minal 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
from the judgment and order dated July 14 1969 of the Patna Hi Court in Criminal Misc
No 411 of 1969
section 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 section 409 IPC for having committed criminal breach of trust of Rs 27800during 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 PWD Gaya East Division during the period between 31 1 60 to 30 11 60  2
Whether charge amount namely Rs 27800 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 PWD 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 27800 while acting as cashier of PWD 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 section 409 IPC 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 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 eg Pritam Singh vs State of Punjab1 Manipur Administration vs Thokchom Bira Singh 2  State of Andhra Pradesh vs Kokkiligada Meeraiah3 and Assistant Collector of Customs vs L R Malwani4 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 25000 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 25000or 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
VPS Appeal partly allowed
1 AIR 1956 SC 415


Summary:
The appellant was tried under section 409 IPC 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 section 409 IPC 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