1. Introduction
As one of the types of negotiable instruments, a
cheque is a widely used means of payment in commercial transactions due to its
negotiability and the legal protection it provides. However, in practice, banks
are observed to refrain from examining whether sufficient funds are available
for payment at the time of presentment and from carrying out the “dishonor”
procedure where the cheque is unpaid, on the grounds that the drawer’s
signature on the presented cheque does not correspond to the specimen signature
held by the bank. This approach prevents the holder of the cheque from
resorting to criminal remedies and results in the emergence of a de facto
environment of impunity.
This article examines the obligation of the drawee
bank to verify whether sufficient funds are available for payment of a
presented cheque and to carry out the “dishonor” procedure where the cheque is
unpaid, even in cases where there is a discrepancy between the signature on the
cheque and the specimen signature held by the bank.
2. The Legal Nature of the “Dishonor” Procedure in
Cheques
Article 5 of the Cheques Law Nr. 5941 reads as follows:
“Upon presentment of a cheque within the statutory
period for presentment, calculated according to the date of issue stated
thereon, the person who causes the “dishonor” procedure to be carried out in
relation to the cheque shall, upon the complaint of the holder, be sentenced to
a judicial fine of up to one thousand five hundred days in respect of each
cheque. However, the judicial fine to be imposed shall not be less than (…) of the
unpaid portion of the cheque amount. The court shall also rule on the
prohibition of issuing cheques and opening cheque accounts; and, where such a
prohibition already exists, on the continuation of the prohibition of issuing
cheques and opening cheque accounts. During the proceedings, the court shall
also, ex officio, order the prohibition of issuing cheques and opening cheque
accounts as a protective measure. The prohibition of issuing cheques and
opening cheque accounts shall apply to the real or legal person who is the
holder of the cheque account, the persons who issue cheques for and on behalf
of such legal person, and, where the dishonored cheque is issued on behalf of a
capital company, additionally to the members of the management body and the
company representatives registered with the trade registry.”
For the offence of “causing the dishonor procedure
to be carried out in relation to a cheque”, set out under the Cheques Law Nr.
5941, to be constituted, the cheque must be presented to the drawee bank within
the statutory period for presentment, and the “dishonor” procedure must be duly
carried out on the cheque. Pursuant to Article 3 of the said Law, the
“dishonor” procedure is completed by recording the date of presentment, the
account status, the amount paid by the bank, and the unpaid amount on the
reverse side of the cheque, and by having such records jointly signed by the
holder and the bank official.
Following the duly completed “dishonor” procedure, the
holder may apply to the criminal court of debt enforcement within three months as
of the date, on which the procedure was carried out, and request the imposition
of a penalty on the drawer pursuant to Article 5/1 of the Law Nr. 5941. In
addition, the holder may initiate debt enforcement proceedings specific to
negotiable instruments against the drawer, endorsers, and aval providers.
If the “dishonor” procedure is not carried out by the
drawee bank, the holder of the cheque is deprived of the possibility of
initiating debt enforcement proceedings specific to negotiable instruments and
filing a complaint with the criminal court of debt enforcement. Accordingly,
the drawee bank’s refusal to carry out the “dishonor” procedure not only
creates a de facto state of impunity but also significantly impedes the
holder’s ability to recover the receivable.
3. The Scope and Limits of the Bank’s Obligation to
Examine Cheques
At the core of the dispute lies the issue of the scope
of the examination that the drawee bank may conduct on a cheque presented to it
and the grounds on which it may refrain from carrying out the “dishonor”
procedure. The drawee bank’s obligation to examine the presented cheque is set
out under Articles 780 and 801 of the Turkish Commercial Code Nr. 6102.
Accordingly, the bank is obliged to:
- examine whether the cheque contains the mandatory
elements (the word “cheque”, an unconditional promise to pay a specified
amount, the trade name of the drawee, the place of payment, the date and place
of issue, the drawer’s signature, the bank serial number, and the QR code);
- examine whether the cheque has been presented within
the statutory period for presentment;
- examine whether the chain of endorsements is
regular.
However, the bank has no obligation to verify the
validity of the signatures of endorsers.
The bank’s authority regarding the examination of
signatures is limited to determining whether the cheque contains a handwritten
signature affixed by the drawer. This examination should not include subjective
assessments, such as whether the signature belongs to the drawer. The authority
to determine whether the signature is attributable to the drawer rests not with
the bank, but with the judicial authorities. In this context, the bank has no
legal basis to refrain from carrying out the “dishonor” procedure on the
grounds that “the signature on the cheque does not resemble the drawer’s
signature” or that “the signature is unclear.”
4. The Obligation to Carry Out the Dishonor Procedure in
Case of Signature Discrepancy
In practice, it is frequently observed that drawee
banks refrain from carrying out the “dishonor” procedure on the grounds that
the drawer’s signature on the presented cheque does not correspond to the
signature specimens held in their records. Different approaches have emerged
among the Criminal Chambers of the Regional Courts of Appeal regarding this
issue. In order to resolve this divergence in judicial decisions, the 19th
Criminal Chamber of the Court of Cassation examined the matter under its
decision, dated 27.01.2020, and bearing the Basis number 2019/35817 and the
Decision number 2020/415, and classified the grounds put forward by drawee
banks for not carrying out the dishonor procedure into two categories:
“(a) situations where the “dishonor” procedure was not
carried out based on objectively justifiable grounds, such as reliance on “a
provision of law or a judicial decision”; and
(b) situations where the “dishonor” procedure was not carried out based on grounds considered legitimate by the drawee bank (subjective grounds), such as “the signature on the cheque not corresponding to the drawer’s signature available in the bank’s records or being unclear”, which are not based on any provision of law or judicial decision,
were assessed as not constituting grounds preventing
the carrying out of the “dishonor” procedure under Article 3 of the Cheques Law
No. 5941, provided that the relevant conditions are satisfied.”
This distinction clearly demonstrates that the bank
cannot refrain from carrying out the “dishonor” procedure based on subjective
grounds, such as a signature discrepancy. According to the Court of Cassation,
the bank is obliged to verify whether sufficient funds are available for
payment of the cheque on the date of presentment and, in the absence of
sufficient funds, to carry out the “dishonor” procedure pursuant to Article 3/4
of the Cheques Law Nr. 5941.
5. The Consequences of the Bank’s Failure to Carry out
the Dishonor Procedure and the Problem of Impunity
The failure to carry out the “dishonor” procedure on
the grounds of a signature discrepancy gives rise to various legal
consequences, particularly with regard to criminal proceedings.
6. Failure to Satisfy the Objective Condition of
Punishability
Under its decision, bearing the Basis number 2019/35817
and the Decision number 2020/415, the 19th Criminal Chamber of the
Court of Cassation expressly stated that the “dishonor” procedure constitutes
an objective condition of punishability for the offence, as set out under
Article 5/1 of the Cheques Law Nr. 5941.
“It has been concluded that, where a cheque subject to criminal proceedings for the offence of ‘causing the dishonor procedure to be carried out in relation to a cheque’ is presented to the bank within the statutory period, and the drawee bank fails to duly carry out the ‘dishonor’ procedure by recording the matters specified in Article 3/4 of the Cheques Law Nr. 5941 on the reverse side of the cheque for ‘any reason’ asserted by the bank, the objective condition of punishability—which is not directly related to the intent and conduct of the person obliged to maintain sufficient funds in the cheque account—will not occur. Accordingly, since the result prescribed by law for the offence will not be realized, it has been concluded that the accused should be acquitted.”
In this case, even though the cheque lacks sufficient
funds at the time of presentment, the drawee bank’s failure to carry out the
“dishonor” procedure by invoking a signature discrepancy renders it impossible
to hold the drawer criminally liable. This exceeds the limits of the bank’s
examination authority and creates a de facto area of impunity.
7. Limitation of the Cheque Holder’s Right to Seek
Legal Remedies
When the “dishonor” procedure is not carried out, the
cheque holder’s right to initiate debt enforcement proceedings specific to
negotiable instruments is eliminated.
Article 3/6 of the Law Nr. 5941 reads as follows:
“In the event of partial payment, including the amount
that the drawee bank is obliged to pay pursuant to the third paragraph, a
certified photocopy of the front and reverse sides of the cheque shall be
provided to the holder free of charge. The cheque holder may use this photocopy
to apply to recourse debtors or to initiate debt enforcement proceedings under
the procedures applicable to negotiable instruments; may attach this photocopy
to the petition when filing a complaint with the court of debt enforcement; and
may use it as evidence before debt enforcement offices and courts. Upon the
request of the court or the debt enforcement office, the original cheque shall
be sent to such authorities.”
It is provided that the cheque holder may have
recourse against recourse debtors and file a complaint with the court of debt enforcement
by using a photocopy of the cheque on which the “dishonor” procedure has been
carried out. However, where this procedure is not carried out, the holder is
unable to resort to these remedies available for negotiable instruments, and
the possibility of recovering the receivable is significantly restricted.
8. The Criminal Liability of the Bank Officials
As per article 7/4 of the Law Nr. 5941;
“The bank officer who fails to carry out the
‘dishonor’ procedure in relation to a cheque that is partially or entirely
unpaid, despite a request to do so, shall, upon complaint, be sentenced to
imprisonment for up to one year.”
It is provided that the bank officer who fails to
carry out the “dishonor” procedure in relation to a cheque that is partially or
entirely unpaid, despite a request to do so, shall be subject to punishment
upon complaint. Failure to carry out the “dishonor” procedure based on
unjustified grounds, such as a signature discrepancy, may also give rise to the
criminal liability of the bank officials.
9. Assessment and Conclusion
By its decision, dated 27.01.2020 and bearing the
Basis number 2019/35817 and the Decision number 2020/415, rendered for the
resolution of the divergence in decisions among the Criminal Chambers of the
Regional Courts of Appeal, the 19th Criminal Chamber of the Court of
Cassation expressly held that drawee banks cannot refrain from carrying out the
“dishonor” procedure based on subjective grounds, such as a signature
discrepancy.
10. Conclusion
1. The drawee bank is obliged to conduct an
examination of a cheque presented within the statutory period limited to
whether the cheque contains the mandatory elements prescribed under the Turkish
Commercial Code, whether it has been presented within the statutory period, and
whether the chain of endorsements is regular.
2. The bank cannot refuse to pay a cheque that has
sufficient funds or refrain from its obligation to carry out the “dishonor”
procedure in relation to an unpaid cheque on the grounds that “the signature on
the cheque does not belong to the drawer” or that “the signature is unclear”.
Where the cheque lacks sufficient funds on the date of presentment, the bank is
required to carry out the “dishonor” procedure in accordance with the procedure
set out in Article 3/4 of the Cheques Law Nr. 5941.
3. Otherwise, despite the absence of sufficient funds
for payment of the cheque, the drawer would be exempt from criminal liability,
the cheque holder’s right to resort to legal remedies would be hindered, and
this situation would create an area of impunity that could be deliberately
exploited.
4. An allegation of signature discrepancy may only
give rise to legal consequences where the falsity of the cheque has been
established by a judicial authority. Such determination may only be made
through an examination conducted by the court in criminal proceedings to be
initiated after the “dishonor” procedure has been carried out.
The case law of the Court of Cassation on this issue
is of great importance in ensuring the security of cheques. The refusal of
banks to carry out the “dishonor” procedure based on grounds lacking a legal
basis not only causes prejudice to the cheque holder but also undermines
confidence in the cheque system. Therefore, drawee banks are required to act in
accordance with the case law of the Court of Cassation and, even in cases of signature
discrepancy, verify whether sufficient funds are available for payment of the
cheque and carry out the necessary procedures.
Att. Buse Gürlek
References:
1. Decision,
dated 27.01.2020 and bearing the Basis number 2019/35817 and the Decision
number 2020/415, rendered for the resolution of the divergence in decisions
among the Criminal Chambers of the Regional Courts of Appeal, of the 19th
Criminal Chamber of the Court of Cassation
