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 8^th 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.

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

Smt. Sharmila Kaushik, APP for State.

*****

CORAM

: SANDEEP K. SHINDE J.

RESERVED ON : 08^th SEPTEMBER, 2021.

PRONOUNCED ON :

28^th 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 16^th 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,

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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

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

and operation of accounts and settlement of payments for electronic

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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