The appellate court has the power to convict the accused for an offence other than that for which he was tried and acquitted, and the provisions of S.237 Crl. P. C. can be applied to convict the accused for the offence made out by the facts proved, even if he was not charged with that offence.

1. This is an appeal from an order of acquittal. The appellant filed a complaint against the 1st respondent before the Additional First Class Magistrate's Court, Ernakulam, charging him with offences punishable under S.403, 409 and 477-A IPC. The case against him was that he was appointed manager of the Cochin office of the appellant company and in that capacity he received two cheques Exts. P-7 and P-8 from a customer of the company, cashed the cheques, and instead of crediting the proceeds in the account of the company misappropriated the same.

2. The 1st respondent was found guilty of the offences under S.403 and 477-A by the Magistrate and sentenced to pay a fine of Rs. 300/ for the offence punishable under S.403 and Rs. 200/ for the offence punishable under S.477-A. He was acquitted of the charge under S.409, since it has not been proved that he was the agent or manager of the Cochin office.

3. Counsel for the appellant submitted that it was open to the court below to have convicted the accused under S 408 as the evidence would indicate that the accused was employed as a servant of the company and if he was so employed and entrusted with money of the company in that capacity and misappropriated the same he would be guilty of an offence punishable under that section. S.408 is as follows:

"Whoever, being a clerk or servant or employed as a clerk or servant, and being in any manner entrusted in such capacity with property, or with any dominion over property, commits criminal breach of trust in respect of that property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine".

If the evidence would make out that the accused was employed as a servant and was entrusted in that capacity with property or dominion over property and committed criminal breach of trust in respect of that property it was open to the court below to have convicted him under S.408. Under S.237 Crl. P. C., even though an accused is not charged with an offence, if from the evidence it is found that he has committed that offence, the court can convict him for the offence. S.237 reads:

"If in the case mentioned in S.236, 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 he was not charged with it."

In order that S.237 may apply there must be no doubt about the facts which can be proved at the trial: the doubt must be a doubt as to the offence which would be made out by the facts which can be proved, and the doubt must be a doubt at the time of the framing of the charge. In other words, the provisions of S.236 must be satisfied before applying S.237.

4. In this case the charge under S.409 was on the assumption that the accused was the manager of the branch office of the company at Cochin. After the trial it was found on the evidence that the accused was only a servant employed by the company, that he did not fill the capacity of manager of the Cochin branch office, and that as a servant he was authorised to receive money on behalf of the company. In the complaint and in the sworn statement of the complainant the case was that the accused was employed as the manager of the Cochin branch, but in the charge the allegation was that the accused was employed as a servant of the company and in his capacity as servant he was entrusted with the cheques, and that be was guilty of an offence punishable under S.409. It was probably under a mistake that S.409 was mentioned in the charge. The allegation of facts in the charge were such as if proved they would make out an offence under S.408. I think, the court below should have considered the facts proved at the trial and convicted the accused of the offence made out by the facts proved although the accused was not charged with that