The main legal point established is that the absence of duty on the applicant to recheck fulfillment of eligibility criteria under the MOU dated 16-4-1999 precludes the establishment of a prima facie case against the applicant.

S.B. SHUKRE, J.

1. Heard. Admit. Heard finally by consent.

2. This is an application filed against order dated 10-7-2014 passed by the Additional Sessions Judge, Nagpur (Special Judge under the Prevention of Corruption Act), Pandharkawda, District Yavatmal dismissing the application (Exh.107) filed by the applicant for his discharge in Special Case No. 6 of 2011.

3. The facts of the case may be stated in brief as under:-

3.1. The applicant along with four others is being prosecuted for an offence punishable under section 13 (2) read with section 13 (1) (d) of the Prevention of Corruption Act and also section 120-B read with section 420 of the Indian Penal Code. The whole case of the prosecution is based upon one Memorandum of Understanding (for short, MOU) dated 16-4-1999 signed between the Directorate General of Re-settlement (for short, DGR) and Coal India Limited (for short, CIL), with the object of forming union free captive coal transport entities or companies of ex-servicemen in the coal subsidiaries so as to provide opportunities of resettlement to the ex-servicemen after their retirement or release from the Armed Forces of India. Prior to the MOU dated 16-4-1999, there was one MOU reached between the DGR and CIL on 8-4-1993 which came out with scheme of resettlement of ex-servicemen for the first time. Its terms and conditions did not substantially differ from those in the subsequent MOU dated 16-4-1999. The only difference between these two MOUs, about which there is no dispute, is in respect of upper age limit prescribed in the eligibility criteria and the limitation of retirement or release of the ex-serviceman within ten years of the formation of the ex-servicemen Company (for short, ESM Company). In the 1993 MOU, maximum age limit was below 60 years and in the 1999 MOU, it was up to 55 years of age. In 1993 MOU, there was no restriction of the retirement within particular number of years, whereas in 1999 MOU, there is restriction that an ex-serviceman cannot be a member of ESM Company unless he has retired within ten years of formation of the ESM Company. The ESM Company upon its formation and registration under the provisions of Companies Act, as per the scheme of both MOUs, would get sponsorship of DGR so that it would become eligible to apply to CIL and its subsidiaries to get coal transport contracts. Before sponsoring the ESM Company, DGR, as per the MOU Scheme, would satisfy itself about the fulfillment of eligibility criteria and other conditions as mentioned in the MOU and the applicable notifications, if any.

3.2. In pursuance of the first MOU dated 8-4-1993, one ESM Company namely, M/s. GSL Associates Private Ltd. came to be formulated on 23-5-1993 and it was governed by MOU dated 8-4-1993. This Company, hereinafter referred to as "said ESM Company" received sponsorship from the DGR and it continued to enjoy the sponsorship till the time the offences were registered in this case. As the said ESM Company had the sponsorship of DGR, it applied for award of the work of transporting of coal belonging to the subsidiary of CIL, the Western Coalfields Ltd. (WCL for short). Five work orders dated 21-5-2007, 29-7-2007, 3-8-2007, 20-1-2008 and 21-4-2008 were issued to said ESM Company by WCL. Issuance of the work orders meant that the Company had the sanction for transportation of coal belonging to the WCL within the areas specified in the work orders. The rate of transportation to the said ESM Company was higher than the one payable to civilian contractors. The applicant was then working as Sub Area Manager, Niljai Subarea, Wani Western Coalfields Ltd., District Chandrapur and had the responsibility of allotting the coal transport work to various tipper owners of the said ESM Company as per the terms and conditions of the work orders. During the course of transportation of the coal, it was noticed by the superiors of the applicant that some of the tipper owners were not eligible to be part of the said