Judgment L.P.N.Shahdeo, J. 1. The revision is directed against the judgment, dated 5-3-86, passed by the Sessions Judge, Palamu, in Cr. Appeal No. 40/85, whereby and whereunder he has sentenced the petitioner to undergo rigorous imprisonment for one month, although the petitioner who was convicted by the trial court, for that offence but was let off on probation on execution of a bond of Rs. 2,000 under Section 360 of the Code of Criminal Procedure with certain conditions for a period of two years, by the judgment, dated 22-3-85 passed by the Judicial Magistrate 1st Class, Palamau. 2. It appears that the petitioner was a driver of a Jeep Bearing No. B R.O. 2726. It is alleged that on 23-4-81, this petitioner who was the driver of the Jeep,, instead of going to Daltanganj had taken away the Jeep to Patna from Parwa More, and thereafter a case under Section 409 I.P.C , was lodged against him, and he was put on trial 3. During the course of trial four witnesses were examined. The accused has not examined any witness. On conclusion of the trial court convicted him as indicated above Against the judgment of the trial court an appeal was preferred which was dismissed and the sentence was enhanced. Against these two judgments, this revision has been preferred. 4. Mr. P. K. Bhowmik, learned counsel appearing on behalf of the petitioner has submitted that in this case no offence under Section 409 I.P.C , has been made out and the enhancement of the sentence by the appellate court, without any notice is illegal. 5. No one appears on behalf of the State. It is admitted position that the petitioner at the relevant time was driving the jeep as a Public Servant and he was asked by one A. P. Sinha who was the informant, but not examined in this case, to take the jeep to Daltanganj but instead of taking the jeep to Daltanganj he dropped PW 3 at Parwa More and told him that he was taking the jeep to Patna It is the admitted position that he handed over the jeep to the Director Post and Telegraph at Patna, on the same day. These are the admitted facts, on the basis of which it was rightly submitted that no ingredients for an offence under Section 409 I.P.C., is made out. These are the admitted facts, on the basis of which it was rightly submitted that no ingredients for an offence under Section 409 I.P.C., is made out. Section 409 I.P.C., says that if any public servant entrusted with the property or with dominion over property, in his capacity of a Public Servant, commits and criminal breach of trust in respect of that property, shall be punished with imprisonment of either description mentioned in the section. 6. Section 405, I.P.C. has defined the criminal breach of trust. The substance of which is that, it is for the prosecution to prove that the property so entrusted has been dishonestly either misappropriated or converted to his own use. In this case the person who had given the direction to go to Daltanganj and who was the informant has not been examined. The only important person whose evidence is relevant is PW 3, who was made to get down at Parwa More. The petitioner, thereafter, took the jeep to Patna and handed it over to the competent authority. Therefore, he had not misappropriated the property. There is nothing in the evidence to show that he was given any direction to go to any specific way. There is absolutely nothing to show that the petitioner has violated any direction given to him. The conduct of the petitioner that he instead of taking the jeep to Daltanganj had gone to Patna, may amount to misconduct but it cannot be a criminal breach of trust, as he has not dishonestly misappropriated the property over which he had a control but he had handed over the same to the competent authority at Patna. Is this case, therefore, necessary manserlia that he had dishonest intention either to misappropriate or to convert it to his own use has not been proved. Therefore, the principal ingredients of the offence have not been proved. Mere breach of an obligation cannot be punishable under this section as there is nothing in the evidence to lead to the conclusion that the petitioner had misappropriated the property or had committed any fraud with the property. Therefore, the necessary ingredients required to be proved under Section 409, I. P.C. have not been proved against the petitioner. The statement, made against him in the evidence of PW 3 do not make out a case of criminal breach of trust, which infact, has not occurred in this case. Therefore, the necessary ingredients required to be proved under Section 409, I. P.C. have not been proved against the petitioner. The statement, made against him in the evidence of PW 3 do not make out a case of criminal breach of trust, which infact, has not occurred in this case. It may be a case of violation of some directions for which the appropriate remedy was to start a departmental proceeding for misconduct and not a criminal case. 7. I am told at the bar that the petitioner has already faced the departmental proceeding, which fact Is also stated in paragraph 7 of the application. It appears that in the departmental proceeding, the petitioner has been exonerated of the charge, and he is still continuing in service. 8. Regard being had to the facts and circumstances of the case, I am satisfied that no offence under Section 409, I.P.C. was made out against the petitioner and, therefore, his conviction and sentence appear to be wholly illegal. 9. It is admitted position that the petitioner was convicted and sentence to execute bond under Section 360 of Cr.P.C. which was enhanced to one month R. I. by the appellate court. It is admitted position in this case that no notice for enhancement of the sentence was given to the petitioner by the appellate court. The petitioner himself had preferred the appeal before the appellate court. The State has not preferred any appeal for enhancement of the sentence. 10. The appellate court has no power under Section 386 of, Cr. P. C. to enhance the sentence. The enhancement of sentence in an appeal preferred by the convict is not permissible in law. The appellate court has such power of enhancement only when a notice is given for such intended action and he was afforded an opportunity of showing cause against such enhancement. In this case the enhancement of the sentence is also bad because no notice was given to the petitioner of this enhancement. Therefore, on both counts, the order of enhancement of sentence passed by the appellate court, must be held to be illegal. 11. The Supreme Court also in principle, has laid down that sentence cannot be enhanced in appeal unless a notice in this regard is served on the person concerned giving an opportunity for filing a show cause and after hearing him on that point. 11. The Supreme Court also in principle, has laid down that sentence cannot be enhanced in appeal unless a notice in this regard is served on the person concerned giving an opportunity for filing a show cause and after hearing him on that point. It was held by the Supreme Court, in the case reported in 1990 S. C. 1188 that where in a case, the appeal was filed by the convict against his conviction and sentence the High Court exercising its power of appeal, cannot make enhancement of the sentence. 12. In the result, for the reasons stated above, this application succeeds and it is accordingly allowed. The order of conviction and sentence passed by the trial court and that of the appellate court are hereby set aside.