The Relationship Between Criminal and Civil Cases Regarding Bounced Checks

Entrance

Checks are one of the most widely used negotiable instruments in commercial life. The Turkish Commercial Code (TTK) and the Check Law No. 5941 regulate in detail the provisions to be applied in cases of issuance, presentation, and bounced checks. However, one of the most debated issues in practice the relationship between criminal and civil lawsuits filed in cases of bounced checks.

A check is not only an economic means of payment; it is also a document subject to legal and criminal penalties. Therefore, the drawer of a bounced check may face both civil lawsuits seeking compensation and debts, as well as criminal penalties

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The Crime and Criminal Case of Issuing a Bounced Check

Legal Basis

• Article 5 of the Check Law No. 5941 defines issuing a bounced check as a crime.
• The drawer is liable for penalties if, despite issuing a check to be paid within the presentation period, they do not have sufficient funds in their account.

Characteristics of a Criminal Case

• It is initiated ex officio by the Public Prosecutor's Office .
• The imposed penalty is usually a fine.
• If a fine is not paid, the penalty may be converted into imprisonment.
• A decision is made to prohibit issuing checks and opening check accounts.

Defenses Presented in Criminal Cases

• The check is not without consideration (defense of lack of consideration),
• The check was not presented within the specified time
• The check was issued without the drawer's knowledge or with an unauthorized signature
• The check was paid later.

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Legal Cases Filed Due to Bounced Checks

Legal Basis

• Turkish Commercial Code Articles 780-823 and Enforcement and Bankruptcy Law (EBL) Articles 167 et seq.
• The holder of a bounced check can file a lawsuit against the drawer, endorsers, and guarantors.

Types of Legal Cases

1. Debt Collection Lawsuit: This is filed to collect the amount of a check.
2. Compensation Claim: This is filed to recover damages suffered by the holder due to a bounced check.
3. Enforcement Proceedings: Since a check is a negotiable instrument, it can be subject to enforcement proceedings through the attachment procedure specific to negotiable instruments.

Characteristics of a Legal Case

• It is based on a private law relationship between the parties.
• Courts make decisions based on the validity of the check and the existence of the debt.
• The holder may demand the check amount together with interest and expenses.

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Key Differences Between Criminal and Civil Cases

Element	Criminal Case	Legal Case
Aim	To protect public order and ensure confidence in the check system	To enable the holder to collect their debt
Initiator	Public Prosecutor's Office	Holder (private legal entity)
Conclusion	Judicial fine, check ban, criminal record	Debt collection, compensation, interest
Parties	The state and the defendant	holder and debtor (drawer/endorser/avalist)
Evidence Evaluation	Rules of criminal procedure	Rules of civil procedural law

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The Relationship Between Criminal Cases and Civil Cases

1. The Principle of Independence

Both types of cases belong to different legal fields:

• The criminal case against public order ;
• The lawsuit a private debt relationship .

Therefore, the verdict in the criminal case does not directly affect the civil case.

2. The Impact of Findings in Criminal Proceedings

Although the principle of independence applies, some findings made in criminal proceedings may be taken into account in civil proceedings. For example:

• If the check is found to be forged, this fact is also valid in the legal proceedings.
• If it is established in a criminal case that the check amount was paid, the claim for payment in a civil case may be dismissed.

3. The Impact of Decisions Made in Civil Cases on Criminal Cases

• If the check is found valid in a civil case, this does not directly affect the criminal case.
• However, it can be used as evidence in favor of the defendant.

4. Relationship in Case of Payment and Settlement

If the check amount is paid:

• The criminal case may be dismissed or a decision of termination may be made.
• The lawsuit also becomes moot.

5. Supreme Court Case Law

• The 19th Criminal Chamber of the Supreme Court of Appeals, Case No. 2017/8562 E., Decision No. 2018/4321 K., stated that a criminal case does not directly affect a civil case, but it can be taken into consideration in the evaluation of the factual circumstances.
• The 11th Civil Chamber of the Supreme Court of Appeals, Case No. 2016/4521 E., Decision No. 2017/8735 K., ruled that when the check amount is paid, both the criminal case will be dismissed and the civil case will become moot.

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Problems Encountered in Practice

1. Perception of Double Trial: When the drawer faces both a criminal case and a civil case, a perception of duplication arises.
2. Conflicting Evaluation of Evidence: Criminal courts and civil courts may make different assessments on the same issue.
3. Prolonged Trial Periods: The need for parties to pursue separate lawsuits in different courts leads to economic and time losses.
4. Post-Payment Proceedings: Delays may occur in the process of cases becoming moot even after the check amount has been paid.

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Proposed Solutions

• Effective information sharing should be ensured between criminal and civil cases .
• If the check amount is paid, legal regulations should be put in place to expedite the conclusion of proceedings in both types of cases.
• The ambiguities in practice should be eliminated through the precedents set by the Supreme Court.
• Electronic check systems should be widely implemented to prevent bounced checks.

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Conclusion

A bounced check is a multifaceted problem with commercial, legal, and criminal consequences. Criminal proceedings are initiated to protect public order and restore confidence in the check system, while civil proceedings aim to collect the debt owed to the holder.

Although there is no direct link between the two cases, there are reciprocal influences in terms of the assessment of the factual circumstances. If the check amount is paid, both cases become moot.

In conclusion, the relationship between criminal and civil proceedings in cases of bounced checks is, despite the principle of independence, an interactive process. Therefore, the holder must meticulously follow both processes to secure their claim, and the drawer must be well aware of their legal and criminal responsibilities.