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PETITIONER: LALTA AND ORS.

       Vs.

RESPONDENT: STATE OF UTTAR PRADESH

DATE OF JUDGMENT: 25/10/1968

BENCH: RAMASWAMI, V. BENCH: RAMASWAMI, V. SHAH, J.C. GROVER, A.N.

CITATION:  1970 AIR 1381            1969 SCR  (2) 528  CITATOR INFO :  RF         1975 SC 856  (18)

ACT:     Code of Criminal Procedure  (5 of  1898),  s.  403--Rule of issue-estoppel--Applicability.

HEADNOTE:      The first appellant filed a suit on a promissory  note. Prior  to the institution of the suit, the executant of  the promissory note had filed a complaint against the appellants alleging that they had forcibly taken his thumb  impressions on  a  number  of  blank  forms  of  promissory  notes.  The Magistrate   ’acquitted the, appellants.   Thereafter.   the suit  on   the promissory note was dismissed on  the  ground that  the promissory note was a forgery because, the  stamps affixed  were  of a date later than that of  the  promissory note.   The  Court  then  filed  a  complaint  against   the appellants for the offence of forgery.  The appellants  were convicted for forgery and abetment of forgery.     In appeal to this Court,     HELD: In the earlier criminal case, the allegation  that the  executant’s  thumb  impressions  on  blank  forms  were obtained by force, was found to be false.  That finding  was final  and could not be reopened because of the rule  as  to issue-estoppel.   Therefore, the sub-stratum of the  present case  failed and the appellants could not be  convicted  for the offence of forgery and its abetment. [532 D--F]     The  rule  of issue-estoppel is not covered by  s.  403, Criminal  Procedure Code, which deals with the principle  of autrefois  acquit:  but that section does not  preclude  the applicability  of the rule.  The rule is in accordance  with sound  principle and was applied in two decisions  of   this Court, namely, Pritam Singh v. State of Punjab, A.I.R.  1956 S.C.  415   and Manipur Administration  v.  Thockechom  Bira Singh,  [1964] 7 S.C.R. 123. There is no reason for  casting any  doubt on its soundness or for taking a different  view. [532 B-D]

JUDGMENT:

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   CRIMINAL APPELLATE JURISDICTION: Criminal Appeal  No.185 of 1966.     Appeal  by  special leave from the  judgment  and  order dated  June  3, 1966 of the Allahabad  High  Court,  LuCknow Bench  inCriminal Revision Applications No. 410 and  413  of 1964. R.K.  Garg, S.C. Agarwala, S. Chakravarti and  S.  S.Shukla, for the appellants. O.P. Rana and Ravindra Bana, for the respondent. The Judgment of the Court was delivered by Ramaswami, L This appeal is brought, by special leave,  from the judgment of the Allahabad High Court dated June 3, 1966 527 dismissing  the Criminal Revision Applications Nos. 410  and 413. of 1964.     The  appellant, Lalta filed a money suit no. 54 of  1955 in the Court of Civil Judge, Gonda against Swami Nath on the basis  of  a pronote and receipt dated July 1, 1952  on  the allegation that Swami Nath had taken a loan of Rs. 250  from him  and  executed a promisory note and a  receipt  in  lieu thereof.  Swami Nath filed a written statement in that  suit denying  to  have  taken any loan or to  have  executed  any pronote  and  receipt in favour of Lalta.  It  appears  that prior to the institution of this suit Swami Nath had filed a complaint  on  January  24, 1955 against  Lalta  and  others alleging that they had forcibly taken his thumb. impressions on  a number of blank forms of pronotes and  receipts..  The case arising out of the Criminal complaint came to be  heard by  a Magistrate Second Class who by his judgment dated  May 31,   1956 acquitted Lalta and the other persons  complained against. The Criminal c’ase against Swami Nath proceeded  on the.  charges  framed under ss. 342 and  384,  Indian  Penal Code.   In  the  Civil Suit which was filed  by  Lalta,  the defendant Swami Nath moved an application for a report being called  from  the  Superintendent,  Security  Press,   Nasik regarding  the  year of the revenue. stamps affixed  on  the pronote  and  the  receipt.   The  matter  was   accordingly referred  to the Superintendent, Security Press,  Nasik  and the report received was that the stamps in question had been printed  on December 21, 1953 and were issued for the  first time on January 16, 1954 to the Treasury.  Subsequent to the receipt  of the report Lalta did not put in  appearance  and the  suit was dismissed for default on June 1,   1956.   The Civil  Judge  was moved for filing a complaint  against  the appellants  for committing forgery.  The Civil  Judge  Gonda actually  filed  a complaint on, November  9,  1956  against Lalta  for  offences under ss. 193, 194, 209, 465,  467  and 471, Indian Penal Code and against Tribeni and Ram  Bharosey for’an  offence  under  s. 193,  Indian  Penal’  Code.   The complaint was enquired into by a First Class Magistrate  who committed  the appellants to the Court of Sessions.  By  his judgment  dated November 27, 1963, the  Assistant   Sessions Judge, Gonda convicted Tribeni and Ram Bharosey under s. 467 read with s. 109, Indian Penal Code and sentenced them to  3 years  rigorous imprisonment.  He found Lalta guility  under s.  467,  Indian  Penal Code and sentenced him  to  3  years rigorous  imprisonment.  Lalta was also convicted  under  s. 471,  Indian  Penal Code and sentenced to 2  years  rigorous imprisonment.   He  was  also found  guilty  under  s.  193, Indian   Penal  Code and sentenced to rigorous  imprisonment for two years.  The appellants took the matter in appeal  to the Sessions Judge, Gonda who by his order dated October 17, 1964 set aside the convie- 528 tion of Lalta under s. 193, Indian Penal Code but maintained

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the  conviction of the appellants under the other  sections. Tribeni, Lalta and Ram Bharosey filed Revision  Applications before  the  Allahabad High Court which by its  order  dated June 3, 1966 affirmed the order of the Sessions Judge, Gonda and dismissed the Revision Applications.     In  support  of  this appeal Mr. Garg  put  forward  the argument  that  in  view  of  the  fact  that  Swami  Nath’s complaint had been ,dismissed by the Second Class Magistrate on May 31, 1956, the prosecution case with regard to the act of  forgery must fail and the conviction of Lalta  under  s. 467 and s. 471, Indian Penal ,.Code was not sustainable.  It was  also pointed out that the ,charge of  abetment  against Ram  Bharosey  and Tribeni under s. 467 read  with  s.  109, Indian Penal Code and s. 471 read with s. 109, Indian  Penal Code  must  fail for the same reason.  In our  opinion,  the argument  put forward on behalf of the appellants  is  well- founded and must be accepted as correct.     In  Pritam  Singh  v. The State of  Punjab(1),  it   was pointed  out by this Court that the effect of a  verdict  of acquittal passed by a competent court on a lawful charge and after a lawful trial is not completely stated by saying that the  person  acquitted cannot be tried again  for  the  same offence,  but to that it must be added that the  verdict  is binding and conclusive in all subsequent proceedings between the  parties-  to.  the  adjudication.   In  that  case  the appellant  had been acquitted of the charge under s.  19(f), Arms  Act  for  possession  of  a  revolver.   There  was  a subsequent  prosecution  of the appellant  for  ,an  offence under  s. 302, Indian Penal Code and the possession  of  the revolver was a fact in issue in the later case which had  to be  established  by the prosecution. It was  held  that  the finding  in the former trial on the issue of prossession  of revolver   will   constitute   an   estoppel   against   the prosecution, not as a bar to the trial and conviction of the appellant  for  a different offence but  as  precluding  the reception of ,evidence to disturb the finding of fact.     Section   403,  Criminal  Procedure  Code  embodies   in statutory  form  the  accepted  English  rule  of  autrefois acquit.  The section reads as follows:                   "403. (1) A person who has once been tried               by  a Court of competent jurisdiction  for  an               offence  and  convicted or acquitted  of  such               offence   shall,  while  such  conviction   or               acquittal  remains in force; not be liable  to               be  tried again for the same offence,  nor  on               the same facts for any other offence for which               a  different charge from the one made  against               him might have been made (1) A.I.R. 1956 S.C. 415. 529               under section 236, or for which he might  have               been convicted under section 237.                   (2) A person acquitted or convicted of any               offence  may  be  afterwards  tried  for   any               distinct  offence for which a separate  charge               might  have.  been  made against  him  on  the               former  trial under section  235,  sub-section               (1).                   (3)  A  person convicted  of  any  offence               constituted  by any act  causing  consequences               which,  together with such act, constituted  a               different  offence from that of which  he  was               convicted,  may be after wards tried for  such               last-mentioned  offence, if  the  consequences               had  not  happened, or were not known  to  the

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             Court  to have happened, at the time  when  he               was convicted.                   (4) A person acquitted or convicted of any               offence   constituted   by   any   acts   may,               notwithstanding such acquittal or  conviction,               be  subsequently charged with, and tried  for,               any other offence constituted by the same acts               which  he may have committed if the  Court  by               which he was first tried was not competent  to               try the offence with which he is  subsequently               charged.                   (5)  Nothing in this section shall  affect               the  provisions of section 26 of  the  General               Clauses Act, 1897, or of section 18 8 of  this               Code.                   Explanation.     The   dismissal   of    a               complaint,  the stopping of proceedings  under               section  249, the discharge of the accused  or               any  entry  made upon a charge  under  section               273,  is not an acquittal for the purposes  of               this section." Section  26 of the General Clauses Act which is referred  to in s. 403, Criminal Procedure Code enacts as follows:                  "Where  an act or omission  constitutes  an               offence under two or more enactments, then the               offender shall be liable to be prosecuted  and               punished   under  either  or  any   of   those               enactments  but  shall  not be  liable  to  be               punished twice for the same offence."     It is manifest in the present case that. the  appellants cannot  plead the bar enacted in s. 403(1) of  the  Criminal Procedure Code. It is equally manifest that the  prosecution of the appellants would be permitted under sub-s. (2) of  s. 403,  Criminal  Procedure Code. The question  presented  for determination  in this appeal is, however,  different.   The question is whether where an issue of fact has been tried by a  competent  court on a former occasion and a  finding  has been reached in favour of an accused, such a 530 finding  would  constitute  an  estoppel  or   res  judicata against  the  prosecution,  not as a bar to  the  trial  and conviction  of  the accused for a different offence  but  as precluding the reception of evidence to disturb that finding of  fact when the accused is tried subsequently even  for  a different  offence which might be permitted by the terms  of s. 403(2), Criminal Procedure Code.  The distinction between the principle of autrefois acquit and the rule as to  issue- estoppel; in other words, the objection to the reception  of evidence  to  prove  an identical fact which  has  been  the subject-matter  of  an  earlier  finding  between  the  same parties  clearly brought out in the following  passage  from the judgment Wright,. J. in The Queen  v. OIlis(1):                   "The   real  question  is   whether   this               relevant  evidence  of the false  pretence  on               July 5 or 6 ought to have been excluded on the               ground that it was part of the evidence  given               for  the prosecution at the former  trial,  at               which  the  prisoner was charged  with  having               obtained  money  from  Ramsey  on  that  false               pretence, and was acquitted of that charge." Speaking  of this type of estoppel, Dixon, J. stated in  The King  v. Wilkes ( 2 ):                   "Whilst  there  is  not a  great  deal  of               authority  upon the subject, it appears to  me               that  there is nothing wrong in the view  that

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             there  is an issue estoppel, if it appears  by               record  of  itself or as explained  by  proper               evidence,  that the same point was  determined               in favour of a prisoner in a previous criminal               trial  which is brought in issue on  a  second               criminal  trial  of the  same  prisoner.  That               seems  to be implied in the language  used  by               Wright,  J.  in R.v. Oilis which in  effect  I               have     adoptde     in     the      foregoing               statement...............   There  must  be   a               prior proceeding determined against the  Crown               necessarily  involving  an issue  which  again               arises in a subsequent proceeding by the Crown               against the same prisoner.  The allegation  of               the  Crown in the subsequent  proceeding  must               itself  be inconsistent with the acquittal  of               the prisoner in the previous proceeding.   But               if such a condition of affairs arises I see no               reason  why  the  ordinary  rules  of   issue-               estoppel should not apply.  Such rules are not               to  be  confused with those of  res  judicata,               which in criminal proceedings are expressed in               the  pleas of autrefois acquit  and  autrafois               convict.  They  are pleas which are  concerned               with the judicial determination of an  alleged               criminal liability and in the case of (1) [1900] 2 Q.B. 758, 768-769.     (2) 77 C.L.R. 511,518. 531               conviction  with  the substitution  of  a  new               liability.  issue estoppel is  concerned  with               the judicial establishment of a proposition of               law  or fact between parties. It depends  upon               well-known   doctrines   which   control   the               relitigation  of issues which are  settled  by               prior litigation." The same question was the subject-matter of consideration by the  High  Court of Australia in a later case  Marz  v.  The Queen(1).  The  question  at issue was  the  validity  of  a conviction for rape after the accused had been acquitted  on the  charge of murdering the woman during the commission  of the act.  In a unanimous judgment by which the appeal of the accused was allowed, the High Court stated as follows :--                   "It is a negation in the alternative  upon               which,  so  long as the verdict stood  in  its               entirety,  the applicant was entitled to  rely               as  creating  an issue  estoppel  against  the               Crown.   He  was  entitled  to  rely  upon  it               because  when  he pleaded not  guilty  to  the               indictment  of  murder the issues  which  were               thereby  joined  between  him  and  the  Crown               necessarily   raised  for  determination   the               existence  of  the  three  elements  we   have               mentioned  and the verdict upon  those  issues               must, for the reasons we have given, be  taken               to  have affirmed the existence of  the  third               and  to  have denied the existence of  one  or               other  of  the  other  two  elements.   It  is               nothing  to  point that the verdict  may  have               been the result of a misdirection of the judge               and  that owing to the misdirection  the  jury               may    have   found   the   verdict    without               understanding or intending what as a matter of               law  is  its necessary meaning  or  its  legal               consequences.   The law which gives effect  to               issue  estoppels  is not  concerned  with  the

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             correctness  or incorrectness of  the  finding               which amounts to an estoppel, still less  with               the  processes  of  reasoning  by  which   the               finding  was  reached  in fact;  it  does  not               matter  that the finding may be thought to  be               due to the jury having been put upon the wrong               track by some direction of the presiding judge               or  to the jury having got on the wrong  track               unaided. It is enough that an issue or  issues                             have  been  distinctly raised and  fou nd.  Once               that  is  done, then, so long as  the  finding               stands, if there be any subsequent  litigation               between  the  same  parties,  no   allegations               legally  inconsistent with the finding may  be               made by one of them against the other."     It  is therefore clear that s. 403,  Criminal  Procedure Code  does  not preclude the applicability of this  rule  of issue-estoppel. (1) 96 C.L.R. 62, 68-69. 532 It  was  contended by Mr. Rana on behalf of  the  respondent that  the decision of this Court in Pritam  Singh’s  case(x) was  based on the observations of the Judicial Committee  in Sambasivam   v. Public Prosecutor, Federation  of  Malaya(2) and   the  decision  in  Pritam  Singh’s  case(1)   required reconsideration   because  the  principle  could   have   no application  ,to  India  where the  principle  of  autrefois acquit  is covered by a statutory provision viz., s.   403,’ Criminal Procedure Code which must be taken to be exhaustive in  character.  We are unable to accept this contention   as right.   We have already pointed out that s.  403,  Criminal Procedure  Code does not preclude the applicability  of  the rule of issue-estoppel.  In any event, the rule is one which is in accordance with sound principle and supported by  high authority and there are already two decisions of this Court, viz.,  Pritam  Singh’s  case(1) and  a  later  case  Manipur Administration   v.  Thokchom,  Bira   Singh(3)-which   have accepted  the  rule  .as a proper  one to  be  adopted.   We therefore do not see any reason for casting any doubt on the soundness  of the rule or for taking a different  view  from that  adopted  in the two earlier decisions  of  this  Court referred to.     If the rule of issue-estoppel is applied to the  present case, it follows that the charge with regard to forgery must fail  against  all the appellants.  The reason is  that  the case of Swami Nath is solely based upon the allegation  that his  thumb  impressions  were obtained. on  blank  forms  of promissory notes and receipts on January 7, 1955 by the  use of  force. If the finding of the Second Class Magistrate  on this  issue is final and cannot be reopened, the  substratum of  the  present prosecution case fails and the  charges  of forgery  under ss. 467 and 471, Indian Penal Code cannot  be established against any of the appellants.     For  these  reasons  we hold that this  appeal  must  be allowed, the judgment of the Allahabad High Court dated June 3, 1966 must be set aside and the convictions of each of the appellants  and  the sentence imposed upon  them  should  be quashed.  If the appellants are still in jail they should be set at liberty forthwith. V.P.S.                       Appeal allowed. (1) A.I.R. 1956 S.C. 415. (2) [1950] A.C. 458. (3) [1964] 7 S.C.R. 123. L3Sup. C.I/69-2,500--19-1-70-GIPF.

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