JUDGMENT - S.S. PARKAR, J.:---This petition has been filed by the petitioners who are accused of having committed offences under section 63 of the Indian Copyright Act, sections 78 and 79 of the Trade and Merchandise Marks Act and sections 420 and 483 of the Indian Penal Code in Criminal Case No. 465 I R/4(S)92 of 1991 pending in the Court of Additional Metropolitan Magistrate's 37th Court, Esplanade, Bombay.

2.Initially, the respondent No. 1 had filed a private complaint in the Magistrate's Court on 21st August 1991 for the aforesaid offences against M/s. Gulfam Exporters and other unknown persons, a copy whereof is annexed as Exhibit "A" to the petition. Pursuant to the said complaint the learned Metropolitan Magistrate had directed enquiry in the matter under section 202 of Cr.P.C. Pursuant to the said order the police enquiry was held and the police report dated 21-10-1991 was filed, a copy whereof is annexed as Exhibit "E" to the petition. After the police report the complainant filed another elaborate complaint against the petitioners in the same Court on 4-11-1991, a copy whereof is annexed as Exhibit "F" to the petition. After perusing the said complaint, the earlier complaint and the police report, the learned Additional Metropolitan Magistrate had issued process against the petitioners-accused by his order dated 7-1-1992. The petitioners seek quashing of the said order issuing process by the trial Court. It may be mentioned here that on earlier occasion the petitioners had filed Writ Petition No. 2224/91 challenging the earlier complaint and alternatively praying for quashing the order passed by the trial Court in the earlier complaint for seizure of instruments, documents, goods etc. which was disposed of on 25-9-91, with which we are not concerned in this petition.

3.Although this petition is filed in the year 1992 and rule was issued on 19-10-92 no reply affidavit has been filed in this petition. This petition has been placed for hearing since November 1998 and was adjourned from time to time. However, no reply affidavit was filed nor anybody appears in the matter on behalf of respondent No. 1 complainant. Before this Court, the matter was called out on 27-8-99 and 3-9-99 and also on 17-9-99 as it was high on board, yet no one had appeared on behalf of the respondent No. 1 complainant. Today also when the matter was called out and kept back, no one appeared on behalf of the respondent No. 1 though the appearance is filed on behalf of the respondent No. 1. I, therefore, had no option but to hear the petitioner's Counsel at length and dispose of the matter.

4.Mr. Desai the learned Counsel appearing on behalf of the petitioners raised number of contentions. Firstly he contended that no prima facie case has been made out to prosecute the petitioners for the aforesaid offences. Secondly he contended that since there is no registration either under the provisions of the Copyright Act, 1957 or the Trade and Merchandise Marks Act, 1958 the prosecution for the offences under the said Acts i.e. section 63 of the former Act and sections 78 and 79 of the latter Act would not lie. Thirdly he contended that there was no mens rea or knowledge for prosecuting the petitioners as contemplated under section 63 of the Copyright Act, 1957. Fourthly he contended that the offences under the provisions of I.P.C. i.e. cheating and another are not made out from the complaint as the complaint does not make out case for those offences. Fifthly he contended that since the civil proceedings are pending between the parties at the instance of the respondent No. 1 complainant the criminal complaint should not be allowed to be continued particularly when the complainant has obtained injunction from the Civil Court against the petitioners. Lastly he contended that the Magistrate's Court in Bombay has got no jurisdiction as the goods were seized in Kalamboli. He also points out that civil litigation under the Copyright Act was filed in Raigad Distric

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