Attention People Who are Writing Cheques: Who has responsibility for the crime of draw a bad cheque? 07 April 2020

Amendment has been made in the Article 5 of the Law of Cheques No. 5941 by the way of the new Law on Amendment in Some Laws on Improve the Investment Environment No. 6728, published in the Official Gazette No. 29796 on 09.08.2016.

According to the first paragraph of Article 5 of the Law No 5941;

“Upon complaint of the holder, the person who caused check transactions to be “unrequited”  may be fined for each check for up to one thousand five hundred days, within the legal submission period, according to the date of regulation written on it.”

According to paragraph 2 of the same Article;

“According to the first paragraph, the person, who has responsibilty for the keeping of sufficient money to cover the amount of the check in the relevant bank account, is the owner of the checking account. In case the owner of the checking account is a legal person [i.e., an entity], the member of the board assigned to carry out the financial affairs of that legal person, if no such assignment is made, the real person or persons who is/are member/members of the board of management, will have responsibility for the keeping of sufficient money in the relevant bank account.”

These provisions of Article 5 is determined who is to be held responsible in case of the drawing of a bad check.

• İf the owner of the checking account is a real person, this person has responsibility for keeping sufficient money to cover the check in the checking account.

So, for examlple, assume A, a real person, issued a check for an amount to be withdrawn from A’s own account. If the transaction is “unrequited” (i.e., there are insufficient funds in the account to cover the amount of the check) within the legal submission period, A may be held responsible for the crime of drawing a bad check.

• İf the owner of the check account is a legal person, i.e., an entity, on the date of the making of the “unrequited”  check transaction, the member of the board assigned to carry out the financial affairs of this legal person, financial director, or, if such aa assignment has not been made, the real person or persons who make up the board of managment, may be punished for the crime of drawing a bad check. In other words, on the date of the making “unrequited” check transaction, the person responsible for the keeping sufficient money in the account in question may be punished for the crime of drawing a bad check.

So, as an example of this type of crime, assuming A, B and C are the members of the board of X Limited Company, and this company draws a check on 15/05/2019, there shall be several possibilities which are following;

• One possibility, where there has is not an assignment of a person to carry out X’s financial affairs, as of the date of the unrequited check transaction all members of the X’s board of management, that is A, B and C, may be punished for the crime of drawing a bad check.

• If an assignment regarding who is to carry out X’s affiars has been made, by way of internal director of the company, person who is, say, X’s treasurer on the date of the presentation of the check to the bank, may be found criminally responsible for the unrequited check transaction.

• Finally, if an assignment related to X’s financial affairs issues was not made, but the board of management has been separated into several groups, one or more of which has signatory authorization, the person or persons with this authorization on the date of the making unrequited check transaction, may be punished for crime of drawing a bad check, but only after an enforcement court’ decision regarding the check, or checks, in question. .

In conclusion, in the direction of the act in force, if the person who has drawn the check is a real person, this person may undoubtedly be punished criminally. However, if the person who has drawn the check is a legal person, the identity of the real person who may be held criminally responsible depends on whether someone has been assigned to carry out the entity’s financial affairs and, if no such assingment has been made, the identity of who may be held criminally responsible shifts to the person who is, or persons who are, authorized signatories on the date of the presentation of the check or checks in question to the bank.