The criminal and civil implications in such a case explained
Question: Four months ago, I handed over Dh400,000 to someone in exchange for buying a share in the company and entering my name as a partner, but it hasn’t happened. I have a guarantee cheque for the amount I paid. What are my legal rights? I feel I may have been exposed to a scam. Please advise.
Answer 1- From the criminal perception, the act of giving the cheque without balance stipulated in Article 401 of the Penal Code of 1987 does not require, for its verification, to discuss the reason for issuing the cheque, whether it was given to the appellant as a guarantee or that it was devoid of the date or value as long as it fulfilled its legal elements when presented to the drawee bank,.
It is decided by the Supreme Court that the reasons for the release of the cheque has no effect in establishing criminal responsibility. Writing the word guarantee on the cheque has no effect on the crime. (In cassation No. 404/2015 / Penalties).
Moreover, to write the cheque data is not required by the drawer himself. It is only sufficient for the cheque to carry the signature of the drawer as per the decision of the Supreme Court (in cassation 59/2015 Penalties).
You have the right to use this cheque and write its data, including the beneficiary name, date and the amount in order to get your rights.
But from civil perception, the basic principle in the cheque is that it is a debt fulfillment instrument for the drawer before the beneficiary, but it can be given as a guarantee. If it is proven that it is by way of guarantee, then the obligation to pay its value to the beneficiary is suspended on a condition and its effect will be stopped until this condition is fulfilled.
It is decided that the cheque drawn up by the drawer as a guarantee for the implementation of the obligation imposed on him, its value relates to the right of the beneficiary if the drawer breaches his guaranteed commitment. (In Cassation No. 141/2005 Commercial).
It is also decided in the court that the cheque is a tool to fulfill a debt owed by the drawer to the beneficiary. However, giving the cheque to him may not be the fulfillment of a debt, but it may be by way of guarantee, so if it is proven that it is by way of guarantee, then the obligation to pay its value to the beneficiary is suspended on a condition and its effect will be stopped until this condition is fulfilled, which is a breach by the drawer of his commitment to whom he issued the cheque as a guarantee. In this case, the burden of proving the fulfillment of this condition and the enforceability of the drawer’s commitment to pay the cheque value to him falls on the beneficiary . (In Cassation No. 2003/596 Rights). Finally, the civil court will give the proper decision after checking the documents submitted in the case.