IN THE HONBLE COURT OF SHRI ALOK AGGARWAL ADDITIONAL CHIEF METROPOLITAN MAGISTRATE TIS HAZARI DISTRICT COURT DELHI

Complaint Case No2006

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

PROTEST PETITION ON BEHALF OF THE COMPLAINANT M/S GIVOLIMITEDFOR INACTION AND ILLEGAL TERMINATION OF THE INVESTIGATIONS BY THE INVESTIGATING AGENCYIN COMPLETE DERELICTION OF ITS STATUTORY AND OFFICIAL DUTIES.

Most Respectfully Showeth

1. That the complainant is aggrieved against the illegal action of the police who without any proper investigation

has

filed

the

untraced

report

in

the

above

First

Information Report.

2. That the complainant GIVO LIMTED is a company duly incorporated under the INDIAN COMPANIES ACT, 1956 having its registered office at 42nd Milestone, Kherki, Daula, Gurgaon-122001, Haryana had filed complaint the above

on coming to know that some unknown

persons were infringing the branded goods manufactured (wearing apparel) under the name and style of GIVO which is also the registered trademark of the company certain accused and were supplying & selling the same in the open market.

3.

4. That the illegal sale and manufacturing of GIVO brand apparels was rampant and in violation of all 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 of 60% in the market in a desperate bid make maximum profit by cheating and representing to the public that the said goods are genuine and GIVO products

which has adversely affected the reputation of the company besides causing a lot of financial loss to it. The complainant has been able to procure sufficient material to evidence the fact of the illegal trade practice being carried on by it.

5. The accused persons were/are selling garments with GIVO trade name openly in the market without any license or authorization from the complainant and

encashing the goodwill of the complainants brand name. The accused person in conspiracy with unknown people had been deceiving, confusing and cheating the public and the complainant. The trademark and copy right of the complainant were/are being violated with impunity.

6. That the accused person's action constituted trademark infringement in violation of section 101, 102 and 103 of the Trade Marks Act 1999 and Copy Right Act 1957 as also cheating under section 420 of the IPC. The accused person are also guilty of having committed offence under section 406 of IPC as they have misappropriated the siggles given to them in trust.. As a proximate result of accused persons actions, complainant has suffered and

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

7. The acts of infringement continued and were deliberate, willful and in conspiracy with each other and the accused are liable to be punished in accordance with law which the police has failed to do in complete violation of orders passed by the Honble court under section 156(3) of the Cr.Pc.

8. That the complainant before filing the complaint in the court had approached the police for registering an FIR and punishing the accused person, but the police did not take any action and ultimately on 19.12.2006 the complainant left with no other alternative,was compelled to file the

complaint before this Honble court , the Honble court after hearing the complainant was satisfied that Prima Facie offences under the Trade Marks Act and violation of copy right as per Copy Right Act were taken place,

passed the following directions to the police. .Keeping in view the nature of allegations, it requires through investigation by the police, accordingly, let complaint along with the

annexures/documents be sent to DCP/EOC, Crime Branch with directions to carried out the

investigation under section 156(3) Cr.P.C, after registering formal FIR..

9. That on 25.01.2007 the police formally registered a FIR No 48/2007 U/s 406, 418 & 420 I.P.C. R/w Sec. 103 & 104 of the Trademark Act, 1999 and Sec. 63 of Copy Right Act, Police Station: Hauz Khas . During this period the

complainant also got to know about some of places and person who were selling the infringement goods in the market and immediately visited the EOW with the information but the IO simply after making them wait for hours said they will inform him later on if so required, as they needed to first verify from their sources.

10.

That due to the failure of the IO to take any action

the complainant was constrained to move the Honble High Court of Delhi and filed a suit for injunction and recovery of damages against the accused person. The Honble High Court on 07.2.2007 granted ex-parte

injunction order in favour of the complainant and also appointed local commissioners for the purpose of seizure

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

11.

That the complainant again visited IO on 19.02.2007,

20.02.2007 and on several occasions which 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.

That on 27.02.2007 the complainant being aggrieved

against the non action of the police and manner of investigations even preferred an application before this Honble court seeking indulgence of the Honble court to direct the police for progress of the investigation. The Honble court also after hearing the said application directed the police to expedite the investigation and file a status report by the next date. The Honble court also observed that the Police has ample power for effecting search and seizure in pursuance of the FIR having been registered on the disclosure of Cognizable offences.

13.

That surprisingly on 29.11.2007 the IO of the case

simply filed a closure/untraced report before the court

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

14.

That

the

Investigating

agency

from

the

very

beginning did not show any interest and deliberately adopted escape and dialatory tactics with a view to frustrate and avoid performing its statutory obligations.

15.

That the police despite being a specialized agency

for dealing with such like crime is trying to put dust/cover on its own inaction by wrongly stating that complainant was not available Which is incorrect and false as the complainant had been time and again appearing before the investigating agency and even provided them

information about the ongoing trademarks violation. However it was only looking into their laid back and disinterested attitude the complainant was forced to file the suit before the Honble High Court. Even after supplying the documents pertaining to the search and seizure made by the Local Commissioner with the assistance of the local police the investigating agency did not take any action. As a result even the subsequent

information

about

the

ongoing

infringement

was

overlooked as a result of which the petitioner was compelled to file yet another suit bearing no 2561 /2007. A. A complaint was also thereafter given to the police also which has also not been responded to copy of the

complaint is annexed herewith as Annexure B.

16.

That the law empowers the police, to effect search,

seizure and arrest, but the police in this case did not deliberately initiate any such steps, even when this Honble 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 police have filed the above untraced report

without properly investigating the case. It is also proved by the fact that one Catwalk Fashion Shop No C-20 Central Market, Lajpat Nagar-II was selling and displaying the GIVO products in open market.

18.

That the investigation agency has all the man power

and the resources to detect and find out the source of

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 are of cognizable nature and when the

person

complainant had already provided information about the source and availability of infringed trade mark goods, the police should have immediately acted upon the said information and conducted some investigations but they are deliberately passing on the burden/responsibility 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

1. That this Honble court may kindly be pleased to reject the closure/untrac report as sought to be filed by the Police (EOW) in the case FIR No 48/2007 U/s 406,418, 420 IPC R/w 103 & 104 of the Trade Mark Act, 1999 and Sec. 63 of

the Copy Right Act, Police Station Hauz Khas

District

South Delhi, the same being illegal and contrary to the mandate of law. 2. To further direct the investigating agency to reinvestigate the case, arrest the accused person(s) and file

chargesheet accordingly. 3. To pass any such further orders/direction that this Honble court may deem fit and proper.

Complainant & Authorized Representatives Through Counsel Jayant K. Sud/Kalyan Dutt/Anupam Mishra Advocates Sud & Sud 103 Lawyers Chamber Delhi High Court New Delhi Tuesday, January 08, 2008 New Delhi

Dated: Place: