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2018 Supreme(Gau) 1367
IN THE HIGH COURT OF GAUHATI
Ujjal Bhuyan, Nelson Sailo, JJ.
Dr. Atul Ch. Patowary – Appellant
Vs.
State of Assam – Respondent
Crl.A. No. 52 of 2013
Decided On : 28-08-2018
For the Appellant :Mr. A.M. Boura, Sr. Advocate, Mr. D. Gogoi and Mr. S.R. Boruah, Advocates
For the Respondent: Mr. H. Sarma, Addl. PP.
Headnote:
Indian Penal Code,1860 - Sections 120,120B,420,406,418, 405, 409 and 304-B - Criminal Procedure Code,1973 - 215,216,217,464 and 313 - Prevention of Corruption Act, 1988 - Sections 13 (1) (c) & (d) - Appeal Against Conviction - Detention - Appeal is directed against judgment and order passed by Special Judge Assam at in Special Case convicting appellant Indian Penal Code and Deputy Superintendent of Police Vigilance & Anti-Corruption Assam lodged a first information before Officer-in-Charge Anti Corruption Bureau Police Station in Assam stating that in course of preliminary enquiry it transpired that a Catha Lab machine was purchased during year from Magna Tech Ltd. Bhopal against indent placed by Dr then Director of Medical Education - Assam for installation in Cardiology Department of Medical College and Hospital - It was mentioned that Catha Lab machine dispatched by supplying company was unloaded in GMCH premises on and but as space and required infrastructure for installation was not made available by GMCH authority as per deed of agreement Catha Lab machine could not be installed at site and made operational although necessary payments were made in full for machine - Held, Discussion is that conviction and sentence of appellant under aforesaid sections cannot be sustained and are accordingly quashed and Appellant is acquitted of all charges and is set at liberty and before parting with record - Court express our deep sense of disappointment and concern over way agreement between parties was finalized and terms and conditions of agreement were heavily tilted in favor of first party totally sacrificing interest of State and without insisting on bank guarantee and on a mere furnishing of Rs as security price of Catha Lab machine and installation charge were released to first party after machine was unloaded at Calcutta dockyard first party disappeared machine remained in Calcutta dockyard for more than one year and after it was brought to GMCH – It was kept locked in a room without installation and When room was finally broken open after about six years machine was found in a totally dilapidated condition beyond repair this speaks volumes about way deal was made and as a result there was wastage of huge amount of public money while allowing actual culprits to go scot free – Criminal appeal is allowed
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. 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, pray
