[Cites 6, Cited by 0]
Madhya Pradesh High Court
Prakashchandra Shivhare vs Rajkumar Sharma on 9 March, 2026
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
NEUTRAL CITATION NO. 2026:MPHC-GWL:8184
1 MCRC-9956-2026
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 9 th OF MARCH, 2026
MISC. CRIMINAL CASE No. 9956 of 2026
PRAKASHCHANDRA SHIVHARE
Versus
RAJKUMAR SHARMA
Appearance:
Shri Arvind Singh Chauhan - Advocate for the petitioner [P-1].
ORDER
This petition has been filed under Section 528 of BNSS/Section 482 of
Cr.P.C. challenging the order dated 19.02.2026 passed by the Court of
Fourth Additional Sessions Judge, Gwalior in Criminal Revision No.
392/2025, whereby the revisional Court affirmed the order dated 12.12.2025
passed by the learned Trial Court in Case No. 1228/2017, arising out of a
complaint filed under Section 138 of the Negotiable Instruments Act.
Briefly stated, the respondent/complainant filed a complaint under
Section 138 of the Negotiable Instruments Act alleging that the petitioner had
borrowed a sum of Rs.6,00,000/- from him and in discharge of the said
liability issued a cheque bearing No.081760 dated 07.02.2017 drawn on
Central Bank of India, Thatipur Branch, Gwalior . The said cheque was
presented by the complainant in his bank account maintained with ICICI
Bank, Morar Branch, Gwalior but the same was dishonoured due to
insuffcent funds. After issuance of statutory notice and non-payment of the
NEUTRAL CITATION NO. 2026:MPHC-GWL:8184
2 MCRC-9956-2026
cheque amount, the complainant filed a complaint before the Trial Court.
The Trial Court took cognizance and the case proceeded for trial.During the
course of trial, the complainant concluded his evidence and the statement of
the petitioner was recorded under Section 313 of Cr.P.C., wherein the
petitioner denied the allegations. Thereafter, the petitioner moved an
application under Secton 315 of Cr.P.C. seeking permission to examine
himself as a defence witness, which was allowed by the Trial Court and the
matter was fixed for defence evidence. However, on the dates fixed for
recording the defence evidence, the same could not be recorded and
ultimately on 19.11.2025 , the Trial Court closed the opportunity of the
petitioner to lead defence evidence and fixed the case for final arguments.
The petitioner thereafter filed an application under Secton 353 of BNSS read
with Order 18 Rule 17 CPC seeking recall of the order and permission to
lead defence evidence, which was dismissed by the Trial Court on
12.12.2025 . The revision filed against the said order was also dismissed by
the revisional Court on 19.02.2026 .
Learned counsel for the petitioner submitted that the petitioner was
granted permission by the Trial Court to examine himself as a defence
witness under Section 315 Cr.P.C., however due to unavoidable
circumstances the evidence could not be recorded on the dates fixed. It is
submitted that on one occasion the petitioner could not remain present due to
the demise of his father-in-law, and on the subsequent date the counsel for
the petitioner had to urgently leave the Court as his wife suddenly fell
seriously ill. It is contended that the Trial Court closed the opportunity of
NEUTRAL CITATION NO. 2026:MPHC-GWL:8184
3 MCRC-9956-2026
defence evidence without considering these genuine difficulties. Learned
counsel further submitted that it is a settled principle that a party should not
suffer for the fault or unavoidable circumstances of his counsel. Therefore, it
is prayed that the petitioner may be granted one opportunity to lead his
defence evidence in the interest of justice.
Heard learned counsel for the petitioner and perused the record.
From the record it appears that the petitioner had been permitted by the
Trial Court to examine himself as a defence witness under Section 315
Cr.P.C. However, the defence evidence could not be recorded on the dates
fixed due to certain circumstances explained by the petitioner .
Although the Trial Court as well as the revisional Court have rejected
the application of the petitioner, this Court is of the view that an opportunity
to lead defence evidence is an important right of the accused. Denial of such
opportunity may cause prejudice to the defence of the petitioner. At the same
time, it is also necessary to ensure that the proceedings are not unnecessarily
delayed. Therefore, in the facts and circumstances of the case, this Court is
inclined to grant one last opportunity to the petitioner to examine himself as
a defence witness.
Accordingly, the present petition is allowed in part .
The order dated 19.02.2026 passed by the Fourth Additional Sessions
Judge, Gwalior and the order dated 12.12.2025 passed by the Trial Court are
set aside to the limited extent that the petitioner shall be granted one last
opportunity to examine himself as a defence witness under Section 315
Cr.P.C.
NEUTRAL CITATION NO. 2026:MPHC-GWL:8184
4 MCRC-9956-2026
The petitioner shall appear before the Trial Court on the date fixed by
the Court and shall ensure that his defence evidence is completed on the said
date. The Trial Court shall proceed with the matter thereafter in accordance
with law.
It is made clear that this opportunity is granted as a last indulgence,
and no further adjournment shall be granted to the petitioner for this purpose.
Petition disposed of accordingly.
(MILIND RAMESH PHADKE)
JUDGE
neetu
