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TMI Blog2021 (10) TMI 1166X X X X Extracts X X X X X X X X Extracts X X X X ..... ing, 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 Officer constitute the offence of cheating against the Petitioner. 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 fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mber, 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 ₹ 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der 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 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 ₹ 3,00,000/- (Rupees Three Lacs) towards mental agony and harassment and cost of ₹ 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods 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 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 mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppear 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 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. Petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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