TaxTMI 
TaxTMI 
2021 (10) TMI 1166
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.... 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 date....
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....lf 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). 6. Complainant thus, lodged the complaint against the Petitioner and Accused No.2 with Central Police Station, Ulhasnagar on 20th 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 22nd 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 18th 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....
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....sion 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 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 in....
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.... 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' 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 Investigatin....
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.... "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 ecommerce. 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 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 O....