The cheque is one of the most common payment instruments in commercial life; however, the absence of funds gives rise to serious legal consequences for both the creditor and the drawer. The Cheque Law No. 5941 provides both an enforcement route for collection and a criminal sanction for bad cheques. In this article, we address the creditor's collection routes and the cheque-debtor's defence options together.
Important: This article is for general information only and does not constitute legal advice. Time limits are critical in cheque law; consult an expert lawyer for your situation.
When a cheque is presented and there are insufficient funds in the account, a "dishonoured" (karşılıksızdır) process is recorded. In this case, the holder of the cheque can take action both to collect the receivable and to initiate criminal proceedings against the drawer.
A cheque account holder, whether a natural person or the representative of a legal entity, may face a criminal sanction upon complaint if a cheque they have drawn is dishonoured and the "dishonoured" process is recorded. Article 5 of Law No. 5941 subjects the drawing of a bad cheque to a special sanction.
The start of the criminal process depends on a complaint. The holder must exercise the right to complain within the statutory period from the date they learn that the dishonour process was recorded. This period is forfeiting.
As a cheque is a negotiable instrument, the creditor may initiate proceedings via attachment specific to negotiable instruments. This type of proceeding is faster than ordinary non-writ enforcement and the debtor's options to object are more limited.
In parallel with enforcement, a criminal complaint may be filed against the drawer under Art. 5 of Law No. 5941. The criminal process creates additional pressure for collection of the receivable.
In the case of a conviction for a bad cheque, a ban on drawing cheques and opening cheque accounts may be imposed on the person. This is a significant restriction in commercial life.
A drawer facing proceedings or a complaint due to a bad cheque is not without defences. Possible avenues include:
Effective remorse: Payment of the cheque amount together with default interest may have significant consequences in terms of criminal liability. For this reason, the cheque debtor is advised to assess payment and settlement options with a lawyer as soon as the process begins.
If the cheque debtor dissipates assets or resorts to fraudulent transactions to avoid payment, both an action for annulment of disposition (İİK Art. 277 et seq.) and separate offences may arise. The creditor may resort to precautionary attachment and annulment-of-disposition routes against the debtor's asset-dissipation attempts.
Whether you are on the creditor or the cheque-debtor side, we are by your side in enforcement proceedings, the criminal process and defence strategy arising from a bad cheque. Get in touch to assess your situation.
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