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Dr. Ghatate, learned senior counsel appearing for Dr. Vimal has contended that the only material on the basis of which the High court has found that the appellant Dr. Mudanda had committed corrupt practice under Section 123 (3) and 123 (3A) of the Representation Act is the report of speech said to have been delivered by Smt. Jayantiben mehta on February 14, 1990 as published in Maratha Sathi on February 15, 1990. The report of the speech said to have been delivered by Sri Promod Mahajan was published in the daily Ambajogal Times on February 19, 1990. The evidence of Sri Sudarshan Rapatwar, P.W.14, Reporter of maratha sathi and the evidence of Ishwar Chand Gupta P.W.24, the Reporter of daily Ambajogai Times have been accepted by the High Court. Dr. Ghatate has submitted that the High Court has not placed any reliance on the evidence of the election petitioner and P.W.9, Sri Sambhajirao Jogand and P.W.10 Sri Banshi N.Jagand. Dr.Ghatate has submitted that the High Court has committed a grave error in holding that the speeches of Smt. Mehta as reported in Maratha Sathi amount to corrupt practice under section 123 (3) and 123 (3A) of the Representation Act in view of the fact that (a) complete verbatim speech was not produced to ascertain whether the extract publication were out of context or not (b) because even the reporter Sri Rapatwar deposed that the extract of the said speech of Smt. Mehta was in his language and not in verbatim. Admittedly, Tipan that is the notes of the speech were made by D.W.14 when the speech was delivered but such tipan had not been produced before the Court so as to ascertain whether the publication was even in accordance with the Tipan. Dr. Ghatate has also submitted that the maker of the speech was not produced but the makers of the reports of the speeches who admittedly reported some parts of the speeches in their own language were examined. Dr. Ghatate has submitted that P.W.14 in his deposition stated categorically that "there is political movement to create vote bank on the basis of religion. Her approach to religion was from point of view of politics." Dr. Ghatate has stated that the aforesaid statement by P.W.14 is his personal assessment of the speech delivered by Smt. Mehta and because of his assessment of the said speech of Smt. Mehta he published the report according to his own idea of the speech and it is not at all unlikely that the extract of the speech as published was out of context. Dr. Ghatate has also submitted that the newspaper report appears to be factully wrong because Smt. Mehta could not have said that BJP Shiv Sena alliance would from the Government of Madhya Pradesh, Himachal pradesh, Gujrat and Rajasthan as reported in the publication because such alliance of BJP and Shiv Sena was only confined to the state of Maharashtra.

Coming to the statement attributed to Sri Mahajan Dr. Ghatate has submitted that Sri Mahajan according to the report had stated that if his political party would be given an opportunity to hoist safron flag in Vidhan Sabha, it would also be hoisted in Islamabad with in five years and the internal rift in the Congress Party was going to benefit the BJP Shiv Sena alliance and people would see safron flag hoisted in Vidhan Sabha. Dr. Ghatate has submitted that safron flag is the colour of the flag of Shiv Sena which was a partner of the said alliance. The flag of BJP is safron and green and the flag of congress party is safron, white and green. Dr.Ghatate has submitted that hoisting of safron flag in Vidhan sabha is the symbolic victory of the said BJP-Shiv sena alliance. The undivided India was partitioned in 1947 and the desire that again both the countries would become united through the political efforts of BJP-shiv sena alliance within a period of five years thereby making it possible to hoist the said safron flag in Islamabad does not in any way appeal the voters on the ground of religion of such statement was nither intended nor had brought into effect or likely to being into effect any hatred between different communities and religions. Dr.Ghatate has submitted that theres no evidence before the court which is clear, cogent, satisfactory, credible and positive to establish the charge of corrupt practice. Since such charge is quasi-criminal in nature and entails criminal nd entails crimmnal lability apar5t from civil lability to loose the tight to contest election in ftture the scrutinyt of theallegati0on of corrupt practice under section 123 (3) and 123 (3A) must be very critical and until and unless thre evidences being absolutely credible and positive can stand the test of scrupulous scarutiny and would lead to only oane irresistible conclusion and unimpechable rwsult that crrupt that practice under Section 123 (3) and 123 (3A) was committed court should disist frsom making any finding of corrupt practice. In this connection ,Dr.ghgatate has relised on the decison of this court in mohan singh vs. bhaanwarlal and others (1964(5) SCR 12 at 20), kultar singh Vs. Mukhtiar singh (1964 (7) SCR 790 at 791-794), D.Venkata Reddy Vs. R. Sultan and others (1976 (3) SCR 445 at 445-

Section 123 (5) and 124 (5) as they stood at the relevant time were challenged as ultra vires as ofrending the fundamental right of freedom of speech. The court said "these laws do not stop a man from speaking. They merely prescribe condition which must be obsereved if you want to enter Parliament (vide 1955 (1) SCR 608 para 5) .

Therefore, a speaker speaking at an election meeting must alert himself that his soeeches do not fall within the provisions of the concerned sections Mr. Poti has also submitted that it is now well settled that the Court is required to consider the effect of speech in the mind of the voter. It is not the statement here or another statement there but the total effect of the speech in the mind of the voter which calls for assessment to be considered before the Court. Mr.Poti has submitted that it is evident from the speech delivered by Smt. Mehta that an apport to the hindu voters to unite and vote in support of the appellant Dr.Mudanda was made so that the sparks of Hinduism could be lit not only in Maharashtra but there would be a march of such Hinduism upto the seat of power. In the speech there was no appeal to vots only for the Bjp candidate or a candidate of the BJP - Shiv sena alliance so that ideologies of the said political parties are implemented. Smt,Mehta addressed the voters to the effect that the coters as hindus would support the candidate of BJP so that success of the candidate was ensured. Mr.Poti has submitted that the very approach that the hindus alone shall be in power and election speeches made on that basis is bound to create in the mind of hindu voters uncommitted so fdar that hindus should rule and for that purpose they should vote for 'Hinduism'.