Rakesh Ranjan Prasad, J. - (1.) THIS revision application is directed against the order dated 22/01/2015, passed by the learned Additional Sessions Judge -X - -cum -Special Judge, CBI, Dhanbad, in R.C. Case No. 12(A) of 2009 -D, whereby and whereunder, the application filed under Section 239 of the Code of Criminal Procedure, was rejected.
(2.) THE case of the CBI is that a Memorandum of Understanding (MOU) was executed in between the representative of Director General, Resettlement, New Delhi and the then G.M. (Production) of Coal India Limited, Kolkata on 16/04/1999, with an aim of having union free captive transport organizations in coal subsidiaries and for providing an opportunity to ex -servicemen for resettlement. The terms and conditions as stipulated under MOU, on amongst others, are that initial contract shall be valid for 5 years from the date of commencement of the work. Renewal of contract for another term of 4 years may be considered by both the parties jointly provided the past performance and functioning of the ESM Company has been satisfactory; all the tippers and loaders will be owned by the eligible Ex -Service Men (ESM), widows/disabled/dependents of entitled ESM or the ESM Company. Hire purchase is permissible but hiring of loaders and tippers is not permitted and that the DGR should evolve a system to ensure compliance of MOU provisions regarding deployment of ex -servicemen, their vehicles, their payments and the constitution of Board of Directors. In case DGR finds anything in variance with the MOU, his office will inform the CIL and initiate suitable action and that all ESM Company will submit a half yearly and annual return so as to reach DGR by 30th July and 30th January respectively, without fail. Aim of these reports is to check deployment of vehicles/equipments, percentage of ESM, detecting irregularities, if any, and to monitor the progress of ESM Company by DGR. Non submission of specified reports of incorrect facts/figures may result in cancellation of sponsorship/non -renewal of the contract and that specific/relevant portion of the reports concerning the coal subsidiary will be authenticated by the authorized representative of the coal subsidiary and that ESM Company will deploy a minimum of 75% of local regular employees as ESM within 6 months of commencement of work. Upon execution of the aforesaid MOU, a sponsorship letter was sent to the Chief General Manager (CMC), BCCL for undertaking coal transportation work from ESM. Accordingly, after observance of all the required formalities and having necessary approval the work order was issued in favour of M/s. Maa Lilori Transport (P) Ltd., on 17/06/2008, for transportation of 15.95 Lakhs MT of coal at the cost of Rs. 7,46,85,750/ - in the area during the period from 20/06/2008 to 31/03/2009. Subsequently, another work order was issued for transporting coal during the period from 01/04/2009 to 16/07/2009. It was found that during the period from 20/06/2008 to 17/07/2009 M/s. Maa Lilori Transport (P) Ltd. had transported total 16,85,665.53 MT of coal from different collieries of Bastacola to Railway Siding. On account of transportation of the aforesaid quantity of coal, the Company received a sum of Rs. 7,61,11,513/ - from area office Bastacola. Further on scrutiny of biannual and annual reports, it got transpired that 70% ESM employees were not deployed in the transport work, which was mandatory and at the same time it got also revealed that the ESM Company in course of transportation of coal had engaged private tippers, which was strictly prohibited under MOU. In that event, ESM Company had no right to claim ESM rate by suppressing the fact about utilizing hired vehicles and employing huge numbers of civilian employees and by claiming ESM rate the Company received a sum of Rs. 1,26,13,577/ - in excess as the schedule rate for private transporters were less than the rate on which ESM Company transported the coal for which both the ESM Company and the Principal Employer was responsible as the responsibility to check correct deployment of vehicles/equipments, employment of ESM etc. was there on the coal subsidiary Company (BCCL) and, thereby, annual and biannual reports, forwarded to DGR, were required to be authenticated by the Principal Employer alongwith remarks on the functioning of the ESM coal loading and transportation company. Further case of the CBI is that one Jwala Prasad, the then Area Sales Manager had issued permission for transportation by tippers during the relevant period and as such, it was in his knowledge that ESM Company was supposed to deploy 75% of ESM but he did not take care to ensure implementation of terms and conditions of the MOU. So far this petitioner, who at the relevant point of time was posted as Area Manager (Planning) had authenticated on behalf of the BCCL biannual and annual reports submitted by the said ESM Company during the relevant period without verifying the aforesaid deployment of private/hired vehicles and deployment of civilian employees etc.
(3.) ON the aforesaid allegations, the charge sheet was submitted, alleging therein that the petitioner and others committed offence punishable under sections 120B read with Section 420 of the Indian Penal Code and also under Sections 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act. Upon it, the Court took cognizance of the aforesaid offences vide its order dated 29/09/2010. That order was challenged before this Court in Cr. M.P. No. 1198 of 2012, which was permitted to be withdrawn with a liberty to raise all those points, which have been raised in the said application, at the time of framing of charge or at the stage of discharge. Pursuant to that order, an application under Section 239 Cr.P.C. was filed, which was rejected vide order dated 22/01/2015, which is under challenge.;