To Draft Bad Checks

1. Bad Cheques and Criminal Liability

A judicial fine up to one thousand five hundred days may be imposed for crime of making out bad cheque separately for each bad cheque upon complaint of the cheque holder against the person who caused performance of the “bad” transaction on related cheque within the legal submission period depending on making out date stated on the cheque.

2. Culprit and Responsible Person for Crime of Endorsing Bad Cheque

As a rule; the person who is liable to make available the provision of the cheque amount in his/her/its bank account shall be the owner of the cheque account. For real persons, penal responsibility shall belong to owner of the cheque account; however, the case is different for legal entities. With regard to the companies; it is undisputable that the penal responsibility shall belong to the person who is responsible for making the provision of such ceque available at the bank account according to the making out date, instead of the person who signed the cheque.

Let’s say that officer (A) is authorized person during making out date of the cheque; but officer (B) is authorized person when the cheque is due according to its making out date; however if provision of the cheque is failed to be or not made available at the bank at such date, penal responsibility shall not belong to officer (A), who signed the cheque, instead it shall belong to officer (B), who is the authorized person on the date that provision of the cheque was not paid.

3. Bad Cheques and Composition

The penal responsibility depends on case-by-case for registering cheques as bad for companies declared composition. Penal responsibility of the bad cheque shall be the authorized person of the company on the date that the cheque is submitted to the bank. If cheque of the company declared composition is submitted to the bank within the provisional composition period, and the cheque is a bad cheque, penal responsibility is assessed in two different ways:

1. If the payable subject to bad cheque is contained in debt improvement project and the trustee in composition assumes all payment liability of the same with a provisional period, the authorized person of the company is not punished. Because, payment of the due cheque may only be made by the trustee in composition. Therefore, the authorized person of the company is not punished.
2. If the payable subject to bad cheque is not contained in debt improvement project, the penal responsibility shall belong to the authorized person of the company on the date that bad check procedure is performed. In brief, if there is any complaint for a cheque being bad that is due on a date within the period, in which the trustee in composition is not authorized, the authorized person of the company is punished.

In conclusion, the penalty for cheque subject to bad cheque procedure shall be imposed to the person who is responsible to pay the provision of the cheque on due date. There are some supreme court decisions regarding that the authorized persons of the companies shall not be subject to any punishment due to non-payment of overdue cheques within the composition period, since such persons are not authorized to make any payment.

Atty. Abide Birsen

App. Atty. Tuğce Akıl

Yazar : GülelHukuk