Delhi District Court
State vs . Nitin Tuli Khurana 2018.07.06 on 6 July, 2018
IN THE COURT OF SH. MANISH KHURANA,
CHIEF METROPOLITAN MAGISTRATE, SOUTHEAST DISTRICT,
SAKET COURTS, NEW DELHI
FIR No. 451/04 Digitally signed
by MANISH
PS : Crime Branch KHURANA
U/s : 103/104 Trade Mark Act MANISH Date:
State Vs. Nitin Tuli KHURANA 2018.07.06
Unique ID No. : 89915/2016 12:21:45
+0530
Date of institution of case : 24.03.2005
Date of reserving the judgment : 26.06.2018
Date of pronouncement of judgment : 06.07.2018
J U D G M E N T
1.S. No. of the Case : 313/05 2. Date of Commission of Offence : 15.05.2004 3. Name of the complainant : Sh. Manjeet Singh S/o Sh. Chunchun Singh R/o D619, CR Park, New Delhi. 4. Name, parentage & address of accused : Nitin Tuli S/o Sh. Vidya Sagar Tuli R/o H. No. 38A, West Azad Nagar, Krishan Nagar, New Delhi 5. Offence complained of : u/s 103/104 Trade Mark Act 6. Plea of Accused : Pleaded not guilty 7. Final Order : Acquitted FIR No. 451/04 State Vs. Nitin Tuli 1/9 Case of the Prosecution
1. The prosecution case is that on 15.05.2004 at about 3.00 pm at Artya Computer Techonologies, B1/14, 95 Vishal Bhawan, Nehru Place, New Delhi the accused Nitin Tuli was found in possession of duplicate products with falsified trademark of 'HP' (Hewlett Packard) and 95 pieces of dulipate inkjet cartridges bearing no. 15, 90 pieces of duplicate jet cartridges bearing no. 20 and 162 duplicate MRP stickers all bearing falsified trademark HP and these articles were recovered from the accused which were seized vide seizure memo MarkA and the accused could not produce any licence or authority in respect of the recovered goods and that the said goods were exposed at the shop of the accused for sale and that the accused was also found manufacturing the abovesaid seized articles in violation of trademark of complainant company and the accused thereby committed an offence punishable u/s 103/104 Trade Mark Act. Investigation was conducted and thereafter, chargesheet was filed against accused Nitin Tuli.
2. Cognizance of the offence was taken and accused Nitin Tuli was summoned to face the trial. Copy of the chargesheet was supplied to the accused. After hearing arguments on charge, charge u/s 103/104 Trade Mark Act was ordered to be framed against present accused Nitin Tuli vide order dated 29.02.2008. Charge was accordingly framed to which accused Nitin Tuli pleaded not guilty and claimed trial.
3. Prosecution examined four witnesses in order to prove its case.
4. PW1 ASI Arjun Gauri deposed that on 15.05.2004 he was posted at PS Kalkaji as Duty Officer and he registered the present FIR Ex.PW1/A bearing his signature at point A and he made endorsement on rukka Ex.PW1/B. FIR No. 451/04 State Vs. Nitin Tuli 2/9
5. PW2 Retd. Ct. Raj Singh deposed that on 15.05.2004 he was posted as a Constable at Trademark Section Crime Branch and at about 2.00 pm SI Suraj Prasad gave him the rukka and sent him to PS Kalkaji for registration of FIR. He stated that he accordingly got the FIR registered and came back at the spot i.e B1/14, 95 Vishal Bhawan, Nehru Place, Delhi and handed over the copy of FIR and original rukka to the IO.
6. PW3 Manjeet Kumar Singh is the complainant who deposed that on 15.05.2004 he was working as a Senior Investigation Officer in Enforcement of Intellectual Property Rights India Ltd (EIPR). He stated that he filed the complaint Ex. PW3/A with the police regarding the piracy of HP products i.e inkjet cartridges. He again stated that the said complaint was lodged on 14.05.2004 and that he went to PHQ where one raiding party was formed consisting of SI Suraj Prasad, SI Amit Issar and other constable and they all reached at Nehru Place Paras Cinema Parking. He further stated that thereafter, they all went to shop no. B1/14 in one building, however, he could not tell the name of said building. He stated that in the said shop one person was sitting whose name was revealed as Nitin Tuli. He stated that he might identify the accused but after looking at the accused he stated that the person present in the Court was not looking like the person who was present in the abovesaid shop. He stated that the shop was searched and 95 cartridges of HP 15, 90 cartridges of HP20 and 162 MRP stickers were found. He stated that police seized all the recovered case properties in two gunny bags, however, he could not tell as to what case property was put in each gunny bag. He stated that thereafter the case property was deposited in PS Kalkaji and his statement was recorded by the police. He stated that the searchcumseizure memo are Ex.PW3/B and Ex.PW3/C and the arrest memo and personal search memo of the accused are Ex.PW3/D and Ex.PW3/E. The case property i.e two gunny bags FIR No. 451/04 State Vs. Nitin Tuli 3/9 were produced in the Court during the examination of this witness, however, the seal of one of the aforesaid gunny bag was in broken condition. This witness identified the case property. Ld APP for the State sought permission to cross examine this witness on the ground that this witness was not stating the complete facts and the permission to cross examine this witness was granted by Ld Predecessor. During his cross examination this witness admitted the suggestions put forth by Ld APP for the State. However, he denied that he was not deliberately identifying the accused properly. He categorically denied that the person present in the Court was the accused or that he could correctly identify him. During his cross examination by Ld defence counsel he stated that he started working with EIPR in the year 2002 and worked till 2007 and that he had been associated with number of search and seizure proceedings but he could not tell the number of search proceedings. He could not tell the date as to when he joined the search and seizure proceedings in the present case and he could not tell the date of the complaint given by him. He stated that during his examination he deposed regarding the date after reading the Court file and he deposed regarding the other things as well after reading the Court file. He stated that no DD entry was done when the case property was deposited in PS Kalkaji and that he had not signed any document/register in PS Kalkaji while depositing the case property. He also stated that the name of the person disclosed in his complaint given to the police was on the basis of source information and that he had not himself conducted any investigation nor had he purchased any goods of HP company from the person whose name was disclosed in the complaint given by him to the police. He could not tell as to whether he handed over any original product or logo of HP company to the IO during the investigation. He stated that at the time of alleged raid no person except him or police officials were present. He admitted that the shop where the raid was allegedly conducted was situated in a market and various other shops were FIR No. 451/04 State Vs. Nitin Tuli 4/9 situated adjacent to the said shop and no public persons including the adjacent shopkeepers were asked to join the raid or the investigation. He denied that no raid as alleged was conducted or that no product as alleged was recovered from the said shop.
7. PW4 Vinay Kumar, Data Entry Operator, Trademark Registry, Dwarka, New Delhi brought the certified copy of trademark registration number belonging to HP company which are Ex.PW4/A to Ex.PW4/D bearing signatures of Sh. Jeevan Kumar, Examiner of Trademark at point A with official seal of the Registry. During his cross examination by Ld defence counsel he stated that Head of Office used to issue necessary order for appointing/authorising official of Trademark Registry to issue certified copy and that he had not brought the copy of said order whereby Sh. Jeevan Kumar was authorised to issued certified copies Ex.PW4/A to Ex.PW4/D. He denied that Ex.PW4/A to Ex.PW4/D were not true and correct copies of the entries in the computer system of Trademark Registry or that Sh. Jeevan Kumar had no authority to issue the documents Ex.PW4/A to Ex.PW4/D.
8. Thereafter, PE was closed and statement of accused Nitin Tuli was recorded u/s 313 Cr.P.C. wherein all the incriminating evidence were put to the accused to which he denied and he stated that he was innocent and he was falsely implicated in this case. The accused did not lead any defence evidence.
9. I have heard Ld. APP for State as well as Ld. Counsel for accused and have gone through the record carefully.
Finding of the Court
10. The allegation against the accused are that on 15.05.2004 at about 3.00 pm at Artya Computer Technologies, B1/14, 95 Vishal Bhawan, Nehru Place, New Delhi the accused Nitin Tuli was found in possession of duplicate products with falsified trademark of 'HP' (Hewlett Packard) and 95 FIR No. 451/04 State Vs. Nitin Tuli 5/9 pieces of duplicate inkjet cartridges bearing no. 15, 90 pieces of duplicate jet cartridges bearing no. 20 and 162 duplicate MRP stickers all bearing falsified trademark HP were recovered from the accused and the accused could not produce any licence or authority in respect of the recovered goods and that the said goods were exposed at the shop of the accused for sale and that the accused was also found manufacturing the abovesaid seized articles in violation of trademark of complainant company and the accused thereby committed an offence punishable u/s 103/104 TM Act. Investigation was conducted and thereafter, chargesheet was filed against accused Nitin Tuli.
11. Section 103 of the Trade Mark Act provides penalty for falsifying any trademark and for applying false trademark on the goods and section 104 of the Trademark Act provides penalty for selling goods or providing services to which false trademark or false trade description is applied.
12. It is the case of the prosecution that the accused was stocking, selling and manufacturing duplicate ink cartridges bearing falsified trademark of HP company at his shop at Artya Computer Technologies at B1/14, 95 Vishal Bhawan, Nehru Place, Delhi. Upon receipt of the complaint given by the complainant Manjeet Singh, a raiding party was prepared and a raid was allegedly conducted at the abovesaid shop from where various duplicate ink cartridges and false MRP stickers of HP company were allegedly recovered.
13. In the case in hand, the complaint regarding the alleged misuse of trademark of HP company was given by Manjeet Singh who was examined as PW3, however, during his examination he failed to identify the accused properly as the person who was found present at the abovesaid shop at the time of alleged raid. PW3 Manjeet Singh was cross examined by Ld APP for the State and he denied that he was deliberately not identifying the accused properly and he categorically denied that the person who was present in the Court was the accused in this case. Further, during his cross examination he stated that he FIR No. 451/04 State Vs. Nitin Tuli 6/9 has filed various complaints regarding the infringement of trademark of HP company and he had not maintained any records regarding the said complaints. He also stated that during his examination in chief he deposed regarding the dates and other things after seeing the Court file. He also deposed that neither any DD entry was done when the case property was deposited in the PS Kalkaji nor he signed any document/register in PS Kalkaji while depositing the case property. It is pertinent to mention that PW3 also stated during his cross examination that the name of the person, as disclosed in his complaint made to the police, was on the basis of source information and that he had not conducted any investigation regarding that person nor he purchased any goods of HP company from the said person whose name was disclosed in his complaint given to the police.
14. PW3 has also deposed that at the time of alleged raid, no person except him and the police officials were present and he admitted that no public persons including the adjacent shopkeepers were made to join the investigation. The case of the prosecution is that the accused was selling the fake products of HP company and that he applied the false trademark of HP company and that he exposed the fake products of HP company for sale in his shop at B1/14, 95 Vishal Bhawan, Nehru Place, New Delhi. However, no evidence has been brought on record that the aforesaid shop belonged to the accused Nitin Tuli nor has it been proved that the accused Nitin Tuli applied any false trademark on the fake products as alleged. Even no decoy customer was sent at the abovesaid shop so as to establish that the accused was selling the fake products of HP company as alleged. Even, the complainant PW3 Manjeet Singh has stated during his cross examination that he did not purchase any goods of HP company from the accused. Even the search warrant consequent to which the raid was conducted has not been proved on record.
15. It is further pertinent to mention that the accused has been FIR No. 451/04 State Vs. Nitin Tuli 7/9 charged for the offence of applying and using the false trademark of HP company as well as for selling the fake products of HP company, however, no original article of HP company was seized by the IO during the investigation for the purpose of comparison to show that the allegedly recovered goods were not genuine products of HP company.
16. It is further pertinent to mention that the case property was allegedly seized and kept by the IO in two gunny bags, however, the complainant PW3 Manjeet Singh could not tell as to what case property was put in each gunny bag and further at the time of production of case property in gunny bags in the Court, the seal of one of the gunny bag was found in broken condition which seriously dents the case of the prosecution.
17. The prosecution has examined PW4 Vinay Kumar, Data Entry Operator at Trademark Registry, Dwarka, New Delhi to prove the trademark in favour of HP company who brought the certified copies of the registered trademark belonging to HP company Ex.PW4/A to Ex.PW4/D bearing the signatures of Sh. Jeevan Kumar. However, during his cross examination PW4 stated that the Head of Office used to issue necessary order of appointing the official of Trademark Registry to issue certified copies and that he had not brought the copy of said order authorising Sh. Jeevan Kumar to issue the certified copies Ex.PW4/A to Ex.PW4/D. He denied that Ex.PW4/A to Ex.PW4/D were not the true and correct copies.
18. In view of the abovesaid discussion, I am of the opinion that the prosecution has failed to prove beyond reasonable doubts that the accused falsified the trademark of HP company or that he exposed the fake products of HP company in the abovesaid shop or that the accused was found manufacturing the fake products of HP company or that the accused was found in possession of the fake products of HP company as alleged.
19. In view of the abovesaid facts and considering the totality of facts FIR No. 451/04 State Vs. Nitin Tuli 8/9 and circumstances and the evidence on record, I am of the considered opinion that prosecution has failed to prove its case against accused Nitin Tuli beyond reasonable doubts and accordingly, accused Nitin Tuli is acquitted for the offence punishable u/s 103/104 Trade Mark Act.
Announced in the open court
Today on 06.07.2018 (Manish Khurana)
CMM/SE/District Court, Saket
New Delhi/06.07.2018
FIR No. 451/04 State Vs. Nitin Tuli 9/9