Judgment B.P.Sharma, J. 1. This appeal has been filed against the judgment and order passed by the Special Judge (Vigilance), Patna in Special Case No. 119 of 1983 on 12th of August, 1988. By the impugned judgment the learned trial Court held the appellant guilty and convicted him of the offences under Section 161 of the Indian Penal Code and also under Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act and by the subsequent order of the same date the learned trial Court sentenced the appellant to undergo R.I. for one year under Section 161, IPCand he further sentenced the appellant to undergo R.I. for one year and the pay a fine of Rs. 250/- and in default to undergo further R.I. for three months under Section 5(2) of the Prevention of Corruption Act. 2. A brief history of the case is as follows : "The complainant was a vegetable vendor and his shop was located at southern side of Mithapur Level Crossing in the town of Patna. The appellant happened to be a Havildar attached to Takkanpur T.O.P at the relevant time. The duty of the appellant Havildar was to clear of the Level Crossing where the vegetable vendors were dealing in their vegetable. There is allegation against the appellant that he used to harass the vegetable vendors and also to extract illegal gratification from them and in this process he demanded Rs. 100/- from the complainant and when the complainant refused to oblige him expressing his inability, he was assaulted and was confined for some time. So the complainant promised to pay the amount to the appellant by 27th November, 1976. On this assurance he was released. Then the complainant approached the Vigilance Department and filed a petition (Ext. 1/1) and a watcher Surajdeo Singh (PW 3) was deputed by the Vigilance Department for this purpose. This Surajdeo Singh approached the appellant with the complainant on 1st December, 1976 and in his presence the appellant threatened the complainant that if he did not pay Rs. 100/-as promised, he would be challaned. Then Watcher submitted his report (Ext. 2) on 4th of December, 1976. On receipt of the verification report from the Watcher, a case was registered at Vigilance PS. and a trap was organised for the arrest of the appellant while accepting the illegal gratification. 100/-as promised, he would be challaned. Then Watcher submitted his report (Ext. 2) on 4th of December, 1976. On receipt of the verification report from the Watcher, a case was registered at Vigilance PS. and a trap was organised for the arrest of the appellant while accepting the illegal gratification. Accordingly, on 6th December, 1976 the complainant produced a G.C. Note of Rs. 100/-before the Vigilance Officer and a memorandum (Ext. 5) was prepared in this regard. Thereafter the raiding party was constituted by the Vigilance Department which was headed by a D.S.P. Sri Syed Anwar Hussain (PW 13). The raiding party left for the P.O. at about 4.30 p.m. and they stopped their Jeep near Patna G.P.O. and then they proceeded towards the P.O. on foot and some persons accompanied the complainant and others were for behind keeping watch over them. Thereafter the complainant along with watcher reached near a Hair Cutting Saloon of Ram Bilash Choudhary, South of Railway Crossing and other members took their positions in the neighbourhood where the appellant arrived and demanded the amount and a sum of Rs. 100/- was paid by the complainant to him which was kept by the appellant in the left pocket of his Fulpant. The Watcher then gave pre-arranged signal and the others arrived and the Dy. S.P. accompanied by a Magistrate approached the accused and introduced themselves and they conducted search of the pocket of the Fulpant of the appellant from which the said marked G.C. Note was recovered. A search list was accordingly prepared. The Fulpant and G.C. Note were seized and a copy of the search list was handed over to the accused. Thereafter the accused was arrested and forwarded to the Chief Judicial Magistrate and the investigation was taken up by a Police Officer. However, in course of investigation it was disclosed by the accused that he had advanced a sum of Rs. 200/- to the mother of the complainant, namely, Shyam Kumari Devi and she had executed a handnote for the amount in his favour. It was further stated in defence case that the appellant had to receive back the amount of Rs. 200/ - from the mother of the complainant and the mother of the complainant had asked her son, the complainant, to return Rs. 100/- to the appellant and accordingly. Rs. It was further stated in defence case that the appellant had to receive back the amount of Rs. 200/ - from the mother of the complainant and the mother of the complainant had asked her son, the complainant, to return Rs. 100/- to the appellant and accordingly. Rs. 100/- was paid to him which was recovered by the raiding party The matter was also investigated and a verification was made. When the handnote was produced the thumb-impression standing on the handnote was compared with the specimen thumb-impression of the mother of the informant taken before the Special Magistrate and the Finger Print Experts examined and compared the thumb-impression and arrived at the opinion that the handnote was executed by Shyam Kumar Devi, the mother of the complainant. In this view of the matter, the Investigating Officer submitted a final report stating it to be a case of mistake of fact, but the Special Court did not agree and the Vigilance Department was directed to take further action in the matter and subsequently a charge-sheet was submitted on which the cognizance was taken and the case proceeded accordingly. 3. When the charge was framed against the accused, he denied the same and pleaded not guilty. After the examination of the witnesses for the prosecution, the statement of the accused was recorded under Section 313, Cr PC and the accused denied that he had received any illegal gratification or bribe; though he admitted the recovery of Rs. 100/- from his possession and claimed that it was part of the money advanced as loan to the mother of the complainant which was paid by her to her son, the complainant on that date. However, the learned trial Court did not accept the defence plea and relying on the evidence adduced on behalf of the prosecution held the appellant guilty and convicted and sentenced him, as stated above. 4. So far as the evidence on behalf of the prosecution is concerned, all the witnesses connected with the circumstance under which the trap was organised and the recovery of money was made, have supported the prosecution story consistently. So far as the complainant (PW 8) is concerned, he stated that he was being regularly harassed by the appellant and the appellant demanded illegal gratification from him under threat of dire consequences. So far as the complainant (PW 8) is concerned, he stated that he was being regularly harassed by the appellant and the appellant demanded illegal gratification from him under threat of dire consequences. So he had approached the Vigilance Department and the Vigilance Department deputed a watcher to confirm the allegation. The raiding party reached to the P.O. and a raid was made and after he paid the money to the appellant, the said team recovered the said money from his pocket. This fact has been supported by PW 13, the Dy. S.P., who was posted in Vigilance Department on 6.12.1976 and also by PW 15, Paras Nath Singh, who happened to be a Magistrate deputed for the purpose. The other witnesses who supported the prosecution story on this point are PW 2; Ram Raksha Prasad, S.I. (Vigilance) PW 4 Madan Lal, Inspector of Vigilance, PW 5 Harishankar Singh, S.I. (Vigilance) and PW 10 Namami Shankar Jha, Inspector Vigilance. Again, other persons, who supported this part, are PW 1 Arun Kumar Singh, S.I. Vigilance and PW 7 Kedar Singh, Havildar Vigilance. However, PW 3 Surajdeo Singh, the Watcher, is the very important witness in this case. All these witnesses have stated that the raid was conducted under the orders of the Vigilance Department. After the things were verified by the watcher, at the time of recovery, first the Watcher (PW 3) and the complainant (PW 8) had approached the appellant and on signal being given by the watcher the members of the raiding party approached them. They surrounded the appellant and a search was made in due course and marked note of Rs. 100/-denomination was recovered from the left pocket of the Fulpant and the Fulpant and handnote were seized. So far as the recovery of a note from the possession of the appellant is concerned, the appellant also did not deny, but the plea of the appellant is that note was received by him from the complainant as he had advanced Rs. 200/- as loan to the mother of the complainant earlier and the handnote was executed by his mother on 3.10.1976. According to the appellant, he was demanding refund of the payment of loan and he was told by the mother of the complainant that sh ? had asked her son to pay Rs. 100/- and, accordingly, on the alleged date of occurrence Rs. According to the appellant, he was demanding refund of the payment of loan and he was told by the mother of the complainant that sh ? had asked her son to pay Rs. 100/- and, accordingly, on the alleged date of occurrence Rs. 100/-was paid to him by the complainant which was recovered by the raiding party describing it as the money received as bribe from the complainant. The learned trial Court refused to accept the defence story on the ground of absence of preponderance of probability. So far as the defence plea is concerned, it has been observed by the learned trial Court that if it was so that the money was paid to him by the complainant (PW 8) by way of a refund of the loan advanced to the mother of the complainant, the appellant should have taken up this plea at the earliest, but surprisingly enough, the appellant did not make any mention of the fact in the bail application filed in Court after his remand. It has also further been observed by the learned trial Court that no question was put to the complainant in this regard nor he was suggested that he had paid the amount by way of refund of the loan advanced to his mother by the appellant. Therefore, these circumstances indicate that the plea taken on behalf of the accused was not fit to be accepted. 5. It appears that three witnesses were also examined on behalf of the defence. Out of them, DW 1 has stated that in his presence the accused had produced the handnote before the I.O. and the production list is Ext. A. DW 2 has stated that in his presence the accused had advanced a sum of Rs. 200/-to the mother of the complainant and the handnote (Ext. B) was executed. However, regarding this witness the trial Court has observed that he happened to be the constable working under the accused and he was highly interested witness and his evidence was not acceptable. DW 3 is the Finger Print Expert and he had examined the finger-print on the handnote and compared the same with the specimen finger print of the mother of the complainant and had submitted a report (Ext. D). DW 3 is the Finger Print Expert and he had examined the finger-print on the handnote and compared the same with the specimen finger print of the mother of the complainant and had submitted a report (Ext. D). Thus, it appears that the handnote purported to have been executed by the mother of the complainant was in possession of the accused appellant and it also appears that the said handnote was executed about two months prior to the seizure of G.C. Note of Rs. 100/- denomination from the possession of the appellant. Accepting the circumstances and the material appearing in the evidence on behalf of the prosecution, the trial Court came to the conclusion that the money, which was recovered from the possession of the accused, was the money received by him as illegal gratification or bribe and there was no reason to accept the defence plea that the money recovered from the possession of the accused was repayment of the loan advanced by him to the mother of the complainant. 6. Learned counsel appearing for the appellant has contended that in this case the defence has come forward with positive plea and so far as the execution of the handnote (Ext. B) is concerned, it has also not been challenged nor the existence and genuineness of handnote has been denied. The defence has succeeded in showing that the money recovered from the possession of the appellant was not the money received by him as bribe; rather it was repayment of the loan and, therefore, the conviction of the appellant, in the circumstance, is not legal and proper. The learned counsel appearing for the Vigilance Department, on the other hand, has submitted in this connection that any defence has to be considered in proper perspective. All the circumstances have to be taken into consideration while considering the defence plea in the case of graft charge. The learned counsel appearing for the Vigilance Department, on the other hand, has submitted in this connection that any defence has to be considered in proper perspective. All the circumstances have to be taken into consideration while considering the defence plea in the case of graft charge. It has been submitted that there is general presumption under Section 4 of the Prevention of Corruption Act that if the money is recovered from the possession of the accused, it will be presumed that it was received as illegal gratification or bribe and from the evidence adduced on behalf of the prosecution, it is clear that the money was received by the accused appellant as bribe from the complainant regarding which he was making demand and there was verification by the watcher also who confirmed it. It has further been submitted on behalf of the State that though at a later stage of investigation the handnote (Ext. D) was produced and the handnote was also found to have been executed by the mother of the complainant the other circumstances indicate that the plea was belated one and was after-thought. It has been pointed out by the learned counsel for the State Vigilance that the natural conduct of a person in such a circumstance will be that he will raise objection and will protest his arrest at the time of search, seizure and arrest, but in this case there is no material to show that he lodged any protest to this effect before the raiding party. The witnesses in support of the prosecution have been cross-examined at length by the defence before the trial Court, but no question has been put to this effect whether the accused had lodged any protest or had claimed that he was to receive money on account of handnote executed by the mother of the complainant. Therefore, the conduct of the accused at the time of recovery of money and his arrest does not indicate that the money received by him was not the money received from the complainant as bribe or that it was the money received as repayment of money advanced to the mother of the complainant. Therefore, the conduct of the accused at the time of recovery of money and his arrest does not indicate that the money received by him was not the money received from the complainant as bribe or that it was the money received as repayment of money advanced to the mother of the complainant. It has also further been contended on behalf of the Vigilance that it has been observed by the learned trial Court that when bail application was filed before the Court after his arrest, there was no mention of this fact that the accused had advanced Rs. 200/- as loan to the mother of the complainant and had procured handnote from her and that the money taken was to be returned by the complainant on account of repayment of loan taken by his mother as loan. It has, therefore, been submitted that there is also a relevant and important circumstances, because natural conduct of a person in such a condition will be to take the plea available to him at the earliest opportunity. 7. Learned counsel appearing for the appellant in this connection has submitted that as the accused had produced the handnote before the I.O. and the I.O. had verified it, there was no necessity of producing the same or of putting the question to the witnesses but this contention does not appear to be sound. It must be shown that the appellant had received the amount of Rs. 100/- by way of repayment of the loan amount advanced to the mother of the complainant. The complainant (PW 8) should have been confronted with such question in his cross-examination, but neither any question to this effect has been put to the complainant (PW 8) in his cross-examination nor any suggestion has been given to him in this regard; rather it appears from the evidence of PW 8 that it was suggested to him that the accused had not accepted any money and the witness denied it. It was also further suggested to PW 8 that the accused was falsely implicated as a result of a conspiracy which the witness denied. It was also further suggested to PW 8 that the accused was falsely implicated as a result of a conspiracy which the witness denied. Therefore, while on the one hand the main witness (PW 8) is being suggested that neither any money was paid by him to the accused nor recovery was made in the manner as made; on the other hand, it is stated that the money was received by him as repayment of loan advanced by him to the mother of the complainant and no where the complainant (PW 8) has been suggested that his mother had taken any loan from the appellant or had executed any handnote to him or that he has paid Rs. 100/- to the appellant on account of repayment of loan taken by his mother. Therefore, on consideration of the entire circumstances of the case, the defence version is not fit to be accepted. The learned trial Court has rightly rejected the defence version. 8. The learned Counsel for the appellant cited two decision : (1) Trilok Chand Jain V/s. State of Delhi, AIR 1977 SC 666 and (2) Man Singh V/s. Delhi Administration, AIR 1979 SC 1455 and submitted that it has been observed by their Lordships that the defence plea of the accused cannot be considered with the same standard of proof as the prosecution evidence has to be considered and, therefore, in the present case the defence plea should not be ignored. But, however, in both the decisions it has been observed that what is material is preponderance of probability and the totality of the circumstances appearing in evidence. It is clear that in the present case because of the conduct of the accused at the time of his arrest and subsequently when he prayed for bail, his plea regarding advancing of loan and receiving the amount of Rs. 100/- as repayment of the loan is not fit to be believed at this stage. In this view of the matter, there does not appear any reason to disagree with the findings of the trial Court in this case and, therefore, there does not appear to be any ground to interfere with the judgment and order of the trial Court. 9. Accordingly, this appeal is dismissed and the judgment and the order of the trial Court are hereby confirmed. 10. 9. Accordingly, this appeal is dismissed and the judgment and the order of the trial Court are hereby confirmed. 10. However, it has been submitted by the learned Counsel for the appellant that the appellant happened to be a low paid staff of the Police Department, i.e., Havildar and since he was arrested in 1976, he has been facing trial and has been duly punished by the passage of time and, therefore, it does not appear to be proper that he should be directed to be sent to jail once again to serve his sentence. But it appears that after his arrest and remand (6th of December, 1976) he was released by the Sessions Judge on 9th of December, 1976, i.e., after three days only and subsequently after he. was convicted and sentenced and was remanded to custody on 12th August, 1988 he was ordered to be released by this Court by the order dated 1.9.1988 and the order was dispatched on 9.9.1988, so he had remained in custody for less than a month. However, it appears that when he was examined as accused in the case under Section 313, Cr PC on 5th of May, 1988 his age was about 48 years, so at present he must be above 58 years of age. At such stage it will not be proper to send him to custody. Therefore, taking into view all these facts, the appellant is ordered to be sentenced R.I. which he had already undergone and also to pay a fine of Rs. 5,000/-and in default to suffer Imprisonment for three months. 11. The appeal is, accordingly, dismissed with the modification in the sentence as suggested above.