| Headnote |
A B c D E F GOPALPRASADSINHA v. STATE OF BIHAR Octobel' 16, 1970 [S. M. SIKRI AND I. D. DUA, JJ.] 61~ Crimi;:al ProcedureCode (Act 5 of 1898), s, 403-/.1.>11N"Stoppe/ When applicable. The appellant was triedunder .s. 409, J.P.C., for havin~ committee! crimin.al breachof trustduring the period betweenJanuary 31, 1960 and November 30, 1960 while acting as acashier. He was put up fortrial in a previouscase under s. 409,I.P.C., for havingcommittedcriminal breach of trust during the period December 8, 1960 to August 17, 1961 and in thatcase he was acquittedbecause it was held that he was not inchargeof thecash. On the question,whether on the principle of issue-estoppel he should be acquitted,because, if he was not a cashier fromDecember 8, 1960 to August 17, 1961 he couldnot be held to be a cuhier from January 31, 1960 to November 30, 1960. HELD: The basic principleunderlyingthe ruleof issue-estoppcl is tb,t the same iS&ue of factand law musthave been determined in tho previousproceeding,that is, the latterfindingmust necessarilybe in con tradiction ofthepreviousdetermination.In the present case,however, theaccused was never· appointed as a cashier,but was a temporarysenior acoounts clerk who was alleged to be doing the workof a cashier.A person may be acting as acashierat oneperiodand may not be acting as a cashierat another. Iii suchcircumstances, when the periodsare different, there can be no suchcontradiction.Therefore, the ruleof issue-estoppel does notapplyto thefactsof thecase. [621 H; 622 A-Cl CRIMINAL APPELLATE JURISDICTION :. Criminal Appeal No. 212 ofJ967. Appeal by special leave from the judgment and order dated Auguat 3, 1967 ol the Patna High Court in Criminal Appeal No. 389 of 1965 with Special Leave Petition (Criminal) No. 1048 of 1969 from the judgment am.d order dated July 14, 1969, oC the Patna High Court in Criminal Misc. No. 411 of 1969. from the G julfamont and order dated July 14, 1969, of the Patna Hip Court in Criminal Misc. No. 411 of 1969. S. N. Prasad, for the appellant. B. P. Iha, for the respondent. H The Judgment of the Court was delivered_ by SUiri, 1. This appeal by special leave raises the question of the applicability of the rule of issue·estoppel. The appellant, 620 SUPREME COURT REPORTS (1971] 2 S.C.R. Gopal PrasadSinha, was fried on (! charge under s. 409, I.P .C., forhavingcommittedcriminal breach of trustof Rs .. 27,800/ duringthe periodbetweenJanuary 31, 1960 and November 30, 1960, whileacting as a cashier of the Public WorksDepartment, EastDivision,Gaya. The AssistantSessions Judge framedthree pointsfor determination: "1. If the accusedGopal Prasad Sinha was a Public servantand wasworking as cashierin theoffice oftheExecutiveEngineer, P.W.D., Gaya East Division, duringthe periodbetween 31-1-60 to 30-11-60 ?" 2. Whethercharge amountnamelyRs. 27,800/ was entrustedto the accus.ed or hehaddominionover it in hiscapacity as a publicservant? 3. Whetherthe accusedcommittedcriminal breach oftrustin respectof thischargeamount ?" The learnedAssistantSessions Judge, after goingthrough theoraland documentaryevidence, answered the fir$! point in the ·affirmative and held that the accused was handlingthe cash intheofficeduringthe aforesaidperiod as a cashier. On pointNo. 2 thelearnedAssistantSessions Judge, after consideringthe oraland documentaryevidence, held : "It is provedthat the accused was in chargeof one keyof oneof thelocksof thedoorof theironchest oftheofficeof theExecutiveEngineer P.W.D., Gaya EastDivision. It is also provedthat the accused was dealingwith the cashof theDivisionand he was re ceivingand disbursingmoney of theDivision.I accord ingly hold that the chargemoneywas entrustedto 1he accused and the accusedhad dominionover the charge amountof Rs. 27,800/- whileacting as cashierof P.W.D.,Gaya East Division." On pointNo. 3· he heldthat "the accusedmade entriesin thecashbookshowingremittanceof the charge amount to sub divisionsNos. 2 and3 but the samewere not actuallyremit.led bytheaccusednor theywerereceivedin suh-divisionNos. 2 and 3." Thepointof issue-estoppel was raisedbeforehim, the point beingthat the accused was putup on ·-trial ina previouscase under s. 409, I.P.C.,for havingcommittedcriminal breach of trustwith respectto certainamountsduring the period Decem ber8, 1960 to August17, 1961,and in thatcasethe High Courthad acquittedthe accusedholding that he was notin A B c D E F G H A B c D E F G H G, P, SINHA v. BllIAR (Sikri, I.) 621 charge of thecash.The learned Assistant Sessions Judge held thatthe aforesaidfinding of theHighCourtcould not operate as a res judicata. TheHighCourt,on appealin thepresentcase, upheldthe findingsof factof thelearnedAssistant Sessions Judge.The HighCourtalso repelledthe argumentregarding rule of issue estoppelthus : "In the earliercase out of whichcriminalappeal 40 of 1963arose,the defalcationsin questionwere allegedto havebeen committed•by the presentappellant in his capacity as acashierduring the period 8-12·60 to 17-8-61. As such,the pointin issuein thatcase was whetherthe accused,that is, the presentappellant, was the cashierand was inchargeof thecashduringthe aforesaidperiod. In the presentcase, however,the defalcations·in questionare allegedto havebeencom mittedduringan altogetherdifferent period, namely, 31-1-60 to 30-11-60 and the pointin issuein the presentcase is whetherthe appellant was thecashier ofthedivisionand was in chargeof thecashduring this particularperiod. The findingof fact as givenin theaforesaidappeal that the appellant was not a cash· ier and was notin charge of thecashmustbe held as beingoperativefor the poriod8-12-60 to 17·8-61 during which the defalcationsforming the subject matterof. theaforesaidappeal were allegedto have beencommitted and, as such,those findingscannot inany way operateunder the principleof issue-estoppel toprecludethe prosecutionfrom adducingevidence inthesubsequentcase, that is, in thepresentcase, to showthat the appellant was the cashierof thedivi sionand was in chargeof thecashduringthe period 31-1-60to 30-11-60." Thf' learned cooosel fortheappellantcontendsthat sJll>s tantially it was the sameissue that was triedduringthe eatlier irial,and if the accused was notthe cashierfrom December . 8, 1•960 to August17, 1961, he couldnot be heldto bea cashier fromJanuary31, 1960 to November 30,1960. He saidthat thedefencein boththe cases. was identicaland the evidence also almost thesame. Inouropinion,the HighCourtcame to thecorrectcon clusion.The basicprincipleunderlying the rule of issue-estoppel is thatthe sameissue of factand law musthave been deter mined in thepreviouslitigation.The questionthen arises: Was it the same issue of fact which was determinedin theearlier SUPREME. COURT REPORTS [1971 J 2 S.C.R. case '? A personmay be acting as a cashierat oneperiodand may not be acting as a cashierat anotherperiod, especiallyas inthis .:a''~ it wasfoundthat the appellanthad neverbeen ap pointed as a cashier.He wasa temporarysenior accounts clerk who was allegedto bci doing the work of a cashier. If there is any likelihoodof factsor conditionschanging during the twoperiods which are underconsiderationthen it is difficultto saythatthe prosecutionwould be boundby thefindingin a previoustrial on a similar issueof fact. It seems to us that the later finding 1.nust necessarilybe in contradictionof theprevious detennina tion. Thi:!re canbe nosuchcontradiction if the periodsare different and the factsrelatingto thecarryingon of theduties of a cashierare different. Th.: learnedcounsel has referredto a numberof casesof thisCourtwherethe ruleof issue-estoppelhas beenapproved; e.g. Priram Sing/1 v. State of Punj"b (1); Manipur Administration v. Thokchom Bira Singh('); State ofAndhra Pradesh v. Kokkili gada Meeraiah(".); and Assistant Collector of Customs v. L. R. Ma/wanil'), butthesecases do notsupportthe contention of the learnedcounselfor the appellant. It appearsthat the appellantsurrenderedon December 1, 1961,and in Sessions TrialNo. 90 of 1962he was sentenced tofiveyears'rigorousimprisonment.He startedserving his sen tence on November 15, 1962.His appealto theHighCourt was al!ow~d onOctober5. 1964, and thereafterhe remained' in prison as an undertrial prisefner. In thepresentcase he was sentencedto sixyears'rigorousimprisonmentand a fine of Rs. 25,000/- qr in defaultto undergo further imprisonmentfor 18 months. In the circumstancesgiven above we considerthe sentence of six yearsin thepresentcase as excessiveand reduceit to rigo . rousimprisonmentfor three yEars, anda fine of Rs. 25,000/ or in default furth.~t· imprisonmentfor 18 months. In the result the appeal is ,partlyallowedin thematterof sentence,as statedabove. Special Leave Petition (Criminal) No. 1048 of1969 is accordinglydismissed. V.P.S. Appeal partly allowed. (I} A.I.R. 1956 S.C. 415. (2) (1964)7 S.C.R. 123, (J)·[A.I.R] 1970 S.C. 771. (4) [A.l.R.] 1970 S.C. 962. A B c D E F G |
