Abdullah Gulamahmed Uraizee, J.

1. The appeal under section 378(4) of the Criminal Procedure Code, 1973 ('the Code' for short) is preferred by the appellant - original complainant against the judgment and order of acquittal dated 21.04.2006 passed by the learned 11th Additional Senior Civil Judge & Judicial Magistrate First Class, Rajkot in Criminal Case No. 8882 of 2004 whereby respondent No. 2 is acquitted of the offence punishable under section 138 of the Negotiable Instruments Act, 1881 ('the NI Act' for short).

2. The short facts giving rise to the present appeal are that the appellant gave hand loan of Rs. 1,50,000/- to respondent No. 2 for a period of six months on account of the good relations between them. The appellant demanded the said amount from respondent No. 2 after expiry of six months, but respondent No. 2 avoided the payment on one pretext or other and ultimately in June 2004 a cheque bearing No. 288656 dated 25th July 2004 drawn on Cooperative Bank of Rajkot Limited was given to the appellant. The cheque was presented in the bank for clearance and it came back with an endorsement "Account Closed". Thereupon, the appellant served notice dated 26th August 2004 on the respondent No. 2 as required under section 138(b) of the NI Act and demanded the payment of the cheque amount. Upon receipt of the notice, the respondent did not make any payment within 15 days, but gave evasive replies. The appellant, therefore, was constrained to file the complaint for the offence punishable under section 138 of the NI Act in the court of the learned Judicial Magistrate First Class, Rajkot, which came to be registered as Criminal Case No. 8882 of 2004. Upon conclusion of the trial of the complaint, the learned trial Judge was pleased to acquit the respondent No. 2 by the impugned judgment and order of acquittal essentially on the ground that there is variation in the cheque number mentioned in the notice under section 138B and complaint on the one hand and cheque written memo exhibit 10 on the other. The appellant-original complainant being unhappy with the impugned judgment and order of acquittal has preferred the present appeal.

3. I have heard Mr. S.B. Tolia with Mr. Harshit Tolia, learned advocate for the appellant and MR K.L. Pandya, learned Additional Public Prosecutor for respondent No. 1. There is no appearance on behalf of respondent No. 2 - original accused. I have also perused the record and proceedings of Criminal Case No. 8882 of 2004.

4. Mr. Tolia, learned advocate for the appellant has vehemently urged that respondent No. 2 had sought adjournment in the trial court vide application exhibits 24 and 25 on the ground that the parties were in talks for settlement. Respondent No. 2 in fact, as would appear from application exhibit 25, he paid Rs. 5,000/- on 11.10.2005 and would make further payment of Rs. 5,000/- to the appellant towards settlement and therefore, according to Mr. Tolia, respondent No. 2 has admitted the cheque. He further submits that the explanation for leaving behind the cheque on receiving the news of some accident is too vague to be accepted. He, therefore, submits that the learned trial judge has erred in acquitting the respondent No. 2 solely on the ground of variation in the cheque number.

5. Mr. K.L. Pandya, learned APP submits that appropriate order may be passed on perusal of the record of the trial court.

6. A perusal of the impugned judgment and order of acquittal reveals that the learned trial judge has essentially acquitted respondent No. 2 on the ground that cheque number mentioned in the notice under section 138(b) of the NI Act and the complaint and the cheque number which is mentioned on the cheque as well as exhibit 10, cheque return memo issued by the bank are different and therefore respondent No. 2 cannot be convicted for the offence punishable under section 138 of the Negotiable Instruments Act.

7. To appreciate the reasons adopted by the learned trial judge to acquit respon