1. This is an application in revision by two persons, Nand Kishore and Hemraj against an order passed by the loamed Sessions Judge of Agra in appeal, convicting thorn of an offence under Section 424, I.P.C. It appears that the applicants were convicted by the trial Court under Section 418, I.P.C. but the learned Sessions Judge found that an essential ingredient of that offence had not been established by the evidence for the prosecution and he thereupon set aside the applicants conviction under that Section and proceeded to convict them under Section 424, I.P.C., maintaining the sentence of line imposed upon them. As the conviction by the learned Sessions Judge has boon challenged mainly on the ground that it is wholly illegal, it is necessary to set out a few relevant facts in order to develop the points of law which arise for consideration.
2. The applicant Nand Kishore is the manager of the local branch of the Motor and General Finance Company Limited at Agra. The head office of the company is at Delhi. The other applicant Hemraj is also an employee of the local branch at Agra and works under Nand Kishore. A part of the business of this company is the sale of motor cars and lorries on the hire-purchase system. It appears that some years ago the company sold three motor lorries on that system to one Bhagwan Das and a person named Shiv Dayal, who is the complainant in the case out of which the present application arises, stood surety for Bhagwan Das. Bhagwan Das failed to pay the instalments on the due date with the result that one of the lorries was seized by the company under the terms of the agreement between it and Bhagwan Das. Later on, Bhagwan Das again defaulted in paying the instalments due in respect of the other two lorries, one of which was numbered 1865-A A and is the subject of dispute in the case out of which this application arises. The company gave a notice to Bhagwan Das of its intention to seize the motor lorries under the terms of the agreement. In reply to this notice Bhagwan Das gave a counter-notice to the company saying that if his lorries would be seized by the company he would prosecute them in the Criminal Court as well as sue them in the Civil Court. 16 is alleged that this notice was given by Bhagwan Das at the instigation of Shiv Dayal, who was in fact the principal person. The result however was that the company stayed its hands and tried to settle the dispute by an agreement between the parties. For that purpose they called Shiv Dayal to the company's office at Agra where some conversation took place between him and one Ved Prakash, an official of the company attached to the head office at Delhi. Now the case set up by Shiv Dayal is that the company agreed to take one of the two lorries regarding which default had been made by Bhagwan Das and to leave the other No. 1865-AA with Shiv Dayal, leaving him to adjust the matter between himself and Bhagwan Das. In pursuance of that arrangement Shiv Dayal executed a fresh agreement on the hire purchase system on his own behalf in respect of the lorry No. 1865-AA and one Badri Prasad stood surety for him.
3. It is further alleged that Shiv Dayal settled the matter between himself and Bhagwan Pas by paying a sum of Rs. 300. Mow the case for the prosecution is that after the execution of the above-mentioned agreement by Shiv Dayal, which was signed on behalf of the company by the applicant Hemraj, the latter suggested that the former should send the lorry to the company's office at Agra after repairs with a view to get a permit from the police with the company's assistance. Acting upon this assurance Shiv Dayal sent the lorry a few lays later from Shamshabad, where he lives, to the company's office at Agra. Having thus secured the lorry, Hemraj and the other applicant, who is the manager of the local branch of the company at Agra, seized it on behalf of the company. Upon these foots Shiv Dayal charged the applicants with an offence under Section 418, I.P.C. The prosecution case very clearly was that the applicants had given a false assurance to Shiv Dayal and he, acting upon that assurance, had sent the lorry to the company's office at Agra, where the applicants seized it, so that he lost his property. If Shiv Dayal's allegation is true there can be no doubt that the applicants committed an offence of cheating, though the application of Section 418 is very doubtful. The learned toying Magistrate however found upon the evidence that Shiv Dayal's allegation relating to the circumstances in which he was induced to send the lorry to Agra was false. Upon that finding the learned trying Magistrate could not but have acquitted the applicants, because an essential ingredient of the offence of cheating had not boon established, In spite of that the learned Magistrate somehow persuaded himself into convicting the applicants, though the process of reasoning by which he arrived at that conclusion is rather difficult to understand.
4. The applicants then went up in appeal to the learned Sessions Judge of Agra, who found that the conviction under Section 418, I.P.C. could not be maintained because the lorry had not been obtained by the applicants by means of any false representation such as that alleged by Shiv Dayal. Having arrived at that conclusion the learned Judge ought to have allowed the applicants appeal, but instead of doing so ho proceeded to consider the facts of the case and ultimately reached the conclusion that they disclosed an offence under Section 424, I.P.C. In arriving at that result the learned Judge was influenced by the statement made by the applicants in their defence in which they admitted the fact that the lorry had been seized on behalf of the company, though they clearly said are the same time that this seizure had taken place at the shop of one Chiranji Lal at Agra and not at the office of the company, as alleged by Shiv Dayal. The learned Sessions Judge argued that the fact of the seizure of the lorry having been admitted by the applicants their act clearly amounted to an offence under Section 424, I.P.C., because they had no right to seize the lorry, and as they did so and removed it to their office their action must be deemed to amount to a dishonest removal of the lorry within the meaning of Section 424, I.P.C. It appears further that the learned Judge did not consider it necessary to send the case back for retrial because he thought that in view of the admission made by the applicants any such proceeding would be wholly unnecessary. In these circumstances the applicants have been convicted under Section 424, I.P.C. The first point which arises for consideration upon the facts mentioned above is whether the learned Judge was legally entitled to convict the applicants of an offence under Section 424, I.P.C., even though they were never charged with it. Upon a careful consideration I think the answer must be in the negative. It is an elementary principle of criminal law that a person cannot be convicted of an offence without being definitely charged with it. This principle is embodied in Section 233, Original P.C., which runs as follows:
For every distinct offence of which any person is accused there shall be a separate charge, and every such charge shall be tried separately.
5. The same Section however lays down the exceptions to the general rule which are to be found in the succeeding Sections 234, 235, 236 and 239. The only one of these four Sections which can possibly be applied to the present case is Section 236 which runs as follows:
If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences.
6. The next Section, namely 237, which is governed by Section 236 provides for the conviction of an accused person of an offence with which he has not been charged and runs as follows:
If, In the raise mentioned in Section 286, the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of that Section, he may be convicted of the offence which he is shown to have committed, although ho was not charged with it.
7. Let us now examine whether the provisions of these Sections could possibly apply to the facts with which we are concerned in the present case. The complainant Shiv Dayal had put forward a very clear and definite case of cheating. There was absolutely nothing in that case even to suggest that the applicants could be guilty of an offence under Section 424, I.P.C. He never alleged that the applicants had either concealed or removed the lorry. Upon the facts alleged by him there could be no case under Section 424, I.P.C. What is still more important is that no evidence was produced on behalf of the prosecution to show that the lorry had been concealed or removed by the applicants. The fact that the lorry was seized at the shop of one Chiranji Lal and was removed from there to the office of the company h to be found only in the statement made by the applicants in their defence in the trial Court. The statement made by the accused persons in their defence cannot, by any means, be said to be evidence as contemplated by Section 237, Criminal P.C. It is thus clear that Sections 236 and 237, Criminal P.C., were wholly inapplicable to the facts in this case and hence the conviction of the applicants by the learned Judge under Section 424, I.P.C., even though the applicants were not charged with that offence, was wholly wrong in law. It is true that Section 423, Criminal P.C., which defines the powers of an Appellate Court lays down that 'in an appeal from a conviction the Court may...alter the finding maintaining the sentence.' But this is to be road with Sections 236, 237 and 238, Criminal P.C. The powers conferred upon the Appellate Court by Section 423, Criminal P.C., are limited by the provisions of Ha. 236, 237 and 238, Criminal P.C. In this connexion I may refer to a decision of this Court in Mahabir Prasad v. Emperor : AIR1927All35 . In that case a person was charged with a substantive offence but was convicted by the Appellate Court for abetment thereof, and it was held that:
It is not open to a Court to find a man guilty of abetment of an offence on a charge of the offence itself. The only Section which empowers an Appellate Court to alter a finding and base a conviction for abetment is Section 423, Criminal P.C., but this Section must be read with Sections 237 and 238 of the Act, and as abetment is not a minor offence, 16 can only come under Section 237 if there is no element in the abetment which is not included in the charge.
8. I would therefore hold that the learned Sessions Judge in this case erred in law in convicting the applicants under Section 424, I.P.C., though they had not been charged thereunder. Again it appears to me that even upon the merits the conviction recorded by the learned Judge cannot be maintained. The whole basis of the conviction is obviously the fact that the applicants stated in their defence that they had seized the lorry at the shop of Chiranji Lal. It is however to be borne in mind that this was no part of the prosecution case and them was nothing in the prosecution evidence to support it. The learned Judge has therefore relied merely upon the statement of an accused person without taking that statement as a whole, as he was bound to do. Bead as a whole, the statement of the applicants was that they were entitled, under the agreement between the parties, to seize the lorry. The complainant Shiv Dayal asserted his title to the lorry only on the basis of a written agreement executed by him which had been signed on behalf of the company by the applicant. Hemraj. It is obvious that the validity of such an agreement can easily be questioned. There is nothing to show that Hemraj was duly authorized by the company to enter into any such agreement on their behalf. If that agreement was not legally valid and binding on the company, it necessarily follows that the applicants in their capacity as servants of the company were entitled to seize the lorry and, if they did so, they cannot possibly be said to have dishonestly or fraudulently concealed or removed any property as contemplated by Section 424, I.P.C. If the company was entitled to seize the lorry as urged by the applicants there could be no element of dishonesty because there could be no wrongful loss to Shiv Dayal. Lastly, it appears to me that the learned Judge has not correctly interpreted the removal referred to in Section 424, I.P.C. It is to be borne in mind that this removal is ejusdem generis with concealment which precedes it. Section 424 is designed to meet a' special class of oases and has, in my opinion, no application to a case where property is openly seized by a person in the exercise of an alleged right.
9. The result therefore is that I allow this application and set aside the conviction and sentence of the applicants. The fine if any paid by the applicants may be refunded.