JUDGMENT & ORDER : Ujjal Bhuyan, J. Heard Mr. AM Bora, learned Senior Counsel assisted by Mr. D Gogoi, learned counsel for the appellant and Mr. H Sarma, learned Addl. Public Prosecutor, Assam. 2. This appeal is directed against the judgment and order dated 13.02.2013, passed by the learned Special Judge, Assam at Guwahati in Special Case No. 12/2006, convicting the appellant under Sections 120(B)/420/409 IPC read with section 13(2) of the Prevention of Corruption Act, 1988 and sentenced to undergo rigorous imprisonment for 1 year and fine of Rs. 50,000/- with a default stipulation for the conviction under Section 120B IPC; rigorous imprisonment for 5 years and fine of Rs. 50,000/- with a default stipulation for the conviction under Section 420 IPC; sentenced to undergo rigorous imprisonment for life with fine of Rs. 10,00,000/- with a default stipulation for the conviction under Section 409 IPC; rigorous imprisonment for 5 years and fine of Rs. 50,000/- with a default clause for the conviction under section 13(2) of the Prevention of Corruption Act, 1988; previous detention to be set off and all the sentences to run concurrently. 3. On 08.08.2013, Sri. RB Singh, Deputy Superintendent of Police, Vigilance & Anti-Corruption, Assam lodged a first information before the Officer-in-Charge, Anti Corruption Bureau (ACB) Police Station, Assam at Guwahati stating that in the course of preliminary enquiry, it transpired that a Cath Lab machine was purchased during the year 1991-1992 from M/s. MP Uni Magna Tech Ltd., Bhopal against indent dated 16.12.1989 placed by Dr. Atul Chandra Patowari, the then Director of Medical Education, Assam for installation in the Cardiology Department of Guwahati Medical College and Hospital (GMCH). It was mentioned that the Cath Lab machine dispatched by the supplying company was unloaded in the GMCH premises on 10.07.1991. But as the space and required infrastructure for installation was not made available by the GMCH authority as per deed of agreement dated 06.10.1989, the Cath Lab machine could not be installed at site and made operational although necessary payments were made in full for the machine. 3.1. The informant mentioned that the deed of agreement dated 06.10.1989 was executed between M/s. Uni Magna Tech. Ltd. represented by Sri. DK Dogra and Sri. Lakhibir Singh Chowdhury on the one hand and State of Assam being represented by Dr. Atul Ch. Patowari, Director of Medical Education on the other hand. 3.1. The informant mentioned that the deed of agreement dated 06.10.1989 was executed between M/s. Uni Magna Tech. Ltd. represented by Sri. DK Dogra and Sri. Lakhibir Singh Chowdhury on the one hand and State of Assam being represented by Dr. Atul Ch. Patowari, Director of Medical Education on the other hand. The draft agreement was vetted by the Legislative Department of the State on 12.09.1989 but, it was alleged that in the final deed of agreement, Dr. Atul Ch. Patowari (appellant) deleted the relevant paragraph of the draft agreement enabling the supplying firm i.e., M/s. Uni Magna Tech. Ltd. not to furnish bank guarantee of equivalent amount as the cost of the Cath Lab machine till receipt of consignment. It was alleged that this paragraph was fraudulently deleted and had this paragraph been in place, the supplying company would have been bound to commission the machine and to make it operational within the warranty period. Explanation of the appellant that the clause was deleted as desired by the Law Minister was not based on record and was apparently done in collusion with the supplying company. 3.2. The supplying company also failed to send experts every three months during the warrantee period. As a result, the Cath Lab machine was not installed and was left lying in the GMCH premises for years together and in the process sustained severe damages. Sri. DK Dogra and Sri. Lakhibir Singh Chowdhury, who had signed the deed of agreement dated 06.10.1989 on behalf of the supplying company, M/s. MP Uni Magna Tech. Ltd. were not traceable. 3.3. The total expenditure incurred in purchasing the Catch Lab machine was Rs. 2,36,20,871/- and in addition, Government of Assam had to incur demurrage charge to the tune of Rs. 3,85,000/- because of the negligence of the appellant and other doctors of GMCH. Therefore, prayer was made to register a case against the appellant, the team of doctors of GMCH who were involved in the process of purchase and installation of the Catch Lab machine and Sri. DK Dogra and Sri. Lakhibir Singh Chowdhury, representatives of M/s. MP Uni Magna Tech. Therefore, prayer was made to register a case against the appellant, the team of doctors of GMCH who were involved in the process of purchase and installation of the Catch Lab machine and Sri. DK Dogra and Sri. Lakhibir Singh Chowdhury, representatives of M/s. MP Uni Magna Tech. Ltd. under Sections 120B/420/406/409 IPC read with Section 13 (1) (c) & (d) of the Prevention of Corruption Act, 1988 (PC Act) for committing the offence of criminal conspiracy, breach of trust, cheating and criminal misconduct with regard to the purchase of the Cath Lab machine and causing wrongful loss to the State exchequer without considering its use in the immediate future and for serving public interest. 4. The above first information was treated as FIR and on the basis of the same, ACB PS Case No. 22/2003, under Sections 120B/420/406/409 IPC read with Section 13 (1) (c) & (d) of the Prevention of Corruption Act, 1988 was registered. ACB investigated the case and on completion of investigation, submitted charge sheet before the Court of learned Special Judge, Assam at Guwahati against the appellant, Dr. Amrit Baruah, the then Principal and Head of the Department of Cardiology, GMCH, Sri. Devindar Kr. Dogra and Sri. Lakhibir Singh Chowdhury under Sections 120B/420/406/418 IPC read with Section 13 (1) (d) (ii) of the PC Act, which was registered as Special Case No. 12/2006. 5. From the paper book, it is seen that charges were framed against the appellant and Dr. Amrit Baruah, Principal & Head of the Department of Cardiology, GMCH. Appellant was charged under Sections 120B/406/420/418 IPC as well as under Section 13 (1) (d) (ii) of the PC Act. 6. Prosecution examined altogether 25 witnesses to prove the charge against the accused persons. The defence also adduced 6 witnesses, including the appellant himself as DW-5. Statements of the accused persons were recorded under section 313 of the Code of Criminal Procedure, 1973 (Cr.P.C.). 7. It may be mentioned that in so far Sri. Devindar Kr. Dogra and Sri. Lakhibir Singh Chowdhury are concerned, they were declared absconders at the pre-trial stage itself. Therefore, the trial proceeded against the appellant and Dr. Amrit Kr. Baruah. 8. After hearing the matter, learned Special Judge passed the judgment and order dated 13.02.2013 acquitting Dr. Amrit Kr. Baruah of the charges but convicting and sentencing the appellant as above. Dogra and Sri. Lakhibir Singh Chowdhury are concerned, they were declared absconders at the pre-trial stage itself. Therefore, the trial proceeded against the appellant and Dr. Amrit Kr. Baruah. 8. After hearing the matter, learned Special Judge passed the judgment and order dated 13.02.2013 acquitting Dr. Amrit Kr. Baruah of the charges but convicting and sentencing the appellant as above. At this stage, it may be mentioned that learned Special Judge had altered the charge against the appellant from one under Section 406 IPC to that of one under Section 409 IPC and it was for the conviction under this section that he was given sentence for life imprisonment. 9. Let us now first examine the evidence of the relevant prosecution witnesses. 10. PW-1 was Sri. Rajbir Singh, who was the informant and he proved Ext-1, the FIR. During cross-examination on behalf of the appellant, he stated that he had informed the Investigating Officer during investigation that the draft agreement was vetted by the State Legislative Department on 12.09.1989. However, he did not collect the same during the regular enquiry. In the cross-examination by the other accused, Dr. Amrit Kr. Baruah, he stated that during investigation, he had told the Investigating Officer that the supplying firm had failed to depute experts to install and examine functioning of the Cath Lab machine on the plea of prevailing law and order situation in the State, for which the Cath Lab machine could not be installed at a proper site in the Radiology Department in the GMCH. 11. PW-2 Sri. Jitendrajit Das was an Inspector of Police and was posted at the Vigilance and Anti Corruption Department, Government of Assam at the relevant time. He is a seizure witness, but during cross-examination, he stated that though he had seen the documents, he did not go through the same. 12. PW-4 was Sri. Prafulla Ch. Hazarika, who was the Upper Division Assistant in the office of the Director of Medical Education (DME), Assam. He proved Ext-17, which is a letter from DME to Secretary, Legislative Department as well as another letter dated 23.08.1989 of the DME to the Senior Government Advocate, Assam in the Gauhati High Court enclosing therewith a draft copy of registered deed of agreement. However, he stated that he did not know the contents of the documents. 13. PW-8 was Dr. BK Gogoi. However, he stated that he did not know the contents of the documents. 13. PW-8 was Dr. BK Gogoi. During the period 1988-89, he was the Professor and Head of the Department of Cardio-Thoracic in GMCH. During that period, a Purchase Board was constituted to purchase a Cath Lab machine, for which he was requested to give his opinion regarding Cath Lab machine of different companies. He stated that he had given opinion in favour of Philips and Siemens Cath Lab machines and had expressed his inability to give opinion about other Cath Lab machines. For furnishing his opinion, he had visited Bombay and Japan as per order of the Government of Assam. At that time, appellant was working as DME. During cross-examination, he stated that he, Dr. BM Goswami, the then Principal GMCH, Dr. Anjan Kr. Bhattacharyya and Dr. PK Deka had visited Japan and Bombay as experts to see Cath Lab machines of various firms. They had to visit Japan for examination of Cath Lab machine belonging to Toshiba company as the other Cath Lab machines were available in India at that time. 14. PW-9 was Dr. Anjan Kr. Bhattacharyya, who was serving as Assistant Professor in the Cardiology Department, GMCH at the relevant time. He stated that he was selected as an expert in the purchase committee. In the meeting of the purchase committee, the experts had recommended purchase of Cath Lab machine belonging to either Toshiba or Philips or Siemens companies. Later on, he came to know from a letter of the appellant that the Government had selected Toshiba company for purchase of Cath Lab. He stated that as member of the expert committee, he had visited Bombay and thereafter Japan under the leadership of Dr. BM Goswami, the then Principal of GMCH to examine Cath Lab machines of Siemens and Philips at Bombay and of Toshiba in Japan. After their return from Japan, the expert committee submitted report. Later on, he got the information that Government of Assam had purchased Cath Lab machine belonging to Toshiba company and it was kept in the Calcutta dockyard. He was directed to visit Calcutta for customs clearance between March, 1990 and July, 1991. Ultimately, the Cath Lab machine reached GMCH in the month of July, 1991. Later on, he got the information that Government of Assam had purchased Cath Lab machine belonging to Toshiba company and it was kept in the Calcutta dockyard. He was directed to visit Calcutta for customs clearance between March, 1990 and July, 1991. Ultimately, the Cath Lab machine reached GMCH in the month of July, 1991. In GMCH, the machine was kept under the custody of the then Superintendent, who retained the key of the room where the machine was kept. In the year 1997, as per direction of the Government, the lock of the room where the machine was kept was broken in his presence. The then Principal, GMCH, the then Head of the Cardiology Department, GMCH, the then DME and the then Superintendent of GMCH were present when the lock was broken and the room opened. All of them examined the machine but found that it was in a totally dilapidated condition and beyond repair. PW-9 stated that the machine was never installed and no power connection was given to it. He was also not consulted regarding installation of the Cath Lab machine though he had completed a specialized training in the United Kingdom for functioning of Cath Lab machine. According to PW-9, the authorities who had handled the machine were the then Principal, GMCH, departmental Head of Cardiology, then Superintendent of GMCH and the then DME. 14.1. During cross-examination, he stated that the Cath Lab machine required special attention and space. It required air conditioning and a dust free environment. Superintendent of GMCH was the competent authority to ensure that the above conditions were in place for the Cath Lab machine. The Cath Lab machine was kept in the Calcutta dockyard for more than 1 year 3 months. He was not asked by the Government to examine the Cath Lab machine in the Calcutta dockyard. He further stated that at the relevant time, Dr. Atul Ch. Bora was working as the DME. According to him, for installation of the Cath Lab machine, the following authorities were responsible : - (i) Head of the Department of Cardiology, GMCH; (ii) Superintendent of GMCH; (iii) Principal of GMCH; (iv) Director of Medical Education. But he had clarified as to what extent the DME was responsible for installation of the Cath Lab machine. He stated that this observation of his was on the basis of his experience. 15. Sri. But he had clarified as to what extent the DME was responsible for installation of the Cath Lab machine. He stated that this observation of his was on the basis of his experience. 15. Sri. PK Konwar deposed as PW-10. He had joined as DME in June, 1993. After joining, he got information that one Cath Lab machine was lying in the GMCH and that it was partially installed. He took up the matter with the Government but, before much headway could be made, he had retired from service on attaining the age of superannuation. The machine was purchased and partially installed during the tenure of his predecessor i.e., the appellant. 16. Col. Benudhar Borgohain, PW-11 stated that he was the Superintendent of GMCH when it was proposed to purchase a Cath Lab machine for Cardiology Department of GMCH but, the machine had reached GMCH after his retirement. While he was in office, he had objected to purchase of the machine from Toshiba company in Japan because machine of Toshiba company was not installed in any hospital in the country. But his objection was not given any heed. 16.1. During cross-examination, he stated that he and Dr. Amrit Kr. Baruah had objected to purchase of the Cath Lab machine from Toshiba company, further stating that the machine was purchased at the initiative of the Government. 17. PW-12 Sri. Prabhash Ch. Goswami was the Finance and Accounts Officer in the office of DME. He stated that the Cath Lab machine was purchased by the appellant on the recommendation of the purchase committee which was approved by the Cabinet and was cleared by the Law Department. However, he was declared as a hostile witness at the instance of the prosecution. 18. Dr. (Mrs.) Dipali Dutta deposed as PW-13. She stated that at various points of time, she served as Head of the Department of Psychiatry, Chief Superintendent, Principal GMCH and DME. Prior to her joining as DME, the Cath Lab machine was purchased on the recommendation of the Purchase Board. The machine was not installed and was lying idle. Appellant and Dr. P Konwar were the DMEs prior to her. She took charge from Dr. P Konwar. At that time, Dr. Amrit Baruah was working as Cardiologist in GMCH. 18.1. Prior to her joining as DME, the Cath Lab machine was purchased on the recommendation of the Purchase Board. The machine was not installed and was lying idle. Appellant and Dr. P Konwar were the DMEs prior to her. She took charge from Dr. P Konwar. At that time, Dr. Amrit Baruah was working as Cardiologist in GMCH. 18.1. In her cross-examination, she stated that purchase of the Cath Lab machine was made after approval of the Purchase Board and that no agreement for purchase can be executed without the approval of the Purchase Board. She further stated that the supplying company was responsible for installation of the Cath Lab machine. 19. Sri. Kamal Nayan Choudhury, Senior Advocate deposed as PW-16. In his deposition, he stated that during 1989, he was practicing as an Advocate under Senior Advocate Sri. Paramananda Pathak of Gauhati High Court. On 06.10.1989 an agreement was executed between M/s. MP Uni Magna Tech Ltd. and the Governor of Assam represented by the DME regarding supply and installation of a Cath Lab machine in the GMCH. He stated that he was one of the witnesses to the said agreement along with Dr. BN Sarma, the then Deputy Director of Medical Education. This agreement was drafted at the instance of the Government in the Health Department. He identified the agreement as Ext-16. It was signed by Sri. Lakhibir Singh Chowdhury for the supplying company and by the DME on behalf of the Governor. In terms of the agreement, the first party i.e., the supplying company was to supply the Cath Lab machine to GMCH. He further stated that he would be able to identify Sri. Lakihbir Singh Chowdhury and Sri. DK Dogra if they were produced before him. 20. PW-16 was re-examined. In his re-examination, he stated that as per the agreement, the machine that was to be supplied by the supplying company was Cardio Catherisation and Angiography Haemodynamic System of Toshiba's Angiorex Model No. 235-A. Before installation, an inspection certificate was required to be obtained from the competent authority of the Government of Assam certifying the genuineness of the machinery where after, the machinery was to be installed by the supplying company. The supplying company was to provide a service engineer to be posted at Guwahati for training the doctors and other man power for use of the machine. The supplying company was to provide a service engineer to be posted at Guwahati for training the doctors and other man power for use of the machine. It was agreed upon that the supplying company was liable to replace any parts of the machine. It was also agreed upon that the supplying company was liable to replace any parts of the machinery as and when it became necessary and was also responsible for repairing as and when such repairing became necessary at its own cost; besides the supplying company was mandated to send one expert to the GMCH once in every 3 months during warranty period immediately after installation of the Cath Lab machine. PW-16 highlighted various other provisions of the agreement. 21. Sri. Kalyan Dutta, who retired as Joint Director of Health Services deposed as PW-17. He stated that for installation of the Cath Lab machine, help of the Public Works Department (PWD) was necessary. For renovation, installation or any other repairing work, the Principal of the Medical College or the DME should make correspondence with the PWD; further stating that Head of the Cardiology Department was responsible for installation of the Cath Lab machine. 22. PW-18 Dr. Atul Ch. Bora was the DME since April 30, 1996. Prior to that he was Professor of Pharmacology in the GMCH. He stated that prior to his joining, a Cath Lab machine was purchased by the Cardiology Department of GMCH and after his joining, he found the machine kept inside a room in the GMCH under lock and key. He took steps to bring experts from Toshiba company by making payment of Rs. 3 lakhs. In the presence of a Magistrate, the room was unlocked. A Memorandum of Understanding was executed between PW-18 and engineers of Toshiba company on being empowered by the Government of Assam for examining the machine. For this purpose, another amount of Rs. 15 lakhs had to be paid to the company. Experts of Toshiba company after examining the machine opined that the Cath Lab machine could not be repaired and suggested purchase of a new machine. He stated that the then DME who had purchased the Cath Lab machine was solely responsible for the mischief and damage. 22.1. However, in his cross-examination, he stated that for purchasing any sophisticated medical instrument, decision of the Purchase Board was required. He stated that the then DME who had purchased the Cath Lab machine was solely responsible for the mischief and damage. 22.1. However, in his cross-examination, he stated that for purchasing any sophisticated medical instrument, decision of the Purchase Board was required. DME being the Member Secretary of the Purchase Board alone was not responsible. The Department of Cardiology and the people connected with the Cardiology Department at the relevant point of time were responsible for non-installation of the Cath Lab machine in time. He further stated that for making payment on account of purchase of the Cath Lab machine, it was required to be vetted by the Legislative Department. 23. Sri. GP Choudhury, PW-19 had investigated the case on being entrusted by the then Superintendent of Police, Sri. RK Bania. Amongst other things, he admitted that during investigation, he did not examine any witness belonging to the Legislative Department. 24. PW-20, Sri. Hazarat Ali had submitted the charge sheet against the appellant, Sri. Amrit Baruah, Sri. DK Dogra and Sri. Lakhibir Singh Chowdhury. 25. Sri. Joy Ch. Goswami, PW-22 had accorded prosecution sanction to prosecute the appellant and Dr. Amrit Baruah being the Secretary to the Government of Assam, Health and Family Welfare Department. 26. Sri. Surendra Mohan Deka, Director, NEJOTI was PW-23. He stated that on 18.08.1989, he was serving as Legal Remembrancer, Government of Assam. There was a reference from the DME regarding vetting of an agreement for purchasing a Cardio Cath Lab machine by the Government. The reference also enclosed a draft of contract agreement between M/s. Erbis Engineering Corporation of Toshiba and Government of Assam. An agreement on behalf of the Governor has to be executed by the Secretary of the Health Department and not by the DME. However, there can be ad-hoc authorisation in favour of DME if there is no general authorisation in his favour. Unless the contract was executed by a duly authorised person, it would neither bind the Government nor be enforceable by the Government. He stated that he had pointed out certain points in the contract agreement requiring clarification, including relationship of M/s. Erbis Engineering Corporation with Toshiba, further stating that the contract should be vetted by the Legislative Department. 26.1. Unless the contract was executed by a duly authorised person, it would neither bind the Government nor be enforceable by the Government. He stated that he had pointed out certain points in the contract agreement requiring clarification, including relationship of M/s. Erbis Engineering Corporation with Toshiba, further stating that the contract should be vetted by the Legislative Department. 26.1. In his cross-examination, he stated that ordinarily a draft agreement is prepared by the Government pleader, then vetted by the Legislative Department and lastly it is sent to the Administrative Department for signing. He also stated that after vetting by the Legislative Department, the file did not come back to him and, therefore, he could not say who had actually signed it. 27. The last of the prosecution witnesses was Md. Abdul Hoque, Secretary to the Government of Assam, Legislative Department as PW-24. He stated that after going through the official record, he did not find any agreement forwarded by the Health and Family Welfare Department to have been vetted by the Legislative Department on 12.09.1989. 28. We may now come to the defence witnesses. 29. DW-1 was Sri. Prafulla Kr. Mahanta, who was the Chief Minister of Assam at the relevant time. He stated that there was a Cabinet decision of the Government of Assam to purchase Cath Lab machine recommended by the Expert Committee. He stated that Lt. Suren Medhi was the Law Minister of Assam at that time. He identified Ext-A as the letter dated 25.07.1989 on Cabinet decision to purchase Cath Lab machine. 30. DW-3 was Sri. Kameswar Laskar, who was serving as Joint Secretary to the Government of Assam in the Legislative Department, Assam. He stated that the agreement entered into between the supplying company and the Government of Assam was not put up before him. 31. DW-4 was Sri. Chandra Kanta Das, who was serving as Secretary to the Government of Assam, Health and Family Welfare Department at the relevant time. He had signed a letter dated 25.07.1989 (Ext-A) addressed to the DME informing him that the Cabinet in its meeting held on 24.06.1989 decided to purchase the Cath Lab machine as recommended by the Expert Committee. He stated that it was decided by the Cabinet that the conditions of sale and after sales service etc. would be as per the suggestions given by the Law Minister. He stated that it was decided by the Cabinet that the conditions of sale and after sales service etc. would be as per the suggestions given by the Law Minister. Conditions given by the Law Minister were approved by the Cabinet in its meeting held on 07.07.1989. He stated that he had opposed purchase of the particular Cath Lab machine as the decision making was apparently biased in favour of one party, namely, M/s. Uni Magna Tech Ltd. He wanted the concerned officers to visit AIIMS Delhi, Chandigarh etc. to get first hand information regarding functioning of such machine. It appeared to him that the matter of purchasing the Cath Lab machine was done hurriedly. Though Government agreements were supposed to be signed by the Departmental Secretary, in this case, he refused to sign the agreement for which a special order was issued authorising the DME to sign the agreement. That special order was issued with the approval of the Judicial Department. He, however, stated that it was not known to him as at what stage Clause-9 of the agreement was changed. Four officials of the Health Department had gone to Japan at the cost of M/s. Uni Magna Tech Ltd. to see the functioning of Cath Lab machine of Toshiba. Appellant being the DME was one of the members of the team which had visited Japan at the cost of M/s. Uni Magna Tech Ltd. 32. Appellant deposed as DW-5. He narrated as to how the process for purchase of Cath Lab machine came to be initiated. He stated that for purchase of Cath Lab machine, a technical committee as well as a Purchase Board were constituted. As per report of the Expert Committee, the Cabinet in its meeting held on 24.06.1989 decided to purchase the Cath Lab machine. Cabinet decided that conditions of sale and after sales services were to be decided as per suggestion of the Law Minister where after, suggestions made by the Law Minister were approved. Legal Remembrancer had observed that the agreement had to be executed by the Secretary of the Health Department and not by the DME though there could be ad-hoc authorisation in favour of the DME. DME was authorised on 23.09.1989 to execute the agreement on behalf of the Governor. Legal Remembrancer had observed that the agreement should be vetted by the Legislative Department. DME was authorised on 23.09.1989 to execute the agreement on behalf of the Governor. Legal Remembrancer had observed that the agreement should be vetted by the Legislative Department. Accordingly, the agreement was vetted by the Legislative Department on 12.09.1989. Senior Government Advocate, Assam in the Gauhati High Court had made same changes in the draft agreement. The last part of Clause-9 of the original agreement was deleted and a new clause was inserted as suggested by Kumar Padma Prasad, Senior Government Advocate and also after discussion with the then Law Minister SN Medhi. The period of delivery of the Cath Lab machine was extended from 120 days to 180 days at the instance of the Law Minister. Regarding deletion of the last part of Clause-9 which became Clause-13 in the registered deed of agreement, appellant as DW-5 stated that the Law Minister had called him for discussion on the draft deed of agreement where the Law Minister desired that last part of Clause-9 should be dropped as a mark of mutual trust and understanding. After discussion with the Law Minister and on suggestion made by the Legal Remembrancer, DW-5 sought the advice of the Senior Government Advocate, Assam, who suggested deletion of the last part of Clause-9 in the draft agreement. This suggestion given by the Senior Government Advocate was placed before the Finance and Accounts Officer in the office of DME, who thereafter made the final draft, which was sent to the Legislative Department for vetting. After it was vetted by the Legislative Department, DW- 5 signed the agreement which was later on registered. He stated that he had no role or intention in dropping/waiving of Clause-9 of the draft agreement at any point of time. He had signed the agreement on behalf of the Governor of Assam on being authorised to do so and the authorised representative of the supplying company, namely, Sri. Devinder Kumar Dogra and Sri. Lakhibir Singh Chowdhury were identified by Sri. KN Choudhury, Advocate. 32.1. In his cross-examination DW-5 stated that he had made a note against paragraph 9 of the draft agreement to the following effect: "26.08.1989, 10.00 am. Discussed with the Law Minister. He desires that this clause be dropped from the agreement due to mutual trust. Please get the opinion of the FAO". 33. Dr. Amrit Kr. Baruah deposed as DW-6. 34. In his cross-examination DW-5 stated that he had made a note against paragraph 9 of the draft agreement to the following effect: "26.08.1989, 10.00 am. Discussed with the Law Minister. He desires that this clause be dropped from the agreement due to mutual trust. Please get the opinion of the FAO". 33. Dr. Amrit Kr. Baruah deposed as DW-6. 34. In his examination under Section 313 Cr.P.C., 1973 appellant categorically denied allegation of misappropriation of money in the purchase of Cath Lab machine. He stated that since 31.09.1992, he had retired from service and thereafter, he had no information about the Cath Lab machine. He finally stated that the Cath Lab machine was purchased with due authorisation from the concerned authority and that he had not made any misappropriation of Government money for installation of the Cath Lab machine. 35. Before we proceed to appreciate the evidence on record, it would be apposite to advert to Ext. Nos.16 and 17 i.e., draft agreement and final agreement. 36. Clause-9 of the draft agreement was as under: - "9. Whereas the terms of payment by irrevocable letter of credit for the full invoice value drawn in favour of suppliers overseas Principals M/s. Erbis Engineering Co. Ltd. Steps Fukide 1-14 Toranomon-4-Chome Minato-Ku, Tokyo Japan through nationalised Bank of India and LC should provide for: (a) Payment at sight of 100% of the invoice value without any deductions. (b) Validity and negotiating documents 30 days beyond indicated date of shipment. (c) LC will be in force for 120/180 days (180 days written by hand). And whereas the approved supplier for due fulfillment of the terms of payment by the Government of Assam is obligation under the deed of contract has submitted a Bank guarantee of amount equivalent to the cost equipment for which LC is to be opened for the period from date of opening of LC till the consignment received by the consignee." 37. There is a marginal note where appellant had remarked that he had discussed with the Law Minister who desired that the italics portion be dropped from the final agreement. He, therefore, ordered that opinion be obtained from the Finance and Accounts Officer. This is Ext-17. 38. Ext-16 is the final agreement dated 06.10.1989. There is a marginal note where appellant had remarked that he had discussed with the Law Minister who desired that the italics portion be dropped from the final agreement. He, therefore, ordered that opinion be obtained from the Finance and Accounts Officer. This is Ext-17. 38. Ext-16 is the final agreement dated 06.10.1989. Here Clause-9 in the draft agreement was incorporated in Clause-13 after deletion of the italics portion and after changing enforceability of letter of credit from 120 days to 180 days. Clause-13 now reads as under: - "13. That whereas the terms of payment by irrevocable letter of credit for the full invoice value, drawn is favour of the first party's overseas Principals namely, M/s. Ebris Engineering Co. Ltd. Steps Fukide 1-14 Toranomon 4-Chome Minato-KU, Tokyo Japan through any nationalised Bank in India and LC, should provide for: (a) Payment at sight of 100% of the invoice value without any deductions. (b) Validity and negotiating documents 30 days beyond indicated date of shipment. (c) LC will be in force for 180 days." 39. At this stage, we may briefly advert to some of the other provisions of the agreement dated 06.10.1989. The first party i.e., M/s. MP Uni Magna Tech Ltd. deposited Rs. 1, 00,000.00 as security and on payment of the consideration money of 177,831,459 in Japanese Yen and Rs. 14,00,000.00 in Indian currency as installation charge, promised to supply the machine. As per Clause-5, all the machinery/equipment shall be installed by the experts of the first party i.e., M/s. MP Uni Magna Tech Ltd. in the GMCH. Clause-6 says that a service engineer of the first party shall be posted in the GMCH to train up doctors and manpower in the GMCH and to maintain the equipment in working condition. In terms of Clause-8, the first party was liable to replace any parts of the equipment as and when necessary and also be responsible for repairing as and when necessary at its own cost. As per Clause-17, the first party was liable for damage or loss in transit and for replacement of goods broken or damaged at its own cost within 10 days of notice. Finally, in terms of Clause- 21, the first party was required to enter into service contract for a period of 5 (five) years after expiry of the warranty period. 40. Finally, in terms of Clause- 21, the first party was required to enter into service contract for a period of 5 (five) years after expiry of the warranty period. 40. A summary of the evidence tendered by the prosecution as well as by the defence witnesses would reveal that a decision was taken at the Government level to purchase a Cath Lab machine for its installation in the Cardiology Department in GMCH. In this connection, an expert committee and a purchase board were constituted. Though there were objections notably from the Health Secretary to purchase of Cath Lab machine from Toshiba company as no hospital in India had installed it, it was however decided to purchase the Cath Lab machine from Toshiba company on the basis of the report submitted by the expert committee which had visited Japan, the expenses of the visit being borne by M/s. Uni Magna Tech Ltd., the company dealing with Cath lab machine of Toshiba. Cabinet decision taken in this regard on 24.06.1989 was communicated by the Health Secretary to the DME vide letter dated 25.07.1989. Cabinet had also decided that sales and after sales conditions would be as per the views of the Law Minister. Thereafter, a draft agreement was prepared to be signed by representatives of M/s. Uni Magna Tech Ltd. and representatives of the Governor. While the draft agreement provided for furnishing of bank guarantee by the supplying company for an amount equivalent to the value of the Cath Lab machine, this clause was deleted in the final agreement at the instance of the Law Minister. Some changes were also made by the Senior Government Advocate after discussion with the Law Minister. The final agreement was vetted by the Legislative Department on 12.09.1989. The agreement was signed by the DME on behalf of the Governor on a special order issued in this regard by the Government as the Health Secretary refused to sign the agreement. As per the final agreement, the supplying company deposited Rs. 1,00,000.00 as security and on payment of the consideration money, the machine was to be installed. The Cath Lab machine after being dispatched by Toshiba company in Japan was lying in the Calcutta dockyard for more than 1 (one) year. Ultimately, it reached GMCH in the month of July, 1991. As per the final agreement, the supplying company deposited Rs. 1,00,000.00 as security and on payment of the consideration money, the machine was to be installed. The Cath Lab machine after being dispatched by Toshiba company in Japan was lying in the Calcutta dockyard for more than 1 (one) year. Ultimately, it reached GMCH in the month of July, 1991. Thereafter, the machine was kept under lock and key in a room in the GMCH, the key of which was under the custody of the GMCH Superintendent. In 1997 when the lock was broken and the room opened, the machine was found in a totally dilapidated condition, beyond repair. In the meanwhile, the supplying company and its representatives disappeared. 41. The charge against the appellant as can be seen from the FIR and the charge framed is that the appellant had got the relevant portion of the draft agreement deleted enabling the supplying company not to furnish bank guarantee of equivalent amount of the cost of Cath Lab machine. This was done fraudulently in collusion with the supplying company thereby causing huge loss to the State. 42. We have already noted that the appellant has been convicted under Sections 120B/420/409 IPC read with Section 13(2) of the PC Act. 43. Let us now analyse and examine the conviction under each head: - 44. Section 120B IPC Section 120B IPC provides for punishment of criminal conspiracy. Definition of criminal conspiracy is given in Section 120-A. As per this section when two or more persons agree to do, or cause to be done - (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. 44.1. As per the explanation, it is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object. 44.1. As per the explanation, it is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object. Under Section 120-B, whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in the IPC for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence. 45. In Vijayan Rajan v. State of Kerala, reported in (1999) 3 SCC 54 Supreme Court held that to bring home the charge of criminal conspiracy within the ambit of Section 120-B IPC, it is necessary to establish that there was an agreement between the parties for doing an unlawful act. While it is difficult to establish conspiracy by direct evidence and, therefore, from established facts inference can be drawn but there must be some material from which it would be reasonable to establish that two or more persons had agreed to do or caused to be done an illegal act or an act which is not legal by illegal means. To attach applicability of Section 120-B, it has to be proved that all the accused had the intention and they had agreed to commit the crime. It is immaterial whether the illegal act is the ultimate object of such agreement or is merely incidental to that object. There is no doubt that conspiracy is hatched in private and in secrecy for which direct evidence would rarely be available. It is also not necessary that each member to a conspiracy must know all the details of the conspiracy. Essential ingredient of criminal conspiracy is the agreement to commit an offence. Finally Supreme Court concluded that it has to be established that the accused charged with criminal conspiracy had agreed to pursue a course of conduct which he knew was leading to the commission of a crime by one or more persons to the agreement of that offence; besides the fact of agreement, the necessary mens rea of the agreement is also required to be established. 46. In so far the present case is concerned, there were four accused persons, namely, appellant, Dr. Amrit Baruah, Sri. DK Dogra and Sri. Lakhibir Singh Chowdhury. Sri. DK Dogra and Sri. 46. In so far the present case is concerned, there were four accused persons, namely, appellant, Dr. Amrit Baruah, Sri. DK Dogra and Sri. Lakhibir Singh Chowdhury. Sri. DK Dogra and Sri. Lakhibir Singh Chowdhury were declared absconders at the pre-trial stage and the case was put up for trial only against appellant and Dr. Amrit Baruah. At the conclusion of the trial, learned Special Judge acquitted Dr. Amrit Baruah of all the charges which included the charge of criminal conspiracy under Section 120-B. In other words, only the appellant was left and he was alone convicted under Section 120-B IPC. Basic requirement of criminal conspiracy, as can be deciphered from Section 120-A and 120-B IPC, and as explained by the Supreme Court is that there must be an agreement between two or more persons to commit an illegal act. A single person or a lone accused cannot be charged of committing criminal conspiracy. Appellant alone could not have committed the offence of criminal conspiracy in the absence of conviction of the other accused persons. Therefore, the very foundation of conviction under Section 120-B is absent in so far appellant is concerned. That apart, the evidence on record clearly discloses that alterations were made in Clause-9 of the draft agreement which ultimately found place in the final deed of agreement as Clause-13 after the deletion was made as desired by the then Law Minister which was thereafter approved by various authorities in the Government. The agreement was to be signed by the departmental Secretary on behalf of the Governor but for his refusal, a special order was issued authorising the DME i.e., the appellant to sign the agreement on behalf of the Governor. There is no material on record to show that appellant was instrumental in making deletion in Clause-9 of the draft agreement and thereafter in getting a special order from the Governor for signing the agreement on behalf of the Governor. In such circumstances, conviction of the appellant under Section 120-B IPC would be untenable in law and cannot be sustained. 47. Section 420 IPC Section 420 IPC deals with cheating and dishonestly inducing delivery of property. In such circumstances, conviction of the appellant under Section 120-B IPC would be untenable in law and cannot be sustained. 47. Section 420 IPC Section 420 IPC deals with cheating and dishonestly inducing delivery of property. It says that whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. 47.1. To appreciate Section 420 IPC, it would be necessary to examine the definition of cheating which is given in Section 415 IPC. As per this Section, whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat". 48. The ingredients required to constitute an offence of cheating, as has been summarised by the Supreme Court in several decisions are as under:- (1) there should be fraudulent or dishonest inducement of a person by deceiving him; (2) the person so deceived should be induced to deliver any property to any person or to consent that any person shall retain any property; (3) the person so deceived should be intentionally induced to do or omit to do which he would not do or omit to do if he were not so deceived; (4) the act or omission as referred to above should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property. 49. In Vesa Holdings Private Ltd. v. State of Kerala, reported in (2015) 8 SCC 293 , Supreme Court has held that every breach of contract would not give rise to an offence of cheating. 49. In Vesa Holdings Private Ltd. v. State of Kerala, reported in (2015) 8 SCC 293 , Supreme Court has held that every breach of contract would not give rise to an offence of cheating. Only in those cases breach of contract would amount to cheating where there was any deception played at the very inception. If the intention to cheat develops later on, the same cannot amount to cheating. In other words, for the purpose of constituting an offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making the promise or representation. 50. The evidence on record does not disclose any such fraudulent or dishonest intention on the part of the appellant at the time of executing the contract agreement. No doubt, there was breach of contract by the supplying company for which the supplying company and its authorised officials would be accountable but that would not be enough to rope in the appellant as a signatory to the agreement to the offence of cheating punishable under Section 420 IPC. 51. Section 13(2) of the PC Act. The charge framed against the accused was under Sections 13 (1) (d) of the PC Act. The charge was that during the relevant period appellant being a public servant had committed the offence of criminal misconduct by abusing his position as public servant for obtaining pecuniary advantage or variable things and thereby he committed the offence under Section 13 (1) (d) (ii) of the PC Act. 51.1. Section 13 of the PC Act deals with criminal misconduct by a public servant. In this case, we are concerned with Section 13 (1) (d) (ii), which says that a public servant is said to commit the offence of criminal misconduct if he by abusing his position as a public servant obtains for himself or for any other person any valuable thing or pecuniary advantage. Under Section 13 (2), any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine. Under Section 13 (2), any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine. Therefore, to commit an offence under Section 13 (1) (d) (ii) of the PC Act to be punished under Section 13 (2) of the said Act, the following conditions must be satisfied: - (1) the accused must be a public servant; (2) he must abuse his position as public servant; (3) by abusing his position as a public servant, he must obtain for himself or for any other person any valuable thing or pecuniary advantage. These are conditions precedent for conviction under Section 13 (1) (d) (ii) of the PC Act. If any of these conditions are not fulfilled, an accused cannot be convicted under the aforesaid section and punished under Section 13 (2). 52. In R Sai Bharthi v. J Jayalalitha, reported in (2004) 2 SCC 9 , Supreme Court elaborately dealt with the provisions of Section 13(1) (d) of the PC Act and held that offence under the said section would arise, if any public servant dishonestly or fraudulently misappropriated or otherwise converted for his own use any property entrusted to him or under his control as a public servant or allowed any other person to do so. 53. The evidence on record does not indicate that appellant had abused his position as a public servant. On the contrary, the evidence on record only indicates vulnerability of the appellant in the decision making process vis-a-vis the State Cabinet, particularly when the Law Minister was involved in finalising the deed of agreement. There is nothing on record to show that the appellant was instrumental in modifying or altering the terms of the agreement whereby he had dishonestly or fraudulently misappropriated Government money. Ingredients for constituting an offence under Section 13(1) (d) (ii) of the PC Act are totally absent in the present case. Therefore, conviction of the appellant under Section 13(2) of the PC Act is not justified. 54. Section 409 IPC Appellant was charged by the trial court for committing an offence punishable under Section 406 IPC. Ingredients for constituting an offence under Section 13(1) (d) (ii) of the PC Act are totally absent in the present case. Therefore, conviction of the appellant under Section 13(2) of the PC Act is not justified. 54. Section 409 IPC Appellant was charged by the trial court for committing an offence punishable under Section 406 IPC. As per the charge, appellant being DME together with the Principal and Head of the Cardiology Department, GMCH being entrusted with the installation and commission of the Cath Lab machine worth Rs. 2,36,20,871.00 committed criminal breach of trust and thereby committed an offence under Section 406 IPC. 55. Section 406 IPC says that whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. 56. Criminal breach of trust is defined in Section 405 IPC. It says that whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits "criminal breach of trust". 57. We will address the aspect of criminal breach of trust at a subsequent stage. For the moment, we may note that for committing the offence of criminal breach of trust, punishment is imprisonment of either description for a term which may extend to 3 years or with fine or with both. 58. This was the charge against the appellant but learned Special Judge altered the charge to one under Section 409 IPC, which deals with criminal breach of trust by public servant, or by banker, merchant or agent; in which event the punishment can be imprisonment for life or with imprisonment of either description for a term which may extend to 10 years and shall also be liable to fine. Therefore, on a comparison between Sections 406 and 409 IPC, it is quite evident that a charge under Section 409 IPC is a major one and a much more serious charge than one under Section 406 IPC considering the severity of punishment. Therefore, on a comparison between Sections 406 and 409 IPC, it is quite evident that a charge under Section 409 IPC is a major one and a much more serious charge than one under Section 406 IPC considering the severity of punishment. So in the present case, it was alteration of charge from a relatively minor one to a major charge. 59. Let us see how the alteration of charge from one under Section 406 IPC to one under Section 409 IPC was carried out by the learned Special Judge. Learned Special Judge held as under: - "It is mentionable that my learned predecessor at the time of framing the charge No. 2 stating that accused person being the Director of Medical Education and Principal of GMCH being entrusted with the Rs. 2,36,20,871/- committed criminal breach of trust which is punishable under section 406 IPC instead of 409 IPC. Section 215 Cr.P.C., 1973 says that no error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact mislead by such error or omission, and it has occasioned a failure of justice. The Hon'ble Supreme Court in State of Delhi v. Nabjet Sindhu, 2005 AIR (SC) 3820 held that merely because an inapplicable provision has been mentioned to the charge is no ground to set aside the charge and invalidate the trial. In the case in hand, basic facts sought to be established against the accused person were correctly explained to him and he had been given full and fair chance to defend himself, merely because 406 IPC instead of 409 IPC was mentioned cannot be said to cause failure of justice as he was not mislead thereby. So omission to mention the number of the section of IPC is curable under section 215 Cr.P.C., 1973" 60. We are afraid learned Special Judge fell in serious error while altering the charge as above. Learned Special Judge referred to Section 215 Cr.P.C., 1973 to justify alteration. But Section 215 Cr.P.C., 1973 is not the relevant provision for alteration of charge. We are afraid learned Special Judge fell in serious error while altering the charge as above. Learned Special Judge referred to Section 215 Cr.P.C., 1973 to justify alteration. But Section 215 Cr.P.C., 1973 is not the relevant provision for alteration of charge. Section 215 Cr.P.C., 1973 would come into play only if there is error in stating the offence or particulars required to be stated in the charge and clarifies that no omission to state the offence or the particulars shall be regarded as material, unless the accused was misled by such error or omission occasioning a failure of justice. That is not the case here. The charge of the prosecution against the appellant was that as the DME he had committed criminal breach of trust and thereby he committed an offence under Section 406 IPC. 61. Alteration of charge by a court is dealt with under Section 216 Cr.P.C., 1973 As per sub-section (1), any Court may alter or add to any charge at any time before judgment is pronounced. As per sub-section (2), every such alteration or addition shall be read and explained to the accused. Sub-section (3) says that if the alteration or addition to a charge is such that proceeding of the trial would not prejudice the accused in his defence or the prosecutor in the conduct of the case, the Court may in its discretion, after such alteration or addition has been made, proceed with the trial as if the altered or added charge had been the original charge. Sub-section (4) is crucial. It says that if the alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of the Court, to prejudice the accused or the prosecutor, the Court may either direct a new trial or adjourn the trial for such period as may be necessary. 62. Section 217 Cr.P.C., 1973 provides that in the case of alteration of charge, the prosecutor and the accused should be allowed to recall or re-summon the witnesses, and to examine them afresh in the context of the altered charge. 63. Under Section 222 (2) when a person is charged with an offence and the facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it. 64. 63. Under Section 222 (2) when a person is charged with an offence and the facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it. 64. A brief analysis of the aforesaid provisions would go to show that a Court is empowered to alter a charge against an accused at any time before judgment is pronounced. A Court is also empowered to convict an accused of a minor offence if the facts are proved though that was not the charge initially. But if the alteration of charge is likely to prejudice the accused, the Court may direct a new trial or adjourn the trial. Recall of witnesses and to re-examine them would also be necessary in the context of the altered charge likely to prejudice the accused. 65. Before we analyse the alteration of charge in the present case, we may also briefly refer to Section 464 Cr.P.C., 1973 which says that no finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby. 66. Expressions like prejudice to the accused or failure of justice are not vague terms. These expressions would have to be understood and interpreted in the contextual facts of each case. 67. In Shamnsaheb M Multtani v. State of Karnataka, reported in (2001) 2 SCC 577 , Supreme Court examined various aspects dealing with alteration of charge from one under Section 302 IPC to 304-B IPC and held that the Court was required to call upon the accused to enter his defence in respect of the offence under Section 304-B IPC. Without affording such an opportunity to the accused, conviction under Section 304-B IPC would lead to real and serious miscarriage of justice. Explaining this position, Supreme Court in Sabbi Mallesu v. State of Andhra Pradesh, reported in (2006) 10 SCC 543 , has held that it was obligatory on the part of the Court to bring the new charge to the notice of the accused and to explain the same to the accused. 68. Explaining this position, Supreme Court in Sabbi Mallesu v. State of Andhra Pradesh, reported in (2006) 10 SCC 543 , has held that it was obligatory on the part of the Court to bring the new charge to the notice of the accused and to explain the same to the accused. 68. Adverting to the facts of the present case, alteration of the charge from one under Section 406 IPC to one under Section 409 IPC caused serious prejudice to the appellant inasmuch as, while under the former, the penalty upon conviction could be imprisonment of either description for a period up-to 3 years but in the case of the later, it could be imprisonment of either description for life and this was the punishment which was imposed by the learned Sessions Judge on the appellant. Certainly, failure to follow the prescribed procedure while altering charge from one under Section 406 IPC to one under Section 409 IPC resulted in a failure of justice. 69. We have already discussed the offence under Section 406 IPC. Supreme Court has held in several decisions that to constitute an offence of criminal breach of trust, it is essential that the prosecution must prove that the accused was entrusted with some property or with any dominion or power over it. Prosecution must also prove that in respect of the property so entrusted, there was dishonest misappropriation or dishonest conversion or dishonest use or disposal in violation of law or legal contract by the accused. 70. Section 409 IPC is a species of Section 405 IPC. In Kailash Kumar Sanwatia v. State of Bihar, reported in (2003) 7 SCC 399 , Supreme Court has said that Section 409 IPC is in essence criminal breach of trust by a category of persons i.e., public servant or banker or agent. Ingredients of the offence of criminal breach of trust have been summarised as under: - "(1) Entrusting any person with property, or with any dominion over property. (2) The person entrusted (a) dishonestly misappropriating or converting to his own use that property; or (b) dishonestly using or disposing of that property or wilfully suffering any other person so as to do in violation - (i) of any direction of law prescribing the mode in which such trust is to be discharged; or (ii) of any legal contract made touching the discharge of trust. 9. 9. The basic requirement to bring home the accusations under Section 405 are the requirements to prove conjointly (1) entrustment, and (2) whether the accused was actuated by the dishonest intention or not; misappropriated it or converted it to his own use to the detriment of the persons who entrusted it. As the question of intention is not a matter of direct proof, certain broad tests are envisaged which would generally afford useful guidance in deciding whether in a particular case the accused had mens rea for the crime." 71. Section 405 IPC or Section 409 IPC would not be applicable, unless misappropriation or conversion to personal use or disposal of property is established. In so far the present case is concerned, no doubt the public exchequer had suffered due to the breach of contract by the supplying company but that would not be enough to hold that appellant had committed criminal breach of trust. From the evidence on record, as discussed above, the inevitable conclusion is that appellant cannot be convicted under Section 409 IPC, not even under Section 406 IPC because the essential ingredients constituting the offence of criminal breach of trust is manifestly absent in so far the appellant is concerned. 72. Net result of the above discussion is that the conviction and sentence of the appellant under the aforesaid sections cannot be sustained and are accordingly quashed. Appellant is acquitted of all the charges and is set at liberty. Criminal appeal is allowed but without any order as to costs. 73. Before parting with the record, we express our deep sense of disappointment and concern over the way the agreement between the parties was finalised. The terms and conditions of the agreement were heavily tilted in favour of the first party totally sacrificing the interest of the State. Without insisting on bank guarantee and on a mere furnishing of Rs. 1,00,000.00 as security, the price of the Cath Lab machine and the installation charge were released to the first party. After the machine was unloaded at Calcutta dockyard, the first party disappeared. The machine remained in the Calcutta dockyard for more than 1 (one) year. After it was brought to GMCH, it was kept locked in a room without installation. When the room was finally broken open after about 6 (six) years, the machine was found in a totally dilapidated condition beyond repair. The machine remained in the Calcutta dockyard for more than 1 (one) year. After it was brought to GMCH, it was kept locked in a room without installation. When the room was finally broken open after about 6 (six) years, the machine was found in a totally dilapidated condition beyond repair. This speaks volumes about the way the deal was made. As a result, there was wastage of huge amount of public money while allowing the actual culprits to go scot free. In the process, nobody bothered about the interest of the patients. Thus public interest suffered. This is indeed pathetic and reflects very poorly on all those who were connected with the deal. We say this and no more. 74. Registry to send down the LCR.