Frequently Asked Questions About Bad (Unpaid) Check

Frequently Asked Questions About Bad (Unpaid) Check

What is the scope of crime?

According to the Law, “the person who caused the ‘unpaid’ transaction regarding the check during the submission within the legal submission period according to the date written on it” is punished.

There are two fundamental issues regarding this provision: a) the check must be submitted within the legal period. In other words, the check must be presented to the bank or exchanged within 10 days (or in some cases 30 days) from the date of issue (due date). b) The phrase “unpaid” (or partially unpaid) must be stamped on the back of the check submitted on time.

Most of the time, statements such as “payment could not be made to the holder because the signature does not belong to the drawer (of the check)” or “no payment made because the signature of the drawer does not match” or “payment could not be made in accordance with the court / prosecution decision” are put on the back of checks instead of explicitly stating that it is “unpaid.”

Who is responsible? What is the situation in companies? What if signature by procuration is available?

The person to be tried for drawing bad checks is the owner of the check account. If a natural person owns the check account (may also be a private company), he/she is still responsible even if the check is signed by another person by proxy.

In order to find the responsible person in companies, firstly, it is necessary to determine whether there is an organ responsible for carrying out financial affairs in the company structure and if any, the manager(s) of that body are responsible. If there is no such a structure, the person(s) authorized to represent the company are responsible for the bad check crime.

The person who is convicted for issuing bad check cannot be a manager in another company and cannot be re-elected after his term has expired unless his/her sentence is completely executed.

Who makes the complaint? How? When? Where?

Any procedure, according to the Law, occurs “upon the complaint of the holder.” Holder is the person who possesses the check. In some of the court decisions given after the new regulations came into force regarding bad check, there was a debate on whether the only person who presented it to the bank and struck an unpaid stamp is considered as holder and thus previous endorsers do not have right to make a complain. However, in the Court of Cassation's recent jurisdiction ruled upon appeal for the sake of law since August 2018, it was accepted that all the endorsers holding the check have the right to complain.

The complaint is made to the Enforcement (Penal) Court with a petition within 3 months from the unpaid transaction. The criminal section of the Execution and Bankruptcy Law is applied to the trial, and the Criminal Procedure Law in cases where there is no provision.

Several competent courts are stipulated, these are: Enforcement (Penal) Court located at a) where the check is submitted to the bank, b) the location of the bank branch where the check account is opened c) residential address of the account’s owner d) residential address the complainant.

Does the Defendant or Complainant Have to Go to Court? Is a writ of seizure issued if he/she does not? Where is the notification sent? How does the change of address or the absence of MERNIS affect the case? How do I know about the case?

Upon complaint, the enforcement (penal) court determines a hearing day and informs the accused that the case has been filed and calls for the hearing. No decision is made on the file without a hearing.

In the Enforcement (Penal) Courts, the accused does not have to attend hearings. If the accused does not have a residential address within the court’s jurisdiction, he/she is invited to the court nearest to his/her address upon the instructions written by the former court, but accused does not even have to go to the nearest court where he/she is called. In case of not attending the hearings, no decision to arrest or seizure is made. It is mandatory and sufficient to notify the accused once. No decision can be made without notification. The notification is delivered to the accused's available address (reported in the complaint petition or recorded in the bank/trade registry). If not, the notification is issued to the address registered in MERNIS (central population administration system). If the defendant does not have a MERNIS address, a notification will be issued to the address of the defendant declared when opening the check account in accordance with Article 35 of the Notification Law and the notification is considered as served. (Even if the accused is not there or no one receives the notification at this address, it will be considered as served)

The complainant or his representative must be present at the hearings. If he/she does not attend the hearing without excuse, the case is dismissed. Every citizen can follow the lawsuits filed against him/her through the e-government portal.

How Much Punishment Is Given? Am I imprisoned? How Long Do I Stay in Prison? Open or Closed Prison?

The penalty for bad check crime is not imprisonment but fine (a pecuniary punishment). However, if the imposed fine is not paid, the pecuniary punishment is converted to imprisonment.

Judicial fines are imposed on day count and how much Turkish Lira (TL) each day corresponds to is specified in the decision. The equivalent of one day is minimum 20 and maximum 100 TL. The judge decides the exact amount (according to the economic situation of the person).

According to the Law “judicial fines are imposed up to one thousand five hundred days, regarding each check; however, the fine determined by the judgment cannot be less than the amount of the check amount remaining unpaid.” Here, the number of days for judicial fines is important, not the amount of the penalty is. Indeed, the imprisonment time will be calculated accordingly.

For instance, with regard to a check of 50.000-TL, the judge may rule a judicial fine of 500 days X 100 TL = 50.000-TL as well as a judicial fine of 1000 days X 50 TL = 50.000-TL. In this case, if the judicial fine is not paid, the person will receive 500 days in prison in the first account, while he will be imprisoned for 1000 days in the second case.

However, in any case, the time in prison can not be more than 3 years due to a judicial fine decision, and if there is more than one punishment, this period would be 5 years. In other words, regardless of the amount of the check, the time spent in prison may not exceed 3 years, if there are several bad check punishment, the total time does not exceed 5 years. The person, who is converted into a judicial fine imprisonment due to a bad check, faces his sentence in an open prison. It is not possible to execute the penalty without entering the open prison but only by working in a job for public interest. The punishment is served in prison.

For punishments of imprisonment converted from judicial fines, the provisions of postponement or conditional release are not applied.

Is appeal possible? How long does it take?

Judicial fines up to 3.000-TL are final and there is no sort of appeal. Above this amount, the parties have the right to apply to the Appeals Court (District Court of Justice) for the decision given for an unpaid check. Applications are made within 7 days from the notification of the decision. The ruling of the court of appeal may be delivered between 2 months and 1 year on average.

If the decision is appealed to the District Court of Justice, the decision is not finalized and there is no sanction for the decision.

 

**This study is prepared by Kula Law Office. Please contact by e-mail ([email protected]) or call at +902324350604 for publication of the article in other channels, detailed information and questions about the subject.

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