61~
A
B
### c
D
E
F
GOPAL PRASAD SINHA
#### _v._
STATE OF BIHAR
_Octobel'_ 16, 1970
#### [S. M. SIKRI AND I. D. DUA, JJ.]
_Crimi;:al Procedure Code_ _(Act_ _5_ _of_ 1898), _s,_ _403-/.1.>11N"Stoppe/-_
_When_ _applicable._
The appellant was tried under .s. 409, J.P.C., for havin~ committee!
crimin.al 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 cuhier from January 31, 1960 to November 30, 1960.
HELD : The basic principle underlying the rule of issue-estoppcl is
tb,t the same iS&ue of fact and law must have been determined in tho
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
acoounts 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. Iii 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-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 Prasad Sinha, was fried on (! 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 accus.ed 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 fir$! 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 1he
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 remit.led
by the accused nor they were received in suh-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
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 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 issueestoppel 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 cash·
ier and was not in charge of the cash must be held as
being operative for the poriod 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."
Thf' learned cooosel for the appellant contends that sJll>s#### tantially it was the same issue that was tried during the eatlier
irial, and if the accused was not the cashier from December . 8,
1•960 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 conclusion. 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
SUPREME. COURT REPORTS [1971 J 2 S.C.R.
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 .:a''~ it was found that the appellant had never been appointed as a cashier. He was a temporary senior accounts clerk
#### who was alleged to bci 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
1.nust necessarily be in contradiction of the previous detennina
tion. Thi:!re 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.
Th.: learned counsel has referred to a number of cases of
this Court where the rule of issue-estoppel has been approved;
e.g. _Priram_ _Sing/1_ v. _State_ _of Punj"b_ (1); _Manipur_ _Administration_
v. _Thokchom_ _Bira_ _Singh('); State_ _of Andhra_ _Pradesh_ v. _Kokkili-_
_gada_ _Meeraiah(".);_ and _Assistant_ _Collector_ _of_ _Customs_ v. _L._ _R._
_Ma/wanil'),_ 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 al!ow~d on October 5. 1964, and thereafter he remained'
in prison as an undertrial prisefner. In the present case he was
sentenced to six years' rigorous imprisonment and a fine of Rs.
25,000/- qr 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 rigo. rous imprisonment for three yEars, and a fine of Rs. 25,000/
or in default furth.~t· 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._
(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
