Crime of issuing a bounced check

Article 5 of the Check Law contains regulations regarding criminal liability for bounced checks. According to the relevant article, the crime is committed by causing the check to be deemed "bounced" if it is presented within the legal presentation period according to the issuance date written on it.

ELEMENTS OF THE CRIME OF ISSUING A BOUNCED CHECK

In order to punish the perpetrator for the crime of drawing a bad check;

1-The check must meet the conditions specified in the law.

Provisions regarding the issuance of checks are included in the Turkish Commercial Code. For detailed information about how to prepare a check and the elements of the check, you can review our article titled Issuing a Check.

2-The check must be submitted within the submission period.

In order to be considered a bounced check crime, the check must be presented to the bank within the presentation period determined according to the date of issue.

3- The Check Is Bounced Transaction Should Be Done.

If the check owner has not kept the check amount partially or completely in the bank on the date of issuance, the bank must declare the back of the check as dishonored.

4- The Right to Complaint Must Be Used by the Holder.

Since the investigation and prosecution of the crime of issuing a bad check is subject to complaint, the holder must file a complaint within 3 months and probably within 1 year from the date of issuance.

Perpetrator of the Bounced Check Crime

Although it is stipulated by law that there will be no maturity date on the check, in practice it is seen that checks are often issued with a postdated date. If the checks presented within the legal presentation period do not have an equivalent amount in the addressee bank, the check is declared as "unfunded".

The obligation to keep the check equivalent in the bank belongs to the check owner. If the check owner is a real person, the responsibility rests solely with him/her. Even if the check is made by someone else, the real person is responsible.

For legal entities, the responsibility belongs to the person who is obliged to keep the check amount in the bank. In other words, the owner of the check is responsible, not the one who signed the check. When determining the responsible person, the date of issue of the check is taken into consideration. The authorized person of the company may be someone else when the check is issued. However, as we stated above, the responsibility belongs to the company official within the submission period.

INTESTIATE ELEMENT IN THE CRIME OF ISSUING A BOUNCED CHECK

Although there are different opinions in the doctrine, according to the common opinion, intent is not an element in the crime of issuing a bad check. The crime is a crime of objective responsibility. The intent of the perpetrator does not matter. If the check is stolen or lost, the perpetrator can be prevented from being punished. Penalties cannot be imposed on people who have filed a cancellation lawsuit against a stolen or lost check before the criminal case and have been banned from payment.

THE COURT IN CHARGE FOR THE CRIME OF ISSUING A BOUNCED CHECK

The trial of the crime of issuing bad checks is carried out by the enforcement criminal courts. The competent court is the court where the bank branch is located where the check is submitted to the bank for collection or where the check account is opened, or the court where the account holder or the complainant resides.

COMPLAINING PERIOD FOR BONUSED CHECK ISSUE

Follow-up of the bounced check crime depends on the complaint. With reference to the Check Law, the complaint period is determined according to the EBL. According to Article 347 of the EBL, the complaint period is 3 months from the date the act was learned and, in any case, 1 year from the date the act was committed.

In order to exercise the right to complain, the check must be presented duly. Checks whose presentation period has passed cannot be subject to complaint.

PUNISHMENT FOR ISSUING A BOUNCED CHECK

The penalty for the crime is regulated in the law as a judicial fine of up to 1500 days, but it is stipulated that the judicial fine cannot be less than the check amount.

Optional sanctions cannot be applied for the crime of issuing a bad check. HAGB decision cannot be made. The crime is not a crime subject to reconciliation.

If the judicial fine is not paid under the conditions specified in the judgment, it is converted into a prison sentence.

In addition, administrative sanctions are imposed on the person who causes the check to be bounced. According to Article 5 of the Check Law;

"The court also rules on the ban on issuing checks and opening a check account; and in the event of this ban, the continuation of the ban on issuing checks and opening a check account."

TRIAL FOR THE CRIME OF ISSUING A BOUNCED CHECK

The trial is carried out in accordance with the trial procedure set out in Articles 347, 349, 350, 351, 352 and 353 of the EBL.

The trial of the crime of issuing a bad check must be held in a hearing.

If the perpetrator does not attend the hearing, the verdict will be given in his absence.

The complainant is required to attend the hearing. If the complainant or his/her representative does not attend the hearing, the right to complain will be lost according to Article 349 of the EBL.

BONAMED CHECK NEW REGULATION

Provisional Article 5 was added to the Check Law with the omnibus law that came into force after being published in the Official Gazette on 26.03.2020. According to the article;

"The execution of the sentences of those convicted for the crime defined in Article 5 and committed until 24/3/2020 is suspended as of the date of entry into force of this article. The convict must pay one-tenth of the unpaid portion of the check to the creditor within "one year" from the date of release at the latest. If he pays the remaining part in fifteen equal installments with two-month intervals from the end of the "one-year" period, the court decides to abolish the criminal conviction with all its consequences. If one tenth of the unpaid portion of the check is not paid within "one year" from the date of suspension, the court decides to continue the execution of the judgment upon the complaint of the creditor. If the convicted person does not pay one of the installments for the first time, this unpaid installment is added as an installment to the end of the period. If he does not pay one more of the remaining installments, the court decides to continue the execution of the judgment upon the complaint of the creditor.

(2) If the execution of the sentence is suspended, the statute of limitations does not apply.

(3) The court may decide on the judicial control measure specified in subparagraph (a) of the third paragraph of Article 109 of the Code of Criminal Procedure for the person whose execution has been suspended pursuant to this article.

(4) In decisions to be made pursuant to this article, the enforcement criminal court that made the decision is authorized. All decisions made by the court in accordance with this article are notified to the creditor.

(5) An objection may be taken against the decisions to be made in accordance with this article. In examining the objection, the objection procedure specified in the first paragraph of Article 353 of the Enforcement and Bankruptcy Law is applied.

(6) The provisions of this article can only be applied once for each crime."