Order The petitioner, Saifuddin Ahmed Khan, was charged, along with others with an offence under section 409, Indian Penal Code, in relation to the customs duty on post parcels collected in discharge of their duties as the employees of the Customs Department. The Additional Magistrate, Division No. 2, found that so far as the petitioner is concerned, there was no clear proof that any money was entrusted to him or that he misappropriated the same. Nevertheless he convicted him under section 409, Indian Penal Code, as his conduct in making signature on the false bijjak and passing faisala order thereon indicated that he was in league with the clerks who misappropriated the amounts. The learned Sessions Judge, in appeal, came to the conclusion that section 409, Indian Penal Code, did not apply; but that having regard to the facts of the case and the evidence on record, he was guilty of an offence under section 119, Indian Penal Code. Thus he convicted him for the said offence and maintained the sentence passed by the Magistrate. The only argument advanced by the learned counsel on behalf of the petitioner in all the four cases is that the offences under sections 119 and 409, Indian Penal Code are distinct and different offences that neither the facts entered in the charge-sheet nor the charge framed against the petitioner did ever put him on notice that he had to meet a case under section 119, Indian Penal Code and that under these circumstances a conviction under section 119 is against law. The point raised in all these petitions being common, this order will govern all the four petitions. Before I consider the legal aspects of the case, a brief statement of facts of the case would be expedient. The petitioner is the Naib Amin of the customs naka. The procedure followed for the assessment and collection of customs duty is admittedly as follows. In case of parcels, subject to customs duty, the importer brings the parcel from the post office, prepares a bijjak himself or gets it prepared by a clerk called bijjak navis in accordance with the invoice that he produces. The parcel, invoice and bijjak are submitted by the importer to Naib Amin who orders for scrutiny. In case of parcels, subject to customs duty, the importer brings the parcel from the post office, prepares a bijjak himself or gets it prepared by a clerk called bijjak navis in accordance with the invoice that he produces. The parcel, invoice and bijjak are submitted by the importer to Naib Amin who orders for scrutiny. Then the clerk concerned opens the parcel, sees whether the entries in bijjak and invoice tally with the contents of the parcel and makes his note on the bijjak. He enters the value of the parcel and sends it. The said parcel along with the invoice and bijjak are taken to the Naib Amin who checks the entries, contents and value of the parcel and gives out his “faisala” order. The bijjak invoice and parcel are then taken to the clerk who makes the assessment of the customs duty and collects the same. There is also faisala register maintained in the naka in which the bijjak contents, value of the parcel and the amount of duty are entered by the clerk. The clerk who collects the duty prepares receipt in duplicate. The invoice is then handed over to the party by the Naib Amin and the duplicate receipts by Tanaquisaz. The Naib Amin then remits the day’s collection to the Head Office in the evening after checking that the entries in the bijjak, receipt and faisala register tally and the duty has been collected in full according to the value mentioned therein. The charge against the petitioner and his co-accused is that though they assessed the customs duty in full and collected the same by passing receipt, they entered false amounts in the original receipts kept in the office, destroyed the bijjaks filed, forged fresh bijjaks wherein entries were made to tally with the false amounts entered in the receipts preserved in the naka and faisala register too was prepared accordingly. In this way, it is said that the process of misappropriation went on undetected for a long time until it was unearthed by the C.I.D. at the instance of the customs authorities. In this way, it is said that the process of misappropriation went on undetected for a long time until it was unearthed by the C.I.D. at the instance of the customs authorities. In all the four cases brought against the petitioner and his co-accused, the evidence on record goes to show that, though according to the records maintained, the amount collected is the same as has been credited to the Government in relation to the post parcels alleged "nevertheless the receipts passed to the parties relating to the same which are produced in the Court and the entries in the registers of the importers and banks concerned, tell a different tale. They show that the amounts credited to the Government fall far short of the amounts actually collected from the parties. It will be noticed that the receipts are not passed by the petitioner but by his co-accused. The invoices taken from the custody of the parties and produced in the Court do not bear the initials or the signature of the Nub Amin, the petitioner. On the contrary, some of these invoices in one case are initialled or signed by one of his co-accused. Thus there is no direct proof as to the participation of the petitioner in the commission of the offence under section 409, Indian Penal Code. But his guilt has been presumed having regard to the suspicious nature of the documents prepared in the office. This suspicion has been occasioned by the receipts and invoices and the entries in the registers produced from the custody of the importers and their agents and corroborated by their sworn testimony. Further in three cases, the persons who had paid the duty have stated on oath that the bijjaks preserved in the office with their alleged signature are not the same bijjaks as were submitted by them. No doubt these circumstances do establish that the correct amount of duty collected has not been credited to the Government, but was misappropriated. But unless it is clear that the petitioner too had a hand in the same, he cannot be charged with the criminal liability. No doubt these circumstances do establish that the correct amount of duty collected has not been credited to the Government, but was misappropriated. But unless it is clear that the petitioner too had a hand in the same, he cannot be charged with the criminal liability. Of course, he was in duty bound to see that all the registers are maintained and the entries are made correctly but his dereliction of duty in this regard by itself, does not involve him in a penal offence unless his criminal acts, i.e., acts with criminal intention have been established. Great stress has been laid on his failure to sign the invoices and this is attributed to his design rather than to accident. But it is also seen that on two of the invoices, his subordinate and not he had made his signatures. However both the Courts below have come to the conclusion that in view of the circumstantial evidence that is furnished by the registers maintained and the faisala orders it cannot be said that the petitioner was not in league with the actual culprits. Be that what it may, the point that falls for determination in this petition is that when the petitioner was charged under section 409, Indian Penal Code and was found not guilty of that offence, as the learned Sessions Judge has observed, can he be held guilty of the offence under section 119, an offence which was neither stated in the charge-sheet nor the accused was put on notice of it, so that he may meet the case on that score. It is a fundamental principle of law thata person can be convicted of a particular offence only if he was charged with the same. Sections 237 and 238, Criminal Procedure Code, however, are the only exceptions to this rule. Section 237, Criminal Procedure Code, is controlled by section 236. According to it there can be a conviction even though there has been no charge in respect of that offence provided only the evidence is such as to establish a charge which could have been framed under section 236. These are the cases where there exists a doubt as to the exact offence or offences about which there is evidence in the hands of the prosecution. There should however be no doubt about the facts. These are the cases where there exists a doubt as to the exact offence or offences about which there is evidence in the hands of the prosecution. There should however be no doubt about the facts. But if the facts themselves are in doubt, or on the facts alleged, there is no doubt about the offence itself, section 237, Criminal Procedure Code, will not apply, There is also section 238 wherein a conviction without a charge is permissible. But it relates only to cases falling specifically within that section, i.e., cases where minor offences or attempt to commit the offences with which they are charged are proved. On a perusal of both the sections, it would appear that a conviction is permissible with regard to cognate offences or offences which are minor and in no way independent of the main offence or offences with which the accused is charged. For a conviction for minor offence, it is necessary that it should be composed of some of these ingredients which constitute the main offence itself. It should not be an offence involving entirely different elements. Thus the basic rule as stated above, is that no person can be convicted of an offence without a charge, unless. it is a case falling under section 237 or 238, Criminal Procedure Code. 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, at any event, satisfy itself that the accused was not misled in his defence. It would appear that sections 119 and 409, Indian Penal Code, are in different chapters of the Penal Code. The ingredients of both the offences are not the same. It would appear that sections 119 and 409, Indian Penal Code, are in different chapters of the Penal Code. The ingredients of both the offences are not the same. While in section 409 it is necessary to prove that the accused besides being a public servant was in such capacity entrusted with the property in question or the dominion over it and that he committed criminal breach of trust in respect of it, the ingredients of section 119 are (i) that there was the existence of a design to commit an offence; (ii) that the accused was a public servant; (iii) that it was the duty of the accused as public servant to prevent the commission of that offence; (iv) that the accused concealed the existence of such a design by his act or illegal omission or by his knowingly false representation and (v) that the accused did so voluntarily and thereby intended to facilitate or knew that he would thereby facilitate the commission of the offence or that the offence concealed has been committed. A charge under section 409, Indian Penal Code, obviously therefore cannot cover any of the ingredients excepting ingredient No. (ii) which by itself is not an offence. Such a case is not one contemplated by either section 237 or 238, Criminal Procedure Code. Evidently, the facts constituting an offence under section 119, Indian Penal Code, were neither stated in the charge-sheet nor was the accused, at any time, put on notice of the same. The charge under section 409 being disproved against him, he cannot be taken by surprise for an offence under section 119, Indian Penal Code. Such a conviction without a charge is against law. The order under revision cannot be upheld. I therefore allow the revision petition and acquit the accused. A.B.K. ----- Revision allowed.