THE INTENTION TO DECEIVE IS A CRUCIAL ELEMENT IN DETERMINING THE PLACE OF OFFENCE IN CASES OF CHEATING - THE OFFENCE IS COMMITTED WHERE THE INTENTION TO DECEIVE IS FORMED, NOT WHERE THE DECEPTION IS EXECUTED.

B.N. Katju, J.

1. THIS is an application under section 482 CrPC praying that the proceedings against the applicant in case No. 496/78 pending in the court of the Additional Chief Judicial Magistrate, Ghaziabad be quashed.

2. ACCORDING to the application a complaint was filed by opposite party No. 2 against the applicants in the court of the Additional Chief Judicial Magistrate, Ghaziabad under sections 120-B and 420 IPC on 28-11-1977 in which it was stated that the applicants were carrying on business in the name of Shree Basant Electricals at Indore and the complainant was the Manager of a factory known as M/s. East India Transformer and Switchgear (P) Limited at Ghaziabad. The complainant purchased 8,200 kgs. of press board off-cuts and cuttings for Rs. 29,561/-, which included Central Sales Tax, from the applicants on 4-10-1974 on credit and paid a sum of Rs. 10,000/- as part-payment of the price to the applicants on 30-7-1976 and promised to pay the remaining amount after sometime. The applicants sent a letter to the complainant on 13-4-1977 in which they offered to sell more off-cuts at the rate of Rs. 7,000 - per metric tons and the offer was repeated in two other letters of the applicants dated 22-5-1977 and 30-6-1977. The complainant also had talk with applicant No. 2 Sri Om Prakash Gupta on 16-7-1977 during the course of which he informed applicant No. 2 that his factory required approximately five metric tons of off-cuts to be supplied in two lots of three and two metric tons respectively and assured him that their price would be paid in two instalments and the balance of Rs. 19,000 /- would also be paid in two instalments off Rs. 10,000 /- and Rs. 9,000/- respectively along with their price, which was confirmed by the letter dated 20-7- 1977 sent by the complainant. The applicants by their letters dated 22-7-1977 and 27-7-1977 agreed to the said terms and conditions and requested the complainant to direct his representative (to bring the drafts to Indore at the time of taking delivery. In the letter dated 2-8-1977 sent by the complainant to the applicants it was suggested that the goods should be despatched to the factory at Ghaziabad after approval and the payment would be made through bank, but no reply was received from the applicants. Another letter dated 17-8-1977 sent by the complainant to the applicants it was suggested that the goods should be despatched, payment would be made through tank, but no reply was received from the applicants. Another letter dated 17-10-1977 was sent by the complainant to the applicants asking them whether the goods were still available and the applicants replied by a letter dated 24-10-1977 in which it was again stated that the representative of the complainant should come to Indore with the drafts. A telephonic talk thereafter took place between applicant No. 1 Raghinidhi Kumar Gupta and the complainant on 30-10-1977 at Ghaziabad in which it was mentioned that all the terms and conditions mentioned in the letter of the applicants dated 22-7- 1977 still held good and that the goods would be delivered in two lots of four metric tons each if at the time of the delivery of the first lot Rs. 10,000/- were also paid towards the earlier outstanding amount. Sri Jiwan Mal Sharma, Area Sales Manager of the complainant company was thereafter sent to Indore along with four bank drafts No. DBR 943633, DBR 943634, DBR 943635 and DBR 943636 for Rs. 28,000/- along with Rs. 4,000/- in cash to purchase the first lot of the goods and also pay Rs. 10,000/- which was part of the earlier amount which was outstanding. Sri Sharma visited the shop of the applicants at Indore on 1-11-1977 and 5-11-1977. On 5-11-1977 the applicants agreed to sell 3. 8 metric tons of the goods in the first lot and while it was being loaded in a truck of Delhi U. P. Madhya Pradesh Transport Company the applicants asked Sri Sharma to make the payment. He thereafter gave applicant No. 1 four drafts of Rs. 28,000/- and