What Is a Check?
A check is a negotiable instrument governed by Book Three of the Turkish Commercial Code No. 6102, the Check Law No. 5941, and the regulations issued pursuant to these laws. A check is a type of negotiable instrument used to meet the needs of commercial life and to overcome the various difficulties associated with carrying cash.
The fact that a check serves as a means of payment provides various benefits to both the drawer and the holder. First and foremost, payment made by check offers greater immediacy and certainty compared to payment made in cash. Furthermore, payments made by check also provide convenience in terms of proof.
The absence of even one of the mandatory elements renders the instrument invalid, thereby seeking to protect the interests of the parties involved. However, despite this strict stance, the legislature has continued to recognize the instrument as valid even in the absence of certain formal requirements.
What Are the Mandatory Elements That Must Be Present on a Check?
1) The Word “Check”
2) An Unconditional Order to Pay a Specific Amount
3) Payee
4) Barcode and Serial Number
5) Date of Issuance
6) Issuer’s Signature
7) Place of Issuance
Non-Payment of the Check:
To receive the check amount, the holder must present the check to the drawee bank for payment within the applicable presentation periods. This matter is regulated as follows in the relevant article of the Check Law: “A check with sufficient funds is paid upon presentation to any branch of the drawee bank where the account is held, after the holder’s tax identification number, if any, is verified. However, if the check is presented to a branch other than the one where the account is held, it is paid after the branch verifies the funds.”
The check holder has no authority to inquire whether funds are available in the account. Checks may be presented by the holder to the paying bank for payment even if the date of issuance has not yet arrived; however, payment is contingent upon the availability of funds in the account. In other words, checks presented before the date of issuance are paid by the drawee only if there are sufficient funds in the account; however, even if there are no funds in the account, the check will not be subject to the “insufficient funds” process.
What Is an Insufficient Funds Check?
A check is classified as a dishonored check if, on the date it is presented to the bank, the amount stated on the check is not available in the relevant bank account. For a check to be considered dishonored, the mere absence of funds in the drawer’s account is not sufficient on its own. For a check to be designated as a dishonored check, certain elements must be present together.
These elements are:
o The instrument presented to the drawee bank for payment must be in the form of a check.
o The check must have been presented to the drawee bank by the lawful holder.
o The check must have been presented to the drawee bank within the legally prescribed presentation periods. If the check is presented before the date of issuance or after the presentation period has expired, the “bounced check” procedure can no longer be applied.
What Are the Collection and Enforcement Procedures for Bounced Checks?
For checks that meet the validity requirements and have been marked as dishonored, enforcement proceedings specific to negotiable instruments may be initiated. In addition to enforcement proceedings, if the check holder exercises their right to file a complaint regarding the offense of issuing a dishonored check, the debtor may face criminal penalties, thereby facilitating the collection of the unpaid check.
What We Need to Know About the Crime of Issuing a Bounced Check
– It is a complaint-based offense,
– For the offense to be established: The check must have been presented to the drawee bank by an authorized holder within the statutory presentation period. The amount of the check presented within the statutory presentation period must not have been paid in full or in part. The “insufficient funds” notation must be made. Furthermore, the holder must file a complaint within three months from the date the “insufficient funds” notation was made.
– The crime is committed at the moment the “insufficient funds” notation is made,
– Penalty for the Crime of Issuing a Bad Check: Upon the holder’s complaint, a fine of up to 1,500 days may be imposed for each check. If the imposed fine is not paid, it is automatically converted into a prison sentence.
Special Enforcement Procedures for Negotiable Instruments;
Special enforcement procedures for negotiable instruments are a specific enforcement method available for negotiable instruments regulated under the Turkish Commercial Code (TTK).
A person with a claim for money or security may initiate enforcement proceedings through general attachment; however, if the debt is secured by a negotiable instrument, they may utilize the enforcement procedures specific to negotiable instruments, which are specially regulated by law and offer greater advantages compared to general attachment. Since negotiable instruments are listed in limited numbers in the TCC and consist solely of promissory notes and checks, a creditor may only resort to the enforcement procedures specific to negotiable instruments if the claim is based on one of these instruments.
In enforcement proceedings initiated through the attachment of negotiable instruments, the debtor may exercise the right to object to the signature or the debt by filing a petition with the enforcement court to which the enforcement office conducting the proceedings is affiliated, within 5 days of the service of the payment order. Objecting to the payment order does not suspend enforcement proceedings other than the sale. However, a debtor who objects to the payment order may request the enforcement court to temporarily suspend the enforcement proceedings to prevent the seizure of their property or the payment of funds held by the enforcement office to the creditor.