Public Prosecution

Office Attorney General

Kuwait in 27/05/2002

His Honor the Respected Ministry of Justice

Best Greetings,

On the occasion of the current proposals in regards of amending the provisions of Article 237 of the Penal Law that stipulates the punishment of the felony of issuing or endorsing the check without balance, the Public Prosecution would like to express some remarks revealed by practice in respect of this crime.

This is on the basis of a statistics showing the number of these cases during the past six years as per the files of these cases and the data of Public Prison Department about the term of those imprisoned for these cases.

Here is a statement of the Public Prosecution's remarks in this regard:

First: The check shall be used as a payment mode only:

Although the penal protection determined for the check was not determined for it except as an instant payment mode that act as money in transaction, many citizens overused the check as a credit mode and a mode of guarantee for future debts. This led them to be liable to penal questioning because of their inability to secure the sufficient balance for paying the amount of these checks, which caused considerable harms to the debtors from the social and economic aspects. This requires the amendment of the provisions of the currently applicable Penal Law and the Trade Law so as to guarantee that the check is being used as a payment mode only.

Second: The criminal Importance of the Check

The Public Prosecution highlights the criminal importance determined for the check and highlights incriminating its issuance or endorsement without balance as a payment mode that act as money in transactions. This is because of the overriding importance a check has in facilitating commercial transactions and guaranteeing the payment of due amounts for creditors. And also because the financial payment might be difficult because of the big volume of the amount required to be paid. In addition, transaction with money has risk because of the fluctuation of the exchange rate of currencies and the possibility of counterfeiting it.

Third: The Importance of Applying Strict Punishment for Crimes of Checks

The Public Prosecution views not to attenuate the punishment determined for this crime or substitute the punishment of a misdemeanor for the currently determined felony punishment. This causes the creditors to abstain from accepting transacting with checks, or tempt debtors to be extravagant in issuing checks without balance in underestimation of the attenuated punishment.

Fourth: The beneficiary shall not be punished:

The Public Prosecution points out to the unsuitability of what is being currently aroused about whether the incrimination  of the beneficiary who gets the check with bad intention, knowing he has no balance for it; this can make creditors abstain from accepting transaction with check for fear of criminal liability. It is also because it can not be acceptable to punish the aggrieved party who incurs the loss of the crime after getting the return of paying the check which the drawer owes him and because the beneficiary might be a legal person while the personality of the punishment, in the Kuwaiti Penal Legislation, prevents penally questioning the legal person.

(It is noteworthy in this regard that the Egyptian legislator had made an amendment on the provisions of incriminating the issuance of check without balance under Law No. 17 for the year 1999, stipulating the punishment of the beneficiary who gets a check with bad intentions, whether it was a natural person or legal person. However, he soon realized the unsuitability of this amendment and then stopped its enforcement and the amendment has been enforced yet.

Fifth: The will of contracting parties shall be respected:

The Public Prosecution views points out that the will of contracting parties shall be respected in respect the details of the check especially its date of issue if the two parties agree on a certain date for issue and putting it for circulation. This is on the basis that transacting with checks is no more than a mode of payment of commitments resulting from commercial or civil transactions.

Sixth: Penal non-suit by virtue of prescription:

The Public Prosecution points out to determining the term of penal non-suit in accordance with determining the term through which the Trade Law stipulates binding the beneficiary to submit the check to the drawee bank (which term shall not exceed one or three months). This is so that the creditor might not abuse check as a means for threatening his debtor of what makes the check more than an instant mode of payment.

Seventh: The check shall be issued on the basis of a legal reason:

The Public Prosecution points out that it should be stipulated that the criminal legal protection determined for the check shall be limited to the case in which the check has been issued for a legal reason. This is because the rule of separating between the check and the reason of its issue is the one which lead to a lot of abuses for the check for reasons that are not in compliance with its nature determined as an instant mode of payment.

Eighth: The issue of check books shall be minimized:

The Public Prosecution views that it is necessary to lay down the restrictions required for minimizing granting check books by the banks to the customers whose financial status is no appropriate in such regard or who repeatedly issue uncovered checks, in order to guarantee that the checks might not be abused in a purpose other than the one they are specified for.

Ninth: The Public Prosecution's jurisdiction of crimes of checks:

The Public Prosecution views that if no legislative amendment is made on the provisions of incriminating check issuing or endorsement without balance, the Public Prosecution shall have the jurisdiction to investigate and take the legal action in all the crimes related to the check, whatever the punishment it shall determine for the crime; this is because these crimes are of special importance.

Finally, the Public Prosecution shows these remarks so that the concerned authorities shall make use of by drafting the amendments of the current legislative stipulations, in such a way that achieves the emphasis of the criminal protection of the check and guarantees using it as a mode of payment only and that it might not be used as a mode of credit or means of guarantee and minimizing the exposition of the unable debtors to severe punishments determined for this crimes.

Best Regards,