Judgment :- 1. The appellant is the sole accused in C.C.No.7 of 2002 on the file of the learned Special Judge under the Prevention of Corruption Act cum Chief Judicial Magistrate, Dharmapuri at Krishnagiri. The learned Judge has convicted the appellant under Sections 7 and 13 (2) r/w Section 13(1)(d) of the Prevention of Corruption Act and has sentenced him to undergo rigorous imprisonment for three years and to pay a fine of Rs.1,000/- (for each of the offences) and in default to undergo simple imprisonment for one month. Both the sentences have been ordered to run concurrently. Challenging the said conviction and sentence, the appellant is before this Court with this appeal. 2. The case of the prosecution in brief is as follows:- P.W.2 is an agriculturist. His sister is one Ms.Kurshit Begam. Both have got agricultural lands in Enamkutpalli Village in S.Nos.92/1 and 234/3A respectively. In each land, there is a well used for irrigation. By the side of these lands, a River known as "Thadathalai river” passes through. The said river is under the control of the Public Works Department of the Government of Tamil Nadu. P.W.2 and his sister were earlier using oil engines for lifting water from their respective wells. In order to erect electrical motors for lifting water from the wells, on 21.09.1999, P.W.2 as well as his sister made separate applications to the Tamil Nadu Electricity Board. On 18.10.2001, the Tamil Nadu Electricity Board, Commercial Inspector by name Mr.Suresh made an inspection of the wells. He told P.W.2 to get 'No Objection Certificate' from the Public Works Department because by the side of the wells, the river "Thadathalai river” passes through. The Assistant Engineer, TNEB, Krishnagiri sent a letter to the Public Works Department at Dharmapuri District seeking No Objection Certificate. P.W.2 himself carried the papers from the TNEB and handed over the same at the Assistant Engineer's Office at Dharmapuri. In the said Office, the Assistant Engineer made further recommendation and forwarded the papers to the Executive Engineer at Krishnagiri. P.W.2 went to the Executive Engineer's Office at Krishnagiri and made enquiries about the stage of the request made for No Objection Certificate. In the said Office, the accused was then working as Junior Draughtsman. In the said Office, the Assistant Engineer made further recommendation and forwarded the papers to the Executive Engineer at Krishnagiri. P.W.2 went to the Executive Engineer's Office at Krishnagiri and made enquiries about the stage of the request made for No Objection Certificate. In the said Office, the accused was then working as Junior Draughtsman. He was one of the officials responsible for processing the said file and to submit the same to the Executive Engineer, PWD Water Resources at Krishnagiri for further orders. 3. On 21.11.2001, when P.W.1 had gone to the office of the accused and requested him to process the application for NOC, he demanded a sum of Rs.1,500/- for each of the application as illegal gratification. Thus, the total amount demanded from P.W.2 on 21.11.2002 was Rs.3,000/-. P.W.2 told the accused that he had brought only a sum of Rs.1,500/- and he further requested the accused to complete the process. But the accused told P.W.2 that unless he pays Rs.3,000/- as illegal gratification, nothing could be done in his favour for issuance of certificate. Again on 06.11.2001, at about 11.00 a.m., he went to the office of the accused and attempted to give Rs.2,000/- to the accused and requested him to process the application. But the accused declined to receive the same and instead he said that he would process the applications if only P.W.2 could pay Rs.3,000/- as demanded earlier. P.W.2 therefore, returned. He made another attempt on 30.11.2001 at about 11.00 a.m. He met the accused at his office and again told him that he had brought Rs.2,000/-. But the accused demanded a sum of Rs.2,750/- atleast, instead of Rs.3,000/-. The accused declined to receive Rs.2,000/-which P.W.2 had readily brought. Having failed in the third attempt also, P.W.2 returned home empty handed. Then he went to the office of the Vigilance and Anti Corruption at Krishnagiri on 03.12.2001 at 1.00 p.m., and he preferred a complaint about the above demand of illegal gratification made by the accused. Exhibit P.2 is the complaint. Based on the same, P.W.11, registered a case in Crime No.11/AC/2001 under Section 7 of the Prevention of Corruption Act at 2.30 p.m. Exhibit P.28 is the F.I.R. He forwarded the complaint and the F.I.R., to the Court forthwith. 4. Thereafter, he requested for two official witnesses for conducting trap. Exhibit P.2 is the complaint. Based on the same, P.W.11, registered a case in Crime No.11/AC/2001 under Section 7 of the Prevention of Corruption Act at 2.30 p.m. Exhibit P.28 is the F.I.R. He forwarded the complaint and the F.I.R., to the Court forthwith. 4. Thereafter, he requested for two official witnesses for conducting trap. P.W.3 and another witness by name Chinnappan at the request of P.W.11 turned up at his office. P.W.3 was then working as an Assistant in the HR&CE department. At 3.00 p.m., he appeared before P.W.11. P.W.11 informed P.W.3 and the other witness about the contents of the complaint and the grievance of P.W.2. Then P.W.2 handed over 25 notes of Rs.100/- denomination to P.W.11. The witness-Chinnappan counted the same. Then Phenolphthalein test was conducted to the hands of witness-Chinnappan by way of demonstration. Then P.W.11 requested one Head Constable by name Ragu to smear the phenolphthalein powder on the above currency notes. Then he handed over the said currency notes to P.W.1 for which, a Mahazar was prepared in the presence of witnesses. Then P.W.11 instructed P.W.2 to go over to the office of the accused and to give the said currency notes to the accused, if he demanded. He instructed P.W.3 to accompany him. P.W.11 along with the other police officials, P.Ws.2 and 3 went to the office of the accused in a vehicle. When they were near the Office, the vehicle was stopped at a distance. P.Ws.2 and 3 alone were asked to go into the office of the accused. P.W.11 and the other officials were hiding elsewhere. P.W.2 was further instructed to make a signal as soon as the accused received the tainted money. 5. At 5.05 p.m., (according to P.W.11), P.Ws.2 and 3 entered into the office of the accused. The accused was in his seat. P.W.2 identified the accused to P.W.3. On seeing P.W.2, the accused asked him as to whether he had brought the amount. P.W.2 answered in the affirmative. Then the accused opened the drawer of his table and asked P.W.2 to put the money into the drawer. Accordingly, P.W.2 put the above tainted currency notes into the drawer of the table of the accused. At 6.05 p.m., (according to the P.W.11), P.Ws.2 and 3 came out of the office and made a signal. P.W.2 answered in the affirmative. Then the accused opened the drawer of his table and asked P.W.2 to put the money into the drawer. Accordingly, P.W.2 put the above tainted currency notes into the drawer of the table of the accused. At 6.05 p.m., (according to the P.W.11), P.Ws.2 and 3 came out of the office and made a signal. Immediately, P.W.11 along with the other witness-Chinnappan and the police officials rushed into the office of the accused. The accused was still sitting in his seat. On seeing the police, he got perplexed. Then P.W.2 identified the accused. He also told P.W.11 that the tainted money was put in the drawer. P.W.11 conducted Phenolphthalein test at the hands of the accused. It proved negative. Then he filled the said sodium Carbonate solution into two bottles (M.Os.3 and 4). He sealed the same. Then he seized the tainted currency notes (M.O.5 series) from the drawer of the table. Numbers of the currency notes tallied with the notes earlier noted down in the Mahazar. Thereafter, the accused produced 100 rupee notes four in numbers from a box and another three hundreds from his pocket. They have got nothing to do with the case and therefore, they were returned. For the recovery of 2,500/-, namely the tainted notes, a Mahazar was prepared. Then he seized certain records such as the file relating to the No objection Certificate. Then P.W.11 prepared an Observation Mahazar (Exhibit P.4) and a rough sketch (Exhibit P.5) showing the office of the accused and the seat occupied by him. Then he sent an intimation to the Special Judge about his proposed house search at the house of the accused. Accordingly, he made a house search between 8.00 and 8.30 p.m., at the house of the accused. But nothing incriminating could be recovered. Then he brought the accused and other materials to the police station. Then he handed over the investigation to P.W.12-the Then Deputy Superintendent of Police. 6. On 04.12.2001, P.W.12 took up the case for investigation. He examined P.Ws.2 and 3 and few more witnesses and recorded their statements. On 05.12.2001, he recorded the statements of P.Ws.5,6 and few more witnesses and recorded their statements. On 05.01.2002, he recorded the statement of P.W.10 and on 17.01.2002, he recorded the statement of P.W.9. On 18.01.2002, he recorded the statement of yet another witness by name Mr.Ramasamy. He examined P.Ws.2 and 3 and few more witnesses and recorded their statements. On 05.12.2001, he recorded the statements of P.Ws.5,6 and few more witnesses and recorded their statements. On 05.01.2002, he recorded the statement of P.W.10 and on 17.01.2002, he recorded the statement of P.W.9. On 18.01.2002, he recorded the statement of yet another witness by name Mr.Ramasamy. On completing the investigation, on 18.01.2001, he submitted a report to the Director of Vigilance and Anti Corruption, Chennai. The materials collected during investigation were then forwarded to the Appointing Authority of the accused namely, P.W.1. On perusing the entire records, and on applying his mind and on having satisfied with the need to issue sanction for prosecution against the accused, P.W.1 issued a Sanction Order under Ex.P.1 on 29.06.2002. Thereafter, P.W.11 laid charge sheet on 26.07.2002 against the accused under Sections 7 and 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act. 7. Based on the above materials, the trial Court framed as many as two charges. The first charge is under Section 7 of the Prevention of Corruption Act in respect of the alleged demand for illegal gratification made by the accused on 21.1.2001, on 30.11.2001 and on 03.12.2001. The second charge is under Section 13[2] read with 13 [1](d) of the Prevention of Corruption Act, 1988 on the allegation that the accused had received illegal gratification to the tune of Rs.2,500/- on 03.12.2001 between 6.15 p.m., and 7.50 p.m. The accused denied the above charges and therefore, the trial Court proceeded with the trial. 8. As many as 12 witnesses were examined on the side of the prosecution. P.W.1 has spoken to about the sanction order issued by him in the capacity of the Appointing Authority of the accused. P.W.2 is the defacto complainant who has spoken to about the prior demands, immediate demand as well as the alleged receipt of illegal gratification by the accused. P.W.3 is the decoy witness who has participated in the trap proceedings. He has also vividly spoken to about the trap proceedings. P.W.4 was the then Assistant Engineer in the PWD at Krishnagiri. He has spoken to about the pendency of the applications of P.W.2 and his sister for NOC at the office of the Executive Engineer. P.W.3 is the decoy witness who has participated in the trap proceedings. He has also vividly spoken to about the trap proceedings. P.W.4 was the then Assistant Engineer in the PWD at Krishnagiri. He has spoken to about the pendency of the applications of P.W.2 and his sister for NOC at the office of the Executive Engineer. He has further stated that as early as on 19.11.2001, itself under Exhibit P.4, he sent a proposal to the Executive Engineer suggesting thereby no objection for issuance of appropriate NOC by the Executive Engineer. P.W.5 is an Assistant Engineer in the PWD. He has also spoken to about the processing of the file at the office of the Assistant Engineer for NOC. P.W.6 has also spoken to about the same fact. P.W.7 is the Head Clerk of the Special Court who has spoken to about the forwarding of Sodium Carbonate Solution used during trap proceedings for the purpose of chemical analysis. Exhibit P.17 is the Chemical Analyst Report. According to P.W.17, there was no Phenolphthalein powder found in the sodium carbonate solution used during the trap proceeding to dip the fingers of the accused. P.W.8 was a Senior Draughtsman working at the office of PWD, Dharmapuri. He has stated that after completing the process at the PWD Office at Dharmapuri, the file was moved to the office of the accused. P.W.9 has also spoken to about the very same facts. P.W.10 is yet another officer working at the PWD office at Dharmapuri who has also spoken to about the similar facts. P.W.11 was the then Deputy Superintendent of Police attached to the Vigilance and Anti Corruption department at Krishnagiri. He has spoken to about the registration of the case on the complaint of P.W.2; the trap conducted by him; the seizure of the Phenolphthalein smeared currency notes from the drawer of the table of the accused and other facts. P.W.12 has spoken to about the investigation, further investigation laying of charge sheet. 9. When the above incriminating materials were put to the accused under Section 313 Cr.P.C., he denied the same as false. By way of explanation, he has filed a detailed written statement under Section 313 Cr.P.C. His explanation was that he never demanded any amount as illegal gratification from P.W.2. 9. When the above incriminating materials were put to the accused under Section 313 Cr.P.C., he denied the same as false. By way of explanation, he has filed a detailed written statement under Section 313 Cr.P.C. His explanation was that he never demanded any amount as illegal gratification from P.W.2. His further explanation is that since the matter was getting delayed due to various other reasons, P.W.2 had grudges against him. His further explanation is that when P.W.2 enquired him about the stage of his applications, he told P.W.2 that the Executive Engineer was not available and therefore, it would take some time for getting NOC ready so as to hand over the same to him. For about an hour, thereafter, P.W.2 was moving around in the office. At that time, the accused was writing something by keeping the pad on table by keeping the drawer open. The drawer was kept open to enable the pad to rest. At that time, unexpectedly, the tainted money was put into the drawer by P.W.2. On noticing the same, he immediately expressed his disapproval by raising from the seat. Even before that, P.W.11 and other police officials entered into his room and then conducted Phenolphthalein test. Thus, according to him, the tainted money was put in the drawer by P.W.2 without either the consent or on the directions of the accused. Thus, according to him, he is innocent. 10. Having considered the above materials, the trial Court rejected the above explanation and preferred to accept the evidences of P.Ws.2 and 3 and found him guilty under all charges. That is how the appellant is before this Court with this appeal. 11. I have heard Mr.V.Gopinath, learned Senior Counsel appearing for the appellant and Mr.P.Kumaresan, learned Public Prosecutor appearing for the State and also perused the records carefully. 12. The learned Senior Counsel appearing for the appellant would focus his arguments mainly on the following grounds:- (i) In respect of the demand said to have been made by the accused for illegal gratification on 26.11.2001, absolutely there is nothing said in the complaint which was the earliest document. Thus, the said allegation as though the accused demanded a sum of Rs.2,000/- as illegal gratification on 26.11.2001 is only a figment of imagination. Thus, the said allegation as though the accused demanded a sum of Rs.2,000/- as illegal gratification on 26.11.2001 is only a figment of imagination. (ii) In respect of the alleged demand made on 30.11.2001 for illegal gratification, according to the evidence of P.W.2, the demand was for a sum of Rs.2,750/- whereas, according to the case of the prosecution, it was only Rs.2,500/-. Thus, there is material contradiction in this regard which also creates doubt in the veracity of the evidence of P.W.2. (iii) It is stated by P.Ws.2 and 3 that they entered into the office of the accused during trap proceedings and put the tainted money in the drawer of the table of the accused and came out of the office immediately to make signal. Thus, according to the said witness (P.W.2), it all took about only five minutes for them to complete this exercise. But according to P.W.11, the Inspector of Police, for about an hour P.Ws.2 and 3 were inside the office of the accused. The learned Senior Counsel would point out that this material contradiction has not been explained away by the prosecution. (iv) The learned Senior Counsel would vehemently contend that there has been no explanation as to what happened for P.Ws.2 and 3 inside the office of the accused for about one hour. When their evidence is to the effect that the whole exercise was completed within 5 minutes, what happened to them during rest of the time is unknown. From this, the learned Senior Counsel would submit that the prosecution has not come forward with the true version. (v) The learned Senior Counsel would further submit that in respect of the time at which the money was put into the drawer of the accused by P.W.2 also, there are material contradictions which also create doubt in the case of the prosecution. (vi) Lastly, the learned Senior Counsel would submit that the explanation offered by the accused deserves to be accepted because it is more probable. He would further submit that unless and until the explanation offered by the accused is rejected for any reason based on the materials available on record, the prosecution has to necessarily fail. (vi) Lastly, the learned Senior Counsel would submit that the explanation offered by the accused deserves to be accepted because it is more probable. He would further submit that unless and until the explanation offered by the accused is rejected for any reason based on the materials available on record, the prosecution has to necessarily fail. (vii) The learned Senior Counsel would further contend that when there are two views which are equally possible, the view in favour of the accused alone is to be preferred rather than the view in favour of the prosecution. Here, in this case, the explanation offered by the accused in the written statement to the effect that for about one hour the tainted money could not be put in the drawer would go to show that the explanation offered by him is more probable and advantageous to the accused than that of the case of the prosecution. For these reasons, the learned Senior Counsel would pray for acquittal of the accused. 13. But the learned Public Prosecutor appearing for the State would vehemently oppose this appeal. According to him, there are no reasons to reject the evidences of P.Ws.2 and 3. He would point out that they have very categorically stated in their evidences that the tainted money was put in the drawer of the table of the accused only on the directions of the accused. Though the learned Senior Counsel appearing for the appellant would point out that the tainted money was not handled by the accused, the same was obtained by directing P.W.2 to put the same in the drawer of the table, he argued. Thus, from the evidence of P.Ws.2 and 3, the immediate demand for illegal gratification during the trap proceedings as well as the obtainment of the same has been established by the prosecution. 14. Nextly, the learned Public Prosecutor would contend that ofcourse there are some contradictions in respect of the alleged demands made on 26.11.2001 and on 30.11.2001, but that by itself would not falsify the entire case of the prosecution since the acceptance of the tainted money by the accused is sequel to the earlier demand made on 21.11.2001. According to the learned Public Prosecutor, both the offences have been clearly established against the accused by the prosecution. 15. According to the learned Public Prosecutor, both the offences have been clearly established against the accused by the prosecution. 15. Lastly, the learned Public Prosecutor would submit that though there is no explanation as to what happened to P.Ws.2 and 3 in the office of the accused for about one hour during trap proceedings, that by itself will not in any manner cause any dent in the case of the prosecution. He would further add that the evidences of P.Ws.2 and 3 are so cogent and the same will convince the judicial mind of this Court. 16. In any event, according to the learned Public Prosecutor, the prosecution has proved the case beyond reasonable doubts and therefore, the trial Court was right in convicting the accused. 17. I have considered the rival submissions. 18. A perusal of the charges would go to show that there is no mention about the alleged demand for illegal gratification made by the accused on 26.11.2001. The case of the prosecution as projected through the charges framed by the trial Court would go to show that the prior demand for illegal gratification was only on two occasions prior to the trap proceedings. The first one was on 21.11.2001 and the second one was on 30.11.2001. Therefore, the alleged demand made on 26.11.2001 as spoken to by P.W.2 for the first time in Court is liable to be rejected and the same could not be given any weightage of. 19. Now coming to the alleged demand made on 30.11.2001, according to P.W.2, the demand made was for a sum of Rs.2,750/-. The earlier demand was Rs.3,000/-. But on persuasion made by him, the accused reduced the same to Rs.2,750/-. But according to the charge, the accused demanded only a sum of Rs.2,500/-. Thus, the demand was reduced to Rs.2,500/- from Rs.3,000/-, according to the case of the prosecution. This material contradiction also has not been explained away by the prosecution. The benefit arising out of the said contradiction should also go in favour of the accused. Ofcourse in respect of the alleged demand made on 21.11.2001, there is no contradiction. But the question is whether to believe the solitary evidence of P.W.2 in this regard in the light of the fact that this Court has found that the alleged demands made on 26.11.2001 and 30.11.2001 are not believable. Ofcourse in respect of the alleged demand made on 21.11.2001, there is no contradiction. But the question is whether to believe the solitary evidence of P.W.2 in this regard in the light of the fact that this Court has found that the alleged demands made on 26.11.2001 and 30.11.2001 are not believable. With the above background, let me proceed to the next point urged by the learned Senior Counsel appearing for the appellant. 20. According to the second charge, the illegal gratification to the tune of Rs.2,500/- was received during trap proceedings by the accused only between 6.15 and 7.50 p.m., on 03.12.2001. But according to the evidence of P.W.2, he along with P.W.3, went to the office of the accused at 3.30 p.m., on 03.12.2001. As soon as he entered into the office along with P.W.3, the accused enquired him as to whether he had brought the money for which he answered in the affirmative and then directed P.W.2 to put the money in the drawer of the table. Accordingly, he did. Immediately he went out and made a signal. The entire exercise according to his positive evidence during cross examination was completed within 5 minutes. Thus, the illegal gratification would have been received in any event not later than at 3.45 p.m., or at the latest 4.00 p.m. P.W.3’s evidence is quite contrary to the same. According to him, when they entered into the office of the accused, it was about 3.15 p.m. He has also stated that when they entered into the office, the accused enquired P.W.2 as to whether he had brought the money, he answered in affirmative. Thereafter, the accused wanted P.W.2 to put the money in the drawer of the table and accordingly, P.W.2 did the same. But when they come out of the office of the accused, it was 5.00 to 5.30 p.m. Here it is noticeable that between 3.45 and 5.30 p.m., these two witnesses were near the accused. If it is true that as soon as P.W.2 had entered into the office, the money was demanded and obtained, the whole exercise would have been completed within 5 minutes. But here, between 3.15 and 5.30 p.m., i.e., for about 2 hours 15 minutes, these two witnesses were in the office of the accused. If it is true that as soon as P.W.2 had entered into the office, the money was demanded and obtained, the whole exercise would have been completed within 5 minutes. But here, between 3.15 and 5.30 p.m., i.e., for about 2 hours 15 minutes, these two witnesses were in the office of the accused. But, it is not explained to the Court as to what they were doing for such a long time near the accused. In the evidence of P.W.11, he has very meticulously mentioned about the time at every stage from the time of preparation of the Mahazar till the conclusion of the trap proceedings. 21. In an arithmetic exactitude he has stated that P.Ws.2 and 3 have entered into the office of the accused during trap proceedings at 5.05 p.m. He has further stated that when P.W.2 gave signal after having put the tainted money into the drawer of the table of the accused, it was exactly 6.05 p.m. Thus, according to him, P.Ws.2 and 3 were inside the office of the accused for exactly one hour. As I have already stated, as spoken to by P.W.2, the time taken for completing the task of trap was only five minutes. But what happened during the rest of the time inside of the office of the accused has to be necessarily explained by the prosecution. During cross examination on this aspect, P.W.11 was posed a specific question as to whether he did enquire these witnesses or investigated as to what happened in the office of the accused for about one hour. For this, he has answered in the negative. Thus, absolutely there is no explanation as to what happened for such a long time inside the office of the accused. 22. In the above background, we have to look into the explanation offered by the accused. He has stated that as soon as P.Ws.2 and 3 entered into the office of the accused, he told P.W.2 that the No Objection Certificate could not be made ready because the Executive Engineer was not available in the office on the day and therefore, the same could be given only on the next day. He has stated that as soon as P.Ws.2 and 3 entered into the office of the accused, he told P.W.2 that the No Objection Certificate could not be made ready because the Executive Engineer was not available in the office on the day and therefore, the same could be given only on the next day. This explanation is fortified by the admission made by P.W.2 during cross examination wherein, he has stated that the accused told them that the Executive Engineer had gone out of the Office for camp and therefore, the No Objection Certificate would be made available only on the next day. This tacit admission made by P.W.2 probabilizes the explanation offered by the accused. Thereafter, according to the further explanation made by the accused, P.W.2 was not satisfied with the said reply of him and he was roaming here and there in the office for about one hour. At that time, according to the accused, he was fully concentrating himself in writing some thing in discharge of his official duty in respect of some other file. According to his further explanation, at that time, suddenly, P.W.2 took the tainted money and put the same in the drawer of his table. In my considered opinion, this explanation is quite plausible for the reasons stated below:- (i) Had it been true that the accused had demanded Rs.2,750/- as it is stated by P.W.2, he would not have obtained Rs.2,500/- which was brought by P.W.2 at the time of trap. (ii) Further, on the earlier occasion, according to P.W.2, when he had Rs.2,000/- and offered to pay, the accused was not ready to receive the same and instead he demanded the entire amount of Rs.3,000/-. If that was really the attitude of the accused, he would not have obtained a sum Rs.2,500/- during the trap proceedings. (iii) Further, had it been true that as soon as P.Ws.2 and 3 entered into the office of the accused, he demanded money and the same was put in the drawer of the table of the accused, as it has been stated by P.W.2, it would have taken hardly five minutes. When that be so, there would have been no occasion or necessity for P.Ws.2 and 3 to be in the office for more than one hour. When that be so, there would have been no occasion or necessity for P.Ws.2 and 3 to be in the office for more than one hour. According to P.W.2, they were in the office for more than two hours whereas, according to P.W.11, they were in the office exactly for one hour. P.W.11 has tacitly admitted during cross examination that he did not investigate into the fact as to what happened to these witnesses and as to what they were doing in the office of the accused for one hour during trap proceedings. In the absence of any explanation for their presence in the office, either for one hour or for two hours, the contention of the learned Senior Counsel that P.W.2 was waiting for an opportune moment to put the tainted money into the drawer without the knowledge of the accused deserves to be accepted. The said contention cannot be simply brushed aside in view of the utter failure on the side of the prosecution to explain the long lapse of time as indicated above. (iv) Nextly, the Phenolphthalein test conducted on the fingers of the accused proved negative. This shows that the accused had never handled the tainted currency notes. (v) From these circumstances, the possibility that when the accused was concentrating in his writing work, P.W.2 would have put the money into the drawer of the table cannot be ruled out. Unless this view is improbablised by the prosecution by means of materials brought on record, the said view in favour of the accused should be preferred rather than the other view which is equally favourable to the prosecution. 23. The learned Public Prosecutor would point out that as soon as the trap was over, the accused told P.W.11 that he only wanted P.W.2 to put the tainted money into the drawer for the purpose of small savings. The learned Public Prosecutor would therefore submit that having taken such a stand at the earliest point of time, it is too late in the day for the accused to take a different stand by way of explanation during trial. Therefore, according to the learned Public Prosecutor, this explanation offered by the accused is only to be rejected. But I am not persuaded by the said argument. Therefore, according to the learned Public Prosecutor, this explanation offered by the accused is only to be rejected. But I am not persuaded by the said argument. The statement made to the Police Officer when the accused was in custody is not admissible as against him as a confession in view of the bar contained in Section 25 of the Evidence Act. It is well settled that a portion of the statement made by the accused to the police cannot be segregated and used against him. The whole of the statement said to have been made by the accused before the police, if amounts to confession, cannot be used against him. If it is construed only as an explanation, then the same has to be taken into consideration as a whole and the same may be either accepted or rejected. A part of the statement which favours the prosecution alone cannot be fragmented and used against the accused. It needs to be noted that even during cross examination of P.W.1, it has been suggested to him that such kind of explanation was never made by him. For these reasons, the contention of the Public Prosecutor, in this regard requires only to be rejected. 24. In respect of the motive, it is stated by the accused that since P.W.2 was made to run from pillar to post at the instance of the accused under one pretext or the other, he got wild against him and that is why he had gone to the police to give false complaint against him. P.W.2, during cross examination has admitted that he was sad about the treatment meted out to him at the hands of the accused. Thus, the motive to falsely implicate the accused as suggested by him cannot be ruled out. 25. The learned Senior Counsel would point out that P.W.2 was not the author of the complaint. As it has been admitted by him, it is only a Document Writer by name Mr.Kothandaraman who prepared the complaint. Therefore, according to the learned Senior Counsel virtually the author of the complaint is only Mr.Kothandaraman and not P.W.2. Mr.Kothandaraman has not been examined. This also creates doubt. As it has been admitted by him, it is only a Document Writer by name Mr.Kothandaraman who prepared the complaint. Therefore, according to the learned Senior Counsel virtually the author of the complaint is only Mr.Kothandaraman and not P.W.2. Mr.Kothandaraman has not been examined. This also creates doubt. Apart from that, P.W.2 has been cross examined at length in a detailed manner as to why he did not either make a complaint to the Higher officials of the accused or to the police between 21.11.2001 and 30.11.2001. He has not offered any explanation. The conduct of P.W.2 in not giving any complaint against the accused either on 21.11.2001 or on 26.11.2001 or on 30.11.2001, either to the higher officials of the accused or to the police is also a point in favour of the accused which creates doubt in the case of the prosecution. 26. Having a comprehensive reading and a critical analysis of the entire materials available on record would go only to show that it is not safe to rely on the evidence of P.W.2 as well as P.W.3 to hold the accused guilty in view of the serious infirmities in the case of the prosecution, which I have already pointed out. In such view of the matter, I hold that the accused is entitled for acquittal. 27. In the result, the criminal appeal is allowed and the conviction and sentence imposed on the appellant is set aside and he is acquitted. Fine amount, if any, paid by the appellant who is now acquitted shall be refunded to him. Bail bond if any shall stand discharged.