“Guarantee checks” lead dealers to prison

Legal, financial, and banking opinions agreed on the danger of trading bank checks issued as “guarantee,” stressing that they are considered a debt instrument that exposes their owners to legal accountability and punishment, in the event of a lack of cash payment for them, pointing out that many dealers have recently been judicially convicted of security check cases. The courts do not consider the good intentions behind issuing the check, and do not consider its cashing by the bearer to be a betrayal of trust, but rather consider it an instrument of fulfillment that deserves to be possessed. In return, the law punishes with imprisonment from one month to three years or a fine whoever gives in bad faith a check that has no consideration for payment.

Those convicted in security check cases said that they did not intend by writing the checks to present them to the banks for the purpose of disbursing them, but rather they were only as a guarantee, adding that the beneficiaries betrayed the trust and presented the checks to the banks, but they were returned because there was no balance to cover their value, which led to their submission. To court despite the lack of elements of the crime.

While beneficiaries confirmed that they used their right to use these checks to recover their agreed-upon rights, when the other party violated the terms of the agreement concluded between them.

The Federal Supreme Court stated that the purpose of writing the check does not affect the criminal liability that falls on its writer, in the event that there is no fulfillment of it, as the justification for writing the check was for the purpose of guarantee is nothing more than a motive for the crime and the criminal liability is not affected by it.

While the Director of the Law Respect Culture Office in the General Secretariat of the Office of His Highness the Deputy Prime Minister and Minister of Interior, Lieutenant Colonel Dr. Salah Obaid Al-Ghoul, said that the law granted criminal protection to the check, and stipulated the penalty of imprisonment and a fine for anyone who writes in bad faith a check that does not have sufficient funds.

prevailing custom

In detail, the financial advisor and legal expert, Salah Al-Halyan, said that the prevailing custom in financial transactions has always used the check as a guarantee tool, even though the law denies it this characteristic, as it is only a fulfillment tool, explaining that banks and other parties require the beneficiary to write checks on A way of trust as a form of guaranteeing the commitment of the person concerned, and thus it violates the law, since the value of these checks does not exist on the ground, meaning that whoever writes a trust check in exchange for a loan of 100 thousand dirhams, for example In reality, he does not have this amount in his balance, so the existence of a condition requiring the writing of guarantee checks is considered fraud by the stronger party in the contracting relationship.

Al-Halyan pointed out that in many countries of the world, writing a check without a balance is not considered a crime, but its owner is brought to trial if he is unable to cash it from the bank, in order to confirm the right of the right holder and order the payment of its value.

He expected that the new credit law would contribute to solving many of the problems that cause their owners to be imprisoned, although the matter could be resolved amicably, especially if the non-compliance is due to compelling reasons, such as affecting monthly income, in addition to the lack of bad faith.

For his part, an official at the Central Bank, who preferred to remain anonymous, said that checks are not governed by the Central Bank Law, but rather by the Commercial Transactions Law, and it is not possible to differentiate between a guarantee check or any other security check or any other designations that customers have traditionally used, explaining that the courts It bases its ruling on the definition in the law that the check is an instrument of fulfillment and not a guarantee.

He pointed out that proving bad faith in check cases is a matter that has many differences, given the legislator’s desire to limit the cases of returned checks through strict application of the law. He urges individuals not to underestimate signing checks without having their real balances, pointing out that customers’ signatures Banks on checks in exchange for credit facilities that are mutually agreed upon between them and the banks they deal with, and there is no law that forces them to do so, except that they are beneficiaries and sign everything that is asked of them. In most transactions.

Imprisonment or fine

Lawyer Saeed Khoury confirmed that there is no such thing in law as a guarantee check, but rather the check is considered a loyalty instrument as long as it is issued to others and is due. He said that there is a legal responsibility resulting from giving a check without a balance, as Article (401/1) of the Penal Code stipulates that “Anyone who gives in bad faith a check (check) that has no consideration for payment shall be punished by imprisonment from one month to three years, or by a fine.” Sufficient, valid, and acceptable to the drawer. The same penalty shall be imposed on whoever endorses or delivers a bearer check to someone else, knowing that the check does not have an outstanding counterpart that meets its value or that it is not withdrawable.” The penalty is subject to the judge’s discretion. Khoury called for the establishment of legal rules that regulate the process of writing checks, especially those in which bank customers are obligated to write them as a guarantee, to obtain banking facilities such as loans or financing, as if they default, the bank submits these checks to the court, and demands that the customer pay the principal amount. All of it, regardless of the installments paid by the customer, and then he is convicted without considering that these checks were written for the purpose of guarantee and not trading. He pointed out that the check lawsuits filed by banks against individuals are supposed to investigate the issue of breach of trust by the party for whose benefit the security check was written, and the aggrieved party must prove this matter to the judiciary, pointing out that in European laws banks are found guilty of breach of trust if they cash checks. Warranty, as this violates the rights of customers.

Check crime

For its part, the Federal Supreme Court confirmed that the crime of giving a check without a balance is committed when the complainant gives a check with no balance, or gives a check with a balance, and then orders not to withdraw, or withdraws the entire balance, or withdraws from the balance an amount that becomes insufficient to fulfill the value of the check. The criminal intent in this crime is the general criminal intent in which it is sufficient for the person who issued it to know that he is only obstructing the fulfillment of the value of the check he issued, and it does not require a specific criminal intent. This criminal intent is present by giving The check, knowing that it does not have an existing balance that can be withdrawn, or by issuing an order to the drawee not to pay, as the legislator’s intention of the punishment is to protect the check in circulation and accept it in transactions, considering that fulfilling it is like money, all the same, and there is no consideration after that about the reasons that paid it. To issue it, because it is a motive that has no effect on the establishment of criminal liability.