K.A. Mohamed Shafi, J.

1. This R. P. is filed by the complainant in C.M.P. No. 4845/2000 on the file of the Judicial First Class Magistrate's Court, Tirur challenging the order dated 27.5.2000 dismissing the complaint filed, under S.203 of the CrPC.

2. The revision petitioner filed the complaint before the lower court alleging offences punishable under S.406 and 420 of I.P.C. Even though the revision petitioner had sought in the complaint to send the complaint to the police for investigation and report under S.156(3) of the CrPC., the learned Magistrate after recording the sworn statement of the revision petitioner and hearing him, dismissed the complaint.

3. The revision petitioner has alleged that on 29.1.2000 one K. Abdulnazar, S/o. Saidali entered into a hire-purchase agreement with the revision petitioner with respect to a 1996 model vehicle bearing No. KL/10E/3681 whereby he was liable to pay Rs. 4,12,000/- to the revision petitioner in 36 monthly instalments from 29.2.2000 onwards. The hirer did not remit any of the instalments and all efforts of the petitioner to re-possess the vehicle did not fructify. It is further alleged that on enquiry it was revealed that the hirer had dismantled the vehicle and disposed of the parts of the vehicle in utter violation of the terms and conditions of the agreement. It is also alleged that the intention of the hirer even at the time of entering into the hire-purchase agreement was somehow to get possession of the vehicle and later dismantle the vehicle and dispose of the same without remitting the hire amount. Therefore, he filed C.M.P. 4845/2000 against the accused alleging offences punishable under S.406 and 420 of I.P.C.

4. The learned Magistrate after recording the sworn statement held that the dispute involved in this case is only of civil nature and further held that the dictum laid down by this Court in the decision reported in 1999 (1) KLT 184 to the effect that when the financier under a hire-purchase agreement seizes the vehicle on default in payment of instalments, no criminal prosecution can be launched by the hirer against the financier applies vice-versa also. The learned Magistrate also held that if the complainant wants to repossess the vehicle from the accused, he has to approach the civil court and get the vehicle attached and no criminal complaint will lie against the accused on the given facts.

5. The petitioner has contended that the findings arrived at by the learned Magistrate and the dismissal of the complaint filed by him are absolutely illegal and unsustainable, and therefore, the order is liable to be set aside and the learned Magistrate should be directed to register the case against the accused and to proceed with the same in accordance with law.

6. Heard counsel for the revision petitioner and the Public Prosecutor.

7. In the decision in K. L. Johar and Company v. Deputy Commercial Tax Officer (AIR 1965 SC 1082) a five Judges Bench of the Supreme Court has considered and laid down the distinction between a hire-purchase agreement and a sale in which the price is to be paid later by instalments. In para 11 of the judgment it is observed as follows:

"The essence of a sale is that the property is transferred from the seller to the buyer for a price, whether paid at once or paid later in instalments. On the other hand, a hire-purchase agreement, as its very name implies, has two aspects. There is first an aspect of bailment of the goods subjected to the hire-purchase agreement, and there is next an element of sale which fructifies when the option to purchase, which is usually a term of hire-purchase agreement, is exercised by the intending purchaser. Thus the intending purchaser is known as the hirer so long as the option to purchase is not exercised, and the essence of a hire-purchase agreement properly so called is that the property in the goods does not pass at the time of the agreement but remains in the intending seller, and only passes later when the opti