IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal Nos. 293, 294 and 295 of 2006 Decided on : May 11, 2011 Cr. A. No.293/2006 Rakesh Kumar Chhabra Vs. State of H.P. Cr. A. No. 294/2006 Surinder Mohan Katwal Vs. State of H.P. Cr. A. No. 295/2006 Dr. Vidya Nath Vs. State of H.P. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1Yes For the Appellants : M/s N.K. Thakur, Ajay Kochhar, Satyen Vaidya and Anup Chitkara, Advocates. For the Respondent: Mr. R.P. Singh, Assistant Advocate General. Surjit Singh, Judge(Oral) By this common judgment, three appeals, one filed by Rakesh Kumar Chhabra, another by Surinder Mohan Katwal and third by Dr. Vidya Nath, are being disposed of because all these appeals arise out of the same judgment, i.e judgment dated 28.8.2006 of learned Special Judge, Hamirpur, whereby appellants Surinder Mohan Katwal and Dr. Vidya Nath have been convicted of offences, under Sections 13(2) of the Prevention of Corruption Act, 1988 and Sections 468, 471, 420 and 120-B IPC and appellant Rakesh Whether reporters of the local papers may be allowed to see the judgment? …2… Kumar Chhabra of offences, under Sections 468, 471, 420 and 120-B IPC. 2. Factual matrix of the case, on which the prosecution case is based, lies in a narrow compass. Appellant Surinder Mohan Katwal was Chairman of Subordinate Staff Selection Board, with headquarters at Hamirpur and appellant Dr. Vidya Nath was a Member of that Board, during the years 2001 and 2002. There were 238 vacancies of Physical Education Teachers (PET) available in different schools of various Districts of the State. Those posts were advertised. A large number of candidates applied for appointment to those posts. A screening test was conducted on 16.9.2001. Those, who cleared the screening test, were called for ground test, which was conducted on 27.2.2002. Those, who cleared the ground test also, were called for viva-voce test, which was conducted from June, 2002 to August, 2002. 3. Appellant Rakesh Kumar Chhabra, who hails from Chamba District of the State, was one of the candidates, who had cleared both the screening test and the ground test. He was called for viva-voce test on 10.7.2002. Two Interview Boards were constituted. One was headed by appellant Surinder Mohan Katwal, in his capacity as Chairman of the Board and the other by appellant Dr. Vidya Nath, a Member of the Board. …3… 4. Appellant Rakesh Kumar Chhabra was interviewed by the Board, headed by Surinder Mohan Katwal. A sheet, showing scores of the candidates in viva-voce test and remarks about their suitability, was prepared. With regard to appellant Rakesh Kumar Chhabra, appellant Surinder Mohan Katwal noted in the remarks column, in sheet Ext. PW3/A, that he was below average. Marks awarded to appellant Rakesh Kumar Chhabra in viva-voce were 7. He was shown to have scored 51 marks in written test and his total score was indicated to be 58 in the aforesaid list Ext. PW3/A. 5. After the interviews were over, a combined list of successful candidates was prepared, in respect of each District, based on option exercised by the candidates, with respect to the District in which they were desirous of being appointed. Appellant Rakesh Kumar Chhabra had opted for Bilaspur District. So, his score was included in the combined list, based on the separate lists of Interview Boards prepared in respect of Bilaspur District. That list is Ext. PW3/K. In this list, score of appellant Rakesh Kumar Chhabra in interview was shown to be 13 and the total marks were written as 64, instead of actual 7 marks, in interview and total 58, as appearing in list Ext. PW3/A. Because of his score in viva-voce test having been raised from 7 to 13 in Ext. PW3/K, name of appellant Rakesh Kumar Chhabra was included in the list of selected …4… candidates, recommended for appointment to the concerned department of government. 6. According to the prosecution, this was done in prosecution of a criminal conspiracy, hatched by all the three appellants to favour appellant Rakesh Kumar and to achieve the purpose of the conspiracy, record of selection was falsified, inasmuch as the score of appellant Rakesh Kumar Chhabra was shown to be 13 in viva-voce test in list Ext. PW3/K, though his actual score was 7, per list Ext. PW3/A. Appellants Surinder Mohan Katwal and Dr. Vidya Nath were alleged to have committed the act of criminal misconduct by changing the score to help appellant Rakesh Kumar Chhabra get employed as Physical Education Teacher. 7. Case was registered, when aforesaid alleged bungling came to light. Investigation of the case revealed that list Ext. PW3/K had been prepared by appellant Dr. Vidya Nath and it was signed by appellants Surinder Mohan Katwal and Dr. Vidya Nath. Investigation also revealed that list Ext. PW3/A had been prepared by Surinder Mohan Katwal, who headed one of the Interview Boards. Also, it came to light that on the basis of increase in the marks of appellant Rakesh Kumar Chhabra, in viva- voce test in list Ext. PW3/K, his name was recommended for appointment to the Education Department of the State and he was ultimately appointed. …5… 8. Prosecution examined 16 witnesses, including two officials of the Board, who testified that list Ext. PW3/A was in the hand of appellant Surinder Mohan Katwal and the columns, in which marks had been recorded in Ext. PW3/K, were written in the hand of appellant Dr. Vidya Nath. Handwriting Expert also gave the opinion that columns of list Ext. PW3/A, pertaining to marks, were written in the hand of appellant Surinder Mohan Katwal and Ext. PW3/K was signed both by appellant Dr. Vidya Nath and appellant Surinder Mohan Katwal. 9. Appellants took the plea that there was no dishonest or fraudulent intention on their part while compiling the result and preparing final list Ext. PW3/K and that it was on account of sheer oversight, negligence or inadvertence that the score of appellant Rakesh Kumar Chhabra, in viva-voce test, came to be noted down as “13” instead of actual score “7”, in final list Ext. PW3/K. They also took the plea that, in fact, they used to take assistance from supporting staff in compiling the result and that it was quite likely that the supporting staff, by mistake or may be because of some mischief on their part, got noted down the score of appellant Rakesh Kumar Chhabra, in viva-voce test, incorrectly. 10. Learned trial Court has disbelieved the defence version. It has concluded that evidence on …6… record, which the appellants also do not dispute, conclusively proves the prosecution case. Consequently, the appellants have been convicted and sentenced, as aforesaid. 11. I have heard learned counsel for the appellants as also learned Assistant Advocate General and gone through the record. 12. So far as factual aspect of the matter is concerned, appellants do not dispute it. Only denial is with respect to the Handwriting under the columns regarding marks in Ext. PW3/K. While the allegation of the prosecution is that these marks have been written by appellant Dr. Vidya Nath, the said appellant denies it. The fact, however, remains that list Ext. PW3/A, which consists of only 33 candidates, is signed by both, appellant Surinder Mohan Katwal and appellant Dr. Vidya Nath. This fact is not denied. Plea of both these appellants is that recording of wrong marks under the column “viva-voce test” in list Ext. PW3/K is not on account of any dishonest or fraudulent intention, but because of some bonafide error or mistake on their part or similar or even mischievous act of the staff that was assisting them in compiling the result and preparing list Ext. PW3/K. 13. I have carefully scrutinized both the lists. In list Ext. PW3/A, which consists of only one sheet, names, …7… particulars and scores of only 10 candidates are given. In the other list Ext. PW3/K, there are names, particulars and scores of 33 candidates. Name of appellant Rakesh Kumar Chhabra figures in list Ext. PW3/A. It was from this list, which consists of only one sheet, that the score of appellant Rakesh Kumar was noted down in Ext. PW3/K. In list Ext. PW3/A, none of the ten candidates, named therein, scored 13 marks in interview. As a matter of fact, none of them scored marks, in viva-voce test, in double digits. 14. Now, when in list Ext. PW3/A figure 13 does not appear against any of the ten names under the column of viva-voce marks or even under the column pertaining to marks in the written test, plea of appellants Surinder Mohan Katwal and Dr. Vidya Nath, that figure 13 happened to be recorded in Ext. PW3/K, as the score of appellant Rakesh Kumar Chhabra, under the column viva- voce test, by error, mistake or inadvertence, cannot be believed. Their plea that it could have been on account of some error, mistake, omission or inadvertence on the part of the staff supporting them, can also not be believed for the same reason. 15. As regards their plea that it could have been due to some mischief on the part of the supporting staff, no suggestion, on the line of this plea, was thrown to the witnesses of the prosecution, especially PW-3 Surinder …8… Kumar and PW-4 Sanjiv Kumar, who are the employees of the Board, though both of them very specifically stated that columns of list Ext. PW3/K, pertaining to the score, under columns written test and viva-voce test and the total marks, were written in the hand of appellant Dr. Vidya Nath. 16. Now, if the defence plea is not probabilized and hence it is not acceptable, there should be no difficulty in endorsing the finding of the trial Court that score of appellant Rakesh Kumar Chhabra has been shown to be higher than the actual score, while preparing final list Ext. PW3/K. However, the trial Court has fallen in error in holding appellants Surinder Mohan Katwal and Dr. Vidya Nath guilty of offences, falling in the definition of forgery. They did not forge any document as such. However, they did prepare false record of final result, which act of theirs is punishable, under Section 218 of the Indian Penal Code. Their act also falls under the definition of falsification of record, punishable under Section 477-A of the Indian Penal Code. Also, they have committed the offence of criminal misconduct, punishable under Section 13(2) of the Prevention of Corruption Act, 1988, because by their illegal act, they got appellant Rakesh Kumar Chhabra appointed as Physical Education Teacher and thereby helped him obtain employment and resultantly, pecuniary advantage. All these acts could not have been …9… committed by them without being approached by appellant Rakesh Kumar Chhabra, directly or indirectly. Thus, all three of them are guilty of offence of criminal conspiracy, punishable under Section 120-B IPC. Their act also amounts to offence of cheating, because by making recommendation to the Government for appointment of appellant Rakesh Kumar Chhabra, act of deceit was committed and the concerned department was induced to appoint appellant Rakesh Kumar Chhabra as Physical Education Teacher, though he had, in fact, not been selected. 17. For the foregoing reasons, appeal is partly accepted. Conviction of appellants Surinder Mohan Katwal and Dr. Vidya Nath for offences, under Section 468 and 471 IPC is set aside. However, their conviction in respect of offences, under Sections 13(2) of the Prevention of Corruption Act and Sections 420 and 120-B IPC is maintained. They are also convicted of offences, under Section 218 and 477-A IPC, in view of the aforesaid discussion. 18. As regards third appellant Rakesh Kumar Chhabra, his conviction for offences, under Sections 120-B and 420 IPC, is also upheld. 19. Keeping in mind the fact that out of 238 candidates, required to be selected for manning the posts of Physical Education Teachers, bungling took place only …10… in one case, I am of the considered view that ends of justice would be met if the sentence awarded by the trial Court is reduced. All the appellants are sentenced to undergo rigorous imprisonment for one year and to pay a fine of `5000/-, in respect of each of the offences they have been convicted of. In default of payment of fine, they shall undergo simple imprisonment for a further period of three months for each of the aforesaid offences. Sentences of substantive imprisonment, as modified hereinabove, shall run concurrently. All the three appeals stand disposed of. May 11, 2011 (ss) (Surjit Singh), J.