S L GOSWAMI Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) The appellant who was Professor and Head of the Department of Pharmacology ad Therapeutics in the Medical College, Jabalpur, has been convicted by the Special Judge, Jabalpur under Section 5 (1) (d) read with Section 5 (2) of the Prevention of Corruption Act to one year's rigorous imprisonment and a fine of Rs. 1,000/- and is default to undergo rigorous imprisonment for three months. He was further convicted of offences under Sections 409 and 420. I.P.C. and was awarded sentences of six months rigorous imprisonment in respect of each of them. All the sentences were directed to run concurrently. An appeal against this conviction and sentence to the High Court of Madhya Pradesh was dismissed. This appeal is by special leave.

(2.) Shortly stated the case of the prosecution is that the appellant who was employed in the Medical College, Jabalpur, with the permission of the Government of Madhya Pradesh given on December 20, 1962, accepted a grant-in-aid for carrying out a research project entitled "Study of Manganese in Health and Disease by Neutron Activation Analysis". This Research Project was to be carried on in collaboration with the Atomic Energy Commission of the Government of India for three years 1963-64, 1964-65 and 1965-66. The appellant began his research work in July 1963 and sometime thereafter on September 30, 1964, an instrument for distillation of water known as the Stadler Still Double Distillation Apparatus was purchased from Messrs S. K. Biswas and Company of Calcutta - a firm of scientific instruments manufacturers and dealers of Calcutta, for Rs. 450/-. On April 11, 1964, the Indian Council of Medical Research known as the I.C.M.R. entrusted him with the research project on "Effect of Hypoxi and Decompression on Body Temperature as function of Adaptation to Hypoxia at various altitude." The terms and conditions of grant-in-aid were mentioned in the circular letter Ext. P-32 dated April 11, 1964, and were current for the years 1965-66 and 1966-67. For this project the appellant wanted to purchase another double distillation apparatus and after inquiry from several firms placed an order with Messrs. Goverdhandas Desai Private Ltd., Bombay (hereinafter called 'Messrs. Goverdhandas') as per Ext. P-5 dated February 20, 1965 for a double distillation apparatus, horizontal type, Double Stage, capacity 10 liters Pyrex glass for Rs. 890/- and asked them to inform him for their acceptance telegraphically and sent triplicate bills in advance. Messrs. Goverdhandas sent wire Ext. P-6 and the advance bills Exts. P-8, P-9 and P-10 to the appellant on March 3, 1965. This apparatus was entered in the stock register of the I.C.M.R. Hypoxia Enquiry as per Ext. P-44 in accordance with the details shown in the bills and the triplicate bills for Rs. 969-10 inclusive of sales-tax and packing and freight charges were presented for payment. It may be mentioned at this stage that the appellant was on leave from February 9, 1965to March 20, 1965 because of heart trouble and the inquiry and the order were placed during that period. A draft in favour of Messrs. Goverdhandas was subsequently issued by the Accounts Officer, I.C.M.R. and was received by the appellant on April 12, 1965. On the same day the appellant wrote a letter Ext. P-16 to Messrs. Goverdhandas saying that he did not want the apparatus as shown in the sketch sent by them but wanted it according to the original order placed by him. He therefore requested them to expedite the order urgently as he had received the payment against the bills and was withholding the same for want of apparatus. As the firm was not able to supply the apparatus as per the specifications the order was cancelled by letter Ext. P-17 dated April, 24, 1965. Thereafter the appellant was in Bombay between May 15, 1965 and May 25, 1965 where he had gone for a medical check-up and was staying in the ML As. Rest House. On May 17, 1965, he met Mr. Patel a Director of Messrs Goverdhandas and asked him to receive the draft and give him a cheque in order to enable him to purchase the apparatus he wanted from the Bombay market. This was agreed to, and accordingly the draft was handed over to Mr. Patel and receipt Ext. P-24 was obtained from him on behalf of Messrs. Goverdhandas. At the same time the appellant also passed a receipt for the bearer cheque which he received from Mr. Patel for the same amount. On the same day the appellant telephoned to one Rasiklal Shah a partner of the Scientific Sales Syndicate D. W. 3 and enquired whether he could supply the distillation plant as per the specifications given by him. D. W. 3 said he did not have it. Later, however, one D'souza a broker who was sitting with D. W. 3 at the time informed him that he could supply the instrument wanted by the appellant. D. W. 3 says he tried to ring the appellant back but could not get any reply so he sent D'souza with the apparatus along with the introductory letter copies of which are Exts. P-70 and D-13. According to the appellant on the same day the man sent by Rasiklal Shah is said to have brought the apparatus the cost of which was R. 989-35. The appellant paid the money, obtained a receipt and brought it to Jabalpur.

(3.) The crucial question in this case is whether the accused as alleged by the prosecution did not buy another apparatus for which he had received a draft from the I.C.M.R. but infact has been carrying on the work with the distillation apparatus purchased from Messrs. S. K. Biswas and Company in September 1964, for the project for which he was receiving a grant-in-aid from the Atomic Energy Commission of the Government of India, by pretending that it is the apparatus which he had purchased in Bombay. By this device it is said the appellant has misappropriated the amount of the draft sent by the I.C.M.R. There are in this case certain undisputed facts which are -