How Does Breach of Trust Involving a Cheque Occur?
A guarantee cheque or an entrusted cheque is delivered to another person in order to gain the trust of the other party or to ensure the proper performance of a transaction by the cheque issuer.
Breach of trust involving a cheque occurs when an individual provides a cheque to secure the fulfillment of obligations, obtain consent, or create reassurance, while the recipient of the guarantee cheque uses it without lawful justification.
The Concept of Breach of Trust and the Conditions for Its Realization
Breach of Trust Involving a Cheque
The holder of a guarantee cheque has no right to use it until the conditions for its use have been met. The cheque amount may be used either by presenting the cheque to the bank and requesting payment, or by endorsing the guarantee or entrusted cheque and transferring it to another person. In both situations, the act constitutes a criminal offense and is punishable.
The crime of breach of trust involving a cheque is realized even if the cheque amount is not actually collected. Mere presentation of the cheque to a bank for the purpose of demanding payment is sufficient for the offense to be established.
Important Note
If the holder endorses the cheque and transfers it to another person, the crime of cheque breach of trust is established, and there is no requirement that the cheque amount be collected. For example, a tenant may provide a guarantee cheque to a landlord to ensure the evacuation and return of the leased property. This cheque is given solely to secure the performance of contractual obligations. Therefore, until the tenant fails to fulfill those obligations, use of the entrusted or guarantee cheque is not permitted. If the landlord uses the cheque prematurely, the landlord commits the crime of cheque breach of trust. In other words, the right to use the cheque arises only if the tenant fails to return the leased property or otherwise fails to perform the agreed obligations.
Can a Cheque Be Entrusted?
The answer is affirmative. In some cases, no obligation exists between the parties, yet the cheque remains in the possession of the party to whom it is addressed. For example, an individual may hand over their chequebook to another person solely for safekeeping, with the right to reclaim it at any desired time. In this situation, the cheque is not issued to secure an obligation. If the trustee commits misuse for any reason, the penalty for breach of trust involving a cheque applies.
What Is the Liability of the Cheque Issuer Toward a Third Party?
If the cheque is transferred to a third party and the crime of cheque breach of trust is established, the general rule is that the issuer of the cheque remains liable as the debtor and must pay the cheque amount. However, the issuer may seek reimbursement of the amount paid from the unfaithful trustee. Accordingly, the cheque issuer may both file a criminal complaint against the trustee and claim recovery of the cheque amount. The trustee is also obligated to reimburse the issuer for the amount paid.
Punishment for Breach of Trust Involving a Cheque
Pursuant to Article 674 of the Islamic Penal Code, if movable or immovable property or written instruments, including cheques, receipts, or promissory notes, are delivered to a person as a trust or lease, or for return or for a specific purpose, and the trustee misappropriates, uses, or destroys them to the detriment of the owner or lawful possessor, the crime of breach of trust is established. The prescribed punishment is discretionary imprisonment ranging from three months to eighteen months.
Article 674 expressly refers to cheques held in trust and does not require that the cheque be signed. Accordingly, unsigned cheques that are entrusted to another person are also covered by this provision. Furthermore, the occurrence of damage or loss to the owner or lawful possessor is a necessary condition for the realization of the crime of breach of trust.
Frequently Asked Questions About Breach of Trust Involving a Cheque
Breach of trust involving a cheque occurs when the holder of a guarantee or entrusted cheque uses it without lawful justification and contrary to the agreement with the issuer or owner. The holder has no right to use the cheque until the relevant obligation has not been fulfilled.
Yes. A cheque may be entrusted to another person even in the absence of any underlying obligation. Any misuse of such a cheque constitutes the crime of breach of trust.
In the event of breach of trust involving a cheque, the issuer is primarily liable to pay the cheque amount to the third party. However, the issuer may recover the amount from the unfaithful trustee and may also initiate criminal proceedings against them.
Under Article 674 of the Islamic Penal Code, misuse of an entrusted cheque is punishable by discretionary imprisonment from three to eighteen months.
Yes. The provision applies to cheques, whether or not they are signed, provided that they are entrusted to another person.
Yes. For the crime of breach of trust to be realized, damage or loss to the owner or lawful possessor must be proven. What is a breach of trust involving a cheque, and what are its conditions?
Can a cheque be considered an entrusted item?
What is the responsibility of the cheque issuer toward a third party?
What is the punishment for breach of trust involving a cheque?
Does Article 674 apply to unsigned cheques?
Is damage to the owner a condition for the offense to be established?
