IMPORTANT POINT
The court emphasized that additional evidence under Section 391 of the Cr.P.C. must not prejudice the accused and should only be admitted if necessary to prevent a failure of justice.

JUDGMENT :

GITA GOPI, J.

1. Rule. Learned APP and learned Advocate Mr. Bhamare waive service of notice of rule on behalf of respective parties. By consent, rule is fixed forthwith.

2. Heard learned advocates for respective parties.

3. The revisionist is the original complainant in a proceeding under Sections 406, 420 and 114 of the Indian Penal Code, which was before the learned Chief Judicial Magistrate, Anand, in Criminal Case No. 2403 of 2018, wherein the accused, husband and wife, came to be acquitted by an order dated 30.12.2019.

4. Aggrieved and dissatisfied by the impugned judgment of the learned Chief Judicial Magistrate, Anand; the de facto complainant filed a Criminal Appeal under Section 372 of the Code of Criminal Procedure, 1973 (in short ‘Cr.P.C’). The present Revision is challenging the order below Exh.11 passed by the learned 4th Additional Sessions Judge, Anand, in Criminal Appeal No. 94 of 2020, where the original complainant as an appellant, had moved the Court under Section 391 of the Cr.P.C., making a prayer to produce additional evidence, stating it to be necessary for the evaluation of the evidence and just decision of the case. The prayer was made to take on record the deposition of Surajkant Shrikant Prasad, who had filed an affidavit in Criminal Case No. 824 of 2014, which was under Section 138 of the Negotiable Instruments Act against the wife of Surajkant Shrikant Prasad.

5. Respondent Nos.2 and 3, Surajkant Shrikant Prasad and Nitu W/o Surajkant Shrikant Prasad, are both accused of the proceeding under Sections 406, 420 and 114 of the IPC. They both came to be acquitted in that proceeding in Criminal Case No. 2403 of 2018 by the learned Chief Judicial Magistrate, Anand on 30.12.2019. The de- fecato complainant had proposed to place on record the affidavit of the accused of the said matter, who had been examined by the wife as a defence witness in the proceedings under Section 138 of the Negotiable Instruments Act. The de facto complainant had urged before the learned Appellate Court in the acquittal appeal filed under Section 372 of the Cr.P.C. to take the affidavit of the accused, wherein he has stated that he has executed an agreement of sale/ Banakhat with the de facto complainant, who was selling his property being Flat No. F/F/12 Shiv Shalin Complex situated at Vidhyanagar, for the amount of Rs.11,00,000/- out of which Rs.6,00,000/- was paid to the accused No. 2 – husband by the complainant.

6. Learned advocate Ms. S.M. Ahuja for the revisionist submitted that the prayer was made under Section 391 of the Cr.P.C. for taking, the affidavit of the accused which was recorded in the proceeding under Section 138 of the N.I. Act, in the Criminal Case No. 824 of 2014 to bring it as additional evidence to secure ends of justice and further submitted that the evidence sought to be produced as additional evidence would be necessary to prove the culpability of the accused and submitted that the learned Appellate Court, thus, should have concluded that the additional evidence, which is proposed to be produced is necessary for the dispensation of justice.

6.1. Learned advocate Ms. S.M. Ahuja submitted that the agreement of sale executed by the accused in favour of the complainant supported the case of the complainant, where contents of agreement of sale included the receipt of amount and the execution for the property, where the fact would reveal that the accused have tried to misled the complainant by showing that they were the owner of the said suit property in the year 2013, and with a view to grab huge amount fraudulently from the complainant, had executed the agreement of sale, their intention from the very beginning was to cheat the complainant.

6.2 Learned advocate Ms. S.M. Ahuja submitted that the said fact is admitted by the accused by way of an affidavit of deposition in Court and therefore, to substantiate the allegation made by the complainant, the prayer was made before the learned Appellate Court under