Givo Protest Petition[JK1] (1)

IN THE HON’BLE COURT OF SHRI ALOK AGGARWAL ADDITIONAL CHIEF METROPOLITAN METROPOLITAN MAGISTRATE MAGISTRATE TIS HAZARI DISTRICT COURT DELHI Complaint Case No………2006

M/s. Givo Limited 42nd Milestone, Kherki Daula, Delhi-Jaipur, Highway, Gurgoan-110005 Complainant Versus Unknown Person Accused Person FIR NO : 48 /2007 U/S: 406/ 418 & 420 I.P.C. R/w Sec. 103 & 104 of the Trademark Act, 1999 Police Station: Hauz Khas, EOW INVESTIGATING NDOH 02.02.2008

PROTE PROTEST ST PETIT PETITION ION ON BE BEHA HALF LF OF THE THE COMPL COMPLAIN AINAN ANT T M/S GIVOLIMITEDFOR INACTION AND ILLEGAL TERMINATION OF THE INVESTIGATIONS BY THE INVESTIGA INVESTIGATING TING AGENCYIN AGENCYIN COMPLETE COMPLETE DERELICT DERELICTION ION OF ITS STATUTORY AND OFFICIAL DUTIES.

Most Respectfully Showeth

1. That That the the com complai plaina nant nt is aggr aggrie ieve ved d agai agains nstt the the ille illega gall action of the police who without any proper investigation

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has

filed

the

untraced

report

in

the

above

First

Information Report.

2. That That the the com compla plainan inantt GIVO GIVO LIM LIMTED TED is a comp compan any y duly duly inco incorpo rpora rated ted unde underr the the INDI INDIAN AN COMP COMPAN ANIE IES S ACT, ACT, 19 1956 56 havi having ng its its regi regist ster ered ed offi office ce at 42nd Miles Mileston tone, e, Kherki Kherki,, Daula Daula,, Gurgaon-12 Gurgaon-12200 2001, 1, Haryana Haryana had had filed filed comp omplain laintt

the above above

on com comin ing g to know know that that some ome unkno nknow wn

persons were infringing the branded goods manufactured (wearing apparel) under the name and style of  “ GIVO ” whic which h is also also the the regis register tered ed tradem trademar ark k of the the comp company any certain accused and were supplying & selling the same in the open market.

3.

4. That That the the ille illega gall sale sale and and manuf anufac actu turi ring ng of GIVO GIVO bran brand d apparel apparels s was

rampan rampantt and in viola violation tion of all all laws. laws. The

said products were being sold by the accused at a lower price than the MRP and also by giving discounts to the tune tune of 60% in the the market rket in a desp desper era ate bi bid d make maxim aximum um prof profit it by chea cheati ting ng and and repr repres esen enti ting ng to the the public that the said goods are genuine and GIVO products

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whi hic ch has advers versel ely y affec ffecte ted d the the repu reputa tati tion on of the the company besides causing a lot of financial loss to it. The complainant has been able to procure sufficient material to evid evidenc ence e the the fact fact of the the ille illega gall trade trade prac practi tice ce bein being g carried on by it.

5. The The accu accuse sed d pers person ons s were were/a /are re sell sellin ing g garm garmen ents ts with with “ trade e nam name open openly ly in the the marke arkett with withou outt any any GIVO” trad licens ense

or

autho thoriz rization tion

from

the the

complain ina a nt

and

encashing the goodwill of the complainant’s brand name.  The accused person in conspiracy with unknown people had had been been dece deceiv ivin ing, g, conf confus usin ing g and and chea cheatin ting g the the publ public ic and the complaina complainant. nt. The trademark trademark and copy right of the complainant were/are being violated with impunity.

6. That That the accused accused person person's 's actio action n consti constitute tuted d tradem trademark ark infringement in violation of section 101, 102 and 103 of  the Trade Marks Act 1999 and Copy Right Act 1957 as also chea cheati ting ng unde underr secti ection on 420 of the the IPC. PC. The The accu ccused sed person are also guilty of having committed offence under sect sectio ion n 40 406 6 of IPC IPC as they they have have misap isappr prop opri riat ated ed the the siggles given to them in trust.. As a proximate result of  accus accused ed person person’s ’s action actions, s, compla complainan inantt has suffere suffered d and

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continues to suffer great damage to its business, goodwill, reputation, profits and the strength of its trademarks.

7. The acts of infring infringeme ement nt contin continued ued and and were were delibe deliberate rate,, willful and in conspiracy with each other and the accused are liable to be punished in accordance with law which the poli police ce has has fail failed ed to do in comp comple lete te viol violat ation ion of orde orders rs passed by the Hon’ble court under section 156(3) of the Cr.Pc.

8. That That the the com complaina plainant nt before before fili filing ng the the comp compla lain intt in the the court had approached the police for registering an FIR and punishing the accused accused person, but the police police did not take any action and ultimately on 19.12.2006 the complainant left left with no other other alternat alternative, ive,was was compel compelled led to file

the

comp compla lain intt befo before re this this Hon’ Hon’bl ble e cour courtt , the the Hon’b Hon’ble le cour courtt after after hear hearin ing g the the comp compla laina inant nt was was satis satisfi fied ed that that Prim Prima a Facie offences under the Trade Marks Act and and violation of  copy opy righ rightt as per per Copy Copy Rig ight ht

Act were ere take taken n plac lace,

passed the following directions to the police.

…………….Keeping in view view the nature of allegations, allegations, it requ requir ires es thro throug ugh h inve invest stig igat atio ion n by the the poli police ce,, accordingly,

let

complaint

along

with

the

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anne annexur xures/ es/doc docume uments nts be sent sent to DCP/E DCP/EOC, OC, Crime Crime Branch

with

directions

to

carried

out

the

inve invest stig igati ation on unde under r sect sectio ion n 156( 156(3) 3) Cr.P Cr.P.C .C,, afte after  r  registering formal FIR………..

9. That on 25.01.200 25.01.2007 7 the police formally formally registered registered a FIR No 48/2007 U/s 406, 418 & 420 I.P.C. R/w Sec. 103 & 104 of  the Trademark Trademark Act, Act, 1999 1999 and Sec. Sec. 63 of Copy Copy Right Right Act, Polic olice e Sta Station tion:: Hauz Hauz Kha Khas s

. Duri During ng th this per periiod the the

complainant also got to know about some of places and perso person n who who were were sell sellin ing g the the infri infring ngem ement ent good goods s in the the marke rket

and

immedi ediately ely

visited ted

the EOW with the

information information but the IO simp simply ly after making making them wait wait for hours said said they will will inform inform him later later on if so required, required, as as they needed to first verify from their sources.

10.

That due due to th the fai failure of th the IO to to tak take any any act action

the the comp compla laina inant nt was was cons constra train ined ed to move move the the Hon’b Hon’ble le High igh Cour Courtt of Delh Delhii and and file filed d a su suit it for for inju injunc ncti tion on and and reco recove very ry of dama damages ges agai agains nstt the the accu accuse sed d pers person on.. The The Hon’b on’ble le

Hig igh h

Cou Court

on

07.2 .2.2 .20 007

gra granted nted

ex-p ex-pa arte rte

inju injunc ncti tion on orde orderr in favo favour ur of the the comp compla laina inant nt and and also also appointed local commissioners for the purpose of seizure

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of infringe and spurious goods wherein even security was provided from local police.

11.. 11

Tha That the the compl ompla ain ina ant aga again in vis visited ted IO IO on on 19. 19.0 02.2 .200 007 7,

20.0 .02. 2.20 2007 07 and on seve severa rall occasi casion ons s whi hich ch can can be verified from the entry register kept in the EOW and all appeals to investigate and prosecute the accused person fell on deaf ears.

12.. 12

Tha That on on 27 27.0 .02. 2.20 200 07 th the com compl pla ain ina ant bei being ng aggri ggriev eved ed

again ins st the non action of the police and manner of  investi investigat gation ions s even even preferr preferred ed an applic applicati ation on before before this this Hon’ble court seeking indulgence of the Hon’ble court to direc directt the the poli police ce for for prog progres ress s of the the inve invest stig igat ation ion.. The The Hon’b on’ble le cour courtt also also afte afterr hear hearin ing g the the said said appl applic icat atio ion n directed directed the police police to expedite expedite the investigation investigation and file a stat status us repo report rt by the the next next date. date. The The Hon’ Hon’bl ble e cour courtt also also observ observed ed that that the Police Police has ample ample power power for effecting effecting search and seizure in pursuance of the FIR having been registered on the disclosure of Cognizable offences.

13.

That sur surprisingly on 29 29.11.2007 the the IO of of the the cas case

simp simply ly file filed d a clos closur ure/ e/un untra traced ced repo report rt befo before re the the cour courtt

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contrary to the settled law and several direction contained in numerous judgments dealing with such uncalled illegal unjustified and partition actions smacking of malafide. malafide.

14.

That

the

Investigating

agency

from

the

very

begi beginn nnin ing g did did not not sh show ow any any inte intere rest st and and deli delibe bera rate tely ly adopt dopted ed esc sca ape and di dia alato latory ry tact tactiics with ith a view iew to frustrate and avoid performing its statutory obligations. obligations.

15.

That the pol police despite bei being a spe specialized agency

for dealing with such like crime is trying to put dust/cover on its own inaction by wrongly stating that complainant was was not not avai availa labl ble e Whic Which h is inco incorr rrec ectt and and fals false e as the the complainant had been time and again appearing before the

investig tigatin ting

info inform rmat atio ion n

abou aboutt

agency the the

and

ongo ongoin ing g

even

provi ovided

them them

trad tradem emar arks ks viol violat atio ion. n.

Howev owever er it was was only only look ookin ing g in into to thei theirr laid back back and disinterested attitude the complainant was forced to file the suit befo efore the Hon’b on’blle High Court. Even after

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information

about

the

ongoing

infringement

was

overlooked oked as a result of which the petit titioner was compelled to file yet another suit bearing no 2561 /2007. A. A complaint was also thereafter given to the police also whi hic ch has has also lso not been been respo respond nded ed to

copy opy of the the

complaint is annexed herewith as Annexure B.

16.

That the the law law emp empowers the pol police, to ef effect sea search,

seiz seizur ure e and and arres rrest, t, but but the the poli police ce in this this case case did did not not deli delibe bera rate tely ly ini niti tia ate any such uch st step eps, s, even even when hen thi this Hon’ble court on 29.01.2007 observed that they have all the necessary powers and is free to take all such steps that is required for proper investigation and collection of  evidence, but nothing happened

17.

That the the po police hav have fil filed the the ab above unt untrac raced rep report

without properly investigating the case. It is also proved by the the fact fact tha that one one Catw Catwa alk Fash Fashio ion n Shop Shop No C-2 -20 0 Central Market, Lajpat Nagar-II was selling and displaying

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spurious goods that is available in the market and they use it sparingly for their own motives.

19.

That all the offences alleged against the accused

person

are

of

cognizable

nature

and

when

the

complainant had already provided information about the source and availability of infringed trade mark goods, the poli police ce sh shou ould ld have have imm immedia ediate tely ly acte acted d upon upon the the said said information and conducted some investigations but they are delibe deliberate rately ly passin passing g on the burden burden/res /respons ponsibi ibility lity on the complainant. 20.

That

there

is

no

provision

under

the

criminal

procedure code which justifies a untrace report when the offences committed were of cognizable nature.

Prayer In the above conspectus of facts and circumstance it is most respectfully prayed that

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the the Copy Copy Right Right Act, Poli Police ce Statio Station n Hauz auz Khas Khas

Dist Distri rict ct

South South Delhi, Delhi, the same same being being illega illegall and contrary contrary to the mandate of law. 2. To further direct direct the investigating investigating agency agency to reinvestigate reinvestigate the

case,

arrest

the

accused

person(s)

and

file

chargesheet accordingly. 3. To pass any such such further orders/direc orders/direction tion that this Hon’ble Hon’ble court may deem fit and proper.

Complainant & Authorized Representatives

 Through Counsel

Dated ted: Place:

 Jayant K. Sud/Kalyan Dutt/A Dutt/Anupam nupam Mishra Advocates Sud & Sud 103 Lawyers Chamber Delhi High Court New Delhi Tuesd esday, ay, Ja January ary 08 08, 20 2008 New Delhi