JUDGMENT (Prayer: Criminal Appeal filed under Section 374 of Cr.P.C., to set aside the Judgment passed in Special Case No.3 of 2006, on the file of the Special Judge (Chief Judicial Magistrate) at Chengalpattu dated 30.10.2015.) 1. The convicted Accused is the Appellant herein, challenging the order made in Special C.C.No.3 of 2006, on the file of the learned Special Judge (Chief Judicial Magistrate) at Chengalpattu, dated 30.10.2015, for the alleged offences, under Section 7 and 13(1)(d), r/w.13(2) of the Prevention of Corruption Act. 2(a). The case of the prosecution as could be seen from the final report, evidence adduced before the trial Court are as under: P.W.2/Varadhan is the owner of the lorry bearing Registration No.TSH 6869. On 16.08.2004, the above lorry laden with sand, without any permit, was intercepted by P.W.5, Balaraman, Tahsildar and he seized the lorry with sand and handed over it to Chitamoor Police and he sent a report to the Revenue Divisional officer, Madhuranthagam. Thereafter, the said P.W.2/Varadhan obtained an order from this Court, for the release of his lorry and approached the office of the RDO, Madhuranthagam. 2(b). On 09.09.2004, P.W.2, Varadhan met the Appellant at the office of the RDO. The Appellant was working as Junior Assistant in the office of the RDO. The Challan for the payment of charges of Rs.6,130/- along with sworn statement and other documents were handed over to the Appellant on the same day by P.W.2, for the release of lorry. However the Appellant illegally demanded Rs.3,500/- from P.W.2 for release of his lorry and directed him to pay the said amount on or before 13.09.2004. 2(c). On 13.09.2004, at about 6.05 P.M., P.W.2 was accompanied by official witness P.W.3/T.K.Rajesh Kannan and met the Appellant, however P.W.2 was informed to come on 14.09.2004 at 10.30 A.M., since RDO and his P.A. were not available in the office 2(d).On 14.09.2004 at about 6.45 P.M., P.W.2 was accompanied by official witness P.W.3/T.K.Rajesh Kannan and met the Appellant, and the Appellant reiterated his demand Rs.3,500/- and received the said amount from P.W.2 and kept the amount into his right side pant pocket and the Appellant was trapped and the amount was recovered from the Appellant, thereby, the Appellant has committed an offence punishable under Section 7 and 13(1)(d) r/w 13 (2) of the Prevention of Corruption Act. 2(d).The above case was tried by the learned Special Judge (Chief Judicial Magistrate) at Chengalpattu and was taken as Special C.C.No.3 of 2006. To prove the prosecution case, the Respondent police examined 16 witnesses as prosecution witnesses, marked Ex.P.1 to 26, as prosecution documents and M.0.1 to 5 as material objects. 2(e).On 30.10.2015, the Learned trial Judge, found the Appellant guilty under Section 7 and 13 (1) (d) r/w 13 (2) of the Prevention of Corruption Act and sentenced to undergo 3 years rigorous imprisonment under Section 7 of the Prevention of Corruption act and pay a fine of Rs.3000/- , in default, 3 months simple imprisonment and also sentenced to undergo 4 years rigorous imprisonment under Section 13(1) (d) r/w 13(2) of the Prevention of Corruption Act and pay a fine of Rs.5,000/- in default, 5 months Simple Imprisonment and both the sentences are run concurrently. Hence the Appeal was filed. 3. Learned senior counsel appearing for the Petitioner would contend that (i) The Appellant had no power to release the lorry concerned, in transporting the illgal sand. (ii) PW2 deposed that the demand was made only by PW4/Radhakrishnan, who was PA to RDO and the entire file was only with him from the commencement to the end. (iii) In the absence of any positive evidence alleging that the Appellant demanded the gratification for himself, the conviction laid by the trial Court is not sustainable. 4. The Public Prosecutor made submission in support of the judgment of the trial Court. 5. After hearing both sides, perusing the available records and the citations relied thereon, this Court finds that, PW2 (Defacto Complainant), who is a lorry owner, whose lorry was seized by the revenue department, for the alleged violation of taking the illegal sand, which was kept in the office of the Tahsildar, Cheyyur. Pursuant to the orders passed by this Court, he has approached the RDO, Maduranthagam, for release of his vehicle. 6. The Defacto Complainant/PW2 met the Appellant at the office of the RDO, where the Appellant/Accused was working Junior Assistant, with the challan for making payment of Rs.6,103/-. However, it is a specific case of the prosecution that, on 09.09.2004, to release the lorry, initially Rs.5,000/- was demanded by the Accused. Subsequently, it was reduced to Rs.3,500/-. The first demand was made on 09.09.2004, for the release of his lorry. However, it is a specific case of the prosecution that, on 09.09.2004, to release the lorry, initially Rs.5,000/- was demanded by the Accused. Subsequently, it was reduced to Rs.3,500/-. The first demand was made on 09.09.2004, for the release of his lorry. On 13.09.2004, FIR was registered by PW14, Vigilance and Anti Corruption Cell of Maduranthagam. Hence, this Court has noticed that there is a delay of four days in lodging Ex.P2/Complaint. As per the evidence of Trap Laying Officer/PW14, trap proceedings was initiated and PW14 wrote letters to Joint Director, Animal & Husbandry Department, Kanchipuram and Assistant Commissioner, HR & CE, Kanchipuram, requesting to send one officer to be a witness for the trap arranged on 13.09.2004. 7. The Regional Director, Animal & Husbandry Department deputed P.W.3 to the Vigilance and Anti Corruption office, as trap witness. He arrived the above office on 13.09.2004. The original trap proceedings, which was scheduled for 13.09.2004 was not materialised, since the RDO was not in station. Therefore, they returned to the office. Ex.P4/Entrustment Mahazar is dated 13.09.2004. It is came on evidence that again on 14.09.2004, PW2/Defacto Complainant, PW3 (Shadow Witness), PW14 (Trap laying officer) went to the RDO Office of Maduranthagam and said to have reached around 11.00 am. The Accused/Appellant told to wait on the reason that PA to RDO was not in duty and hence, again they went at 05.45 pm. PW2, PW3 & PW14 went to the Appellant office at 06.45 pm and it is the evidence of PW2 that, the Accused received the amount from PW2, counted the amount and kept it in the right side pant pocket and thereafter, PW2 went outside the office and made the pre-arranged sign to alert the Vigilance team and subsequently, they came inside and conducted phenolphthalein test. 8. The test was conducted on the right hand, the solution changed into red colour, when the left hand was tested, there was no change of colour, as could be seen from the evidence of PW3. On being asked by PW5, the Accused handed over the amount from his right hand side pant pocket and another witness, PW15 has verified the numbers with Mahazar, following which, Ex.P.5/Seizure Mahazar was prepared and Appellant was arrested. PW15, PW16 are the subsequent Investigating Officers. 9. On being asked by PW5, the Accused handed over the amount from his right hand side pant pocket and another witness, PW15 has verified the numbers with Mahazar, following which, Ex.P.5/Seizure Mahazar was prepared and Appellant was arrested. PW15, PW16 are the subsequent Investigating Officers. 9. A close scrutiny of evidence of PW2 reveals about the seizure of his lorry by the Cheyyur Tahsildar, and kept in Chitanoor Police Station and subsequently, went to Cheyyur Taluk Office and filing of the Writ Petition and payment of the amount as ordered by the High Court as projected by the prosecution, are found to be intact. 10. Prosecution has come forward with a definite case that the Accused/Appellant demanded a sum of Rs.5,000/- towards office expenses to PW2, and subsequently reduced it to Rs.3,500/-. In this connection, the answer elicited in the cross examination of PW2, assumes significance, which are usefully extracted as follows: “TAMIL” 11. Based upon the above answer elicited in the cross examination, the learned senior counsel for the appellant would contend that the Accused is no way connected with the release of the lorry and the RDO asked him to contact the PA, and the PA has asked him to contact the Accused and it is a specific evidence in the cross examination of PW2 that, PW2 has not asked the Accused to release his vehicle. It is his evidence that PA to RDO alone has demanded the amount for the office expenses at Rs.5,000/-. 12. Learned senior counsel for the Petitioner would further contend that as per Ex.P.23/Sanction order, the Tahsildar, Cheyyur has already released the note order, ordering the release of the vehicle and hence, as early as on 09.09.2004, order of release was passed and hence, the alleged demand projected by PW2 could not be correct. 13. This Court has given its anxious consideration for the said fact. As per the office note, PW2/Varadhan has paid the necessary Court fees, as per the directions given by this Court, paid sum of Rs.5,000/- and Rs.1,130/- has also been paid along with affidavit and RC form. The said application has been initialled by the Accused/Appellant/Pasupathi on 09.09.2004. As per Ex.P.15/Voucher, sum of Rs.626/- has been paid as costs to Unit. As per the office note, PW2/Varadhan has paid the necessary Court fees, as per the directions given by this Court, paid sum of Rs.5,000/- and Rs.1,130/- has also been paid along with affidavit and RC form. The said application has been initialled by the Accused/Appellant/Pasupathi on 09.09.2004. As per Ex.P.15/Voucher, sum of Rs.626/- has been paid as costs to Unit. Ex.P.12 is the releasing order, which is without date, said to have been proceedings of the RDO, for release of the vehicle, as per the orders of the High Court in WP.No.24068 of 2004, dated 24.08.2004. 14(a). The Trial Court has rendered a specific finding that, in Ex.P23 [Note order] neither the word “ release the vehicle” were written nor even the word noted approved and it is not even singed, instead thereof, what is found is only the initials of the accused and that of PA to RDO are made and the same is short initialled by RDO and hence, taking note of the features contended in Ex.P23/Note Order, the trial Court has come to the conclusion that, only after the trap proceedings, said Ex.P23/Note Order is created, make it believe that the proceedings of the office of the RDO was made ready as early as on 09.09.2004 [trap day] and the said Ex.P23/Note Order is signed on 09.09.2004 as projected. 14(b). However, the same is appears to be a fabrication, subsequent to the trap proceedings, since as per Ex.P13/Release Order, it has been sent on 16.09.2004 only, to the Tahsildhar, Cheyyur and to PW2/Varadhan, regarding the alleged order of release of the lorry. Thus, the trial Court has rightly come to the conclusion that the alleged release order said to have been passed under Ex.P23 on 09.09.2014, is hard to believe in the absence of any sanction order or draft order, marking in the office note, either as “yes” or as “approved” or as “released”. Thus, the trial Court has rightly come to the conclusion that the alleged release order said to have been passed under Ex.P23 on 09.09.2014, is hard to believe in the absence of any sanction order or draft order, marking in the office note, either as “yes” or as “approved” or as “released”. Except the initials of the accused, PA to RDO, there is nothing to indicate an order has been passed on 09.09.2014 as per the theory projected by the defense side, and hence the trial Court rightly disbelieved, Ex.P23/Note Order, Ex.P13/Proceedings of the RDO, Madhuranthagam and hence, it is hereby, held that the contention raised by the senior advocate for appellant/accused that even before the trap day, the orders have been passed and his further contention that on the date of the alleged trap, there is no necessity for demand of bribe falls to ground. From the evidence of PW2/Varadhan and PW3/Rajeshkannan [official shadow witness], the trial Court has rightly come to the conclusion that the prosecution has proved the demand on 09.09.2014 and the accused made first demand on 09.09.2014 and reiterated his demand on 14.09.2014 and accepted reduced bribe amount of Rs.3,500/- from PW2/Varadhan. 15. The prosecution has projected that on two occasions the demands have been made, the first demand on 09.09.2014 and another demand on 14.09.2014 viz., trap day. As evidence is clear and cogent, regarding the alleged demand on 09.09.2014, on which date the Complainant made enquiry as to why the papers are pending, even after orders have been passed by the Hon'ble High Court, for release of his lorry, that was taken into custody on 13.08.2004, but, except formal suggestion, there is nothing in the cross examination to discredit his evidence. 16. Yet another point is that the evidence of PW3, regarding the demand on 14.09.2004 is clear and cogent and duly corroborate with the evidence of PW2 in this regard. Chemical examination is also positive and hence, this Court finds that the prosecution has let in positive evidence through PW2/Varadhan, PW3/Rajeshkannan and PW12/Visalakshi/Forensic expert that, there was a demand and acceptance and recovery has been proved in the manner known to law and accordingly prosecution is entitled for statutory presumption under Section 20(1) of the Prevention of Corruption Act and it is for the defence to probablise the suggestive case. 17. 17. Yet another point that was raised by the learned counsel for the appellant/accused is that non-observance of Rule 47 of D.A.V.C rule, P.Palraj's case, R.Venkatraj's case and Thulasiram's case, stands over ruled in view of the authoritative decision given by the Division Bench of this Court in the case of Duraimurugan Vs. State, Deputy Superintendent of Police, VAC, Vellore – [ 2013 (1) CWC 136 ] and hence, this Court is following the Ratio Descenti to hold that (i) P.Palraj Vs. State represented by Inspector of Police, Vigilance and Anti-Corruption Wing, Thoothukudi - [2012 (3) MWN (Crl) 380, (ii).R.Venkatraj Vs. State represented by the Inspector of Police - [2012 (1) MWN (Cr.) 448], and (iii).Thulasiram Vs. State through the Inspector of Police, Vigilance and Anti Corruption Wing, Virudhunagar District,Crl.A.(MD).No.77 of 2007, dated 09.11.2011, are no longer binding upon the lower Court since the Hon'ble Division Bench in Duraimurugan case (cited supra) has taken the view about the above decision on the point of non compliance of Rule 47 of DVAC Manual, is not fatal to the prosecution and hence, they stand over ruled and hence held to be no longer good of law. 18. At this juncture, it remains to be stated that in the preceding paragraphs, this Court has held that the suggestive case projected by the defence, during the cross examination of PW2/Varadhan & PW3/Rajeshkannan is that even on 09.09.2014 order to release the lorry was passed by the RDO, was rejected for the reason stated supra and it is further held that the finding rendered by the Trial Court that Ex.P23/Note file of Cheyyur Taluk Office, is a fabricated document, made after the trap proceedings. In this juncture, it remains to be stated that except the above suggestive case, there is nothing to record to show that as to why the accused had received amount from him. In the absence of any explanation, under Section 313 of Cr.P.C., regarding the amount find in his pocket, the trial Court has rightly come to the conclusion that the defence has failed to probablise the suggestive case and accordingly, held that charges are proved. 19. In the absence of any explanation, under Section 313 of Cr.P.C., regarding the amount find in his pocket, the trial Court has rightly come to the conclusion that the defence has failed to probablise the suggestive case and accordingly, held that charges are proved. 19. In view of the discussions in the foregoing paragraphs, this Court finds that, the prosecution has proved the charges beyond reasonable doubt and the defence has failed to probablise the suggestive case and hence, conviction laid by the Trial Court under Section 7 and Section 13(1)(d) read with Section 13 (2) of the Prevention of Corruption Act, is well considered and well merited, does not required any interference at this appellate stage. Accordingly, the conviction laid by the Trial Court on the accused is hereby confirmed. 20. On the point of quantum of sentence, heard the learned counsel on either side. 21. The appellant is now said to be aged 73 years old, having serious list of ailments and hence, taking note of the gravity of the proved charges and also taking note of the mitigating circumstances as stated supra, I am inclined to reduce the sentence for the offene under Section 7 of the Prevention of Corruption Act from three years rigorous imprisonment to six months of simple imprisonment and for the offence under Section 13(1)(d) read with Section 13 (2) of the Prevention of Corruption Act, from four years rigorous imprisonment to one year simple imprisonment. The fine amount already deposited as per the order of the trial Court shall stand intact. Hence, while the conviction under the above said sentence have been confirmed the sentence has been reduced as stated supra and sentences imposed are directed to run concurrently and the period of sentence already undergone by the accused shall be set off under Section 428 of Cr.P.C. 22. In the result, the Criminal Appeal is partly allowed only in respect of sentence to the extent indicated above, while confirming the conviction.