Delhi District Court
Punkaj Jain (Since Deceased) vs Amazon India Pvt Ltd on 16 February, 2021
IN THE COURT OF SHRI ANUJ AGRAWAL, ADDITIONAL SESSIONS
JUDGE5, SOUTH EAST DISTRICT, SAKET COURTS, NEW DELHI
REVISION PETITION NO. 637/2018
IN THE MATTER OF:
Punkaj Jain (since deceased),
S/o Sh. Yash Pal Jain,
Through LR Smt. Anju Jain
R/o 7A, LGF, N.R.I. Complex,
Mandakani, GKIV, New Delhi110019
.......Revisionist
Versus
1. Amazon India Pvt Ltd.
Through its Managing Director,
Having its office at 8th Floor, Brigade Galiviway,
26/1, Dr. Rajkumar Road,
Bangalore560055, India
2. Amiable Electronics Pvt Ltd
Through its Managing Director,
Having its office at Survey No.18 & 22/4,
Nagarur Village, Dasanpur Hobli,
Banglore562123, Kanataka, India
........Respondents
Instituted on : 27.08.2018
Reserved on : Not reserved
Pronounced on : 16.02.2020
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Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2021.02.16
14:49:23 +0530
JUDGMENT
1. By way of the instant judgment, I propose to dispose of revision petition filed on behalf of revisionist Punkaj Jain impugning the order dated 25.05.2018 whereby his application moved u/s 156(3) Cr.P.C in CC No.141/1/16 titled as Ritesh Jain Vs Amazon India Pvt Ltd has been dismissed by Ld. Metropolitan Magistrate04, SouthEast District, Saket, New Delhi. It is relevant to mention here that during pendency of instant petition, revisionist expired and his wife was substituted as his legal representative.
2. The brief facts as noted by Ld. Magistrate vide impugned order are not in dispute and same are being reproduced for the sake of convenience : "Briefly stated, the facts of the case are that the complainant claims to have asked his nephew to book an Iphone 6 (64 GB) grey color for an amount of Rs.45,090/ with an additional insurance of Rs.5,000/ through Amazon.com. It has been alleged that the booking of the aforesaid product was made on 07.11.2016 and the product was to be delivered at the house of complainant. A confirmation Email was also received on 07.11.2016 and 08.11.2016. It has been alleged that on 09.11.2016 at about 07.45 pm, the product was delivered at the address of the complainant and Email was also received in this regard. It has been further alleged that on 10.11.2016 when the complainant opened the package at his office, he was shocked to receive a washing soap bar instead of an Iphone 6 despite the package having details of the product. The complainant claims to have immediately raised this issue with the proposed accused, whereupon the customers services executive assured the complainant to look into the matter. It has been alleged that an Email was received by the nephew of the complainant on 15.11.2016 from the accused wherein the latter apologized for the wrong delivery. However, on 16.11.2016, the accused refused to refund the amount of the complainant and a Crl Rev. No.637/2018 Punkaj Jain Vs Amazon India Pvt Ltd Page No. 2 of 11 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.02.16 14:49:35 +0530 complaint in this regard was lodged at PS CR Park on 17.11.2016. Since no action was taken by the police, hence the present complaint case came to be filed on 08.11.2016 alongwith an application u/s 156(3) CrPC."
3. With these allegations, complainant/ revisionist filed application under section 156(3) Cr.P.C seeking registration of the FIR against the respondent no.1 and 2 for commission of offences under section 417/420/406 IPC.
4. Trial court record reveals that an action taken report came to be filed by concerned police official, PS C.R. Park on the direction of Ld. Magistrate, wherein it was reported that during inquiry, it was found that Amazon India Pvt Ltd i.e. respondent No.1 had checked the history of complainant and had found that revisionist, in past, had returned several high value articles on the similar complaint. It was further reported that no merit was found in the complaint of revisionist and matter was found to be one within domain of consumer dispute.
5. Ld Trial Court after considering the averments made in the application/ complaint and action taken report filed on behalf of the Investigating Agency, rejected the prayer of the revisionist for registration of the FIR and fixed the matter for presummoning evidence which is in progress as on date. The relevant portion of the impugned order is as follows : "After going through the complaint and hearing the arguments, it is seen that all the evidence is within the reach and knowledge of the complainant and nothing new is to be collected for which the assistance of the police agency is required. Even the identity of accused persons is known to Crl Rev. No.637/2018 Punkaj Jain Vs Amazon India Pvt Ltd Page No. 3 of 11 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.02.16 14:49:49 +0530 complainant. Besides, the court has power to direct police inquiry u/s 202 CrPC in case after examination of complainant and his witnesses, any assistance of police is required."
6. Ld. counsel for the revisionist has forcefully argued that the impugned order is not sustainable in the eyes of law as Ld MM was duty bound to order for registration of FIR as the facts averred in the complaint disclose commission of cognizable offences. It is submitted that the impugned order is liable to be set aside and the application under section 156 (3) Cr.P.C. deserves to be allowed by passing appropriate directions for registration of the FIR in the instant case.
7. In support of his submissions, Ld. counsel has placed reliance upon the judgment of Hon'ble Apex Court in Lalita Kumar Vs Government of UP & Ors, (2008) 14 SCC 337.
8. None appeared on behalf of respondents to address arguments. However previously, a reply came to be filed on behalf of respondent No.1 wherein it has been averred that the revisionist had in past repeatedly returned high value orders on pretext or another and had misused the 'refund and replacement policy' of respondent No.1 for unlawful gains. The details of previously returned high value orders was also provided by respondent No.1 which is as follows: "(a) that an order was placed for YU Yureka (Moondust Grey) having order Id40210099902986741 worth Rs. 8999/ and against which the petitioner was refunded on May 22, 2015 - product was returned stating defective and was received at Fulfilment Centre in damaged condition.
(b) that an order was placed for Samsung Galaxy S4 GT Crl Rev. No.637/2018 Punkaj Jain Vs Amazon India Pvt Ltd Page No. 4 of 11 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.02.16 14:50:06 +0530 19500 (Deep Black) having order Id40385722806025131 worth Rs. 17,999/ refunded on March 11, 2015. Petitioner requested refund stating product was missing from the package and seal was broken.
(c) that an order was placed for Mi 4i (32 GB Grey) having order Id40388411121058751 worth Rs. 14,999/ was refunded on 07.09.2015 where a replacement was sent to the customer after he reported the product as defective. That the petitioner returned the replacement as defective as well and the return was marked nonsellable by Fulfilment Centre and was reproted to contain an old Samsung phone."
9. I have heard and considered the submissions made by Ld. Counsel for revisionist and gone through the material available on record.
10. Before deciding the present revision petition, it would be relevant to reproduce the relevant provisions of law which are as under: Section 397 : Calling for records to exercise powers of revision :--(1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself; to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling, for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement that he be released on bail or on his own bond pending the examination of the record. Explanation.--All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this subsection and of section 398.
(2) The powers of revision conferred by subsection (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.
(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them.
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Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2021.02.16
14:50:19 +0530
11. Before testing the case of the revisionist on merits, the issue of the maintainability of the instant revision ought to be resolved first. What is an 'interlocutory order' has been discussed by the Apex Court in the decision reported as (1977) 4 SCC 137 Amar Nath v. State of Haryana: "6. Let us now proceed to interpret the provisions of Section 397 against the historical background of these facts. Sub section (2) of Section 397 of the 1973 Code may be extracted thus:
"The powers of revision conferred by subsection (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding. The main question which falls for determination in this appeal is as to what is the connotation of the term "interlocutory order" as appearing in sub section (2) of Section 397 which bars any revision of such an order by the High Court. The term "interlocutory order" is a term of well known legal significance and does not present any serious difficulty. It has been used in various statutes including the Code of Civil Procedure, Letters Patent of the High Courts and other like statutes. In Webster's New World Dictionary "interlocutory" has been defined as an order other than final decision. Decided cases have laid down that interlocutory orders to be appealable must be those which decide the rights and liabilities of the parties concerning a particular aspect. It seems to us that the term "interlocutory order"
in Section 397(2) of the 1973 Code has been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities of the parties. Any order which substantially affects the right of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order, because that would be against the very object which formed the basis for insertion of this particular provision in Section 397 of the 1973 Code. Thus, for instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to interlocutory orders against which no revision would lie under Section 397(2) of the 1973 Code. But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory order so as to be outside the purview of the revisional Crl Rev. No.637/2018 Punkaj Jain Vs Amazon India Pvt Ltd Page No. 6 of 11 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.02.16 14:50:32 +0530 jurisdiction of the High Court".
12. Full Bench of Allahabad High Court in the decision reported as AIR 2014 All 214 Jagannath Verma v. State of U.P. dealing with the issue of maintainability of a revision petition against the order rejecting an application under Section 156(3) Cr.P.C. held: "58. xxx In view of the discussion above and for the reasons which we have furnished, we have come to the following conclusion:
(i) Before the Full Bench of this Court in Father Thomas, the controversy was whether a direction to the Police to register a First Information Report in regard to a case involving a cognizable offence and for investigation is open to Revision at the instance of a person suspected of having committed a crime against whom neither cognizance has been taken nor any process issued. Such an Order was held to be interlocutory in nature and, therefore, to attract the bar under subsection (2) of Section 397. The decision in Father Thomas does not decide the issue as to whether the rejection of an application under Section 156(3), would be amenable to a Revision under Section 397, by the Complainant or the informant, whose Application has been rejected;
(ii) An Order of the Magistrate rejecting an Application under Section 156(3) of the Code for the registration of a case by the Police and for investigation is not an Interlocutory Order. Such an Order is amenable to the remedy of a Criminal Revision under Section 397; and (iii) In proceedings in Revision under Section 397, the prospective Accused or, as the case may be, the person, who is suspected of having committed the crime is entitled to an opportunity of being heard before a decision is taken in the Criminal Revision."
13. Further, Hon'ble Delhi High Court in Nishu Wadhwa vs Siddharth Wadhwa & Anr on 10 January, 2017 observed at para Crl Rev. No.637/2018 Punkaj Jain Vs Amazon India Pvt Ltd Page No. 7 of 11 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.02.16 14:51:03 +0530 13: "13. The issue that since the accused has not been summoned as an accused and has no right to file a revision petition is alien, while deciding an application under Section 156(3) Cr.P.C. The said issue crops up when the Magistrate entertains the complaint and on taking cognizance proceeds as a complaint case. In case directions are issued for registration of FIR immediately, on registration of FIR, the person against whom allegations are made in the FIR attains the status of an accused. His rights in so far as the Police can summon him for investigation, arrest him without warrants for allegations of cognizable offences are duly affected. In a situation where the fundamental right of freedom and liberty of a person is affected, it cannot be held that he has no right to be heard at that stage. Thus to hold that since directions only have been issued under Section 156(3) Cr.P.C. and no cognizance has been taken thus no revision would lie would be an erroneous reading of the decisions of the Supreme Court. Therefore, an order dismissing or allowing an application under Section 156 (3) Cr.P.C. is not an interlocutory order and a revision petition against the same is maintainable."
14. Thus, in light of the aforesaid legal position, it is held that instant revision petition is maintainable in law. Having resolved the issue of maintainability in favour of the revisionist, now I proceed to test the case of the revisionist on its merits.
15. After going through the records of the complaint/ATR and hearing the arguments, I am of the view that Ld Magistrate has rightly observed that all the evidence is within the reach and knowledge of the complainant and nothing new is to be collected for which the assistance of the police agency is required. Ld. Magistrate has rightly observed that the identity of accused persons (respondents) is known to complainant and if required, the assistance of police can be availed by resorting to provisions of Section 202 Cr.P.C. by Ld Trial Court.
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Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2021.02.16
14:51:13 +0530
16. Reliance is placed upon the judgment titled as
Arvindbhai Ravjibhai Patel Vs. Dhirubhai Sambhubhai reported in 1998 (1) Crimes 351, Hon'ble Gujarat High Court took strong exception to the growing tendency of asking the police to investigate cases under Section 156(3) of the Code and advised the Magistrates not to pass orders mechanically. It was held that: "Magistrates should act under Section 156 (3) of the Code only in those cases where the assistance of the police is essentially required and the Magistrate is of the considered view that the complainant on his own may not be in a position to collect and produce evidence in support of the accusation".
17. Further, it was held by Hon'ble Delhi High Court in M/s. Skipper Beverages P. Ltd Vs. State 2002 CRI. L. J. NOC 333(Delhi) that : "Section 156 empowers Magistrate to direct police to register case and initiate investigation but this power had to be exercised judiciously and not in mechanical manner. Those cases, where allegations are not very serious and complainant himself in possession of evidence to prove allegations, there should be no need to pass order U/s156. But cases, where Magistrate is of view that nature of allegation is such that complainant himself may not be in position to collect and produce evidence before court, and interest of justice demand that police should step into to help complainant, police assistance can be taken. Thus, where allegations of theft of cheque and forging of typing out certain portion therein, could be proved by oral evidence and by summoning original cheque from banker and leading required evidence respectively, then there was no such evidence which complainant could be unable to collect on his own. As such, declining request to issue direction to police under Section 156(3) would be justified."
18. In my considered view, once an application under section 156 (3) Cr.P.C. is moved before a Magistrate, he has two options. He Crl Rev. No.637/2018 Punkaj Jain Vs Amazon India Pvt Ltd Page No. 9 of 11 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.02.16 14:51:30 +0530 can either send the case for investigation to concerned Police Station in the facts and circumstances of a particular case or instead of doing so, he may opt for taking cognizance on the complaint of the complainant, may proceed to record the testimony of the complainant and his witnesses in presummoning evidence and thereafter, may decide whether a case for summoning of accused is made out or not. Once, the Magistrate has opted to exercise his discretion of not sending the matter for investigation, this court, while exercising the power of revisional jurisdiction, cannot substitute its own opinion with the opinion of the Ld. Magistrate. Reliance is placed upon the judgment of Hon'ble Apex Court in a case titled as Sanjaysinh Ramrao Chavan vs. Dattatray Gulabrao Phalke and others, 2015 (3) SCC 123, wherein it has been observed in paragraph 14: "14.....Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is nonconsideration of any relevant material or there is palpable misreading of records, the Revisional Court is not justified in setting aside the order, merely because another view is possible. The Revisional Court is not meant to act as an appellate court.The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections 397 to 401 CrPC is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction."
14. In the above case also conviction of the accused was recorded, the High Court set aside the order of conviction by substituting its own view. This Court set aside the High Court's order holding that the High Court exceeded its Crl Rev. No.637/2018 Punkaj Jain Vs Amazon India Pvt Ltd Page No. 10 of 11 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.02.16 14:51:40 +0530 jurisdiction in substituting its views and that too without any legal basis."
19. Therefore, in my considered opinion the Ld Magistrate has passed the impugned order after considering all the relevant factors and this court can not interfere with rightful exercise of the discretionary powers vested in the Ld Magistrate.
20. In the case at hand, I find that the Ld. Magistrate has rightly exercised the discretionary power vested in him. I do not find any malafide or arbitrary exercise of discretion. Accordingly, this court finds no valid reasons to interfere in the order dated 25.05.2018. The revision petition is accordingly dismissed.
21. TCR be sent back to the Ld. Trial court along with copy of this order.
22. Revision file be consigned to Record Room after due compliance. Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.02.16 14:51:48 +0530 Announced in the open (ANUJ AGRAWAL) Court on 16th February, 2021 Additional Sessions Judge05, South East, Saket Courts, New Delhi Crl Rev. No.637/2018 Punkaj Jain Vs Amazon India Pvt Ltd Page No. 11 of 11