“The Act to Amend of Cheque Law” numbered 6273, accepted on the date of 31.01.2012 by the Grand National Assembly of Turkey has been entered into force by publishing in the Official Gazette numbered 28093 and dated 03.02.2012.
This Law brought radical amendments with respect to cheque which is one of the most important and vital payment instrument of the commercial life.
The prison sentence concerning bad cheque has been abolished.
The most important change is that the administrative sanction will be applicable instead of judicial fine and the prison sentence which was previously applicable to the cases in the event of non-payment of the judicial fine for the person who has caused the operation of “unrequited” in connection with the bad cheque. With the said amendments, the new expression “legal liability and administrative sanction liability” has been introduced by removing the previous expression “legal and penal liability”.
However; according to the article 5, under the heading of “Criminal responsibility, prohibition against issuing cheques and opening cheque accounts”, of Cheque Law numbered 5941 and dated 14.12.2009 which has been abolished by the Law numbered 6273 and the article 106 ,under the headings of “Enforcement of judicial fine”, of Law on the Execution of Sentences and Security Measures numbered 5275,
In case the merchant who has issued a bad cheque and fails to make payment of the judicial fine up to one thousand five hundred days, not less than remaining unpaid amount for each cheque, within the determined time in the payment order, such fine was used be executed by converting the amount of the judicial fine into a prison sentence.
As a result of the amendment made in the article 3 of the Law numbered 6273, the article 5 of the Law numbered 5941 under the headings of “Prohibition against issuing cheques and opening cheque accounts” has been regulated as follows;
“The decision of the prohibition against issuing cheques or opening any cheque account for each cheque shall be given about the real person or legal entites of whom is the owner of the cheque, by the Public Prosecutor in places where the cheque was submitted to the bank or the account was opened or in residence of cheque account owner or claimant, upon the presentation of cheque, within the legal presentation time according to the arrangement date written on it, upon the request by the holder within six months. According to this subsection, the prohibition of issuing cheques and opening cheque accounts will also be applied in cases of fraud, forgery of documents or other crimes by issuing the cheque which is subject to the operation of unrequited.”
Thus, the judicial fine applied by the court has been abolished; the enforcement of the prohibition against issuing cheques and opening cheque accounts of which was used to be given with the judicial fine has also been changed its nature and has been converted into administrative sanction which is applicable by the public prosecutor.
Therefore, the expression of “in case of complaint” located in the article 3 of the Law numbered 5941 has amended as “in case of claim”.
Besides, the provisions of the Misdemeanour Law numbered 5326 will be applicable for legal remedy against the decision of the prohibition against issuing cheques and opening cheque accounts of which has the character of administrative sanction. In accordance with the article 27 of the Law numbered 5326, it is possible to apply to civil court of peace against the administrative sanction within at the latest 15 days from the date of notification and announcement of the decision. In case the application has not been made within this period, the administrative sanction will become final. Against the decision of legality control on the administrative sanction, according to the article 29 of the same Law, it is possible to file an appeal against the final decision of the court under the Code of Criminal Procedure.
The prohibition against issuing cheques or opening any cheque accounts will only be applied to the real person and legal entity of whom is the owner of the account.
Another important amendment on the changed article 5 of the Law numbered 5941 is that, prohibition against issuing cheques or opening any cheque accounts as an administrative sanction will only be applied to the REAL PERSON and LEGAL ENTITY who is the owner of the account. For this reason, this sanction cannot be imposed anymore on a real person who was just representing the legal entity, but only account owner of the legal entity will be held responsible.
With the Law numbered 6273, the responsibilities of Banks on bad cheques have been increased.
The article 3 of the Law numbered 5941 has brought a regulation regarding the amount of which the bank is liable to make payment in case a cheque is unrequited. According to this, for every cheque leaf presented in time, when there is no return for the cheque, if the cheque amount is a thousand Turkish Liras or more, a thousand TL; if the amount is under a thousand liras, the amount of cheque will be paid by the bank. When there is partial return for the cheque, if the amount of cheque is a thousand liras or under, the rest of partial return for cheque will be completed; if the cheque amount is over a thousand liras, in addition to partial amount, a thousand liras will be paid by the bank.
In addition to that, it is regulated by way of adding a subparagraph to the article 3 of the Act numbered 5941 the related bank’s liability amount for a bad cheque will be expired in five years starting from the printing date on the cheque.
The other changes are regulated on the Banks’ liability by the temporary Article 3 as follows:
• The Banks shall print new cheque books in accordance with the provisions are determined by the Communiqués which is going to be publish by the Turkish Central Bank starting from the publication date of the Article 3.
• The Banks shall destroy the old cheque books in use by way of providing the new cheque books to their clients until the date of 31.12.2012.
• The old cheque books shall be valid which have been issued in accordance with the law numbered 3167 which abolished and the provisions were previously in force.
• In relation to the old cheque books given to the clients by the bank, if the cheque is presented to the bank in the period of presentation, the liability amount of the correspondence bank for a bad cheque expires until 30.06.2018.
• It is invalid to present a cheque in order to be paid before its arranged date until 31.12.2017.
Thereby the legal ground of “Post-dated cheque” with the provision stated as “It is invalid to present a cheque in order to be paid before its arranged date until the 31.12.2017” is extended by the Law numbered 6273 until the date of 31.12.2017.
The Practise Should be Made by Criminal Courts regarding Bound Cheque Cases Initiated Before the Law of 6273 :
The crime “to cause a bound cheque by not making available the cheque amount in the bank” is converted into administrative sanction and therefore in that criminal cases the decision on prohibition against issuing any cheque and to open any cheque accounts” shall be given by:
– Prosecutor Officers at the stage of preliminary examination,
– The Criminal Court of Peace and Criminal Court of First Instance for ongoing criminal cases,
– The Criminal Court of Peace and Criminal Court of First Instance without opening a trial for cases send to the Court of Appeal or cases has been returned to the District Court by the Prosecutor Officer of the Court of Appeal or the Criminal Chambers of the Court of Appeal,
– The Criminal Court of Peace and Criminal Court of First Instance without opening a trial for cases the judgments had been given but not finalized
– The Criminal Court of Peace and Criminal Court of First Instance without opening a trial for finalized cases.
