1. This rule has been granted on ground 3 of the petition which 1 runs as follows:
For from the terms of the kabuliyat it would appear that no criminal offence could be said to have been committed by the accused even if he failed to credit the amount realized by him.
2. The fact would appear to be these: The petitioner had executed a kabuliyat in favour of the Government of Assam as a collector of grazing fees. He collected three sums Rs. 28, Rs. 24 and Rs. 24 which he did not remit to the Treasury. On this finding he has been convicted on three counts under Section 409. He argues now that even if he failed to pay in these amounts to the treasury he cannot be held criminally liable. All that the Government can do if he fails to pay into the treasury the amount be has realized is to proceed against him and his sureties by the procedure prescribed for the realization of arrears of rent. The relevant portions of the kabuliyat are as follows:
I shall realize the grass rent of the Mouzah payable to the Government lying within my jurisdiction and I shall deposit the said amount in the Government Treasury on or before the date to be fixed by the Chief Commissioner or any other authorized officer from time to time. If I fail to deposit the grass rent from my kist within one month time fixed the Government shall be competent to-realize from me or from my surety or sureties the said sum in arrears according to law prescribed for the realization of arrears of rent.
3. Clause 2 merely provides the amount of the surety. Clause 4 deals with his remuneration which is to be a commission or a fixed salary. Reading this kabuliyat it seems to me to be quite clear that the Moujadar was justified in thinking that if by any chance he failed to deposit the grass rent realized by him the penalty would be that the amount would be recovered from his sureties or himself by a certain procedure and that the kabuliyat did not contemplate his being criminally prosecuted for failure to deposit the amount realized. The position of the Moujadar seems to me to be really not that of a servant but a lessee.
4. In view of the terms of the kabuliyat it seems to me that it is not open to Government to prosecute the petitioner in the criminal Court for failing to deposit the money he has realized. They seem to limit their remedy to the method prescribed in Clause 2.
5. The result is that the finding and sentence must be set aside and the accused acquitted. The same order will govern Revision Case 1165.