JUDGMENT - G.N. VAIDYA, J.:---The appellant, Harishchandra Gopal Hadkar, was tried before the Presidency Magistrate, 10th Court, Andheri, Bombay, under section 379 of the Indian Penal Code. The charge runs as follows : "That you between 6.00 p.m. to 9.00 p.m. on 20-11-1969 at Andheri in Greater Bombay, did commit theft of Motor Car No. MRX 6917 belonging to Shrinarayan Sukhanand Jain and thereby committed an offence punishable under section 379 of the Indian Penal Code and within my cognizance." The accused pleaded not guilty to the charge. 2. The prosecution examined four witnesses, none of whome had seen the theft of the car being committed by the accused. P.W. 1, Shrinarayan Sukhanand Jain stated that on November 30, 1969, he had taken his car to the compound of Sangam theatre where he had gone for picture and that after the picture was over, when he came out he found his car missing. He went to Andheri Police Station the same night and gave his complaint. On December 3, 1969, he was informed by the Andheri Police Station that the car was traced out and it was shown to him at Kurla. All four wheels, stepney and many other parts of the car were missing. More than 14 months later, on March 25, 1971 he was again called by the police and he was shown some parts of the car, which he identified. He, however, stated in the cross-examination at the trial that all the parts were not recovered. 3. P.W. 2, Ashokkumar Ramchand, was the panch who made a panchnama on April 3, 1971, and stated that in his presence the accused stated that he would point out the person to whom he gave one radio and took the police and the panchas to Moral where one Nazir was pointed out and Nazir produced the radio at the instance of the accused and the panchnama was made in this behalf. But even the radio was not produced at the trial for the identification by Nazir. Nazir was also not examined. In the cross-examination, Ashokkumar said that the radio was a one band radio and it was not true that the property was at the Police Station. 4. But even the radio was not produced at the trial for the identification by Nazir. Nazir was also not examined. In the cross-examination, Ashokkumar said that the radio was a one band radio and it was not true that the property was at the Police Station. 4. P.W. 3, Mohmmad Yasin, stated that he knew the accused as a taxi-driver from whom he purchased the 2 tyres, horn, wheel cape, 2 shock absorbers and one fan about 5/6 months previous to his giving evidence on June 13, 1972, without taking any writing. He said that the police had brought the accused to his place on March 19, 1971 and he produced the articles before the police. While he was in the witness-box, it seems, that he was shown the car to which the articles were fitted and he said that except the wheel caps other articles were the same. But in the cross-examination he admitted that he could not say whether the tyres were remoulded though, when he had taken, the tyres were remoulded. He admitted further that he could not say whether the tyres were the same. He had not even seen the fan in the car. He admitted that he had paid Rs. 70/- to the accused for the articles and denied the suggestion on behalf of the accused that the accused had never sold the articles to him. 5. P.W. 4, Jafar Sharif Abdul Razak, was another taxi-driver who said that the accused sold him two tyres, bumper, carburator, engine fan, gear-liver and matings for Rs. 350/- two months prior to his giving evidence in the Court. The police had brought the accused to his place on March 22, 1971. He too was shown the car, but he said that he could only identify on carburator and one jack. In the cross-examination he stated that he had purchased the articles two months before the police went to his place and these articles were not fitted in his car. 6. In his statement under section 342 of the Code of Criminal Procedure, the accused denied having taken the police to the places of Nazir, Yasin or Razak, or to have sold any articles to them and denied having committed any theft thereof. 7. 6. In his statement under section 342 of the Code of Criminal Procedure, the accused denied having taken the police to the places of Nazir, Yasin or Razak, or to have sold any articles to them and denied having committed any theft thereof. 7. The learned Presidency Magistrate having rightly come to the conclusion in view of the evidence, that the charge against the accused was not established, surprisingly convicted him under section 411 of the Indian Penal Code, although no charge under section 411 was framed against the accused, and there is nothing in the statement under section 342 to indicate that the learned Presidency Magistrate had given an opportunity to the accused to meet the charge under section 411 of the Indian Penal Code. The learned Presidency Magistrate sentenced him to suffer Rigorous Imprisonment for one year and to pay a fine of Rs. 500/- or in default to suffer further Rigorous Imprisonment for two months. Feelings aggrieved by the said conviction and sentence, the accused filed the above appeal. 8. Mr. Morje, the learned Counsel appearing for the appellant, submitted that having come to the conclusion that the offence under section 379 of the Indian Penal Code, which was the subject matter of the charge, was not proved by the prosecution, the learned Presidency Magistrate erred in law in convicting the accused under section 411 of the Indian Penal Code, without giving any opportunity to the accused to meet the charge under section 411 and without any material on the record other than the evidence of the two taxi-drivers, Razak and Yasin, who were found in possession of the stolen property, and the alleged panch Ashokkumar Ramchandra (P.W. 2), who is not even supported by the evidence of the Investigating Officer. The contentions of Mr. Morje are well founded and must be upheld. 9. It is true that having regard to the provisions of section 237 of the Criminal Procedure Code, if the accused is charged with an 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 he was not charged with it if the accused is not prejudiced in his defence. Illustration to that section shows that the accused person charged for theft would be convicted for an offence of Criminal Breach of Trust or that of receiving stolen goods. Although such a conviction may not be illegal, it is well established that alteration of a charge must not be prejudicial to the accused. No person can be convicted of an offence without a charge, unless it is a case falling under sections 237 or 238 of the Criminal Procedure Code. 10. Even in cases where a conviction without charge is thus permissible, it is necessary to guard against the question of prejudice, because the accused is entitled to know with certainty and accuracy, the exact nature of the charge of which he is going to be convicted. If the facts are such as to give the accused notice of the offence for which he is going to be convicted, though not charged with it, the question of prejudice may not arise; but the Court should in any event, satisfy itself that the accused was not misled in his defence. It is fundamental to our criminal jurisprudence that every accused must know the case which he has to meet. In criminal trials it is of prime importance for the accused to know as to what the exact prosecution case is. If the pivot of the prosecution case is not accepted, a new prosecution case cannot be made to imperil defence. See (Devilal v. State of Rajasthan)1, A.I.R. 1971 S.C. 1444. In (Jitu Singh and others v. Mahabir Singh)2, I.L.R. 1900(27) Cal. 660, the accused were convicted of the theft and that was the only charge which they were called upon to answer. In appeal the District Magistrate held that no theft had been committed but he convicted them for being members of an unlawful assembly. It was held that the accused were called upon to answer only the charge of theft and as they were never called upon to answer any other charge, they could not be convicted on appeal of an offence of an entirely different character. 11. It was held that the accused were called upon to answer only the charge of theft and as they were never called upon to answer any other charge, they could not be convicted on appeal of an offence of an entirely different character. 11. The law, with respect, is correctly laid down in (Begu and others v. The King-Emperor)3, 52 Indian Appeals 191, in which the accused were charged under section 302 of the Indian Penal Code only, but they were ultimately convicted under section 201 of the Indian Penal Code for cancelling the body of the deceased. Their Lordships held on construction of section 237, Criminal Procedure Code, that the conviction was justified in law. It is, therefore, correct to say that the law is that if on the facts proved of which the accused may be taken to have notice another offence appears to have been committed by him and if on those facts it seems doubtful as to which offence the accused has committed, he may be convicted under sections 236 and 237 Cri.P.C. of the other offence. But we have to consider in each particular case as to whether the procedure followed by the Judge, though it may be strictly correct in law, is one which is fairness should be adopted in that case. See (Dibakar Das v. Saktidhar Kabiraj)4, I.L.R. 1927(54) Cal. 476. 12. In the present case, the only charge which the accused was called upon to meet was the charge under section 379 of the Indian Penal Code. As the statement under section 342 was recorded by the Presidency Magistrate, he was not bound to record in any question and answer form in view of the provisions of section 364 of the Criminal Procedure Code. Nevertheless it was necessary somewhere to indicate that the learned Presidency Magistrate had applied his mind to the ingredients of section 411 of the Indian Penal Code and had asked the accused fairly to explain the circumstances which led the Magistrate to infer that the accused knowingly or having reason to believe the car parts to be stolen property had dishonestly received or retained the stolen property. There is nothing to indicate that any such opportunity was given to the accused. The accused was denied a fair trial regarding the charge under section 411. This, in my opinion, vitiated the entire trial. There is nothing to indicate that any such opportunity was given to the accused. The accused was denied a fair trial regarding the charge under section 411. This, in my opinion, vitiated the entire trial. This is not a fit case for ordering a re-trial having regard to the delay and to the nature of the evidence in the case where even the Investigating Officer is not examined and to the manner in which the statement under section 342 was recorded. Grave prejudice is caused to the accused by not giving him an opportunity to meet the charge under section 411 of the Indian Penal Code. The acquittal of the accused under section 379 is not even challenged by the State. 13. Even assuming that a charge under section 411 could be framed against the accused, there is nothing to show as to why Nazir, who was actually in possession of the so called radio which was not even produced before the Court and Yasin (P.W. 3) and Razak (P.W. 4), who were found in possession of the alleged stolen property, were not charge-sheeted by the police. They were on their own statements receivers of stolen property and as such accomplices. They were persons from whom the said stolen properties were recovered. They could have been charged under section 411 as they claimed to have purchased the Articles without even getting receipts. Their evidence on a charge under section 411 being completely of accomplices, could not be relied upon by the learned Presidency Magistrate for convicting the accused. The evidence of Ashokkumar Ramchandra also cannot inspire confidence as the prosecution has not examined even Nazir, who was in possession of the radio which was not produced in the Court. It is unfortunate that the learned Presidency Magistrate has convicted the accused ignoring all the above infirmities in the evidence led by the prosecution. 14. The conviction and sentence passed against the accused are, therefore, set aside and the accused is acquitted of the charge even under section 411 of the Indian Penal Code and set at liberty. Fine, if paid by the accused, to be refunded to him. Bail bond of the accused stands cancelled. The appeal is allowed. -----