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(3) Polling in the Mandya Constituency took place on 22-2-1962. The results of the elections were announced on 26-2-1962. The appellant secured 23,299 votes, the second respondent 22,639 and the third respondent 3,304. Consequently, the appellant was declared elected. The first respondent herein, who is a voter in that Constituency, filed the election petition challenging the validity of the election of the appellant on various grounds.

(4) The Tribunal rejected all the grounds put forward on behalf of the petitioner excepting on. It upheld the petitioner's contention that the appellant and his supporters with his consent had published during the election Exhibit P-1, which according to the Tribunal contained a false statement viz., that the second respondent worked against the congress nominee in the Mandya Constituency in 1957 general election. The Tribunal further held that the appellant believed that statement to be false or at any rate he did not believe it to be true. It also held that the statement in question related to the personal character or conduct of the second respondent and the same was reasonably calculated to prejudice the prospects of the second Respondents election. It is this finding that is challenged before this Court. The other grounds put forward in the Election Petition were found against the petitioner. These findings were not challenged in this court.

"Does the petitioner prove that the Pamphlet enclosure No. 1 (Ex. P-1) to election petition was published by the persons mentioned in Schedule "A" of the election Petition and thereby the said person committed corrupt practice coming under Section 123(4) of the R.P. Act, 1951?"

(7) The allegations relating to Exhibit P-1 are found in paragraph-9 of the Election Petition. Before the amendment they read thus :

"The first act of the first respondent and his friends were, his agents in the course of election(as they all had worked for him with his consent and approval) was to publish pamphlets containing false and defamatory statements calculated to bring the second respondent into ridicule and in the eye of the voters. Enclosure No. 1 (Ex. P-1) is one of the pamphlets so published over the name of Sri. M.V. Srinivasa Setty, the Ex-President of Mandya Municipality. It is submitted that from 16th February 1962 upto the date of election copies of the above pamphlets were being distributed all over the Constituency and the petitioner has seen that the said pamphlet was being distributed on 18th February 1962 at B. Gowdagere village and on 19th February 1962 at Mandya. The petitioner has also heard from others that the said pamphlet from 16th February 1962 upto the date of election. It is learnt that thousands of pamphlets were thus distributed. Particulars of the said corrupt practice is given in Schedule "A" below. It is submitted that the said pamphlet appears to be an extract of an article which is stated to have been published in a periodical called "Jagrithi" in October 1960. It contains false and defamatory statements in so far as it concerns respondent No. 2. For example, that it is not true that the second respondent canvassed against the congress candidate in the 1957 election... The said pamphlet states that the second respondent was dishonest towards congress organisation and that he lacked discretion. Publication of the said pamphlet which has been done with the consent and knowledge of the first respondent by one of his friends M.S. Srinvasa Setty and others in furtherance of the prospects of the election of the first respondent and his friends have indulged in character assassination of a candidate and they have committed an act falling under section 123(4) of the R.P. Act, 1951. The said act was one which was calculated to prejudice the prospects of election of respondent No. 2"

(31) P.Ws. 17, 18, 20, 21, 23, 24, 25, 26, 28 and 29 have spoken to the distribution of those pamphlets. We see no reason to disbelieve their evidence. But the allegation that the appellant himself had distributed those pamphlets is not proved not does it appear to be true. The only person who says that the appellant distributed the pamphlets in question is P.W. 29, the petitioner. He is an interested witness. That apart, according to his evidence, the appellant distributed pamphlets in Mandya Town on 19-2-1962. But in the particulars given by him in the Election Petition, he had stated that the appellant distributed those pamphlets in Mandya Town on the 20th and 21st of February 1962. These contradiction are not explained. There is no corroboration for P.W. 29's evidence on this point, except the vague statement of P.W. 23 that "on the evening of the 20th also these handbills were distributed by them (persons mentioned by him earlier) and Devaiah (appellant) has also come then. The evidence adduced is insufficient to come to the conclusion that the appellant had distributed the pamphlets in question or that he had consented to their publication.

(32) The burden of proving that the statement referred to earlier is false and that the publisher of the statement believed it to be true is one of the petitioner. It has been laid down by this court in Anjaneya Reddy v. Gangi Reddy, 21 Ele LR 247 (Mys.) that in the cases like the present one as the petitioner is required to prove negative facts, the same has to be generally proved by placing the relevant circumstances before the court and leaving it to the court to draw necessary inference from the fact as it may not ordinarily be possible to prove those facts by evidence aliunde. The petitioner in this case complains that the statement in ex. P-I that the second respondent worked against the congress nominee in the Mandya Constituency in the 1957 general election is false. The question for decision is whether the petitioner has proved that statement to be false. The second respondent (R.W. 1) deposed that the had worked against the congress nominee in the Mandya Constituency in the 1957 elections. If that evidence is prima facie acceptable, then the burden of proving that that statement is true shifts to the appellant. But the question is whether on the facts and circumstances of this case, we can safely place reliance on the evidence of the second respondent when he says that he did not work against the congress nominee in 1957 general election. The second respondent is an interested witness. We have no doubt in our mind that the petitioner is only a name-lender for him. Therefore, the second respondent's evidence has to be scrutinised with care and accepted with caution. Admittedly after the general elections in 1957 some person accused the second respondent as having worked against the congress nominee in the Mandya Constituency. It is admitted that in that connection the Mysore Pradesh Congress Committee had constituted a Committee to enquire into the allegations made against the second respondent. It is proved that that committee had examined certain persons to find out the truth of the accusation made against him. The second respondent admits that some persons stated in the enquiry before that Committee that he had worked against the Congress nominee. But he says that he does not know what the conclusion of the Committee is. He contends himself by saying that the Committee did not take any disciplinary action against him. At the time of his examination before the Tribunal the second respondent was the Secretary of the Mysore Pradesh Congress Committee. Yet he did not choose to produce the report of the Committee. It is not his case that the Committee did not submit any report. The allegations made in the Exhibit P-I were previously published in a newspaper called "Jagriti" in the year 1960. Admittedly the second respondent had not contradicted the accusations published in that newspaper. His explanation for not contradicting those accusations is that he "took no serious notice of it". After taking into consideration all the available circumstances, we are unable to come to any definite conclusion as regards the truth or otherwise of the statement made in Exhibit P-I which means that the petitioner has failed to prove that the statement of fact in question is false. From this finding it follows that the petitioner has also failed to prove that the publisher of that statement believed that statement to be false or that he did not believe it to be true.