The Bombay High Court at Goa has affirmed that the right to reopen defence evidence under Sections 348 and 353 of the Bharatiya Nagarik Suraksha Sanhita, 2023, is not absolute and cannot be invoked after voluntary closure of evidence and a documented pattern of non-cooperation. The judgment underscores that procedural fairness must be balanced against the abuse of process, particularly in cases where the accused has repeatedly failed to avail opportunities to present evidence.
Background & Facts
The Dispute
The petitioner, Devesh Dasharath Malvankar, was accused of dishonouring a cheque issued to the first respondent, Shripad Shankar Kerkar, under Section 138 of the Negotiable Instruments Act, 1881. The case proceeded as a summary trial under the special provisions of the NI Act, with the petitioner asserting a defence that the cheque was issued as security and not in discharge of a legally enforceable debt.
Key Facts
- The petitioner filed an application under Section 145(2) of the NI Act on 22.09.2024, seeking to cross-examine the complainant’s witnesses. The application was allowed by the Magistrate.
- The petitioner did not appear or take any steps to cross-examine any witness despite the order being granted.
- On 04.06.2025, the petitioner appeared in court and explicitly stated, "I do not wish to lead evidence in defence." This statement was recorded in the Roznama.
- The matter was adjourned to 07.07.2025 for defence evidence, but was postponed due to lack of court time.
- On 11.08.2025, the petitioner was absent. The court recorded: "Accused absent. Despite giving opportunities, accused failed to lead evidence in defence, hence opportunity is closed."
- On 08.09.2025, the petitioner appeared through a new advocate and filed an application to recall a witness, which was dismissed for lack of supporting documents.
- Final arguments were heard on 08.09.2025, and the matter was adjourned for judgment on 22.09.2025.
- On 22.09.2025, the petitioner filed an application under Sections 348 and 353 of the BNSS seeking to reopen defence evidence to examine four witnesses and produce a document.
- The Magistrate dismissed the application on 22.09.2025, finding it frivolous and an abuse of process.
Procedural History
- 22.09.2024: Petitioner’s application under Section 145(2) NI Act allowed
- 04.06.2025: Petitioner states in court: "I do not wish to lead evidence in defence" - evidence closed
- 07.07.2025: Adjourned for defence evidence due to lack of time
- 11.08.2025: Petitioner absent; court closes defence evidence opportunity
- 08.09.2025: Petitioner files application to recall witness - dismissed
- 22.09.2025: Petitioner files application under BNSS Sections 348 & 353 - dismissed by Magistrate
- 06.04.2026: Writ petition dismissed by Bombay High Court (Goa)
Relief Sought
The petitioner sought quashing of the Magistrate’s order dated 22.09.2025 and permission to reopen defence evidence to examine four witnesses and produce a document, claiming violation of Article 21 and right to fair trial.
The Legal Issue
Can an accused, who voluntarily closes defence evidence and repeatedly fails to appear for scheduled hearings, invoke Sections 348 and 353 of the BNSS to reopen evidence after final arguments have been heard?
Arguments Presented
For the Petitioner
The petitioner contended that the adjournments on 04.06.2025 and 07.07.2025 were due to court’s lack of time, not his fault. He argued that his absence on 11.08.2025 was due to unavoidable personal circumstances. He relied on Article 21 of the Constitution to assert that denial of opportunity to present defence evidence violates the right to a fair trial. He submitted that Sections 348 and 353 of the BNSS empower courts to reopen evidence in the interest of justice.
For the Respondent
The respondent argued that the petitioner had ample opportunity to lead evidence but deliberately chose not to. The statement recorded on 04.06.2025 was a voluntary and informed waiver of the right to present defence evidence. The petitioner’s subsequent application was filed only after final arguments were heard, indicating mala fide intent to delay proceedings. The respondent relied on the Roznamas to demonstrate a consistent pattern of non-cooperation.
The Court's Analysis
The Court meticulously examined the Roznamas and found that the petitioner’s claims of being denied opportunity were factually incorrect. On 04.06.2025, the petitioner himself declared he did not wish to lead evidence - a clear and unambiguous waiver. The court noted that the petitioner did not challenge this recorded statement, nor did he seek to withdraw it at any point.
"The record of the matter clearly shows that ample opportunity was given to the Petitioner to lead evidence. In fact, the application filed by the Petitioner under Section 145(2) of the N.I. Act was allowed by the Learned Magistrate on 22nd September 2024. Though, this application was allowed the Petitioner did not avail the opportunity to cross-examine the 1st Respondent."
The Court rejected the petitioner’s reliance on Article 21, holding that the right to fair trial does not entitle an accused to indefinite opportunities to reopen evidence after deliberate inaction. The Court emphasized that procedural fairness must be exercised responsibly and cannot be weaponized to obstruct justice.
The Court also declined to decide the broader legal question raised by the respondent regarding the interaction between Section 5 of the BNSS and the NI Act, noting that the outcome could be determined on the facts alone. The Court agreed with the Amicus Curiae that Section 145 of the NI Act applies only to the complainant’s evidence and not to the accused’s, but held that this was immaterial since the petitioner had already closed his own evidence.
The Court found the Magistrate’s conclusion - that the application was filed solely to delay proceedings - to be fully supported by the record. The timing of the application, filed only after final arguments, confirmed its dilatory nature.
The Verdict
The writ petition was dismissed. The High Court upheld the Magistrate’s order dated 22.09.2025 dismissing the application under Sections 348 and 353 of the BNSS. The petitioner’s request to reopen defence evidence was denied. No costs were awarded.
What This Means For Similar Cases
Defence Evidence Cannot Be Reopened After Voluntary Closure
- Practitioners must advise clients that a clear statement in court waiving defence evidence constitutes a binding waiver under criminal procedure
- Applications under BNSS Sections 348-353 cannot be used to circumvent a voluntary decision to forego defence evidence
Pattern of Absence Undermines Fair Trial Claims
- Repeated non-appearance, even if attributed to court delays, will be weighed against the accused’s conduct
- Courts will not permit reopening of evidence where the accused has demonstrated a consistent pattern of non-cooperation
Timing of Applications Is Critical
- Applications to reopen evidence filed after final arguments are prima facie suspect and likely to be viewed as dilatory
- Courts will examine the chronology of events and the accused’s conduct holistically before granting relief under procedural reopening provisions
