JUDGMENT Cunliffe, J. - These are three Rules granted by a former Bench, one of which relates to a Petitioner by the name of Jibeswar Phukan and the other two relate to the Petitioner by the name of Ram Prosad Saikia. These two persons occupied the position of what is known as mouzadars in a country District in the Assam Province. A mouzadar, it appears, is a subordinate official engaged by Government under a contract for the purpose of coollecting local land revenues. The collections are made upon a commission basis and the appointments to office are, it seems, made or renewed annually. The two Petitioners were both convicted under sec. 409 of the Indian Penal Code which section deals with misappropriation on the part of a Government servant. 2. We are quite satisfied that the position of a mouzadar is that of a Government servant. It is not quite clear from the evidence, which was led in any of these prosecutions, that the agreement which is signed usually by all mouzadars in the form of a kabuliyat was , in fact, signed by these three Petitioners. But it is more than probable that each of them did sign these agreements under their respective charges and the evidence shows that if that was so, the agreement that they put their names to was the old form of the kabuliyat and not the form that bas been adopted quite recently. 3. We adjourned the hearing of the case for the purpose of obtaining a translated copy of the kabuliyat and it is admitted that the copy before us now, marked Exhibit A, is the old form previously used by the Government of Assam. The important clause in that agreement to which our attention has been called is clause No. (3) which lays down the manner of the payment of revenue collections by the mouzadar. It is in these terms: I shall realise the Government revenue and the local rates assessed on the lands within my mouza and recorded in the Jamabandi and pay the same into the treasury on or before the date duly fixed by the Government or by any other Hakim duly empowered. It is in these terms: I shall realise the Government revenue and the local rates assessed on the lands within my mouza and recorded in the Jamabandi and pay the same into the treasury on or before the date duly fixed by the Government or by any other Hakim duly empowered. In the case of my failure to pay into the treasury the amount due on account of any instalment within one month from the date so fixed, the said arrear of rent shall be realised from me and my surety or sureties by following the same procedure as has been laid down in the law for the realisation of the arrear of rent of land generally and the Government also will be competent to cancel the settlement of the Mouza with me. I shall realise the rent of the touzi according to the list of rent recorded in the touzi that will be given to me and I shall be liable for that and I shall make over the revenue to the Treasury within 4 months from the date of receipt of this list". 4. It is also to be noted that security is to be furnished by the mouzadar each year to the extent of a quarter of the total amount of rent and local rates assessed in the area in his charge. That seems to me to be a very simple agreement between a principal on the one hand, being the Local Government, and an agent on the other hand, being a mouzadar. It is to be observed, of course, that the position of a mouzadar in no way approximates to the position of a lessee of Government, such as the type of lessee who takes over the yearly management of, shall I say, a Government ferry or a Government license in relation to opium or any thing of that kind. There a preliminary payment is made on the part of the lessee usually after tenders have been invited and once that tender has been accepted by Government, it is quite impossible for the lessee, during the year of his license, to run the ferry or anything else to embezzle any money at all. He has bought the right to collect the Government dues or the profits under the license and it is impossible for him to misappropriate what is his own property. 5. He has bought the right to collect the Government dues or the profits under the license and it is impossible for him to misappropriate what is his own property. 5. In this case, the complaint against the Petitioners was that they had embezzled certain definite sums of money, which came into their hands as a result of their agreement to act as agents for the Government and v/c have no doubt whatever, although it was strongly argued contra, that the findings of fact in the Courts below fully uphold that these defalcations have taken place and that the charges made against the Petitioners have been sub-stantiated, as far as the misappro-priation is concerned. It was argued that this was not a case of misappro-priation at all: it was a case of these mouzadars finding themselves embarrassed by perhaps a great pressure of work and so on, who had withheld the payments from the Government and, in fact and in law, had not converted to their own use the sums of money which had been entrusted to them. It was further argued that the provisions of cl. (8) of the kabuliyat which the mouzadars signed would protect them and ought to protect them in any delay in handing over the money. In our view of the facts and in the view of the facts taken in the Courts below, there is no protection whatever in cl. (3). Cl. (8), as I read it, was not intended in any way to afford assistance to one who occupied the position of a mouzadar and had committed theft but was to assist an official of Government who was unable through difficulties to pay at once to Government what either he or his sub-agents had managed to realise. It seems to me to be abundantly clear that when a man either through himself or through his agent has granted a receipt for the payment, to take a single instance, of the land revenue of a tea plantation and afterwards although the receipt is produced by the tax-payer the counter foil granting that receipt disappears or is done away with, it is quite idle to say that this is a case of delay and not of conversion. A good deal of reliance is placed upon a decision of this Court which is recorded in an unofficial report contained in Nripendra Nath Das v. Emperor (1927) 47 C.L.J. 442. It is a report which, to my mind, is by no means clear. It purports to deal with the position of a monzadar in somewhat similar circumstances, but in reality, I think, it does not deal with the mouzadar's position but with the position of a tenant in an inferior position to that of a mouzadar, viz., a maisadar, who is a sub-contractor engaged in grazing. But whether it applies to a mouzadar or to that other class of persons whom I have just referred, I think it seems quite clear that no actual misappropriation took place there and, therefore, it can be distinguished from the facts out of which these Rules arise. 6. In these circumstances and as offences with regard to public servants in the collection of revenues are serious ones, we shall discharge these Rules and will not interfere with either the convictions or sentences. Henderson, J. 7. The main question for our decision in these Rules is whether the money realised from tenants by mouzadars belongs to them or to the Government. The contention of the Petitioners is that it belongs to them and in support of this contention, Mr. Basu contended that they are either lessees or farmers. There can be no question that if they are either, these convictions could not be sustained. In my opinion, they are neither, and I have nothing to add to what has been said by my learned brother on this point. 8. The result is that the money which they collect from tenants belongs not to them but to the Government. 9. It is thus clear that the next question for decision is whether they, in fact, converted the money, which was the subject-matter of the charges, to their own use. This is a question of fact to be decided finally by the learned Judge of the Appellate Court. The judgment in Rules 1103 and 1104 is Quite specific on the point. It is thus clear that the next question for decision is whether they, in fact, converted the money, which was the subject-matter of the charges, to their own use. This is a question of fact to be decided finally by the learned Judge of the Appellate Court. The judgment in Rules 1103 and 1104 is Quite specific on the point. I am bound to say that in the other Rule, the language is not very happy; but if the judgment is taken as a whole, I have no doubt that the finding of the learned Judge was that the Petitioner had converted the money to his own use. On the main question of principle argued before us, Mr. Basu relies upon the case to which my learned brother has referred. I, too, am not satisfied that the case has been correctly reported. The learned Deputy Legal Remembrancer, who appeared in it, informs us that the learned Judges there were considering the position not of a mouzadar but of a maisadar. This appears to be so from the very terms of the kabuliyat recited in the judgment. But supposing that the case did relate to the position of a mouzadar, then in my opinion the learned Judges should have followed the earlier decision of C.C. Ghose and Cammiade, JJ.