Point of Law: Offence of Cheating - Complaint quashed - Under Section 420 of IPC, it must be shown that Complainant parted with his property, acting on a representation, which was false to knowledge of accused; AND 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 act done pursuant to inducement should be one are caused or likely to cause damage or harm to person induced in body, mind, reputation or property.

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, 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 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 7th December, 2019 through FedEx Courier from Ahmedabad and was supposed to be delivered on 14th December, 2019, but having not 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