A delay in lodging a complaint combined with evidence of mala fide intentions can render the legal action an abuse of process.

1. The present application has been filed by the applicants / original accused nos. 1,2 and 5 under S.482 of the Code of Criminal Procedure (for brevity 'CrPC') praying to quash and set aside the complaint, being Criminal Inquiry No. 30 of 2009 and the order dated 26th November, 2009 including FIR lodged before Sanand Police Station on the basis of process issued by learned JMFC, Sanand, being M. Case No. 4 of 2009, qua the present applicants.

2. Brief facts of the case are that by a document / affidavit sworn in by original accused no.1 ie., Smt. Savitaben before the concerned notary on 30th April, 2004, Savitaben has described herself as daughter of Punjabhai Merabhai Parmar and wife of Shaileshkumar Ratilal Raval / accused no.2. Actually, the said accused no.1 is legally married with accused no.5 ie., Mohan Karsanbhai Rathod, and is residing with the accused no.2, as his wife; though not legally divorced. Thus, the accused no. 1 is illegally staying with accused no.2 Shaileshkumar Raval as his married wife, though there is no legal divorce from Mohanbhai Rathod (accused no.5) and knowingly, remaining accused, who are relatives, indirectly supporting the said accused no.1. That, Savitaben had siblings. Out of which, son Mayur, whose date of birth is 23.02.1996, is got recorded in the Register of Sanand Nagarpalika (Sr. No. 136) as son of accused no.1 Savita as mother, whereas, accused no.5 Mohanbhai Karsanbhai Rathod as father. Thus, by making such a false affidavit by showing name of accused no.2 Shaileshbhai as her husband, forged document is created with a view to falsely claim right in the family property in the name of said son Mayur. That, in creating said document remaining accused have acted as abettors by including name of accused no.2 Shaileshkumr Raval as father of Mayur so that eventually he can claim right in the family property. That, one life insurance policy is obtained in the name of Mayur Shaileshkumar Raval from LIC of India. This also has been done deliberately with a view to create an evidence that said Mayur is son of Shaileshkumar and Savitaben. That, on 30.09.2009 at around 09.00 o'clock accused no.2, 3 and 4 met one Bipinchandra, brother of respondent no.2 and threatened him that no share in the family property will be available to the faction of respondent no.2's family from the property of their forefathers, and therefore, the impugned complaint has been lodged before the court of JMFC at Sanand on 26th November, 2009 and on the same day, learned JMFC, Sanand passed an order issuing process under S.156(3) CrPC, which has been sent to Sanand Police Station, and whereupon, it is registered as M. Case No. 4 of 2009.

3. Heard learned advocate Mr. Hitendra Rajput for Mr. Yash N. Nanavaty, learned advocate appearing on behalf of the applicants and learned APP Mr. KP Raval appearing on behalf of the respondent no.1. Though served, none appears for and on behalf of the respondent no.2.

4. Learned advocate Mr. Hitendra Rajput appearing on behalf of the applicants submitted that the applicants have a good prima facie case. The prosecution has failed to prove any case much less prima facie and whole exercise of putting the criminal machinery into motion by the respondent no.2 is nothing, but an abuse of process of law. That, so called forged affidavit is sworned by the applicant no.1 under the knowledge and with the consent of applicant no.3, which may be illegal, but no criminality can be attributed to any of the applicants. That, since the respondent no.2, who is a practicing lawyer at Sanand