Judgment :-

K.S. Radhakrishnan, J.

1. Leave granted.

2. The appellant herein is the second accused in CC 1548/2011 pending on file of the Judicial Magistrate, First Class, Cherthalay, which was initiated by the Magistrate on a protest complaint filed by the first respondent herein for the offences punishable under Section 420 read with Section 34 IPC. Summons were issued to accused persons by the learned Magistrate vide order dated 22.11.2011. That order was challenged in Revision before the High Court of Kerala on the ground that the Magistrate was not justified in initiating proceedings after a refer report was submitted by the Police, after due enquiry. The High Court, however, dismissed the Revision Petition vide order dated 23rd November, 2012 stating that even if a refer report is filed by the police after conducting investigation, the Magistrate has the power to entertain a protest complaint and to issue summons to the accused and proceed in accordance with law. Aggrieved by the same, this appeal has been preferred.

3. This appeal has been preferred by the second accused, a divorced wife of the first accused. The first respondent herein initially filed a complaint against accused nos.1 and 2 before the Police Station Mohamma which was registered as Crime No.302/2010. The operative portion of the complaint is as follows :-

“The accused 1 and 2 with the ambition for immediate profits and the intention to make loss to the complainant, had given the commitment to the complainant in his rental residence house, owned by Kamal Travels, at Aryakara, Tannermukkam on 13.10.2006 to provide job to his uncle’s son Sajimon, in Aushathi Govt. Department and taken 1 lac rupee from complainant, from Raveendran, R/o Illathukalathil House, Kumarakam taken 1 lac rupees in the commitment to give job to his son Rathish from Prabhakaran, Puthanparambil House, Kumarakam, and from Arumukam, R/o Kalathil House, Udayaperoor taken 50,000/- rupees each, and from K.P. Prasad, R/o Tikarthil, Kothuruthi, taken 25,000/- rupees, thereafter the accused persons committed cheating without providing job to these persons.”

4. An FIR was registered and the investigation ordered. Police conducted detailed investigation, relevant portion of the investigation report is as follows :-

“After completing the investigation and recording the statement of witnesses stated above, I came to the conclusion that the fact stated above was not occurred. The complainant through Adv. Rajan had made contact with the first accused Ramchandran Unni and given Rs.12000/- for the purpose of taking certified copy of the order passed in Water Authority case, which was decided by the Kerala High Court, wherein he relatives of the complainant were parties in the case for the purpose of being permanency in service. After two weeks, Ramchandran Unni had got the certified copies from High Court and given it to the complainant. Except this, the accused had not collected money from any person. During the period when money was given as stated by the complainant, the second accused was not in the residential house at Muhamma with the first accused because they were separated to each other and started living in the house at Thiruvananthapuram. It is also proved that the first accused had not received any amount from the complainant or any other persons for providing job to the relative of the complainant or any other person. The amount paid, as stated in the complaint, has not been proved by the complainant and others by submitting any reliable documents.”

5. On the basis of the above-mentioned report, the police referred the case as not proved. Reference report was submitted to the Judicial Magistrate, First Class, Cherthalay for appropriate action. Later, the respondent/claimant filed a protest complaint before the above-mentioned Court for cancellation of the reference report and for taking cognizance of the case, on which, as already stated, the Magistrate passed an order dated 22.11.2011, which re