Issuing Bounced Checks

A check is a negotiable instrument, a confirmation order issued to transfer the payment to the creditor.

A check is a means of payment. It facilitates payment and establishes a relationship of trust within the transaction process, involving the drawer, payee, and drawee (bank). It is a payment instrument with established terms and conditions.

However, there are no legal obstacles to using a check as a debt instrument rather than a payment instrument. A person can claim to be relieved of their debt by using a check to show that they have money they do not possess. If the money in question is taken from the bank by a third party without the knowledge of the drawer before the check is presented to the bank, the bank's ability to cash the check is eliminated. In this way, the drawer is temporarily relieved of their debt. However, since the legislation has taken precautions in this regard, according to the legislation, the drawer can be punished with a maximum of one year of imprisonment or at the lightest judicial fine, and it is also possible to collect the debt with interest from the due date through enforcement proceedings against the debtor-drawer.

Some of the legal provisions regarding the crime of issuing a bounced check, or as it is legally called, "The Crime of Causing a Check to Be Received Insufficient Funds," are listed below.

Turkish Commercial Code Article 783

(1) For a check to be issued, it is necessary that the drawee has funds allocated to the drawer's order and that there is an express or implied agreement between the drawee and the drawer that the drawer has the right to dispose of these funds by issuing a check. However, failure to comply with these provisions does not affect the validity of the instrument as a check.

(2) If the drawer has only a portion of the check available to the drawee, the drawee is obliged to pay that amount.

(3) A person who issues a check that is partially or completely unpaid is obliged to pay ten percent of the unpaid amount of the check, and also compensate the holder for the damages he has suffered as a result.

Czech Law Article 2/10

(10) A checking account can only be closed upon the written request of the owner or legal representative or upon the expiry of the statute of limitations for deposits or participation funds. After the checking account is closed, checks presented within the statutory presentation period according to the date of issue written on them are treated as bounced checks.

Czech Law Article 3/2.

(2) The "insufficient funds" transaction is limited to the portion of the check amount that cannot be met, excluding the amount that the drawee bank is legally obliged to pay to the bearer

(3) The drawee bank shall pay the holder, other than the drawer, for each check leaf presented within the prescribed period;

1. a) If there is no equivalent at all,

1) If the check amount is one thousand Turkish Lira or more, one thousand Turkish Lira,

2) If the check amount is less than one thousand Turkish Liras, the check amount must be paid

 

1. b) If partial compensation is available,

1) If the check amount is one thousand Turkish Lira or less, a partial payment that does not exceed the check amount and brings the total amount up to one thousand Turkish Lira,

2) If the check amount exceeds one thousand Turkish Liras, the party is obligated to pay an additional one thousand Turkish Liras, provided that it does not exceed the check amount, in addition to the partial payment.

This provision constitutes an irrevocable non-cash credit agreement between the account holder and the drawee bank, concluded at the time of delivery of the checkbook. The amount in this paragraph is determined annually in January by the Central Bank of the Republic of Turkey, taking into account the annual changes in price indices published by the Turkish Statistical Institute, and is published in the Official Gazette.

(4) If the holder requests it, the bounced check transaction is carried out by writing the date the check was presented to the bank for collection, the account status, the amount paid by the bank within the scope of its obligation, and the name and surname of the real person presenting the check on the back of the check, stating if this person is collecting the amount on behalf of a legal entity, and signing it together with this person and the bank official.

The amount remaining unpaid after deducting the amount paid by the bank is clearly stated. If the holder refuses to sign, the unpaid amount transaction will not be completed.

(5) If the holder does not accept the partial payment, including the amount that the drawee bank is obliged to pay according to the third paragraph, the check is processed as unpaid according to the provisions of the second paragraph; the presentation date and the reason for non-payment are written on the check, and the check is returned to the holder after obtaining his signature; a photocopy of the front and back is kept by the bank. This paragraph also applies if there is no funds in the check account and the holder only requests payment of the amount that the drawee bank is obliged to pay according to the third paragraph.

(6) In case of partial payment, including the amount that the drawee bank is obliged to pay according to the third paragraph, a certified photocopy of the front and back of the check is given to the holder free of charge. The holder of the check may apply to the debtors or the enforcement procedures regarding negotiable instruments with this photocopy, or attach this photocopy to his petition when making a complaint to the enforcement court and use it as a means of proof in the enforcement offices and courts. If requested by the court or the enforcement office, the original check is sent to these authorities.

Czech Law Article 5

If a check is presented within the legal presentation period according to the date of issue written on it, the person who caused the check to be returned as "insufficient funds" shall be sentenced to a judicial fine of up to one thousand five hundred days for each check, upon the complaint of the holder. However, the judicial fine to be imposed cannot be less than the amount of the check that was returned unpaid (…) (2). The court shall also order a ban on issuing checks and opening check accounts; if such a ban already exists, it shall order the continuation of the ban on issuing checks and opening check accounts. During the trial, the court may also decide on a ban on issuing checks and opening check accounts as a protective measure. The ban on issuing checks and opening check accounts applies to the real or legal person who owns the check account, those who issue checks on behalf of this legal person, and, in the case of a capital company that issues a check that is returned unpaid, also to the management body and the company officials registered in the trade registry. Regarding appeals against decisions prohibiting the issuance of checks and the opening of check accounts as a protective measure, the provisions of the first paragraph of Article 353 of the Enforcement and Bankruptcy Law No. 2004 dated 9/6/1932 shall apply. Cases opened due to this offense shall be heard in the enforcement court, and the provisions regarding the trial procedure regulated in Articles 347, 349, 350, 351, 352, and 353 of the Enforcement and Bankruptcy Law shall apply. These cases shall be heard in the court of the place where the bank branch where the check was presented for collection or where the check account was opened is located, or in the court of the place of residence of the account holder or the complainant.

A natural person who is the holder of a checking account cannot appoint another person as an agent or representative to issue checks on their behalf. If a check is issued by a representative or agent of a natural person, the legal and criminal liability arising from that check rests with the checking account holder.

Regarding the decision prohibiting the issuance of checks and the opening of a check account, unless a change of address is notified, the notification will be immediately sent to the address provided by the person when opening the check account, in accordance with Article 35 of the Notification Law No. 7201 dated 11/2/1959. Even if the address is incorrectly provided to the bank or has been abandoned, the notification will be deemed served.

A person who has been prohibited from issuing checks and opening a checking account is obligated to return all checks in their possession to the banks to which they belong. A new checking account cannot be opened in the name of this person.

A person who has been prohibited from issuing checks and opening a checking account is obligated to provide the drawee bank with a list of all checks they have issued and for which payment has not yet been collected, indicating the dates of issue, amounts, and payees (if any), within ten days of the date the decision is served.

Information regarding decisions prohibiting the issuance of checks and the opening of check accounts is electronically transmitted to MERSİS and the Risk Center via the Ministry of Justice's National Judicial Network Information System (UYAP), after being signed with a secure electronic signature. Individuals subject to a decision prohibiting the opening of check accounts are notified to banks by the Risk Center. The principles and procedures regarding these notifications and announcements to banks are determined by the Risk Center, with the approval of the Ministry of Justice.

The provisions regarding prepayment, settlement, and postponement of the announcement of the verdict do not apply to the crime defined in the first paragraph.

Czech Law Article 6

(1) A person who pays the amount of the bounced check in full, together with the interest calculated according to the commercial default interest rate in accordance with Law No. 3095, which will accrue from the legal presentation date according to the date of issue written on the check, shall be liable

1. a) The case being dismissed by the court during the trial phase,
2. (b) After the conviction becomes final, the court shall decide to annul the judgment with all its consequences. The lifting of the ban on issuing checks and opening check accounts shall be notified to MERSİS and the Risk Center in accordance with the procedures in the eighth paragraph of Article 5 and announced.

(2) The provision of the first paragraph shall also apply in case of withdrawal of the complaint.

(3) A person may request the lifting of the ban on issuing checks and opening a check account from the court that issued the judgment, three years after the date on which the sentence imposed has been fully executed, and in any case ten years after the date on which the ban was imposed; he may object to the decision of the court. The provisions of the first paragraph of Article 353 of the Enforcement and Bankruptcy Law shall apply to this objection. When the decision regarding the lifting of the ban on issuing checks and opening a check account becomes final, the lifting of the ban is notified to MERSİS and the Risk Center in accordance with the procedures in the eighth paragraph of Article 5 and announced.

Czech Law Article 7/4,6,7,10

(4) A bank employee who fails to process a check that is partially or completely without funds, despite a request, shall be punished with imprisonment of up to one year upon complaint.

(6) If a person who has been given a decision prohibiting the issuance of checks and the opening of a check account issues a check despite this, he shall be punished with imprisonment from one to three years, unless the act constitutes another crime requiring a heavier penalty.

(7) A bank employee who opens a check account in the name of a person who has been given a decision prohibiting the issuance of checks and the opening of a check account shall be punished with imprisonment from three months to one year.

(10) If the issuer fails to provide the address in the bank records to the holder upon request due to the bounced check, or if the bank acts contrary to the provision of Article 2 regarding the information and documents that must be provided and kept, the relevant bank shall be fined an administrative fine of five hundred Turkish Lira to five thousand Turkish Lira by the public prosecutor.

Who Can File a Complaint Regarding a Bounced Check: Who is the Perpetrator in the Crime of Causing a Bounced Check?

According to Law No. 4941 on Checks, in the case of a bounced check, the person to be complained against is the one who caused the check to be marked as "insufficient funds" upon presentation to the bank within the legal presentation period, as stated in the text of the law. Since the person responsible for causing the check to be marked "insufficient funds" is considered to have committed the crime, the perpetrator is often the person obligated to maintain the relevant amount in their bank account. Because the account holder may be a legal entity, in this case, the perpetrator is most often the natural person constituting the financial management body of the legal entity.

Conditions for Issuing a Bounced Check;

The check must be properly drawn up; in short, the document must have the force of a check.

It must be submitted within the specified period    

The presentation must be made by an authorized holder, i.e., the presentation must be in accordance with the procedure

Partial or complete impossibility of payment,

Absence of a Czech agreement

The existence of a provisional injunction order as a result of a request for a provisional injunction

Note: Turkish Commercial Code Article 796; presentation periods: Ten days if the check is payable at the place of issue. One month if it is payable at a place other than the place of issue.

Establishing a determination that the equivalent is not available

 

I received a bounced check. Where should I file a complaint? Competent authority/court for bounced check cases

In cases of issuing bounced checks, the competent authority for complaints is the Enforcement Criminal Court. A complaint filed with the Enforcement Criminal Court will initiate the investigation and trial process. However, the most important thing to know and pay attention to is that the complaint petition must be detailed and comprehensive, outlining the entire procedure. This is because the Enforcement Criminal Court does not issue an indictment; the complaint petition serves as the official indictment.

The competent court is the court of the place where the checking account is located, the court of the bank branch where the check was presented and subsequently marked as "insufficient funds," the court of the account holder's place of residence, or the court of the complainant's place of residence.

The date of the "insufficient funds" annotation marks the beginning of the statute of limitations for filing a complaint. The three-month period following the submission to the bank and the subsequent "insufficient funds" annotation is absolute. Any lawsuit or complaint filed after this three-month period will be dismissed on procedural grounds.

Complaint Regarding Bounced Checks: How to File a Complaint?

Issuing a bounced check is a crime that depends on a complaint. Unless a complaint is filed, the crime cannot be prosecuted. Since there will be no investigation into the crime at that time, determining whether payment was made in the event of a bounced check becomes more complicated.

Enforcement Proceedings in Cases of Issuing Bounced Checks

In the case of a bounced check, enforcement proceedings can be initiated with the check marked "bounced." Since this check is a negotiable instrument, it is quite reasonable to secure the drawer-debtor's assets through precautionary attachment and prevent the assets from being removed.

Through debt collection proceedings, you can collect the debt along with its ancillary claims and receive your money in a short time.

Lost Profits, Inflation, and Exchange Rates in Bounced Check Crimes | Additional Damages

Even if the money obtained through collection proceedings is thought to have been earned with interest, the delay in receiving the principal amount may mean that an opportunity has been missed. In such a case, if the missed opportunity is substantial, claiming it through legal action will also eliminate any potential damages up to the amount of the check.

According to Article 105/1 of the Turkish Code of Obligations, if the damage suffered by the creditor exceeds the interest for past days, the debtor is obliged to compensate for this damage unless he proves his innocence. It is possible to demand this damage, which is independent of the principal debt, from the debtor within the ten (10) year statute of limitations period stipulated in Article 125 of the Turkish Code of Obligations.