Honble MADAN, J.–In both the cases, the parties are common and dispute is identical, therefore, they are being dealt with and finally decided by this common order. (2). Both the revision petitions have been preferred against the order dated 18.7.98 of the learned Addl. Sessions Judge No. 1, Udaipur, in Cr.Appeals No. 46/98 and 47/98 titled ``Bhagwanlal v. State and Anr. confirming the order dated 29.8.97 of learned Addl. Civil Judge (J.D.) cum Judicial Magistrate No.1 Udaipur, in Cr. Case Nos.48/95 and 49/95 respectively, whereby the trial Court convicted the petitioner for offence punishable U/s 138 of the Negotiable Instrument Act and sentenced him to simple imprisonment for six months in first case and for three months in second case and also imposed a fine of Rs. one lac & in default thereof, further two months SI in Cr. Case No.48/95 and Rs. fifty thousands & in default thereof, further one month"s SI in Cr. Case No.49/95. For the sake of convenience and ready reference S.B.Cr. Revision petition No. 530/98 is treated as a main case. (3). In short, the facts are that the complainant Rajendra Kumar (respondent No.2) filed a complaint in the Court of learned Civil Judge (J.D.)-cum-Judicial Magistrate No.1 Udaipur, against the petitioner under Sec.138 of the Negotiable Instrument Act, 1881 (Act No. XXVI of 1881), hereinafter referred to as `the Act, on the basis of which two cases were registered against the petitioner as case Nos.48/95 and 49/95, on the allegation that the petitioner who was a contractor by profession had taken a loan of rupees one lakh fifty thousand from him, with an under taking to re-pay the said loan amount within the stipulated time and which he had defaulted to re-pay as per the terms and conditions of the said agreement, which was duly executed between the parties at Udaipur on 12.8.1991. The complainant had further contended in the complaint that since petitioner was carrying on the work of laying under-ground cables with the telephone department on contract basis and was in need of money for completing the work undertaken on behalf of the Telephone Department, the facility of availing the loan amounting to Rs. 1,50,000/- in all, by way of four instalments was extended to him by the complainant respondent No.2, as per the break- up given below :- 12.6.91 Rs. 50,000/- 05.7.91 Rs. 25,000/- 18.7.91 Rs. 25,000/- 12.8.91 Rs. 50,000/- Total Rs. 1,50,000/- in all, by way of four instalments was extended to him by the complainant respondent No.2, as per the break- up given below :- 12.6.91 Rs. 50,000/- 05.7.91 Rs. 25,000/- 18.7.91 Rs. 25,000/- 12.8.91 Rs. 50,000/- Total Rs. 1,50,000/- (4). These amounts were obtained by the petitioner against the receipt issued in token of acknowledgment of the payment of the loan amount advanced to him by the respondent No.2. As per clause (2) of the agreement, the said amount was to carry monthly interest at the rate of 2 percent. It was further clarified in the agreement that in case, the loanee (petitioner) does not repay the loan amount or in the event of any default on his part to repay the said amount, on or before 21.2.1994, then not only he shall be liable to refund the entire amount with interest to the loaner (respondent No.2) but he shall also be subjected to Civil and Criminal action in Court of law, and shall be responsible for all costs and consequences ensuing therefrom. The agreement was duly executed on the stamp paper of the requisite value and signed and attested by the parties at Udaipur where the transaction took place on 12.8.1991, in accordance with the terms of the agreement, reduced to writing between the parties and also witnessessed by the attest- ing witnesses. As against the above loan amount, the petitioner had issued two post-dated cheques in favour of the complainant (respondent No.2), bearing No.983369 dated 10.2.1994 and No.983370 dated 21.2.1994, for Rs.50,000/- and Rs. 1,00,000/- respectively. The said cheques when presented for encashment by the complainant with his bankers-namely, State Bank of India, Udaipur, were dishon- oured with the endorsement of the Bank--` insufficient funds in account of the petitioner therein who had issued the said cheques. Thereafter, the respondent No.2, being aggrieved, sent a registered notice of demand to the petitioner on 18.2.1994, the receipt of which, however, was denied by the petitioner on the ground that since he was not available at the address indicated in the notice, being out of station and hence, he had no knowledge of its contents nor any presumption could be drawn against him as regard its receipt. (5). (5). It is only after having received no reply from the petitioner to the aforesaid notice that the complainant was left with no option but to file a complaint before the competent criminal Court at Udaipur in accordance with the relevant provisions of the Act for the offence punishable under Sec. 138 of the Act. Before dealing with the contentions advanced by learned counsel for the petitioner at Bar, it shall be appropriate to refer to the provisions of Sec. 138 of the Act which reads as under:- ``138. Dishonour of cheque for insufficiency, etc., of funds in the account.- Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both : Provided that nothing contained in this Section shall apply unless- (a) the cheque has been presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice. (6). (6). The provisions of the Act are so stringent as regards its applicability that presumption is always drawn in favour of the payee or holder of the cheque, which when presented by the holder to his banker is dishonoured and this fact is borne out by Section 139 of the Act itself which provides as under : ``139. Presumption in favour of the holder.- It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability. (7). As regards the defence, which may be set up by the promise or the payee/holder of the cheque, who has received the payment from the drawer of the cheque, it shall not be a good defence in the prosecution for offence punishable under Sec.138 of the Act that the drawer had no reason to believe when he issued the cheque that the cheque may be dishonoured on presentment for the reasons stated in Sec.140 of the Act. Hence from the perusal of the aforesaid provisions of the Act, it is apparent that the Act of 1881 is a special enactment which envisages summary procedure for adjudication of the Civil Suits filed on the basis of the negotiable instrument such as promissory note/bill of exchange/hundi. (8). The Act of 1881 also envisages a provision for discharge from liability of notice on appeals and dishonoured cheques, which is stipulated in Section 82 of the Chapter VIII of the Act as under: ``82. Discharge from liability.- The maker, acceptor or indorser respectively of a negotiable instrument is discharged from liability; (a) by cancellation, to a holder thereof who canceds such acceptors or indorsers name with intent to discharge him, and to all parties claiming under such holder; (b) by released, to a holder thereof who otherwise discharge such maker, acceptor or indorser, and to all parties deriving title under such holder after notice of such discharge; (c) by payment, to all parties thereto, if the instrument is payable to bearers, or has been indorsed in blank, and such maker, acceptor or indorser makes payment in due course of the amount due thereon. (9). (9). From the perusal of the above provision, it is apparent that the maker, ac- ceptor or indorser of a negotiable instrument is discharged from his liability in the event of his adopting any of the said three modes and in case of his failure to comply with the aforesaid requirements as stipulated under the Act, then the presumption is always drawn against him that he has no intention of discharging himself from his liability as against the person in whose favour he had executed the agreement by way of promissory note/bill of exchange/hundi to re-pay the loan amount within stipulated period of time. In the instant case, it has not been disputed that the loan amount of Rs.1,50,000/- was advanced to the petitioner by the complainant-respondent No.2 as against which he (petitioner) had issued two post dated cheques on 10.2.94 and 21.2.94 as aforesaid. It is further not in dispute that the aforesaid che- ques when presented by the complainant to his bankers were dishonoured due to insufficient amount lying to the credit of the petitioner. However, after receipt of the notice, the petitioner disputed the charge and claimed trial. On the basis of the evidence which was recorded by the trial Court and also after having recorded the statements of the accused petitioner in defence, the trial Court came to the conclu- sion that the petitioner was liable for having defaulted in payment of the above amount to respondent No.2 as per the agreement duly executed between the parties. The learned Addl. Civil Judge (J.D.) cum Judicial Magistrate No.1, Udaipur, convicted the petitioner for the offence u/s 138 of the Act and sentenced him to undergo six months simple imprisonment and a fine of Rs. one lakh and in default of payment of fine to further undergo two months simple imprisonment in Cr. Case No.48/95 and three months simple imprisonment and a fine of Rs.50,000/- and in default of payment of fine to further undergo simple imprisonment for one month in Cr. Case No.49/95 and directed the sentences to run concurrently. Being aggrieved by the aforesaid order of the trial Court, the petitioner preferred an appeal before the Addl. Sessions Judge No.1, Udaipur and the said appellate Court vide its judgment/order dated 18.7.98 confirmed the findings arrived at by the learned trial Court. Case No.49/95 and directed the sentences to run concurrently. Being aggrieved by the aforesaid order of the trial Court, the petitioner preferred an appeal before the Addl. Sessions Judge No.1, Udaipur and the said appellate Court vide its judgment/order dated 18.7.98 confirmed the findings arrived at by the learned trial Court. Being yet dissatisfied by the concurrent findings of the learned trial Court as well as the appellate Court, the petitioner has come up by way of instant revision petitions before this Court. (10). Mr. R.S.Charan learned counsel appearing for the petitioner has vehemently argued that the petitioner cannot be held liable for any default on his part since he, at no point of time, conveyed his unwillingness to re pay the loan amount to the respondent No.2 but instead of giving the petitioner reasonable time to re pay the loan amount, the complainant with malafide intention had filed a criminal complaint straightway against the petitioner by having resorted to the provisions of Sec.138 of the Act before the learned Addl. Civil Judge (J.D.) cum Judicial Magistrate No.1, Udaipur, which was registered as a complaint for the offence punishable under Sec.138 of the Act as a result of dishonouring of two post dated cheques bearing No.983369 and 983370 for insufficient funds in the account of the petitioner, when presented by the complainant to his bankers. It is not that the petitioner was taken by surprise because legal notice for demand through his counsel was also sent to the petitioner prior to the institution of the complaint, though he denied the receipt of the same but from this aspect alone, it can neither be implied nor inferred that the petitioner had no knowledge of the contents of the said notice because he had issued two post dated cheques in favour of the respondent No.2 with full knowledge as regards insufficiency of his funds in his account and the knowledge of his liability to re-pay the outstanding loan amount which fact is also borne out and rather confirmed from the act of issuing the post dated cheques in favour of respondent No.2. The learned trial Court in my view has not committed any illegality since there was due compliance with the procedure and the other relevant provisions of the Act which envisages the summary procedure for trial of the offences based on negotiable instruments within the ambit and purview of the said enactment. Likewise, I do not find any infirmity or illegality committed by the appellate Court in having confirmed the findings of the learned trial Court. (11). During the course of hearing, learned counsel for the petitioner has stated that petitioner, at no stage, expressed his unwillingness to re-pay the loan amount but, however, due to difficulties in the course of his business transactions, he could not honour the spirit of the agreement by re paying the loan amount and that a compassionate view may taken of the matter by giving some reasonable time so as to enable the petitioner to comply with the orders passed by the Courts below. (12). Having regard to the contentions advanced by the learned counsel for the petitioner and also the provisions of the Act and the ratio of the decision of this Court in the matter of Mohd. Saied V. Ashish Kumar Agarwal (1), and also having regard to the fact that a Civil Suit is pending between the parties relating to the same cause of action, which is subject matter of the Criminal Cases No.48/95 and 49/95 decided by the learned trial Court vide its impugned order dated 29.8.97 vide Ex.A.37. I am of the view that it was not proper for the complainant-respondent No.2 to have availed both the remedies by way of filing a Civil Suit against the peti- tioner as well as presenting a complaint under Sec. 138 of the Act since he could avail only one remedy at a time and not both. (13). As a result of the above discussion, the impugned decision of the learned Addl. Civil Judge (J.D.) cum Judl. Magistrate No.1 dated 29.8.97 confirmed by the appellate Court of the Addl. Sessions Judge No.1, Udaipur, vide its judgment dated 18.7.98, is hereby upheld. However, I deem it appropriate to order only in respect of payment of fine that instead of paying the entire amount of Rs. Civil Judge (J.D.) cum Judl. Magistrate No.1 dated 29.8.97 confirmed by the appellate Court of the Addl. Sessions Judge No.1, Udaipur, vide its judgment dated 18.7.98, is hereby upheld. However, I deem it appropriate to order only in respect of payment of fine that instead of paying the entire amount of Rs. 1,50,000/-, which has been made realisable in both the cases from the petitioner by way of imposition of fine, he is directed to deposit the abovesaid amount in favour of respondent No.2 in Court of learned Addl. Civil Judge (J.D.) cum Judl. Magistrate No.1, Udaipur in Cr. Case Nos. 48 and 49 of 1995 within a period of four weeks from the date of receipt of certified copy of the order and which in turn respondent No.2 shall be entitled to withdraw, failing which the impugned order dated 29.8.97 passed by the trial Court and the order dated 18.7.98 passed by the appellate Court shall stand executable forthwith. It is further directed that if this order is complied- with within the time as indicated above, the petitioner shall be at liberty to avail of the civil remedy in connection the Civil Suit pending between the parties before the competent Court for such reliefs, if so advised in accordance with law. It is further directed that in case the petitioner complies-with this order by depositing the fine amount with the trial Court within the stipulated time, he shall be released from the judicial custody forthwith. In the event of default, he shall undergo the remaining period of sentence as well as pay the fine as imposed by the Courts below. (14). With the above observations, these two revision petitions stand disposed and of the impugned orders of the Courts below stand modified. _