Lawyer Strategies in Bounced Check Cases | Turkish Commercial Code & Cheque Law

Strategies a Lawyer Should Follow in Bounced Check Cases

Entrance

Checks are one of the most important payment instruments in commercial life. However, in practice, cases of bounced checks are quite common due to economic instability and payment difficulties. Bounced checks cause hardship for the creditor and lead to serious legal and criminal penalties for the issuer.

Cases involving bounced checks , filed under the provisions of the Check Law No. 5941 and the Turkish Commercial Code (TTK) , require specialized expertise and a strategic approach. The lawyer's strategy in these cases is crucial for protecting the client's interests.

I. The Crime of Issuing Bounced Checks and the Legal Framework

1. Definition of the Crime of Issuing a Bounced Check

According to Article 5 of the Czech Law, if a check has insufficient funds or only partial funds, it is marked as "insufficient funds." In this case, the drawer is subject to a judicial fine.

2. Legal Grounds

Turkish Commercial Code Articles 780–823: General provisions regarding checks.
Law No. 5941 on Checks: This law outlines the legal and criminal consequences of issuing a bounced check.
Supreme Court rulings are particularly instructive regarding payment commitments, the protection of bona fide holders, and criminal sanctions.

3. Criminal Consequences

Those who issue bounced checks are subject to judicial fines.
The penalty cannot be less than the amount of the check.
Additionally, issuing checks and opening checking accounts are prohibited .

II. The Strategic Role of the Lawyer

In bounced check cases, the lawyer's strategy takes shape in three main stages:

Preventive Strategies: Measures to be taken before a check is issued or before a lawsuit is filed.
Strategies During Litigation: Protecting the client's interests in both criminal and civil courts.
Subsequent Strategies: Enforcement proceedings, objections, commitments, and payment plans.

III. Preventive Strategies

1. Analysis of the Client's Business Situation

A lawyer should closely monitor their client's check issuance history, financial situation, and business relationships.

2. Warnings During the Check Issuance Stage

The client should be informed about the penalties for issuing a bounced check.
It should be remembered that checks are a non-dated payment instrument.
It should be explained that post-dated checks carry risks in practice.

3. Preparation Against Enforcement Proceedings

The lawyer should prepare evidence and documents in advance in case the opposing party initiates enforcement proceedings.

IV. Strategies During the Trial

1. Defense Strategies in Criminal Cases

Jurisdiction Court Objection: The court with jurisdiction is the court of the branch through which the check was issued.
Elements of a Check: It must be examined whether the instrument contains the elements listed in Article 780 of the Turkish Commercial Code. If there are any deficiencies, the check may be considered invalid.
Defects of Will: If there are allegations of fraud, threat, or collusion, these should be brought to court.
Complaint Period: The complaint period for issuing a bounced check is 6 months. If the period has expired, a request for dismissal should be made.

2. Strategies in Civil Litigation

Debt Collection: If the client is the creditor, methods such as enforcement proceedings and negative declaratory judgment lawsuits may be considered.
Debtor's Defense: If the client is the debtor, claims of payment, set-off, statute of limitations, or formal deficiency may be used.

3. The Defense in Light of Supreme Court Case Law

Supreme Court 19th Criminal Chamber, Case No. 2019/4512 E., Decision No. 2020/3321 K.: In the crime of issuing a bounced check, intent is not required; the absence of sufficient funds to cover the check is sufficient.
Supreme Court 11th Civil Chamber, Case No. 2017/12214, Decision No. 2019/3887: Deficiencies in the elements of the check lead to the dismissal of the case.

Post-V Strategies

1. Roadmap in Enforcement Proceedings

A lawyer can initiate debt collection proceedings on behalf of their client or, if the client is indebted, can file an objection.
A payment plan can be established through a letter of commitment.

2. Appeal Against the Ban on Issuing Checks

It is possible to appeal the court's decision prohibiting the issuance of checks and the opening of accounts.
The Court of Cassation accepts that the ban can be lifted if the client makes the payment.

3. Reconciliation and Peace

The case will be dismissed if the check amount is paid or the parties reach an agreement.
Therefore, a lawyer should always keep avenues for reconciliation open on behalf of their client.

VI. Practical Steps a Lawyer Should Follow

Informing the client: Clearly explaining the criminal and legal risks.
Gathering evidence: Bank records, account statements, correspondence.
To raise an objection to jurisdiction: To prevent a case from being heard in a court that lacks jurisdiction.
Examining formal requirements: Request for acquittal in case of missing mandatory elements in the check.
Checking the complaint deadline: Ensuring that complaints that have passed the deadline are dismissed.
Settlement and payment plan: Exploring amicable settlement options in a way that best serves the client's interests.
Integrating enforcement law: Conducting enforcement proceedings to collect debts in parallel with criminal proceedings.

VII. Risks and Opportunities in Bounced Check Cases

Risks: Criminal penalties, ban on issuing checks, debt collection proceedings.
Opportunities: Dismissal of the case through settlement, lifting of the ban through payment, defense against allegations of formal deficiencies.

VIII. Digitalization and Electronic Checks

Electronic check (e-check) applications are coming to the forefront in Turkey .
Checks issued digitally can also be dishonored.
In this field, lawyers need to consider the aspects of electronic signatures and information technology law as well.

Conclusion

Bounced check cases are complex cases encompassing aspects of commercial law, criminal law, and enforcement law. The strategies a lawyer employs directly impact the client's interests.

Preventive strategies: Informing the client before issuing the check.
Strategies during litigation: Taking into account jurisdiction, formal requirements, complaint periods, and Supreme Court precedents in criminal and civil cases.
Subsequent strategies: Enforcement proceedings, challenging the check issuance ban, and exploring avenues for settlement.

All these steps must be carried out in accordance with the provisions of the Czech Law No. 5941, the Turkish Commercial Code, and the decisions of the Supreme Court

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