The crime of using a non-payment promissory note occurs when a note, despite being fully or partially paid by the debtor, is unlawfully and falsely used or processed by the creditor without considering the payment. This crime aims to prevent potential damages in both civil and criminal law.
This type of crime is regulated under Article 156 of the Turkish Penal Code, and any person can be the perpetrator, while the victim can be anyone. The crime of using a non-payment promissory note is categorized under the section of Crimes Against Property in the Turkish Penal Code.
Article 156 of the Turkish Penal Code is regulated as follows: “A person who uses a promissory note that has become void shall be sentenced to imprisonment from six months to two years and a judicial fine, upon complaint.”
To determine whether an act constitutes this crime, it is essential to be familiar with the concept of a void promissory note. In daily life, promissory notes are frequently used in transactions such as buying and selling, renting, borrowing, guaranteeing, and even shopping. When a debt is paid, the promissory note must either be returned to the debtor or destroyed along with a receipt. A void promissory note refers to a note that has lost its value because the debt has been paid, but it has not been returned or destroyed. The crime of Using a Void Promissory Note, regulated under Article 156 of the Turkish Penal Code, occurs when such a note is unlawfully used in various ways.
The crime of using a void promissory note can occur in the following ways:
- Using the promissory note for exchange or offset purposes,
- Endorsing and transferring the promissory note to another person,
- Submitting the promissory note to a bank for protest or other purposes,
- Filing a lawsuit or initiating enforcement proceedings for the collection of the promissory note.
The burden of proof lies with the person claiming to be the victim of this offense. Accordingly, the person alleging that the promissory note has no value, meaning that it is without consideration, is required to prove this with written evidence. Witness testimony alone is not sufficient to establish proof.
CONDITIONALITY OF THE OFFENSE ON COMPLAINT
According to Article 156 of the Turkish Penal Code (TCK), all forms of the offense of Using a Promissory Note Without Consideration are subject to a complaint. In other words, unless the victim files a complaint, the public prosecutor cannot initiate an investigation ex officio, and consequently, the court cannot proceed with prosecution. The complaint period is six months from the date the victim learns that the promissory note has been used by the offender.
SUBJECTION OF THE OFFENSE TO MEDIATION
The offense of Using a Promissory Note Without Consideration is regulated as a type of crime subject to mediation under the Turkish Penal Code. In crimes subject to mediation, the mediation procedure must first be applied during both the investigation and prosecution phases. If no agreement is reached, the investigation or trial continues accordingly.
THE OFFENSE OF USING A PROMISSORY NOTE WITHOUT CONSIDERATION IN TERMS OF ITS MANNER OF COMMISSION
The offense of Using a Promissory Note Without Consideration can only be committed intentionally, and general intent is sufficient for its commission. The crime can be committed with either probable intent or direct intent. It is sufficient for the perpetrator to know that the promissory note is without consideration and still intend to use it for the offense to be constituted.
Since the actions that constitute the offense of Using a Promissory Note Without Consideration are divisible acts, the provisions regarding attempted crimes can be applied. This offense is a mere conduct crime, meaning that the crime is completed with the use of the promissory note without consideration; obtaining a benefit is not a prerequisite for the crime to occur. For example, if an individual attempts to endorse a promissory note without consideration to another person, but the recipient refuses to accept it upon realizing its lack of consideration, the crime remains at the attempt stage since the intended outcome has not materialized.
QUALIFYING CIRCUMSTANCES REQUIRING A LIGHTER OR HEAVIER PENALTY IN THE OFFENSE OF USING A PROMISSORY NOTE WITHOUT CONSIDERATION
The Turkish Penal Code does not specifically regulate any aggravating circumstances that require a heavier penalty for the offense of Using a Promissory Note Without Consideration. However, if a single act results in multiple offenses, the perpetrator is punished for the offense that requires the most severe penalty, meaning that the principles of conceptual aggregation (fikri içtima) are applied. On the other hand, if two separate acts constitute two distinct offenses, the principles of real aggregation (gerçek içtima) are applied. For example, if an individual commits document forgery to create a promissory note without consideration, they will be separately punished for both offenses.
Although no aggravating circumstances have been specified to increase the penalty, Article 167 of the Turkish Penal Code provides for personal impunity in certain cases for this type of offense. According to this provision, the cases of personal impunity are as follows:
According to Article 167/1 of the Turkish Penal Code, the offense of using a promissory note without consideration:
- If the offense is committed to the detriment of one of the spouses for whom a divorce decision has not been made, or of one of their ascendants or descendants, or of in-laws to this degree, or of an adoptive parent or adopted child, or one of the siblings living in the same household, no punishment will be imposed on the relevant relative.
For other blood relatives and in-laws, except for those mentioned above, a 1/2 reduction in the sentence is applied. If the offense is committed to the detriment of one of the spouses for whom a divorce decision has been made, one of the siblings not living in the same household, or an uncle, aunt, maternal uncle, paternal aunt, nephew, or second-degree in-laws living in the same household, the penalty to be imposed on the relevant relative upon complaint will be reduced by half.
THE INSTITUTION OF EFFECTIVE REMORSE
The institution of effective remorse is not a provision included for every type of crime in the law. It can only be applied to crime types for which a regulation exists. There is no provision for effective remorse for the crime of Using a Null and Void Promissory Note.
THE EXECUTION REGIME APPLICABLE TO THE CRIME
The court responsible for the crime of Using a Bill of Exchange Without Value is the Criminal Court of First Instance, and the competent court is the court where the crime was committed.
According to Article 156 of the Turkish Penal Code (TCK), a person who commits the crime of Using a Bill of Exchange Without Value is sentenced to imprisonment for a term of six months to two years and a judicial fine.
Under the Turkish Penal Code, judicial fines are imposed for prison sentences of one year or less and represent the conversion of the prison sentence into a monetary penalty. Since the sentence for the crime of Using a Bill of Exchange Without Value is one that is prescribed alongside imprisonment in the law, the penalty for this crime cannot be converted into a judicial fine.
The decision to defer the announcement of the judgment (HAGB) under the Turkish Penal Code is applied for sentences of imprisonment of two years or less, and if no harm is caused to public institutions or organizations, the decision to defer the announcement of the judgment may be applied based on the prison sentence. It is possible for a decision of deferral of the announcement of the judgment (HAGB) to be made for the penalty imposed for the crime of Using a Bill of Exchange Without Value.
However, with the Constitutional Court’s ruling on 01/08/2023, the regulation on HAGB has been canceled, and this regulation will be applied starting from 01/08/2024. Until the effective date, HAGB can be applied if the conditions are met; however, after the effective date (01/08/2024), HAGB will no longer be applicable.
According to the Turkish Penal Code, the decision to postpone the execution of the prison sentence is conditional, meaning that the convict may be exempted from serving the sentence in prison. It is also possible to postpone the prison sentence for the crime of Using a Bill of Exchange Without Value.
According to the Law No. 5275 on the Execution of Penalties, for crimes committed after 30.03.2020, the convicted person must be in an open prison or eligible for placement in such an institution and must have good conduct in order to benefit from probation. The crime of Using a Bill of Exchange Without Value is a crime suitable for probation. For those with less than 1 year remaining before conditional release, probation will be applied. With the amendment made to the Law No. 5275 on 30/03/2020, the conditional release rate for the crime of Using a Bill of Exchange Without Value, which was not listed among exceptional crimes, has been reduced from 2/3 to 1/2. The probation period for crimes committed before 30/03/2020 is 3 years, while for crimes committed after this date, it is 1 year.
If the crime of Using a Bill of Exchange Without Value is committed after 30/03/2020, the release rate will be applied as 1/2, and the probation period will be applied as 1 year.
EXAMPLES OF COURT OF CASSATION DECISIONS ON THE CRIME OF USING A BILL OF EXCHANGE WITHOUT VALUE
- Initiating Enforcement Proceedings with a Partially Paid Promissory Note
The crime of “using a worthless promissory note,” as attributed to the defendant and corresponding to Article 156 of the Turkish Penal Code (TCK), occurs when a person with a promissory note, for which all or part of the debt has been paid by the debtor, uses the note as if it were not paid, either partially or in full. Accordingly, the person who uses a promissory note that has become partially or fully worthless, knowing its nature, will be considered the perpetrator of this crime. In evaluating the specific case within this framework: The defendant stated in his defense at various stages that his main debt was 1,425 TL, and that he had initiated enforcement proceedings with a 3,600 TL promissory note in order to collect this debt. Additionally, a handwritten note was found below the defendant’s statement, which was considered to be his own work, indicating that the amount of the debt mentioned in his statement was 1,425 TL, as calculated from some calculations. It was also noted that the court made a judgment without obtaining the lease agreement that revealed the legal relationship between the defendant and the complainant, nor the enforcement file regarding the enforcement proceedings initiated by the defendant against the complainant and A. Ö. without properly summoning and hearing the complainant and A. Ö. As a result, in order to clarify the truth without any room for doubt, the enforcement file related to the enforcement proceedings initiated by the defendant should first be obtained, and a certified copy should be added to the case file. Then, based on the documents in the enforcement file, the amount of the proceedings and whether the complainant’s complaint was within the prescribed time should be determined. After inviting the complainant L. N. and A. Ö. to the hearing in accordance with the procedure and obtaining their statements about the disputed event, the defendant’s legal situation should be determined and assessed based on all other evidence. Failure to do so and issuing a judgment based on insufficient investigation is contrary to the law (Court of Cassation, 23rd Criminal Chamber – Decision: 2015/7247).
- Using a Worthless Promissory Note by Falsely Drawing It Up
The plaintiff’s attorney stated that the defendant initiated an enforcement proceeding against the plaintiff based on a promissory note worth 45,000.00 TL, dated 02.05.2012. The plaintiff claimed that they did not know the defendant, had not given such a promissory note to the defendant, and there was no commercial relationship between the parties. The promissory note that was the basis of the enforcement was allegedly given by the plaintiff in 1999 to an unrelated person named …, as a blank note, for a debt, and it was not returned despite the debt being paid. The plaintiff also argued that the defendant and the unrelated person … acted together, and a criminal complaint had been filed with the prosecutor’s office against both. The plaintiff requested the determination that they did not owe the defendant due to the promissory note, the cancellation of the enforcement, and the granting of bad faith compensation of no less than 20%.
The defendant’s attorney argued that the plaintiff had to prove the claims with written evidence and pointed out that, while the plaintiff stated in the lawsuit petition that the promissory note was given due to a debt to the unrelated person …, in the criminal court statement, the plaintiff had said that the note was given as collateral for lands rented from …, and therefore requested the rejection of the case and a decision for 20% compensation.
In the first-instance court, based on the trial proceedings, collected evidence, and the overall file, it was understood that the defendant and the unrelated person … were convicted of using a worthless promissory note following the plaintiff’s complaint, and a criminal case was opened for this offense. The defendant’s action of giving such a large loan to an unknown person was found to be contrary to the ordinary course of life, and the presence of old-stamped seals on the promissory note indicated that the defendant had used an old, worthless note as if it were a new one. Therefore, the court decided that the plaintiff did not owe the defendant, and a bad faith compensation of 20% of the amount requested in the enforcement was granted. The defendant’s attorney appealed the decision.
The Regional Court of Appeal ruled that, based on the entire file, the decision of the Bursa 3rd Criminal Court of First Instance in the criminal case regarding the use of a worthless promissory note, with case number 2017/280 and decision number 2017/504, dated 20.06.2017, was final. It was concluded that the promissory note given by the plaintiff was proven to have been filled in contrary to the agreement. The plaintiff’s conflicting statements about the reason for the debt would not change the conclusion that the note was given blank and remained worthless. Therefore, the appeal was rejected on the merits, and the judgment was confirmed.
Based on the written records and the grounds for the decision, and finding no error in the evaluation of the evidence, the appeal objections of the defendant’s attorney were rejected, and the judgment was confirmed as being in accordance with procedural and substantive law. The decision was made on 14.10.2020, unanimously. (Court of Cassation 11th Civil Chamber – 2020/4105 K).
- Fraud and Use of a Worthless Promissory Note
The participant Ü. claimed that he borrowed 30,000 TL from the defendant A. on 21/09/2006, and in return, signed a promissory note worth 30,000 TL with a maturity date of 21/12/2006. The participant’s father, R., also signed the note as a guarantor. Defendant H. and the other defendants A. and M. F. went to the district of … to make a color photocopy of the promissory note. Later, on 21/12/2006, the participant paid the 30,000 TL debt to defendant A. at his workplace. In return, defendant A. tore the color photocopy of the 30,000 TL promissory note and gave it to participant Ü. A few hours later, the participant Ü. stated that defendant H. and the other defendants arrived at his workplace in . and that defendant A. asked the participant to pay 30,000 TL, claiming that the promissory note he gave was counterfeit and that the original note was in his possession. The participant filed a complaint. The action that took place here, without taking into account that it constitutes an attempt to use a worthless promissory note, and convicting the defendant on the grounds of an offense of fraud, which does not fit the facts, is contrary to the law (Court of Cassation 15th Criminal Chamber – Decision: 2014/7077).
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