JUDGMENT J.K. Tandon, J. - The Appellant, who was Qurq Amin in the Co-operative Department at Sitapur, has been convicted and sentenced to eighteen months rigorous imprisonment and a fine of Rs. 208/- by the learned Additional Sessions Judge of that place for an offence u/s 409, IPC The facts which are either not disputed or are otherwise established are these: 2. The Appellant was admittedly a Qurq Amin in the above Department at sitapur and was as such charged with the duty to realise seed store dues from defaulters payable by them to the Co-operative Development, Federation. The Co-operative Societies known as Co-operative Seed Stores issued superior quality seed on certain promises to pay the price later to the members of the society etc. if any member failed to pay the price as promised by him the same had to be realised under the rules relating to the scheme from the defaulter by attachment and sale of his property. Sarju Prasad (PW 1) accordingly took some seed from the Parsendi Cooperative Seed Stores for which he was liable to pay Rs. 301/8/-. On the 1st November, 1953, the Appellant Ram Pal Singh who bad been entrusted with the duty to realise the said amount from Sarju Prasad went to his place in village Madnapur and effected attachment of two bullocks and one cart of the value of Rs. 201/8/. Since the total demand was Rs. 301/8/- the balance of one hundred rupees still remained. The prosecution came with the allegation that on Sarju Prasad's request to Ram Pa Singh the latter allowed him to pay this balance the next day. Consequently Sarju Prasad borrowed this amount from one Ram Autar and paid it to Ram Pal Singh on the 2nd November, 1953, in the presence of Ram Autar and Rikh Nath. The prosecution also, alleged that Ram Pal Singh gave a kachcha receipt for this amount to Sarju Prasad the same day professing that the official receipt will be sent to him later. 3. The further facts are that on December 6, 1953, the attached property consisting of a cart and two bullocks was sold by Ram Pal Singh for Rs. 201/8/- to one Ram Sarup who paid that amount to Ram Pal Singh under a receipt Ex. Kha 1. 3. The further facts are that on December 6, 1953, the attached property consisting of a cart and two bullocks was sold by Ram Pal Singh for Rs. 201/8/- to one Ram Sarup who paid that amount to Ram Pal Singh under a receipt Ex. Kha 1. The receipt of this amount from Ram Sarup is admitted by Ram Pal Singh, who has further admitted that he failed to deposit it immediately in the office of the Federation. On the same date, i.e. the 6th of December, 1953, Saiju Prasad is said to have asked Ram Pal Singh to give him a regular receipt for one hundred rupees. Ram Pal Singh took the kachcha receipt arid tore it with the assurance that he would sent a pukka receipt from Sitapur, Admittedly he never sent any such receipt to him. It may be stated at this very stage that according to the defence this amount was never realised by Ram Pa) Singh horn Sarju Prasad nor the former gave him any receipt, kachcha or pakka nor made any promise for the issue of a regular receipt. 4. Nothing happened for five or six months thereafter. When Ram Pal Singh was succeeded by another Qurq Amin byname Gur Sahai, Gur Sahaimade a demand from Sarju Prasad of the entire amount of Rs. 301/8/- whereupon Sarju Prasad pointed out that be had made the full payment. As the amount was admittedly not credited in the books of the Federation his attention was drawn to that fact. He therefore made an application to the Panchayai Raj Officer at Sitapur which is Ex. Ka-2 on 11th June, 1954, placing his grievance. This application was passed on to the Co-operative Inspector who submitted his report against the Appellant on the 9th August, 1954. The following day, i.e. 10th August, 1954 the Appellant was suspended and was further called upon to hand over charge immediately. After some time a complaint was also filed and the prosecution cut of which this appeal has arisen was commenced. 5. The defence put forward by the Appellant has already been briefly referred above. As regards the sum of Rs. 201/8/- which the Appellant admittedly realised by sale of Sarju Prasad's bullocks and cart, his further reply is that in January, 1954 he paid a sum of Rs. 110/- out of it to his orderly peon while another sum of Rs. The defence put forward by the Appellant has already been briefly referred above. As regards the sum of Rs. 201/8/- which the Appellant admittedly realised by sale of Sarju Prasad's bullocks and cart, his further reply is that in January, 1954 he paid a sum of Rs. 110/- out of it to his orderly peon while another sum of Rs. 156/- was due to him by the Federation on account of his commission on the realisations made by him. It appears that the Appellant was not appointed on any fixed monthly wage. His wages, on the other hand, were to be on a percentage basis on the realisations made by him. This was Rs. 85/- on every three thousand rupees. A sum of Rs. 156/- is said to have been due to him from the Federation for his commission in this manner. In brief, therefore, he has justified the non-deposit of Rs. 201/8/- on two grounds (1) that he had paid Rs. 110/- to his orderly peon and (2) that another Rs. 156/- was due to him by the Federation which he was entitled to deduct from the realisations made by him. 6. Before his liability for the two items, viz. Rs. 100/- said to have been received directly from Sarju Prasad and Rs. 201/8/ realised by sale to the property is considered it will be necessary to dispose of another objection which has been urged here on behalf of the Appellant. 7. It is said that the Appellant was not a servant who was paid his wages by the State Government nor was he a person serving under the said Government, he was in receipt of wages by way of commission only and was at the best a servant of the Federation, as such he was not a public servant within the meaning of that expression used in Section 409. Section 21 of the Indian Penal Code has described the various categories of persons falling under the expression "public servant". Section 21 of the Indian Penal Code has described the various categories of persons falling under the expression "public servant". One of the categories, i.e. the tenth is of officers whose duty it is, as such officer, to take, receive, keep or expend any property, to make any survey or assessment or to levy any rate or tax for any secular common purpose of any village, town or district, or to make, authenticate or keep any document for the ascertaining of the rights of the people of any village, town or district. It will appear from it that an officer whose duty it is as such officer to take, receive, keep or expend any property is a public servant. A Qurq Amin, as the Appellant in the present case is, is charged with the duty in that capacity of his to attach properties of defaulters and to realise money. In the present case Ram Pal Singh actually did so. The section does not contemplate in the case of officers who fall within the description included in the above category that they should further be in the employ of the State Government as such or their wages should be payable out of the revenues of the State. As a matter of fact Explanation I in Section 21 has expressly provided that persons falling under any of the categories first to eleventh shall be public servants whether they are appointed by the Government or not. The section does not qualify that persons who are in receipt of any fixed wage alone shall be public servants. As a matter of fact, payment of wage is not the test for determining whether a particular person or officer is or is not a public servant. It is the duty with which he is charged and which he is required to perform that actually determines whether he is or is not a public servant. But apart from it also I see no reason why a person who is remunerated by a commission and not by a fixed salary should, if he is otherwise a public servant, cease to be so. The mode of payment of wages or of remuneration is immaterial because that is relevant for the purpose of determining the amount only but no further. The mode of payment of wages or of remuneration is immaterial because that is relevant for the purpose of determining the amount only but no further. Neither, therefore, the fact that the Appellant was not appointed by the State Government, nor the fact that he was paid his remuneration by way of commission on the realisations made by him there is no evidence on the present record to show for or against the first fact is of any substance. It will however have to be judged whether he can be said to be an officer within the meaning of the tenth category. This expression again has net been defined but any person who is vested with authority to administer or carry out any part of the executive power of the Government is an officer. Similarly any person who is charged with the execution of any public duty imposed upon him by law whether such duty be judicial or ministerial will also be an officer. The law requires him to can out certain public duties and in that context he is an officer being a person charged with the execution of a duty imposed by law. A Qurq Amin is admittedly a person who is vested with the authority to attach and sell properties and realise them. He does so under the rules relating to the recovery of dues, a proposition which has not been disputed by the Appellant also. These rules not only require him to attach and sell properties but further require him to deposit the amounts after realization in the appropriate office. It is futile to urge in the said context that the Appellant is not a public servant. In my opinion he is so. 8. To revert now to the two items mentioned earlier the Appellant does not dispute that he realised Rs. 201/8/- by sale of the attached property. He further admits that he did not deposit the above amount in the office of the Federation till the 4th of September, 1954, i.e. long after a complaint had been made against him and a departmental inquiry too had been held and he was suspended. He is taking shelter partly under the plea that he paid Rs. 110/- to his orderly peon and partly on the suggestion that a sum of Rs. 150/- and odd was due to him by the Federation on account of his commission. He is taking shelter partly under the plea that he paid Rs. 110/- to his orderly peon and partly on the suggestion that a sum of Rs. 150/- and odd was due to him by the Federation on account of his commission. It is not disputed that under the rules governing the realisations made by the Appellant he was bound to deposit this amount in the office of the Federation. He had no authority to disburse the amount to his orderly or otherwise adjust it for any dues in his favour. His retaining the amount with him and not depositing the same until he was suspended left no margin for any argument that he was not liable for misappropriation. As a matter of fact, the learned Counsel for the Appellant has conceded that in the case of this sum of Rs. 201/8/- the Appellant has been guilty of the offence u/s 409, IPC though he has urged that in view of the Appellant having deposited this amount subsequently a lenient treatment towards him is called for. Just now we are concerned with the guilt of the Appellant on this particular count. The question of sentence shall be considered at the appropriate lime. Here it alone may be mentioned that even the Appellant has not disputed his guilt in its case. 9. In the case of the amount of one hundred rupees the respective cases of the parties have been noticed earlier. The prosecution came with the allegation that a sum of one hundred rupees was paid to the Appellant on 2nd November, 154 for which he gave a kachcha receipt also to Sarju Prasad but this document was destroyed on 6th December, 1954 under the promise by the Appellant that he would sent a formal receipt later. The defence totally denies the receipt of any such amount. The prosecution, therefore, examined Sarju Prasad and two other witnesses, viz. Ram Sarup and Hari Kinkar Singh was deposed that Sarju Prasad requested the Appellant on 1st November, 1954 while he was attaching his properties to give him time to pay the balance of Rs. 100/- by the next day. These witnesses have supported the above version and also stated that time was so granted. The other witnesses relied upon by the prosecution were again Sarju Prasad, Rikh Nath and Ram Autar. 100/- by the next day. These witnesses have supported the above version and also stated that time was so granted. The other witnesses relied upon by the prosecution were again Sarju Prasad, Rikh Nath and Ram Autar. These witnesses deposed about the payment of one hundred rupees on 2nd November, 1954 in their presence. The learned Sessions Judge has extensively discussed their testimony and he has accepted the same. 9. Two-fold criticism was advanced by the defence against this evidence, firstly that these were interested persons and secondly that there were inconsistencies in their statements and partly in the prosecution story itself. The learned Sessions Judge rejected these arguments. No doubt Ram Sarup is Sarju Prasad's own brother but that does not render his testimony untrustworthy. Obviously when Sarju Prasad's property is being attached the persons who will be present will be his relations or others interested in him. Hari Kinkar Singh was the Supurdar in whose custody the attached property was given. Their presence at the spot cannot be doubted. The only argument put forward against Hari Kinkar Singii was that the Appellant had once attached the property of his brother for realisation of dues of the Seed Store. One cannot forget that the Appellant as Qurq Amin was charged with the duty to make attachment etc. It cannot serve any reason for the contention that Hari Kinkar Singh was necessarily displeased with him on that account. 10. Ram Autar is the person from whom Sarju Prasad borrowed one hundred rupees and paid the same on 2nd November to the accused and Rikh Nath is the person before whom the money was borrowed. No plausible ground for not accepting their testimony hap been placed before me nor was any placed before the learned Sessions Judge. I do not under the Circumstances see any reason for rejecting their testimony. 11. It follows therefore that a sum of one hundred rupees was received by the Appellant which he never deposited in the office of the Federation. 12. The inconsistency in the prosecution case relied upon by the Appellant is said to be that according to the complaint made by Sarju Prasad the attachment took place later while the amount of one hundred rupees was realised earlier. At the evidence the case put up was that the sum of one hundred rupees was realised later. I have gone through the complaint Ex. At the evidence the case put up was that the sum of one hundred rupees was realised later. I have gone through the complaint Ex. Ka-1 and I do not think the conclusion drawn by the learned Counsel for the Appellant is well founded. I do not therefore think that there is any inconsistency. 13. In the result, therefore, the guilt of the Appellant has been established. There is no ground for interference with the order of the Court below. The appeal is accordingly-dismissed. The Appellant is on bail. He shall surrender immediately and serve out the sentence awarded to him, The stay order against the realisation of the fine is discharged.