TaxTMI 
TaxTMI 
2022 (11) TMI 280
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....156(3) Code of Criminal Procedure, 1973 for short 'Cr.P.C.' on which the learned Magistrate vide order dated 14 January 2019, directed the concerned police station to register a case in terms of the application and investigate into it, wherein, it is alleged that complainant regularly purchases products from the sellers on the website of the petitioner-Company knowing to be of quality goods provided by the Company. The fourth respondent on 12 October 2018, placed an order for purchase of a Laptop being H.P. 15 A.P.U., Dual Core, A-6 (4GB/I TB HDD/Windows 10 Home) 15" B.W. Model, accordingly, made payment at Rs. 17,990/- through online payment for the product. The booking ID generated for the said purchase being OD 113621553490664000. 5. Grievance of the fourth respondent is that the Laptop delivered on 22 October 2018, was having processor of brand 'A.M.D' instead of brand 'Intel', thus, according to the fourth respondent, delivery of the product was not as per the specifications for which order was placed. Aggrieved, complainant-fourth respondent registered a complaint with the petitioner-Company regarding the alleged discrepancy of the product. 6. The complaint was taken up by ....
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....ansactions. As such, the Company merely provides a platform for the transactions of its users and petitioner-Company is not a party to or in control of any such transaction between its users. b. All commercial/contractual terms (including the price, shipping costs, payment methods, payment terms, date, period and mode of delivery, warranties related to products and services and after sales services related to the products and services are offered by and agreed to between the Buyers and Sellers alone, as such, the petitioner-Company does not have any control or does not determine or advise or in any way involve itself in the offering or acceptance of such commercial/contractual terms between the Buyers and Sellers. c. All discounts and offers on the website are provided by the sellers/brands and not by the petitioner-Company. d. The petitioner-Company does not make any representation or warranty as to specifics of the products or services (such as quality, value, salability) proposed to be sold or offered to be sold or purchased on the website, as such, the petitioner- Company does not explicitly or even impliedly support or endorse the sale or purchase of any products or serv....
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....eport (closure) under Section 173(2) of Cr.P.C. has been filed by the Investigating Officer, hence, it is submitted that nothing remains for the State to submit. 12. Learned counsel for the fourth respondent despite putting in appearance has not filed counter affidavit to the averments made in the writ petition. 13. The petitioner-Company is governed by the provisions of the I.T. Act, 2000, petitioner-Company is an 'intermediary' and the role being that of a facilitator or a conduit. It is an e-commerce platform where Sellers and Buyers can interact and select and purchase products and items offered by the seller. The facts, inter se, parties are not in dispute that petitioner-Company is an ecommerce intermediary where the platform does not take title to the goods being sold on their marketplace platform. Intermediary stands on a different footing being only facilitator of exchange of information or sales under the I.T. Act, 2000. Intermediaries are not liable for the goods put up for sale by the Seller on the platform. Such e-commerce networks are exempted from liability under the I.T. Act, 2000, Rules or Regulations made thereunder concerning any third party. As per the impugne....
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.... (4) The intermediary, on whose computer system information is stored or hosted or published, upon obtaining knowledge by itself or been brought to actual knowledge by an affected person in writing or through email signed with electronic signature about any such information as mentioned in sub-rule (2) above, shall act within thirty six hours and where applicable, work with user or owner of such information to disable such information that is in contravention of sub-rule (2). Further the intermediary shall preserve such information and associated records for at least ninety days for investigation purposes; (5) The Intermediary shall inform its users that in case of noncompliance with rules and regulations, user agreement and privacy policy for access or usage of intermediary computer resource, the Intermediary has the right to immediately terminate the access or usage lights of the users to the computer resource of Intermediary and remove non-compliant information. (6) to (11) xxx xxx xxx‖ 16. I.T. Guidelines Rules, 2011, has since been superseded by the Information Technology (Intermediaries Guidelines and Digital Media Ethics Code) Rules, 2021. The subsequent Guidelin....
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.... the appropriate Government or its agency that any information, data or communication link residing in or connected to a computer resource controlled by the intermediary is being used to commit the unlawful act, the intermediary fails to expeditiously remove or disable access to that material on that resource without vitiating the evidence in any manner. Explanation:- For the purpose of this section, the expression "third party information" means any information dealt with by an intermediary in his capacity as an intermediary." 20. Section 79 accordingly is a safe harbour provision. Internet intermediaries give access to host, disseminate and index content, products and services originated by third parties on the internet which include e-commerce intermediaries where the platforms do not take title of the goods being sold. Examples of such intermediaries include Amazon India, Myntra, AJIO etc. 21. The I.T. Act, 2000, has an overriding effect. Section 81 of I.T. Act, 2000, is extracted: "81. Act to have overriding effect: The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force." 22. In....
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....Technology (Amendment) Act, 2008. Company would be entitled to the exemption from liability in terms of Section 79 I.T. Act, 2000, read with Section 81, if the requirements thereof are met. 27. Company admittedly is not the Seller, it is the Sellers registered with Company who are the sellers of products and services on its platform, it is the Sellers who are solely responsible to the purchaser/customer. 28. The Seller Agreement as per Terms of Use, details out the terms and conditions relevant to the transaction, which has been brought on record. (Flipkart Terms of Use) 29. It cannot be expected that the provider or enabler of the online marketplace is aware of all the products sold on its Website/marketplace. It is only required that such provider or enabler put in place a robust system to inform all Sellers on its platform of their responsibilities and obligations under applicable laws in order to discharge its role and obligation as an intermediary. If the same is violated by the Seller of goods or service such Seller can be proceeded against but not the intermediary. 30. The manner in which the documents (Buyer/Seller Terms of Use) have been executed, contents thereof, as ....
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....der Section 79(1) from liability applies when the intermediaries fulfil the criteria laid down in either Section 79(2)(a) or Section 79(2)(b), and Section 79(2)(c). Where the intermediary merely provides access, it has to comply with Section 79(2)(a), whereas, in instances where it provides services in addition to access, it has to comply with Section 79(2)(b). The case of petitioner-Company is that they fulfil these conditions to qualify as intermediaries. The factum that the petitioner-Company is an intermediary providing merely access to Sellers/Buyers is not under challenge nor disputed. The ingredients of the offence under Section 406, 467, 468, 471, 474 and 474-A IPC, in sofar, it relates to the petitioner-Company is not made out taking the allegations made in the impugned FIR on face value. 37. In State of Haryana and Ors. v. Bhajan Lal and Ors. 2006 (6) SCC 736, Supreme Court has set out the categories of cases in which the inherent power can be exercised. Para 102 of the judgment reads as follows: - "102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a serie....