Seshagiri Aiyar, J.
1. The accused has been convicted of the offence of cheating. He was employed in Messrs. Oakes & Co., as Works Manager. Mr. Wilson was employed in the same firm in a slightly higher capacity. The case for the prosecution is that the accused received Rs. 3,000 from Mr. Wilson on the representation that the money was required for paying for certain articles purchased for the firm from the Chief Engineer of S.S. Ural, but that he only paid Rs. 2,000 to the Chief Engineer and misappropriated the balance.
2. The arguments in appeal were mainly devoted to attacking the procedure followed by the Magistrate. Mr. Richmond's first complaint was that there was a misjoinder of charges. The facts on which this contention was based are these:
The original charge against the accused was that he received stolen property from the Chief Engineer. After the prosecution evidence was closed, an alternative charge under Section 420 Indian Penal Code was added. The Learned Counsel contended that a charge for receiving stolen property should not have been joined with a charge for cheating. I fail to see the force of this objection. The request to Mr. Wilson for the payment of Rs. 3,000 was in furtherance of the purpose of concluding the purchase from the Chief Engineer. It was said that as the articles were handed over to the accused, the negotiations for the purchase had terminated and that the subsequent receipt of money which was misappropriated had therefore no connection with the receipt of the article.
3. Section 235 speaks of a series of acts forming part of the same transaction. There can be little doubt that in arranging with the chief Engineer for the purchase the accused intended that that purchase should be effectuated by inducing Mr. Wilson to give him money for it. The true test of a series of acts forming the same transaction is, that there should be a continuous operation of acts leading to the same end, and a common purpose should run through all the acts. See Emperor v. Sherufalli I.L.R.(1902) B. 135. For misappropriating Rs. 1,000, the first act was to arrange for the bargain and the second act was to obtain the money. Both these are connected together and have the same community of purpose. I must therefore reject the contention that there has been a misjoinder of charges.
4. The next contention related to the refusal of the presidency Magistrate to adjourn the case to enable the accused to further examine Mr. Wilson. The facts relating to this part of the case are these: Mr. Wilson was examined for the prosecution and was cross-examined at some length by the counsel for the defence. The witness had made arrangements for leaving India. Thereupon the Magistrate asked counsel for the defence whether he would insist upon the presence of Mr. Wilson any further. We find this note made by him. ' Mr. Grant has given up the re-cross-examination of Mr. Wilson, even in case a charge is to be framed.' After this statement by counsel Mr. Wilson left India.
5. It is argued that this waiver by counsel does not disentitle the accused from claiming that on the framing of a charge, the witness should be recalled. It was first contended that the waiver, if any, was only with reference to the charges originally framed and not to the alternatve charge added. The counsel who conducted the case before the Presidency Magistrate must have known that evidence as to cheating was being tendered by the prosecution. Mr. Wilson himself gave that evidence and he was subjected to cross-examination upon that matter. Therefore this suggestion cannot be accepted. I however agree that a waiver like this cannot prejudice the right of the accused under Sections 256 and 257 of the Code of Criminal Procedure. Vide Kokil Ghose v. Kasimuddi Malita 6 C.W.N. 424.
6. I shall now see whether in the circumstances of this case, the right claimed is an absolute one. There have been some conflict of views upon the interpretation of Sections 256 and 257 of the Code of Criminal Procedure. Therefore I shall first of all deal with the language of the Sections before dealing with the decided cases.
7. The procedure prescribed for trial is this: Where an accused is not discharged, a charge is to be framed. Section 255 lays down that the charge shall be read to the accused and that he shall be asked whether he is guilty or has any defence to make. Section 256 says that, if the accused claims to be tried, he shall be required to state whether he wishes to cross-examine any, and if so, which of the witnesses for the prosecution whose evidence has been taken'. 'If he says he does so wish, the witnesses named by him shall be recalled and after cross-examination and re-examination, if any, they shall be discharged''. This language seems to indicate that the witnesses are still in Cour, because when we come to Section 257, there we find mention of processes being issued for compelling the attendance of witnesses to be further examined; there is no such mention in Section 256. And the further provision that the witnesses shall be discharged has reference to the ordinary practice in criminal courts, of witnesses being bound over to attend court de die in diem; it is on the framing of the charge and after ascertaining the wishes of the accused, they are ordinarily discharged. There is no injustice done to the accused by such a procedure, because a further right is given him of summoning the witnesses for the prosecution who might have been discharged. Therefore in my opinion, the right referred to in Section 256 which is absolute and unqualified is intended to apply only where the witnesses are still before the Court and before they have been discharged from further attendance. In my opinion, in the present case, the application to further examine Mr. Wilson, is not covered by Section 256, but comes under Section 257. The Calcutta High Court in Iswar Chunder Raut v. Kali Kumar Dass 4 C.W.N. 351 appears to have taken the view that even in cases the witnesses are not before the Court, the accused has the absolute privilege of demanding that they should be summoned. Zamunia v. Ram Tahal I.L.R.(1900) Cal, 370 : 4 C.W.N. 469 takes the same view. Vide also Inder Rai v. Brown I.L.R.(1909) Cal. 236. The view taken in Allahabad is different. See Mula v. Sheo Raj Singh 11 Ind. Cas. 1007:8 A.L.J. 707. In this conflict of authorities I am free to express my opinion upon an examination of the language of the sections, and my conclusion is that in the present instance the privilege claimed by the accused is not an absolute one. I am clear that this will not prejudice the accused. If his legal advisers keep their eyes open, he is not likely to suffer by holding that Section 256 only applies to cases of witnesses actually before the Court when the charge is read out. An accused has the right to cross-examine the witnesses before the charge is framed; he has a right of re-cross-examining the witnesses present in Court after the charge is framed; he has a further right subject to certain conditions of re-summoning the prosecution witnesses after entering upon his defence, These are ample safeguards, and I do not think that to confine Section 256 to the category of cases mentioned by me is likely to affect the accused in his defence.
8. The next question relates to the construction of Section 257. In the first portion of that section, it is stated ' if the accused, after he has entered upon his defence applies to the Magistrate to issue any process for compelling the attendance of any witness for purposes of examination etc., the Magistrate shall issue such process unless he considers that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. Such ground shall be recorded by him in writing'. Some arguments were addressed to us as to whether the stage of entering upon the defence was reached when the Magistrate refused to adjourn the case for further examination of Mr. Wilson. From the record it is clear that after the charge was framed, a list of witnesses was given by the accused and the case was adjourned for the examination of the defence witnesses. No doubt the proper procedure to have adopted was to have asked the accused whether he insisted upon the cross-examination of any of the witnesses for the prosecution who may have been present in Court; but it does not appear that any such witnesses were present or that any such right was claimed. Therefore I must hold that the accused entered upon his defence by pleading not guilty and by mentioning that he has witnesses to examine. It is true that the application for re-summoning Mr. Wilson was made at once, but that would not show that the stage of entering upon the defence had not been reached when the accused, through his counsel informed the Magistrate that he has witnesses to examine.
9. I have now to see whether the Magistrate has recorded his reasons in writing for refusing to re-summon Mr. Wilson. He has mentioned them in his judgment; the matter itself came before the High Court on an application made to postpone the hearing pending the arrival of Mr. Wilson. The Magistrate should no doubt have put on paper his reasons for the refusal. However that is an irregularity which does not vitiate the case, having regard specially to the fact that he has given full reasons in his judgment, and the matter has been fully gone into in this Court on a previous occasion.
10. Another question is whether the refusal to adjourn was justifiable. If I understood Mr. Richmond aright, the facts which were expected to be elicited from the further examination of Mr. Wilson were intended to show that that witness himself was a party to the misappropriation. Mr. Richmond said that it could be elicited from the witness that it is the custom among merchants, at least among the employees of Oakes & Co., to take money from the firm, with a view to profiting personally from the bargain that may be concluded in the. name of the firm. The disingenuousness of such a plea is apparent on the face of it. Moreover when Mr. Wilson was in the witness box no such question was put to him and no witnesses were summoned from Oakes & Co., or from any other firm to prove such a pernicious practice. It seems to me therefore that the object in asking for the adjournment was not really to advance justice but to delay it. I am therefore of opinion that the refusal to adjourn the case was justifiable under Section 257 of the Code of Criminal Procedure.
11. The last question to be considered is whether the evidence already given by Mr. Wilson is inadmissible because a further opportunity was not given to cross-examine him. I agree with the contention of the learned Crown Prosecutor that the evidence is admissible. Under Section 33 of the Evidence Act evidence given by a witness in a judicial proceeding is relevant for the purpose of proving in a later stage of the same proceeding the truth of the fact which it states, when the presence of the witness cannot be obtained without an amount of delay or expense which the Court considers unreasonable, provided the adverse party in the first proceeding had a right and opportunity to cross-examine. The evidence of Mr. Wilson was given at the earlier stage of the present proceedings. From the statement of the learned Crown prosecutor as well as of Mr. Richmond, it is not known when and whether Mr. Wilson will come to India. It is also clear that the accused had the opportunity to cross-examine and exercised that right at the first stage. Mr. Richmond suggested that as the accused had a further right under Section 257, that until that right was exercised, the evidence could not be admitted. Whatever may be the value to be attached to the evidence, I agree with the contention of the learned Crown Prosecutor that once the opportunity to cross-examine had been exercised, the evidence then taken becomes complete for the purpose of being admitted in a later proceeding. The mere fact that the witness could have been subjected to a further cross-examination in the exercise of the further right is not a ground for holding the evidence to be inadmissible. I am therefore of opinion that Mr. Wilson's evidence given before the charge was framed is admissible in the case.
12. On the merits, Mr. Richmond argued that no criminal intention was proved as the accused admitted the receipt of money and pleaded that he applied a portion of it for his own use in what he considered to be the usual practice in such matters. I am wholly unable to accept this argument as sound. The Magistrate is right in holding that a clear case of misappropriation has been made out. I confirm the conviction and sentence.
13. As this case raises a question of some importance which has not been decided before in this Court, I think it advisable to deliver a separate though concurring judgment. The accused has been convicted under Section 420 Indian Penal Code by the George Town Presidency Magistrate. The case is that he purchased certain machinery for Messrs. Oakes & Co., for Es. 2,000, but represented to the Managing Director, Mr. Wilson, that the amount was Rs. 3,000 and consequently obtained a cheque from Mr. Wilson for the latter amount. No doubt, the accused was not originally charged under Section 420. The charge sheet was laid under Section 411 or 414 Indian Penal Code, but it is clear from the examination and cross-examination of Mr. Wilson and other witnesses that the possibility of the charge under Section 420 was before the mind not only of the Court but also of the accused, and it cannot be said that the accused was in any way taken by surprise by such a charge being framed on the facts laid before the court. After Mr. Wilson's examination was concluded, the accused's counsel stated that Mr. Wilson would not be required for re-cross examination, and apparently on the strength of that, Mr. Wilson was allowed to proceed to England whence he has not yet returned and it is unknown when he will return. Very soon after the charge was framed, an application was made for re-cross-examining Mr. Wilson and the case was adjourned with a view to secure his attendance. After several adjournments, the Magistrate refused to adjourn the case any further, as the attendance of the witness could not be secured, and apparently acting under Section 257 Criminal Procedure Code he proceeded to dispose of the case without having any further examination of Mr. Wilson. He has recorded his reasons for doing so in his judgment and the question we have to decide is whether he was right in acting under Section 257, or whether the accused had not an absolute right under Section 256 to recall Mr. Wilson before the case was closed.
14. Under Section 256, the accused is given the right of re-calling any of the prosecution witnesses as soon as the charge is framed, and after such re-examination, the accused is to be called upon to enter on his defence. It has been held in Allahabad by Knox, J., in Mulua v. Sheo Raj Singh 11 Ind.Cas. 1007 that this absolute right of the accused extends only to the recalling . of such witnesses as are present in Court. No doubt, it is ordinarily the duty of the Magistrate to retain the prosecution witnesses in Court until the accused has had an opportunity of exercising his right, The Calcutta view is somewhat different. In Iswarchander v. Kali Kumar Dass 4 C.W.N. 351 the accused was held to be entitled as a matter of right to re-summon one of the prosecution witnesses. The question as to whether there is any difference between the provisions of Sections 256 and 257 or what that difference is, was not discussed. The other two Calcutta cases cited, namely, Zamunia v. Ram Tahal I.L.R.(1900) Cal. 370 and Inder Rai v. Brown I.L.R.(1909) Cal. 236 take the same view, but in the former case it is further laid down that when an accused has entered upon his defence his right to re-cross-examine witnesses is governed by Section 257 Criminal Procedure Code. I however think it significant that the word 'recall' alone is used in Section 256 and that it means a mere calling in of the witnesses who may be present in or about the Court precincts, for if it also includes the re-summoning of witnesses, the procedure in all cases would be most cumbersome. First of all, a charge will have to be framed, then the prosecution witnesses will have to be re-summoned and further cross-examined and then the accused will have to be called upon to enter on his defence and yet another adjournment will be necessary for the defence witnesses. This appears to me to be an undue prolongation of the trial, and as another interpretation of the section is possible and has been adopted in the Allahabad High Court, I think that that interpretation is correct. If the Court has allowed the witnesses to depart without re-cross-examination, then no doubt the Magistrate would not refuse to re-summon under Section 257 unless there were some special circumstances to justify the refusal. But if as in this case, a witness has been allowed to depart on the representation of the accused that he was not required, I think that any further application to re-cross-examine him must be deemed to be one under Section 257. Under that section, the Magistrate is empowered to refuse the application for grounds given in the section,--one of which is that it would defeat the ends of justice. The Magistrate in this case framed a charge and admittedly the prosecution witnesses were not then present and the accused had therefore no opportunity of re-calling them. He was therefore called upon to enter on his defence and stated that he had witnesses to examine and promised to put in a written statement of his case. That being so he had entered upon his defence and I think the Magistrate was justified in asking him to do so. The subsequent application to recall Mr. Wilson must therefore be deemed to have been under Section 257, which gives the magistrate discretion in the matter. I cannot therefore hold that he has acted with any illegality in refusing to adjourn the case for the re-examination of Mr. Wilson.
15. The second question then arises as to whether the Magistrate properly exercised his discretion. It is suggested for the defence that Mr. Wilson, when he gave a cheque for Rs. 3,000, was perfectly aware of the fact that accused was only going to pay Rs. 2,000 for the goods purchased and acquiesced in his retaining the additional Rs. 1,000, as a sort of 'secret commission', as it is called. What the so-called secret commission really amounts to is a sum obtained from the company, who employed the accused and Mr. Wilson, by fraud. The company was made to pay more than the proper price for the goods, the balance going into the pocket of the accused. If, therefore, Mr. Wilson were to admit that he was aware of this secret commission, he would be declaring himself a party to this fraud; and apart from the unlikelihood of his making any such admission, it is very strange that no such question was put to him in his cross-examination which was fairly detailed and made at a time when the accused must have known that this was one of his defences. In view of the fact that this defence was put forward afterwards, it is impossible to say that the ends of justice require the attendance of Mr. Wilson for further examination. The fraud was not that the accused obtained this money from Mr. Wilson personally, but as Directing Manager of Messrs. Oakes & Cos'. Engineering works. I therefore think that the Presidency Magistrate exercised his discretion properly, and I reject this ground of appeal. As regards the plea of misjoinder, it seems to me that the case is clearly governed by Section 235 Criminal Procedure Code. On the evidence on record, the charge under Section 420 is clearly made out, and therefore the accused's appeal must be dismissed and his conviction and sentence confirmed.