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PETITIONER: GOPAL PRASAD SINHA

       Vs.

RESPONDENT: STATE OF BIHAR

DATE OF JUDGMENT: 16/10/1970

BENCH: SIKRI, S.M. BENCH: SIKRI, S.M. DUA, I.D.

CITATION:  1971 AIR  458            1971 SCR  (2) 619  1970 SCC  (2) 905

ACT: Criminal  Procedure  Code  (Act 5 of  1898),  s.  403-Issue- estoppel-- When applicable.

HEADNOTE: The appellant was tried under s. 409, I.P.C.,     for having committed criminal breach of trust during the period between January  31,  1960 and November 30, 1960 while acting  as  a cashier.   He was put up for trial in a previous case  under s.  409,  I.P.C., for having committed  criminal  breach  of trust during the period December 8, 1960 to August 17,  1961 and  in that case he was acquitted because it was held  that he was not in charge of the cash.  On the question,  whether on  the principle of issue-estoppel he should be  acquitted, because,  if he was not a cashier from December 8,  1960  to August  17, 1961 he could not be held to be a  cashier  from January 31, 1960 to November 30, 1960. HELD  :  The basic principle underlying the rule  of  issue- estoppel  is that the same issue of fact and law  must  have been  determined  in the previous proceeding, that  is,  the latter  finding must necessarily be in contradiction of  the previous  determination.  In the present case, however,  the accused  was  never  appointed  as  a  cashier,  but  was  a temporary  senior  accounts clerk who was- alleged  to  be doing  the work of a cashier.  A person may be acting  as  a cashier at one period and may not be acting as a cashier at another.   In  such  circumstances,  when  the  periods  are different,  there can be no such contradiction.   Therefore, the  rule of issue-estoppel does not apply to the  facts  of the case. [621 H; 622 A-C]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 212  of 1967. Appeal  by  special  leave from the  uderstand  order  dated August 3, 1967 of the Patna High Courtin Criminal Appeal No. 389 of 1965 with Special Leave Petition (Criminal) No.  1048 of 1969 from the judgment and order dated July 14, 1969,  of the  Patna  High Court in Criminal Misc.  No. 411  of  1969.

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from  the  judgment and, order dated July 14, 1969,  of  the Patna Hi& Court in Criminal Misc.  No. 411 of 1969. S.   N. Prasad, for the appellant. B.   P. Jha, for the respondent. The Judgment of the Court was delivered by Sikri,  J. This appeal by special leave raises the  question of  the  applicability of the rule of  issue-estoppel.   The appellant, 620 Gopal  Prasad  Sinha, was tried on a charge  under  s.  409, I.P.C., for having committed criminal breach of trust of Rs. 27,800/during  the  period  between  January  31,  1960  and November  30, 1960, while acting as a cashier of the  Public Works  Department,  East  Division,  Gaya.   The   Assistant Sessions Judge framed three points for determination :               "1.  If the accused Gopal Prasad Sinha  was  a               Public     servant and was working as  cashier               in the office of the Executive       Engineer,               P.W.D., Gaya East Division, during  the period               between 31-1-60 to 30-11-60 ?"               2.    Whether   charge   amount   namely   Rs.               27,800/-  was entrusted to the accused  or  he               had  dominion  over it in his  capacity  as  a               public servant ?                3.   Whether  the accused committed  criminal               breach  of  trust in respect  of  this  charge               amount ?" The  learned Assistant Sessions Judge, after  going  through the oral and documentary evidence, answered the first  point in  the affirmative and held that the accused  was  handling the  cash  in the office during the aforesaid  period  as  a cashier. On  point No. 2 the learned Assistant Sessions Judge,  after considering the oral and documentary evidence, held :               "It  is proved that the accused was in  charge               of one key of one of the locks of the door  of               the iron chest of the office of the  Executive               Engineer  P.W.D., Gaya East Division.   It  is               also proved that the accused was dealing  with               the cash of the Division and he was  receiving               and  disbursing  money  of  the  Division.   I               accordingly  hold  that the charge  money  was               entrusted  to the accused and the accused  had               dominion   over  the  charge  amount  of   Rs.               27,800/-  while acting as cashier  of  P.W.D.,               Gaya East Division." On point No. 3 he held that "the accused made entries in the cash  book showing remittance of the charge amount  to  sub- divisions  Nos.  2  and 3 but the  same  were  not  actually remitted  by  the  accused nor they were  received  in  sub- division Nos. 2 and 3." The point of issue-estoppel was raised before him, the point being  that  the accused was put up on trial in  a  previous case  under  s. 409, I.P.C., for having  committed  criminal breach  of trust with respect to certain amounts during  the period December 8, 1960 to August 17, 1961, and in that case the High Court had acquitted the accused holding that he was not in 621 charge  of the cash.  The learned Assistant  Sessions  Judge held that the aforesaid finding of the High Court could  not operate as a res judicata. The  High Court, on appeal in the present case,  upheld  the findings  of fact of the learned Assistant  Sessions  Judge. The High Court also repelled the argument regarding rule  of

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issue estoppel thus :               "In  the  earlier case out of  which  criminal               appeal  40 of 1963 arose, the defalcations  in               question  were alleged to have been  committed               by the present appellant in his capacity as  a               cashier during the period 8-12-60 to  17-8-61.               As  such, the point in issue in that case  was               whether  the  accused, that  is,  the  present               appellant, was the cashier and was incharge               of  the cash during the aforesaid period.   In               the present case, however, the defalcations in               question  are alleged to have  been  committed               during an altogether different period, namely,               31-1-60 to 30-11-60 and the point in issue  in               the present case is whether the appellant  was               the cashier of the division and was in  charge               of  the  cash during this  particular  period.               The finding of fact as given in the  aforesaid               appeal  that the appellant was not  a  cashier               and was not in charge of the cash must be held               as  being operative for the period 8-12-60  to               17-8-61 during which the defalcations  forming               the  subject  matter of the  aforesaid  appeal               were  alleged to have been committed  and,  as               such, those findings cannot in any way operate               under  the  principle  of  issue-estoppel   to               preclude   the   prosecution   from   adducing               evidence  in the subsequent case, that is,  in               the  present case, to show that the  appellant               was  the  cashier of the division and  was  in               charge  of the cash during the period  31-1-60               to 30-11-60." The  learned counsel for the appellant contends  that  subs- tantially  it was the same issue that was  tried  during-the earlier  trial, and if the accused was not the cashier  from December 8, 1960 to August 17, 1961, he could not be held to be a cashier from January 31, 1960 to November 30, 1960.  He said  that the defence in both the cases was  identical  and the evidence also almost the same. In  our  opinion, the High Court came to  the  correct  con- clusion.  The basic principle underlying the rule of  issue- estoppel  is that the same issue of fact and law  must  have been  determined in the previous litigation.   The  question then  arises  :  Was it the same issue  of  fact  which  was determined in the earlier 62 2 case ? A person may be acting as a cashier at one period and may not be acting as a cashier at another period, especially as  in this case it was found that the appellant  had  never been  appointed  as a cashier.  He was  a  temporary  senior accounts  clerk  who was alleged to be doing the work  of  a cashier.  If there is any likelihood of facts or  conditions changing   during   the   two  periods   which   are   under consideration  then  it  is  difficult  to  say  that the prosecution  would  be bound by the finding  in  a  previous trial  on a similar issue of fact.  It seems to us that  the later  finding must necessarily be in contradiction  of  the previous determination.  There can be no such  contradiction if  the periods are different and the facts relating to  the carrying on of the duties of a cashier are different. The  learned  counsel has referred to a number of  cases  of this  Court  where  the  rule  of  issue-estoppel  has  been approved;  e.g. Pritam Singh v. State of Punjab(1);  Manipur Administration v. Thokchom Bira Singh (2) ; State of  Andhra Pradesh v. Kokkiligada Meeraiah(3); and Assistant  Collector

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of  Customs  v.  L. R. Malwani(4), but these  cases  do  not support  the  contention  of the  learned  counsel  for  the appellant. It  appears  that the appellant surrendered on  December  1, 1961, and in Sessions Trial No. 90 of 1962 he was  sentenced to  five years’ rigorous imprisonment.  He  started  serving his  sentence on November 15, 1962.  His appeal to the  High Court  was  allowed on October 5, 1964,  and  thereafter  he remained  in  prison  as an  undertrial  prisoner.   In  the present  case  he  was  sentenced  to  six  years’  rigorous imprisonment  and  a fine of Rs. 25,000/- or in  default  to undergo further imprisonment for 18 months. In the circumstances given above we consider the sentence of six years in the present case as excessive and reduce it to rigorous  imprisonment  for three years, and a fine  of  Rs. 25,000/or in default further imprisonment for 18 months. In the result the appeal is partly allowed in the matter  of sentence,   as   stated  above.   Special   Leave   Petition (Criminal) No. 1048 of 1969 is accordingly dismissed. V.P.S.                                       Appeal   partly allowed. (1)  A.I.R. 1956 S.C. 415. (2)  (1964) 7 S.C.R. 123. (3)  [A.I.R] 1970 S.C. 771. (4)  [A.I.R.] 1970 S.C. 962. 623