What Are the Penalties Imposed on the Crime of Causing a Cheque To Be Dishonored? 1 February 2019
A number of amendments have been introduced to the Cheque Law No. 5941 (“Cheque Law”) in order to improve the investment environment. With this amendment, various sanctions have been envisaged for the person responsible for the consideration of the cheque in the relevant bank account in order to increase the confidence in cheque as an instrument of payment frequently using in the business life and to eliminate the usage of dishonored cheque.
- What are the elements required for the occurrence of crime?
First of all, the crime of issuing dishonored cheque regulated under the Article 5 of the Cheque Law titled “Penal responsibility, prohibition of issuing a cheque and opening a cheque account” is required to have a duly issued cheque with all necessary components. The required components of a cheque to be counted as valid are regulated under Article 780 of the Turkish Commercial Code (“TCC”). Pursuant to Article 781 of the TCC, a cheque which does not contain elements written in the law shall not be deemed valid except for certain exceptions set out in the same article.
On the other hand, the cheque is required to be submitted within the legal submission period in line with the date of issuance for the occurrence of the crime of issuing dishonored cheque. The legal submission periods have been regulated under Article 796 of the TCC. Accordingly, if a cheque will be paid at a place where it is arranged it should be submitted within 10 days and within 30 days if the payment is to be made elsewhere. If the issuance place and the payment place of the cheque are in different countries, two separate periods are stipulated which are one month and three months depending on the issuance and payment places are on the same or different continents.
In the event that the amount written in the cheque bounces partially or completely, the bank employee is required to make a written declaration on the reverse side of the cheque as “dishonored”. In accordance with Article 3 of the Cheque Law, the “dishonored” declaration is made only limited to bounced part of the cheque amount, except for the amount that the bank is obliged to pay to the bearer.
In addition, since the crime of causing a cheque to be dishonored is prosecuted on complaint, the bearer should make a complaint within 3 months from the date on which he becomes aware of the crime and within a maximum of 1 year starting from the date when the crime is committed. The right to complain belongs to the creditor, the authorized bearer who is unable to collect the receivable. According to Article 5 of the Cheque Law, the competent court in the prosecution of this crime is the Enforcement Court at the place where the cheque was submitted to the bank, where the cheque account was opened, where the account holder or the complainant resides.
- Who can be the offender of this crime?
Upon the complaint of the bearer, the person to be sanctioned is the person who is responsible for the consideration of the cheque in the bank account; in other words, the owner of the cheque. According to the Article 5 of the Cheque Law, since it is not possible to appoint a proxy or representative to issue a cheque, in the event that a cheque is issued by a proxy or representative of the real person in contradiction with this prohibition, the legal and criminal responsibility for this cheque belongs to the real person who is the cheque holder. If the cheque account holder is a legal entity, the member of the governing body responsible for the financial affairs; if such a determination cannot be made, the real persons constituting the governing body shall be responsible for the consideration of the cheque in the bank account. In this case, if the cheque issued on behalf of a legal entity bounces, the sanctions imposed by the Cheque Law shall be applied to above mentioned persons.
3. What are the sanctions to be imposed?
3.1 Judicial fine and converting into imprisonment
According to the Article 5 of the Cheque Law, the first sanction to be imposed on the person who caused a cheque to be dishonored is judicial fine. Accordingly, the person who causes a cheque to be dishonored shall be subject to a judicial fine up to 1500 days provided that such judicial fine is not less than the total dishonored amount of the cheque. According to Article 52 of the Turkish Criminal Code (“Criminal Code”), the daily amount of the judicial fine shall be, at least, 20 TL or, at most 100 TL and shall be determined by the court having regard to the personal and economic conditions of the person. The amount of the judicial fine shall be determined by multiplying the number of days with the daily amount provided that such amount is not less than the total of the dishonored amount of the cheque.
In this regard, the bearer should file a complaint against the person who is responsible for the dishonest cheque to the competent Enforcement Criminal Court within 3 months from the date that the cheque is bounced.
Upon the complaint of the bearer, judicial fines up to 1500 days may be imposed for each check. However, the judicial fine can not be less than the dishonered part of the check.
According to Article 52 of the Criminal Code, the court may decide that a judicial fine can be paid by installments provided that the installment period may not exceed two years and the number of installments shall not be less than four. The decision should also contain a statement that, if any installment has not been paid on time, the remaining portion of the judicial fine will be due and any unpaid judicial fine will be converted into a term of imprisonment. The relevant decision shall be submitted to the Chief Public Prosecutor and the Public Prosecutor shall issue a payment order to the prisoner, stating that, in the event of non-payment of judicial fines within thirty days under Article 5/11 of the Cheque Law, the sentence shall be converted directly to imprisonment without the decision to exercise public service. Furthermore, it has been stated that the provisions concerning prepayment, reconciliation and the suspension of the pronouncement of the judgement shall not be applied for this crime.
If the amount of the dishonored cheque and the accrued interest is paid by the offender, he may benefit from the provisions of effective remorse.
3.2 Prohibition of issuing a cheque and opening a cheque account
In addition to the above-mentioned sanctions, it has been regulated that the decision of the prohibition of issuing cheques or opening a cheque account shall be given about the person who caused a cheque to be dishonored. The court may also rule on the prohibition on issuance of cheques and opening of cheque accounts as protection measures during the proceedings.
In accordance with the Article 5 of the Cheque Law, the prohibition of issuing a cheque and opening cheque account shall apply to the real persons and legal entities whom is the owner of the cheque, the drawer of the cheque on behalf of the legal entity, the member of the management body and company executives registered to the trade registry. Another issue that should be considered is that those who are prohibited from drawing cheques and opening cheque accounts cannot serve in the management bodies of the capital companies during the prohibition period.
In addition, the person who has been prohibited from issuing a cheque and opening a cheque account is obliged to return any remaining cheque leaf in his possession and uncollected cheques to the drawee bank. Information regarding the prohibition of issuing a cheque and opening a bank account and cessation of the prohibition will be notified to Risk Center which is affiliated to Turkey Banks Union through UYAP.
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