng published 1n the next· day's issue of t!le paper. He was ag:tin asked whether he had returned to Cuttack either on 16th, 17th or 18th, to which his answer was that he did not recollect whether he had re· turned to Cuttack either on 16th, or 17th or lSth, but he must have returned on some of these days. Apart from these suggestions, there is nothing to indicate that the respondent knew what the editorial was going ·to be or that he had consente~ to its being written. Simi-larly the~ is nothing to indicate that he kn!=W about the news report published in the Ka.Iinga dated February 19, 1971, or that he had consented to its publication. n The criticism that Biju Patnaik was not examined by the res~ · ·

n The criticism that Biju Patnaik was not examined by the res~ · · pondent cannot be availed of by the petitioner, because it is for the petitioner to establish by positive evidence the corrupt practice · or practices charged against the returned candidate. Aft<!r the b)Jrden of proof is shifted to the respondent, it is for him at th:lt stage to dis-- charge the onus that rests upon him. and if he does not call any wit-E ncsses who could assi.>t him in discharging that f,urden he takes tho ·fisk.

In order to establish that Ext. 1, the editorial, was written by the respondent, he was asked if it was possible to know from the Iango· age of the editorial as· to who its writer was, the respondent replied that it was possible by and ·targe and it was certainly not infallible. He was asked if "Satapdi Surya" was one of his writings he said that it was. It was suggested to him that the language and style of the editorial Ext. 1 and of the news report Ext. 2 were his, but this sug· gestion was emphatically denied by him. We do not think there is any basis for inferring . from the style of writing of the editorial· that Ext. 1 was writ!en by the. respondent.

It was also oontended that the High Court ignored the implica-tions of the admission by the respondent that he searched for the manuscript of the editorial after coming to know of the election petition. We fail to understand how this admission by the respondent has any significance except perhaps for the respondent to establish positively bv documentary evidence that R.W. 3 had written that editorial. If the manuscript had been found it would have b~en more to corroborate: the oral testimonv of R.W. 3 who had admitted that II he- had written t})at editorial. su~~~:e,.tinTI to the contrarv that it was not produced as it would show that it W:l.s in resoonrtent'o: writ· in~ presumes t"at the manuscript was in existence nt the time. There is-no evidence of this. Nothing was elicited in cross·examination

from R.W. 3 to belie the assertion that the editorial was written by him and we cannot say that the High Court was not justified in its conclusion that R.W. 3 was the author of tlJe editorial dated Febru· ary 15, 1971.

The next question is whether the respondent was present when Biju Patnaik made speech at Marshaghai on February 15, ·1971, in which he is alleged to have appealed to the religious symbol. Whether Biju Patnaik made the speec;h appealing to the religious symbol at Marshaghai need not for the present concern us. :But what we have to consider is wl!ether there are any circumstances from which· we can infer that the respondent consented to the speech made by Biju Patnaik or that Biju Patnaik was the agent of the respondent. It has been strenuously suggested that the relations between .Biju Patnaik and the respondent were intimate even proir to the present election, that the respondent was member of the Lok Sabha earlier on the Ganatantra ticket and was working for Biju Patnaik, that he was an employee of the Katinga Publications since 1963- of which Biju Pat-naik was the Chairman, that both the respondent and Biju Patnaik were working for the success of the Utkal Congress during the cur-rent elections, and there was also evidence that they were addressing rocdihJS together on February 15, 1971 and that the respondent was spending long hours with Biju Patnaik and he admitted that he was associa~ with him f~ encashing his popularity and taking advant-age of ·!n~ presence. It is, therefore, contended that the personal in· timacy 6./sting between the respondent and Biju Patnaik long prior to the date of election, and its continul!nce thereafter, with clear general political identification between the two, the persistent associa· tion between them in political action in connection with the present election, the present relationship of master and servant, absence of disavowal of the election of Biju Patnaik, all lead to the inference that the speech of Biju Patnaik must have been with the consent ot the respondent. We do not think that these circumstances justify such an inference. Consent or agency cannot be inferred from remote causes. Consent cannot be inferred from mere close friend· ship or other relationship or political affiliation. As pointed out in D. P. Mishra's case (I) however close the relationship, unless there is evidence to prove that the person publishing or writing the editorial was authorised by the returned candidate or he had undertaken to be responsibJe for all the publications, no consent can be inferred. That Tarangi was in full charge of the publication of the Mahakoshal does not distinguish ,that case from the f~cts of this case where R.W. 3 also was in full charge of the Kalinga during the respondentrs absence.

The case of the respondent is that he had left the meeting before Biju Patnaik addressed the same and he was, therefore, not present when Biju Patnaik addressed that meeting. He said that two or three minutes after he had spoken at the meeting he left the meeting place for Kiarbanka, because there was another meeting scheduled to be held in that same evening where due to delay the people were t) [19711 3 s.c.R. 257.

getting restive. The respondent was, however, ~ked 'whether he had ever: consented to what Biju Patnaik: said at the _ meeting · and . he r~lied tha~ 1fe question. of his consent being given to the ~ontents of ' BJJU Patnruk s speech d1d not arise. The oross-exmnination was mostly in respect of the editorial Exhibit· I, letter Ext~ Land tO the respondent being present at Cuttack during the relevant time .. just . befo~e the impugned edit<;>~ Ext. -1_ and the news report Ext. 2 were pubhshed. When once It ts established that neither the · editorial (Ext. 1) nor the news report (Ext- 2) were published by the respon-dent or by some ?~ else ~th his c:o~ent or that the speech alleged · to be made. ~y BlJU Patnaik. even .. r it amounts to corrupt praciice, was ~ade W1thout_ the co~ell;t of the respondent, :md that Biju Patnaik · was not his agent., It IS unnecessary to. consider the question whether the editorial and the news report as well as the speech of . Biju Patnaik did in fact constitute corrupf practice- under sub-s. (3) of s. 123 of the Act. · . · ,· · - '· '

· The neXt question is whether the responden.t in his speech of . February. IS, 1971 at Marshaghai made false imputations· against 0 [. · ][tho ][personal character. ][of ][Dwivedi ][for ][collecting donations ][and ]['][not ]rendering accounts. If ~ alleged state;nent in his. speech was· an · imputation against "the personal character . of Dwivedi then it · .. will .. have to be ·. further csb.blished . that the · statement was false, the· res-{'Ondent believed it to be false or did not believe- it to· be true arid that it was·· a: statement reasonably calculated to prejudice the pros-. pectS of that· candidate's election. . In any case. since we have found that the publication of the speech of the respondent in Ext. 2 has . ; not been made with his consent, that publication, even assuming jts contents have been proved, does not constitute corrupt practice. It now remains to be considered .·what it is that the respondent in his · speech at Marshaghai is alleged to have imputed . to · ·• Dwivedi '· on . February. 15, 1971. · · · · · · ·

The petitioner examined Daitari ·Swain. P.W •. -~·. Suresh Ch~a Parida P.W.- 3, Ramchandra Behara P.W. 5, Saun Charan alias Bibhakar Swain P.W. 6 and Bi~yadhar Paital P.W.· 7, all of . whom. claim to have attended the meeting at Marshaghai on Fe.bruary 15, 1971. . The respondent rebutted this evidence· by examining Rasa-nanda Nath R.W. 4, Jhari Basantia R. W. 5, Krishna Chandra Biswal RW. 6 and himself. As ·the-High Court points out on an examina· tion of the oral evidence it would not be possible either to fix the · exact words of the resp~ndent or of Biju Patnaik much less . the entirely of the speeches delivered by either. of them, nor _even the exact context in which the . impugned remarks had been mad~ ~y the two p:rsons. In these cirucmstances it"came to the conclusiOn that what is al1eged by the petitioner to have been s~ted by tl:.~ respon- , dent, the burden of proving which. ~s on ~e petitioner, has not been ~atisfactority established. The petitioner ~1msel.f as P.·~· ~4 ~ad ~o · knowledge of these speeches. He adm1tted m e.xamm~bon-m-ch1ef that he had thought that whatever had been pubhshed ~n. the news-

SUPREME COURT RCPORTS [ 1974] 2 s.c.a. 54 . · admission of the responde~t si_?~e he was its paper Kaiinga w.a~ an id that he made some mqumes about the editor.· The I'etltiOner sa on dent spoke but admitted that vibaf he cont.::xt in_ wh_Ich. thch;~~~gard had not 'been mentioned in the report found on mqu_rry [10 ][1 ]1 [name the persons ][ut ][Marshaghai from ][whom ]Exr. 2. He dJ~ nst ~~~~l the truth of the reported portion of the he had ascertamc .a H-·u thnt the persons who had given him lhe rcsp~ndcn~smfor?Ja1~ . 0spe~:~ut ?hc res ondent but had asked him t~e s~th of the relevant portion not to disclose their in Ext. 2 ascnbc~ [11]th ct1·1·100p and therefore he was not prepared to divulge names t I th at m P asc[ertained about the ]' · • [c0:1 :]·, [.Xt ]b" · · [Ill ][w ]l · [11c ]h · t • • ·I respondent · had uttered these worqs in the ~ourse o. IS spc~~ at •• ars ag ;u. l In th,;: cross-examination he ad.~Jtted thnt .the addittonal '!'att~rs th~t discovered durin" the inqumcs have not been em bod ted m . b15 p~tition and that he"' ha.d confined himself only to whnt l":r.: found in the paper. It followed, _therefore, ~hat tJ:e pco_rle who were cogni-sant of the real facts nnd who had g1ven htm hst of names of 20 to 25 p~rsons for being summoned were not prepa~cd to come forward i to support the petitioner in cow:t. In fa~t h~ admiltC~ that he had not ~ even · asked the persons named m the l1st g1ven to htm as to whether • they would themselves like ((J appear us witnesses on his behalf. He confessed that he did not trouble himself about them, because if they wanted to give evidence they could do so on being summoned. There arc many other incongruities in the evidence of the petitioner. The claims made by him arc highly imaginative. In our view the High Court was J'ustiticd in not relying on the petitioner's evidence. [t also did not_rcp yon t~c evidence of P.Ws. 2, 3, 5, 6 and 7. All these per· son~. ,without smglc_ 'exception, uniformly deposed the respondent as havmo state~ tiat_ DI\IVCdt had got one Jakh of rupees from the Bom-bay ~la.rwan. Soc1ety and Rs. 25.000/- from Mrs. Indira Gandhi in ~~~~~~~on With I 9_fi7 cyclooe relief works, and that when the rcspoo-• · cd the aud,e~ce as tl? whether they had received those monies; stated some money <nfthat [11 ]rom [0]. Dwiv•dt r t0hc WIV'di _audience ·d Th sa1d ereu~on that they the respondent is alleged hau not rcc•·'• 1vcd any to have such not rendered an~ ace~ a~pr~pnatcd (Mari Nek) that money and had 4 respondent these witnc~scs said show~ that Dwi~eJ? ~~ 1 ~ cre[or. ~h~ first ms!ancc ~ perusal of the statements the ~legation. that the of amoums is an im ro\'c • appropnated or m1sappropnatcd the no such imputati~n of ~i~; from t~c.alh:gations in tbc pleadings, where dent. This all~l!ation of rnf~ropnat,_on. hns been made by the rcspon· I to .have been stated in the 1._PJ?roprtahon ~cing mnt..:rial f:~ct ought ~VId.:ncc contrary to the ~.~a~lllgs as requ1red ins. 8J(b) and no It ChltiiJ:CS the COOip!cxionp f,llJings Clln be led OC COil.Sidcred b<:Cal!S~ taken through the ev'd• o corrupt practit:c. We have also· ~~n conclusion_ tbnt. tht:y ha~~caetl or .thcse witn.csscs nnd have come to tit.! t~c .s~mc set )Jiecc, but were ~~-h 1parrot-like voice rcpeateu identicallY rcmawdcr or the SI>ccch its ank, vague and ignorant about the off thhcm saiu that thl!y ha:' purport, its contents or its etT~·t Some o to hear t was t!m Pomg ~uuse w .e:e. 10 r ro~. H11u other Patnau villa never 1·k Was · cs told from sp ·ak' any Whtch ~ne of they said thev what they heard, • "" · bad come some t " speak at pi· o.: mg w en they were aware tha ace near their villa~es. Prira Bar Lanka

. P.W. 4 who deposed on behalf of the petitioner, however, says that he ~vas p~rsonally pre~ent at. the m~eting as correspondent for the-SrunaJ a~other Onya druly pubhshed from Cuttack. He claims to have pubhshcd the news report Ext. J which was based on his personal kno~lcdge o_f what hapened at the meeting held at Marshaghai. Ac-cordmg ~o htm the respon?ent never stated anything about the sources from whxch the moneys rmght have b~en received by Dwivedi. He no doubt says that the respondent's reference to the relic[ monies received .by Dwived~ from di!Ierent quarters was occasioned by tbe fact that Marshaghat area was often affected by floods and cyclone which was pointed out by the respondent in his speech. He sa1u that the res-pondent made reference to certain alleged non-rendition o( accounts by Dwivcdi in respect of monies collected by him. Accordi.ng to the witn·~~s no ullcgatton of misappropriation by Dwivedi was m<tde bv c. the respondent in his speech, not did he notie.: ruty stir or commotion amongst the audience as deposed to uniformly by ditlcrcnt witnesses for the petitioner referred to earlier. P.W. 4 conceded that he was un-able to give the exact language which the re>pomknt used about the monies having been received by Dwivcdi, but he made it clear in his cross-examination that what the respondent had said was that Dwiverli had brought monies for the 1967 cyclone from various sources in n India and also from individuals and that there was controersyv in the. Prajatantra and so he cnquir..:d of the people whether they had recei-·ed any such monies from Dwivcdi, if Dwivedi at all received all mose monies. Though th~rc arc certain a~pccts of this evidence which the respondent docs not admit, in so far as the particulnr allegation which is bt:ing discussed is concerned, his evidence completely j:;ives tbe lie to the other witnesses of the petitioner.

In the circumstances we agree with the observation of the High . Court, which had also the opportunity of noticing the demeanour of tbe witn.:sses in respect of some of whom the learned Judge had made · note while recording their depositions, that it is dillicult to understand how each and every one of these witnesses couhl hav.:: occasion to rc-mcmb.:r the exact sources of monies which nrc said to have been re-F ceived by Dwivcdi. We have no doubt that aU these witnesses who claim to have al!ended the meeting ut l\.Jarshaghai on February 15, 1971, and of having h.:ard the sp~cch of the rcspond.:nt ha~e. been got up for the occa~ion anJ ca~mot be rchcd upon_. Th·~ pe?ti~ner ha$ failed to establish the allcgaoon of corrupt P!"<ICttce whtch mc1d~ntaUy, as observed earlier, was developed in the evtdcnce when the Wltn~ss.:s tried to supplement the pleadings when they nlkgcd that the respon-G dent had charged Dwivcdi with misappropriation of the. amounts col-lected for th~ rdid tumls. If what is stated in the pleadmgs alone was the "charge again~! the respondent, in our view that would not amount to corrupt practice because if amounts had been collected for any public purpose, as~ing the pc~son coU~cting th?se. amounts or those who were r..:sponstblc for thc1r colkctwn, to gtvc au account could not amount to an imputation ngaint their per~onal ehara~ter. Me? )I in public life particularly those who ~~llect montes for. pubhc or chan-table purposes ought not to be se~stttve w~cn t~ero lS demand to account for those amounts. sttuatlon 10 wluch demand sue? as that we have referred tll rna)' be made may be unfortunate, and 1t

-- -· ~ . ...... .

n1ay hurt the varuty or the a$e of the p¢rson from whom accounts are asked, but it is far from bemg an imputation against the personal character or conduct of the person concerned. Such demand would refer to the public conduct of the person who is liable to render accounts and does not amount to corrupt practice.

It is, however, con~nded by the learned Advocate for the petitio-· ner that the respondent had stated that Dwivedi had collected (a) Rs. 1,00,000/- from the Marwaris of Bombay, (b) Rs. 25,000/- from the Prime Minister and (c) that these monies were for the cyclone of 1967, all of which allegations are flase. In fact Dwivedi was respon-sible for getting Rs. 20,000/- from the Prime Minister for rebuilding school which had been destroyed in the .cyclone. Even ~his money was not paid to him but was routed through the Chief Minister and given to school directly. The respondent denied that he had ever charged Dwivedi with getting money for cyclone and his case was that he never referred to any such· source in his speech, and could not have done so as his information with respect to this matter on the date of the meeting was confined to controversy that had been raised in another local daily, Prajatantra, wherein the letters Exts. 3 & 4 dated Septem-ber 20 and September 27, 1970 respectively were published. Apart from these two items of publication, there was another earlier publica-tion (EKt. A) in the Prajatantra da~d June 4, 1970, which referred to the collection of monies. Dwivedi himself had published reply in the Prajatantra of June 13, 1970. But in none of these exhibits is there any reference whatsoever to the Bombay Marwari Society having given any money to Dwivedi for relief work. The respondent says that he had only this controversy in his mind and he could not have alleged that Dwivedi had received lakh of rupees from Bombay Mar-wari Society. The learned Trial Judgr- after considering the evidence of the petitioner said :

"In my view, this is again one of the most vital aspects of the petiuoner's evidence which renders the witnesses on his behalf very much undependable and is clear pointer to the fact that for some obscure reason or other they have come forward with such story, which stands nowhere explained on behalf of the petitioner."

We agree with the above finding. In our view finding of fact arrived at by the Trial Court after due consideration, of the materials and the conduct and demeanour of the witnesses, should not be lightly inter· fered with by the Appellate Court, particularly when the view taken by it is justified on the evidence. As we have noticed already, the respondent could not have made any reference to the Bombay Marwari Society. The respondent says that he also never referred to the Prime Minister's Relief Fund which is probabilised by the concession made by Dwivedi who said that it is never the practice for the Prime Minister's Relief Fund to be distribut-H ed directly through private individuals. The statement of the respon-dent that he never refererd to any amount received by Dwivedi from: .: ·;·, .• ,. the Bombay Marwari ·society or from the Prime Minister's Relief

Fund, is the more probable version and it was also so held by the High Court. No doubt Dwivedi had issued appeals particularly to the Bihar Relief Committee in respect of the Orissa floods of 1969. The Bihar Relief Committee of wbtch Sbri Jayaprakash Narain was the Cbainnan donated Rs. 25,000/-. This amount was sent to the Utkal Relief Committee which under the instructions of Dwivedi and the Bihar Re-lief Committee passed on the amount to the Orissa Relief and Rehabi-B litation Committee· sponsored mostly by the members-of the Praja Socialist Party.The learned Advocate for the respondent points out that all the monies that were received by the Utkal Relief Committee were receiv-ed by it mostly as result of the appeals made by Dwivedi. The letters of Dwivedi bear this out. ·His letter dated August 15, 1969 (Ext. Z/5) to Shri Jayaprakash Narain says:

"I am trying my best to collect some money for rebuild-ing schpols in worst-affected area in my constituency which was very badly damaged by cyclone in 1967- also ....• .' ..

Can you do· something ? Is Bihar Relief Commtttee in position to send me decent donation ? I would like you to do something personally also."

Again in the letter dated October 16, 1969 to Radhanath Rath of the Utkal Relief Committee, Cuttack (Ext. 9) Dwive4i wrote:

"A complete list of schools which deserve assistance for the loss during fl.oods in Patkura P.S. in the district of Cut-tack has been made and I want to distribute the money as quickly as possible.

1 would 'request you to issue cheque for Rs. 25,000/-received from Bihar Relief Committee in the name of "Orissa Relief & Rehabilitation Commitiee" or in my name so that the

work can be started immediately." (emphasis supplied) Even so the monies never came into the hands of Dwivedi and his evidence as P .W. 13 corroborates this statement. The respondent also has not contested this position. But as Dwivedi had talCen part in collecting the monies and as an important member of his party, on whose appeals monies for relie£ amounts were being paid, the mem-bers of the public bad right to call on him to have an account ren-dered if there was ~controversy in respect of its expenditure.

Such controversy was raised in the Prajatantra dated June 4, 1970, fn which the Chief Editor referred to this matter under the heading "Mismanagement in Utkal Relief Committee". In·that article it was stated that in the audit rep<?rt for the year l968-69 it was shown that no account had been kept though total sum of Rs. 36,657...0S was given as an advance to different persons. It was· also stated that Rs. 24,960/- was given to' Dwivedi, M.P., out of Rs. ?,5,000/- granted by the Bihar Relief Committee. Though it was shown as an advance, however there was no mention as to bow this amount was utilised nor was any account kept by the Relief Committee as was pointed out ill the audit report. To these l!llegations Dwivedi replied by his letter

( 1974) 2 S.C.R.

SUPRDlE COURT REPORTS 58 !9.?0 (Ext 5) that he did not know why it was written dated June 1[3], the Reiicf Committee. It was not an a~vance and as an advance ~tion of submiHing d~ta!Icd accounts of It to the there Utkal was Relief no CommiHce. qu He urt er h. s t ted · • . ~Last year, when I was visiting the flood afic~te~ area of luna Karandia at Cuttack District, th.: school bUilchngs wc~c 0 1::~=~~re • !d by not tht in pasition to rebuild them; floods just after the cyclone and ·Then~ the was vil-n Jitilc hop~ lot sanction of much govcr.nmcnt rut! for th.rs pur-pose. Uy scdng this I made spccral appeal to drffcr~nt rchc{ Committees and some rcsp.:ctablc persons to hc~p tor · rcpaiting o[ these schools. On the consequence ol my appeal some donors sent money and the Bihar Relief Com· mntee sent· Rs. 25,000/ - for me through the Utkal Relief Committee. They have given me the balance amount alter ucducting Rs. 40/- toward:; the Bank Commission. That amount along with other amounts which were received were g;l'cn as relief for repairing the school, houses of tilis un~a of l'ar;cura and its >Utrounding ureas. The work has been done through Committ~e and will now the relief work JS going on. The detailed description o! the accounts shall be sent to the donors alter the completion of work." In this letter also Dwivetli claims that it was as consequence ot his app.!al t~at some donors sent money to /rim und th~t Ire would scnu the ~etarlcd a.ccounts to the dorrors. Notwithstanding this Jetter one ~aroJ Moh~ntt and some others wrote Ext. 3 as published in .the Pra-Jatamra darly tl~td September 20 1 ~70 in which it was saiJ as follows; ' ' "After the publi~tion o[ the audit report of Orissa Relic£ Co•~mrttee, n? clanlication ha., yet been publisheJ by the Relrcf Committee. Only Sri Surendra Dwivedi has admit· ted tha~ he has. taken Rs. 25,000/- which he has nrrangc<l from Drhar Rchcf Committee. Besides this amount he has alth ~o declared that h~ ' h3s arrang, · ·d some more money from ~0~~ ~h~~c~~~~ i'c have rarJ that he has collected ing to Dwil'edi he o ruhecs or relief purposes. Accord-ing o( school builtlr: s co l.:c.tcd ~~~~se. amounts for th~ repair-Prime DwivediMinister for , the Prime l~lp. Mr~· S~r ns ca ~~r;;eu: 0 grvmg h~~ a~o money requested tho to Sri Minister's Rdief Fund ~~~~ s~nt. R~ .. 25 .• 000/ - to the Chic[ amount himse!I But ·the rr . wrv~r tncd to spcnJ this with it and spc~t th Ch•d Mrnistcr diJ not agree Therefore, th1s nmo~n t amoJ'fl[1 ]throu;th the Department. ~urn~sh the account~ of ~ [1 ]cr~nt. Sri Dwivedi should tn Ins hand. Sri Dwivcdp~s m~~e than one lac which was 0 should ucc(lunts know if the donors that the donor ~anO:S 1 .~·u !!rcat leader like him that he shall submit the Jl the accounts. llclitlcs th a~~~ as the O<'l'c~ •hould know far as we know almo<; n: r~~ th also should know it. As rc as been reached in the. '.A Patkura area from Sri Dwivcdi. Sri DwivcJi has told that he has collected this money for this area. Our duubts would be cleared if Sri Dwivcdi woul::l furnish the full accounts." It is not necessary to go into th·~ contra ~~ r>y furthzr because it is . clear that some along the public were demanding accounts for the amounts collected by or through the efforts of Dwivcdi and that Dwivedi was trying to explain some i~cm which pertained to him but he 5aid that he would render the accounts to the '-hmors. Those who were concerned in th ccontrovcrsy, however, did not accept this posi-tion and demanded that Dwivedi should render th\: accounts to the donees who are the public. According to the respond~nt it is this controversy to which he was referring in his speech and had merely asked Dwivedi to render accounts of the monies collected by him. He did not make any imputation ogainst his personal character, nor did he in any manner suggest that there was anything sinister in the conduct of Dwivcdi in respect of the monies collected for the rclid work. We are in agreement with the High Court that asking Dwivedi to render accounts in respect of the amounts collected for th~ cyclone and flood relief purposes wa.s an expression of opinion and related to 0 the public conduct and did not amount to any imputation against the · personal character or conduct of Dwivedi. In the circumstances we do not think it necessary to go into the other questions. As the appellant ·has not m:~dc out any of the allegations of cor-rupt practices ag:~inst the respondent. this ap::-eal will be dismi~sed with costs. · I'.B.R. Appeal dismissed.