Amazon India Through Its India ... vs The State Of Maharashtra And Anr
2021 Latest Caselaw 15510 Bom

                                                WP-3047-2021.doc




       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
            CRIMINAL APPELLATE JURISDICTION

                Writ Petition No. 3047 / 2021

Amazon India
Through its India Head,
Mr. Amit Agrawal,
Having office at 8th Floor,
Bridge Gate Way 26/1,
Bridge Ward Trade Center,
Dr. Rajkumar Road,
Bangalore - 560055.                                .. Petitioner
                              Versus

1.   State of Maharashtra,
     Through Ulhasnagar Police Station,
     District Thane.

2.   Amritpal Singh Khalsa,
     Age : years, Occupation : Advocate,
     R/o: 201-2, Pleasure Park,
     Opposite Pinto Park, O.T. Section,
     Ulhasnagar - 421003.                          ..   Respondents


                              *****

Senior Counsel Mr. Shirish Gupte a/w Advocate Sanjeev Sawant, Sanjeev Kadam, Onkar Gujar, Shailendra Gangakhedkar, Garima Joshi, Murli Kale i/by GNP Legal, Advocate for Petitioner.

WP-3047-2021.doc

Mr. Amritpal Singh Khalsa - Respondent No.2 in person. Smt. Sharmila Kaushik, APP for State.

                               *****

                  CORAM         :        SANDEEP K. SHINDE J.
                  RESERVED ON     :       08th SEPTEMBER, 2021.
                  PRONOUNCED ON :          28th OCTOBER, 2021.


JUDGMENT :-

1.    Rule.

2. Rule made returnable forthwith. Heard. finally with the consent

of the parties.

3. This Petition under Article 227 of the Constitution of India read

with Section 482 of the Code of Criminal Procedure, 1973 (Cr.P.C. for

short), seeks to quash the private complaint instituted by the

Respondent No.2 in the Court of Judicial Magistrate, First Class,

Ulhasnagar, Thane as well as order dated 16th August, 2021 issuing

process against the Petitioner for the offence punishable under

Section 420 read with 34 of the Indian Penal Code, 1860.

4. Facts giving rise to the present petition are that Amazon Seller

Services Pvt. Ltd. is a Company registered under the Companies Act,

WP-3047-2021.doc

1956. Petitioner operates as an e-commerce Marketplace, which

follows a marketplace based model of e-commerce within the

meaning of Clause (iv) of Press Note 2 issued by the Government of

India, Ministry of Commerce and Industry. It is e-commerce entity,

provides information technology platform on a digital and electronic

network to act as a facilitator between buyer and seller. Thus,

Petitioner does not follow inventory based model of e-commerce,

where inventory of goods and services is owned by e-commerce

entity and is sold to the consumers directly. Petitioner claims, it is

an intermediary between buyer and seller within the meaning of

Section 2(w) of the Information Technology Act, 2000 and does not

control the transaction between the two parties. It only acts as a

neutral platform to allow sellers to interact with the

buyers/customers, without exercising ownership over any goods or

indulging in the manufacture or dealing of any goods. The Petitioner

claims, it only receives and stores the information on behalf of the

seller/ buyer and acts a facilitator/ intermediary. Petitioner's case is

that RBI had issued a circular bearing No. RBI/2009-10/231 dated

24th November, 2009 under which directions were issued for opening

and operation of accounts and settlement of payments for electronic

WP-3047-2021.doc

payment transactions involving intermediaries and the same applies to

the Petitioner. Therefore, it is claimed that pursuant to RBI's circular,

the e-payments made online are never credited to the account of

Petitioner and all proceeds go into a nodal account maintained as

per circular of RBI, which cannot be operated directly by the

Petitioner.

5. Complainant's case : It is Complainant's case that while

browsing website of the Petitioner, he came across with a product

named as "WD-Elements 2TB Portable External Hard Drive (Black)".

The said product was priced at Rs.3,999/-. Complainant ordered the

said product by making payment of the amount through UPI (Unified

Payment Evershine Marketing, Jamnagar Highway, Gujarat) to

Petitioner on their UPI ID, which infact was sold by M/s KNP-MPL

(Seller of product and Accused No.2). The said product was

dispatched through third party courier company Fedex on the address

provided by the Complainant. According to the Complainant, he

ordered the product on 6th December, 2019. It was dispatched on 7 th

December, 2019 through FedEx Courier from Ahmedabad and was

supposed to be delivered on 14th December, 2019, but having not

WP-3047-2021.doc

been delivered, Complainant contacted customer care service of the

Petitioner. Complainant's case is that the customer care executive

promised him that his complaint regarding non delivery of goods

would be looked into. However, goods were never delivered to him,

nor his grievance was looked into by the Petitioner as assured on

16th December, 2019. Complainant thus, alleged that there was no

intention on the part of the Petitioner to deliver the goods or to pay

back the money. He therefore, alleged that despite making numerous

request and repeated contact to verify the status of the product,

there was no response from the Petitioner. Complainant further

alleged that although there being a guarantee in the form of

protection to the product purchased through Amazon.in., whereby

Amazon assures indemnity that, they will make the loss good, he

neither received refund nor the goods were delivered to him, even

after passage of 47 days. Complainant would therefore allege that

Petitioners have conspired with the Accused No.2, to dupe the

Complainant by accepting orders on behalf of the Accused No.2 in

trust, but by not making delivery of the goods an offence of cheating

has been committed by the Petitioner and Accused No.2 (seller).

WP-3047-2021.doc

6. Complainant thus, lodged the complaint against the Petitioner

and Accused No.2 with Central Police Station, Ulhasnagar on 20 th

January, 2020. Since there was no action on the request of initiating

prosecution against the Petitioner, Complainant sought directions

under Section 156(3) of Cr.P.C. On 22 nd March, 2021, learned JMFC

directed the Respondent No.1-State to investigate into the allegations

and submit report in terms of Section 202 of Cr.P.C. within three

months from the date of order. In furtherance to this order,

Respondent No.1 - State recorded statement of Complainant and

Accused No.2 and issued notice to the Petitioners to make

themselves available for the inquiry. Report was submitted on 18 th

June, 2021, wherein it was alleged that in spite of service of notices,

Accused / Petitioners did not turn and participate in the inquiry and

chose to remain absent.

7. The learned JMFC after receipt of the report from the police

passed an order on 16th August, 2021, thereby issuing process against

the Petitioners under Section 420 read with 34 of the Indian Penal

Code, 1860 (IPC for short). Being aggrieved and dissatisfied by the

impugned order, Petitioners have filed this petition under Article 227

WP-3047-2021.doc

of the Constitution of India read with 482 of Cr.P.C.

8. Before adverting to the grounds urged in the petition and the

arguments advanced by Mr. Gupte, learned Counsel for the Petitioner,

it may be stated that pending regular criminal case, Complainant has

also approached Consumer Forum by filing consumer complaint,

alleging deficiency in service against the Petitioners as well as the

courier service on the alleged cause of action. I have perused the

complaint. It revolves around deficiency of service under Consumer

Protection Act, wherein Complainant has prayed for refund of the

product amount with interest and also prayed for compensation to

the tune of Rs. 3,00,000/- (Rupees Three Lacs) towards mental

agony and harassment and cost of Rs.1,75,000/- (Rupees One Lac

Seventy Five Thousand).

9. Mr. Gupte, learned Counsel for the Petitioners would submit

that in the entire complaint, the element of, 'cheating', as is sought

to be attributed to the Petitioners, is wholly absent. It is argued that

the dispute is purely commercial in nature and at the most, could be

defined as consumer dispute or deficiency in service. It is submitted

that the narrations in the complaint do not suggest element of

WP-3047-2021.doc

dishonest intention or fraudulent act on the part of the Petitioners.

Neither the facts even remotely suggest that there was an intention

since beginning to deceive or cheat the Complainant to make

payment against the product and not deliver and/or even not to

return purchased price, paid by the Complainant. Mr. Gupte, learned

Senior Counsel, submitted that the learned Magistrate could not have

acquired jurisdiction to issue directions under Section 156(3) or 200

of Cr.P.C. in absence of compliance under Section 154(3) of Cr.P.C.

Mr. Gupte has taken me through the police report, which according

to him, is not an investigation contemplated under Section 202 in

asmuch as the report contained the statement of Complainant. Mr.

Gupte therefore, submitted the Police report does not reveal

investigation being carried out in respect of matter in question. Mr.

Gupte submitted that the trial Court has failed to examine the

complaint, which does not attribute any role to Mr. Amit Agrawal in

commission of a crime in question. It is therefore, argued that in

absence of prima-facie allegations against the officer of the Petitioner,

the learned JMFC ought not to have issued process in absence of

any direct and specific role attributed against him in the complaint

and or surfaced during the course of inquiry/ investigation undertaken

WP-3047-2021.doc

by police.

10. Mr. Gupte, vehemently submitted that the learned Court has

failed in appreciating that there are no allegations against Mr. Amit

Agrawal as to how Mr. Agrawal has controlled over the dispatch and

delivery of product in question. It is therefore argued that the

learned JMFC has committed an error in issuing a process without

there being evidence on record to show active participation or

involvement of Mr. Amit Agrawal in relation to sell, dispatch and

delivery of product in question and therefore, the complaint against

Mr. Amit Agrawal was unsustainable. Mr. Gupte has taken me

through the complaint filed under the Consumer Court to contend

that the goods attempted to be delivered to the Complainant, were

returned back to Original - Accused No.2 (seller) from Pune to

Ahmedabad and therefore it is not a case that the goods were never

intended to be delivered with intention to deceive or cheat the

Complainant. It is therefore, argued that the complaint against Mr.

Agrawal and the impugned order 'issuing process' against the

Petitioner, has been passed without examining the complaint from the

close quarters and without application of the mind to the facts of the

WP-3047-2021.doc

case. Mr. Gupte in support of his contention would largely rely on

the judgments in the case of Pepsi Foods Ltd. Vs. Special Judicial

Magistrate, (1998) 5 SCC 749; GHCL Employees Stock Option

Trust Vs. India Infoline Limited, (2013) 4 SCC 505 and Sunil Bharti

Mittal Vs. Central Bureau of Investigation, (2015) 4 SCC 609, to

contend that in the order issuing summons, the learned Magistrate

has to record his satisfaction about a prima-facie case against the

Accused, who are Managing Director, the Company Secretary and the

Directors of the Company and the role played by them in their

respective capacities which is sine qua non for initiating criminal

proceedings against them. In Pepsi Foods Ltd. (supra), the Hon'ble

Apex Court has held that Summoning of an accused in a criminal

case is a serious matter and criminal law cannot be set into motion

as a matter of course. Thus, held that the order of Magistrate

summoning the accused must reflect that he has applied his mind to

the facts of the case and the law applicable thereto.

11. Mr. Gupte would also contend that the learned Judicial

Magistrate has failed in appreciating that the Petitioner is neither the

seller, nor the supplier of the product in question, but is an

WP-3047-2021.doc

intermediary as defined under Section 2(1)(w) of the Information

Technology Act and therefore the transaction in question is not

between the Complainant and the Petitioner. It is argued that the

Petitioner was no way related in the process of delivery of product in

question. Mr. Gupte contended that the learned Magistrate has failed

in appreciating that the product in question, was in fact dispatched

through an independent service provider, but due to some technical

flaw or defect, it could not be delivered and therefore the allegations

do not constitute an offence under Section 415 of the IPC. On these

grounds, Mr. Gupte seeks to quash the complaint and the impugned

order dated 16th August, 2021 passed in C.C. No. 193/2020.

12. Mr. Amritpal Singh Khalsa - Respondent No.2 in person,

vehemently opposed the petition and would contend that the order

issuing summons to the Petitioner was well within the jurisdiction of

the Court. Since it is not a case of exercise of excessive jurisdiction

but found on complaint and inquiry report, interference in supervisory

jurisdiction is not called for. Mr. Amritpal has filed an affidavit-in-

reply and would submit that he ordered the product through

Petitioners' website and made payment of Rs. 3999/- to Petitioners'

WP-3047-2021.doc

UPI and discharged the invoice value. It is contended that though he

requested the Petitioner to resolve the non-delivery of product, his

repeated calls fell on deaf ears of customer executive of the

Petitioner. It is contended that although product placed on

Petitioners' website, was covered under A to Z guarantee clause.

The Petitioner neither delivered the product, nor refunded the amount

paid by him. Complainant therefore, contended that the Petitioner by

accepting the entire consideration upfront and non-delivery of product

and non-refund of the amount despite being covered under A to Z

guarantee clause amounts to cheating. It is argued that although the

Petitioner had received a notice to attend the inquiry, he did not

appear before the Investigating Officer. According to the

Complainant, allegations do disclose dishonest intention of the

Petitioner in as much as Complainant was induced to buy the product

for a consideration and after receiving the consideration, neither

product was delivered, nor money was refunded, in spite of the

guarantee and therefore a case has been made out against the

Petitioner for cheating under Section 415 of IPC.

13. The Complainant in support of his contention has relied on the

judgment of the Hon'ble Apex Court in the case of Assistant

WP-3047-2021.doc

Commissioner of State Tax and Others Vs. M/s Commercial Steel

Limited; Civil Appeal No.5121/2021 and the judgment of the Hon'ble

Delhi High Court in the case of Christian Louboutin Sas Vs. Nakul

Bajaj & Ors. (2018) SCC OnLine Del 12215.

14. I have carefully considered the submission of learned Counsel

for the Petitioner and Mr. Amritpal Khalsa and also perused the

complaint and the reply filed by the Complainant. Admittedly, herein

the transaction is not between two natural persons. Petitioner

operates e-commerce entity to provide information on digital network

and acts as a facilitator between buyer and seller. Petitioner does

not own the product and sell the goods to the customer directly.

Since Petitioner is not following inventory based model, it has no

control over the transaction between two parties i.e. buyer and seller.

Petitioner simply, receives and stores the information on behalf of the

seller and buyer and acts as a facilitator. In the order issuing

process, the learned Magistrate has clearly understood that it was not

conventional transaction and human contact is minimal. In spite of

clear understanding, the learned Magistrate prima-facie held, that "it

could be gathered from over all circumstances, that Petitioner never

WP-3047-2021.doc

intended to complete the transaction, but since initial stage, intention

was to deceive the Complainant from the facts of the case." It is

not in dispute that Petitioner being facilitator, had no control over the

delivery of the product and further herein, the product in question

was dispatched through independent service provider, but due to

technical defect, it could not be delivered. The allegations in the

complaint have not disclosed role of Petitioner - Mr. Amit Agrawal in

commission of crime in question and this fact has been admitted by

the learned Magistrate in the impugned order by observing that, "the

human contact is nowhere and is minimal to the extent of customer

care or grievance Redressal." (emphasis supplied)

. As such the Petitioner is neither owner, nor seller, nor supplier

of product in question, but he facilitated the Complainant to purchase

this product by following a marketplace based model of e-commerce.

Admittedly, Petitioner does not follow inventory based model of e-

commerce. The Petitioner simply provides a neutral platform which

allows sellers to interact with the buyers.

15. In consideration of these admitted facts, the allegations do not

constitute an offence of cheating, nor the allegations disclosed the

WP-3047-2021.doc

fraudulent intention of the Petitioner, when Complainant placed an

order of the product in question. The Petitioner being a mere

facilitator, Complainants' allegations that he was induced to buy a

product with intention to cheat him, is wholly absent. There is no

material on record to even suggest that the Petitioner had a direct

involvement and inducing the Complainant to place an order with

intention, not to deliver it, even after receiving the consideration for

the same. Thus, neither the complaint, nor inquiry report submitted

by the Investigating Officer constitute the offence of cheating against

the Petitioner.

16. As to constitute offence under Section 420 of IPC, it must be

shown that Complainant parted with his property, acting on a

representation, which was false to the knowledge of the accused;

AND the persons so deceived should be induced to deliver any

property to any person or the person so deceived should be

intentionally induced to do anything which he would not do if he was

not so do AND the act done pursuant to inducement should be one

are caused or likely to cause damage or harm to the person induced

in body, mind, reputation or property.

WP-3047-2021.doc

. In the case in hand, the allegations do not imply or suggest

that any point of time, the Petitioner induced the Complainant to part

with property (consideration for a product) with a dishonest intention,

not to deliver the same. On the contrary, facts of the case show

that the Complainant volunteered to purchase the product through

the e-commerce market platform of the Petitioner from the seller.

Thus, the ingredients to constitute offence of the cheating are wholly

absent. The learned Magistrate failed in appreciating the facts of the

case and thereby committed an error in concluding that prima-facie

case of cheating has been made out.

17. For the reasons stated, Petition is allowed. As a result,

Complaint No. 193/2020, pending before the learned Judicial

Magistrate, First Class, Ulhasnagar and order dated 16 th August, 2021

passed therein, qua Petitioner, is quashed. Rule is made absolute in

the aforesaid terms.

                                                (SANDEEP K. SHINDE J.)
                                 Digitally signed
                      MOHAMMAD   by MOHAMMAD
                                 NAJEEB
                      NAJEEB     MOHAMMAD
                      MOHAMMAD   QAYYUM
Najeeb..              QAYYUM     Date: 2021.10.28
                                 14:54:18 +0530