In law, there is no definition for the check but Jurisprudence (Fiqh) defines it as "a piece of paper written for certain formal conditions by which the drawer claims the drawee to pay by virtue thereof and upon seeing it for a certain person, for the order of a certain person or for its bearer, an amount of money; the drawee is always one of the banks. In another definition, it is said that: "the check is a written order by virtue of which the drawer or another certain person or its bearer can receive all or some of his money.

The interpretation of Article 237 of Kuwaiti Penal Code:

The check plays a very important role in the economic system, as a mode of payment like money. From this angle, it is heterogeneous to other commercial papers such as bills of exchange, promissory notes; these papers are modes of credit that are not payable except after the elapse of a certain period of time that might be long or short. Whereas for the check, it is a mode of payment with which debts are settled and does the function of money in transactions among people as it is payable once it is submitted to the drawee.

Therefore, it is important that law concerns with providing sufficient guarantees for transacting with the check so that the beneficiary thereof or the transactor therewith feel sure that the drawee (the bank) pays the value of the check once it is submitted upon reading it.

Without this trust and tranquility from this point, people can not accept to transact with it, which leads to hindering the function thereof. It is clear that nothing can destroy this transaction in the check except if there is no balance with the drawee or an order issued by the drawer not to pay the amount of the check. Therefore, modern legislations focused on punishing anyone who issues a check without balance to protect the transactor in the check and protect the rights and money of people.

The French legislator to resorted to protecting the check as a mode of payment by issuing a special law on August 12th 1917 A.D. due to the various accidents of issuing checks without balance, which occurred and due to the fact that the crime of fraud does not apply to this act. He interfered again in 1926 to provide more protection to the check and add to the order of the drawer to the drawee not to pay the amount of the check to its bearer added it to the criminal acts to be punished for. Then, he stated the provision of this crime in a decree issued in 1935 A.D. in the light of Geneva Convention to unify the rules of the check.

According to the French law, the Egyptian legislator took Article 337 Punishments to provide criminal protection to the check. This article is new in both 1937 laws; this is because there was no provision in the Egyptian law to punish for giving a check without balance. This made judicial authorities hesitate in this regard; the courts, in the very beginning, ruled punishment for the act on the basis that it is fraud. Then courts decided again not to punish; this is because just submitting the check without balance and taking its valued is   not enough for the completion of the crime of fraud. Rather, this should be associated with tricky acts. Therefore, Article 337 was added to punishment for issuing a check without balance that is sufficient for the value thereof or withdrawing the balance after giving the check or some of it in such a way that the balance becomes insufficient for the value of the check, or the drawee was told not to pay. The Kuwaiti law decided the same punishment of the fraud crime for each of these acts. Article 237 of the Penal Code is derived from Article 337 Egyptian Punishments; it stipulates providing protection for the check as a mode of payment and this protection was included in Article 237 Penalties.

"A punishment of imprisonment, for a period not exceeding five years and with a fine not exceeding five hundred dinars or each of either punishment, shall be served by a person who, with bad intention, commits one of the following acts:

1-     if he issues a check that has no current and cashable payment consideration.

2-     If he regains, after issuing the check, all or some of the consideration in such a way that the remaining amount is not sufficient for the value thereof.

3-     If the drawer tells the drawee not to cash the check.

4-     If he deliberately makes the check or signs it in such a way that prevents the check from being cashed.

To make the check properly, there should be some formal conditions in the estimation of which the function was considered as a mode of payment that replaces money. In addition, there should be some objective conditions that the ones determined for the validity of any commitment in general.

1- The drawer: the drawer of the check is the one who makes it. He is considered the original debtor therein; therefore, the check should include the signature of drawer, his seal or finger print.

Banks usually get the signature of the customer and keeps it for them to match it with his signature on the checks that comes to the banks under his signature; therefore, it can be confirmed whether or not he has issued the check.

The paper is valueless without the signature of the drawer; the signature can be in a language other than the one in which the check is written. The check might be written in Arabic and the drawer signs in a foreign language.

Signing on a blank check: If the drawer makes a check without mentioning the value of the amount, this does not result in nullifying the check. While if the drawer writes the agreed amount and it turned out that there is no balance for the drawer at the drawee, the elements of the crime of issuing a check without balance are complete.

Endorsing the check: The crime of issuing a check without balance is naturally the crime of the withdrawer who signed the check; he is the one who gave the mode of payment and put it in circulation. A third party can accept the check and endorse it to another person despite knowing that it has no current payable balance or its insufficiency. The crime is related to nothing but to the process of issuing the check other than the consequent processes that come to the check. The endorser shall not be considered, even if he is bad-intentioned, an accomplice in the crime because the act done by him does not occur except after the completion of the crime. It shall not be considered participation therein; however, this does not prevent his punishment as fraud if the endorser is proved to have any of the fraudulent methods.

There should some sort of differentiation between the three forms of endorsing the check:

A-    Complete Endorsement: It is the original endorsement; it includes the meaning of complete abandonment of the possession of the check.

B-    Authorization Endorsement: This is to enable the endorsee to get the amount of the check for the account of the one who endorses it.

C-    Insurance Endorsement: It is the one which aims at a certain right of the endorsee before the endorser.

3-    The drawee: He is the one to which the drawer issues an order of paying the amount of the check and he shall pay the amount of the check to the beneficiary.

Kuwaiti law requires that a drawee shall be a bank; the drawee can not be a person who collects the money of people as deposits. The check shall not be drawn on the drawer himself. This is because the check has a payment order; this necessitates that the drawer shall be a person other than the drawee. If the check is drawn on the same withdrawal, the paper loses the description of the check and becomes a promissory note in which the issuer of the check pledges to pay and does not include an order of payment. Article 563 of the Trade Law stipulates that "checks issued in Kuwait and payable shall not be withdrawn except on a bank and the deeds in the form of checks withdrawn on other than a bank shall not be considered valid checks."

If the check does not contain the name of the drawee, it shall not have the capacity of the check even if it is considered an ordinary declaration of debt for the beneficiary.

3- Date of Withdrawal: This is statement of the date of issuing or writing the check and beginning from this date the check shall be payable upon reading it. The check shall include only one date, the withdrawal date or maturity date. Therefore,  if the check includes more than one date, it shall change into a right or faulty bill of exchange depending on the availability of the conditions for a right bill of exchange.

Formalism always occurs when a date later than the real withdrawal date is mentioned. This can be for a legitimate reason that is represented in delaying submitting it for payment so that the drawer can add an amount to his balance to cover the value of the check on the date it is issued on.

This does not include that the check loses its capacity; it is supposed that the date in which it was written is the real date, i.e., both the date of issue and maturity.

If the deferred check is submitted on an earlier date than the one indicated therein and the bank stated that there is no balance for the withdrawer at the time of submitting it, there shall be no criminal liability on the withdrawer because the acceptance of the beneficiary for the deferred check, this shall mean that the beneficiary accepts that the check shall not be submitted to the drawer except on the date fixed therein.

4- Order of payment upon reading it: This is prerequisite in the nature of the check in the sense protected by law as a mode of payment; therefore, the payment shall not be suspended on a condition or added to an appointed time because this contradicts the nature of the check. And this is what is stipulated by Article 532 of the Decree of Law 68 for the year 1980 regarding the enactment of the Trade Law that the check shall be payable upon reading it and any statement contradictory thereof is as if it was not existing. If the check is submitted before the date indicated therein such as the issuance date, the check shall be paid on the date of submitting it. It has been indicated that the legislator has determined the function of the check as a mode of payment to replace money in transaction; therefore, it is payable upon reading it.

5- The beneficiary: He is the one to the interest of whom the check is issued. The beneficiary might be a natural or legal person such as a company or society. The beneficiary shall always be one person but beneficiaries might be several. If the check is issued for their order, the payment is withdrawn for them altogether in the sense that if the banks pay for one or some of them, it shall not be released. However, if the beneficiaries are numerous and the wording of the check indicates that the payment shall be made for one of them such as Yousif or Ahmed, then payment shall be made to one of them on the condition that this person shall be the one having the check in possession. Thus, the bank can regain it from him when it pays him the value thereof. The determination of the beneficiary shall take one of the following forms:

1- Nominal Check: it is the one which is written in the name of  a certain person. This check shall not be considered one of the commercial papers because it accepts circulation in the commercial methods. Rather, the right fixed therein shall be transferred by means of civil right transfer.

2- Promissory Check or an order check: it is the one in which the name of the beneficiary is mentioned with the order condition or permission and the check can be circulated with endorsement.

3- Bearer Check: it is the check in which no person's name is mentioned but it is written for its bearer and its possession shall be transferred by delivery.

The check might be ordered for the order of the drawer himself and combines the capacity of both the drawer and beneficiary as by saying "pay for our order". In this case, the check shall be considered just a mode for withdrawing the money of the drawer that are with the drawee.

6- The check value in money: the check shall include a statement of the amount due to be paid. The value of the check can be nothing but money and it shall be clearly fixed as an amount of money not one of the goods. If the drawer told the drawee to pay an undetermined amount as if saying "pay the amount agreed upon between us", this can not be considered a check in the legal sense.

The amount of the check might be written in both words and figure so that there will be no difference between the amount written in words and figures.

7- The word "check" shall be written in the middle of the deed: Article 511 of the Kuwaiti Trade Law states that among the data that should be included in the check is that the word "check" is to be written in the deed. It was said that ignoring the word "check" results in that the check loses its capacity. It is stipulated in Article 511 of Kuwaiti Trade Law as one of the important data to indicate the description of the deed.

8- Writing down check: the check shall be made in writing; there is no oral check. This depends on the legal description of the check as papers. The legal importance of the check supposes that it to be written so that it can be read and the formal conditions of the veracity thereof can be proved.

These are the formal conditions of the check and the absence thereof can make the check lose its capacity as an object of criminal protection; these conditions includes the name of the drawer, his signature, the statement of the check amount, order of payment upon reading, the maturity or withdrawal date, the beneficiary and the word "check" written in the deed. All these are essential data. While ignoring mentioning the date of issuing the check may mean that the drawer has authorized the beneficiary in writing it before submitting it.

It is not a condition that the check shall be written on the printed papers distributed by the bank to the customer for this purpose. It is possible that a check can be written on an ordinary to be protected by law so long as its form has contained all the data necessary for being considered a check.

Whenever the written order includes the essential data and is formally a payable check upon reading it and was issued on that consideration, it is undoubtedly worthy of the protection of criminal law. The check that does not have balance might be considered void and null in the eye of Commercial Law while the lack of the check consideration is the axis of punishment in the criminal law.

There are some conditions that have to be met in the check; they are required by law in general for the veracity of the legal actions and these conditions include the right satisfaction void of faults, competence, object and reason.

1- Satisfaction: if the drawer signs the check or endorses it for the bearer and the will of the issuer was spoiled with some of the defects of satisfaction such as mistake, coercion or fraud, the check shall be void for the interest thereof.

If the issuer of the check signs it under the influence of fraudulent methods used by the beneficiary, such as that the issuer is too old or weak-sighted and the beneficiary made  him believe that he will sign a life-insurance for his interest, the issuer's signature shall be liable to nullification. The issuer shall insist on nullifying the check before the beneficiary or the bad-intentioned bearer but he shall insist on nullification before good intention.

2- Competence: the drawer of the check shall be at the age of maturity. Whereas if the drawer is under age, he shall withdraw or endorse the check.

3- Object: The object of commitment in the check is the fixed amount of money. Is shall be possible and legal. If the object of the check is something other than money or unknown, this shall result in the nullification of the deed as a check.

4- The reason: the check shall have a legal reason. If it proved that the check has an illegal reason being issued for example in payment of a debt of gambling or to spend on an illegal relationship, the check shall be nullified or the issuer shall insist on nullification before the beneficiary but protest shall not be made for the lack of reason or its illegality before the good-intentioned bearer.

Checks are of different types of which we mention the following:

Traveler's check: this kind of checks aims at alleviating the risks of stealing or loss of money carried by a traveler. The traveler carries a traveler's check instead of money; he gives his money to the bank and the bank gives him a group of checks of certain categories. Each group has a category of checks. The bank representative signs each of them in such a way that shows the approval of the bank then the signature of the customer on the check copies in his capacity as the writer or the drawer. This is on the consideration that he submitted that the customer submitted the check balance to the bank and that he withdraws a check on the bank in which the balance is deposited. The customer signs before the banks again on top of the check so that this signature can be used for matching when the check is submitted for payment. Whenever the customer wants to cash the amount of the check, he comes to the bank and signs on the back of the check to declare receiving the amount. Then, the bank, which pays the value of the check, matches the signature on top of the check with the signature on the back of the check. There has been a controversy in Jurisprudence about whether these deeds are considered ordinary checks or not. Some viewed that they are in fact promissory notes or letters of credit but the likely opinion is that they are considered correct checks depending on the practical benefits that are achieved from checks. Egyptian Cassation Court stipulated that if a a traveler's check bears two signatures, there shall be no difference between it and the ordinary check. Traveler's checks are issued by big banks that have international accreditation and trust.

Mail Checks: Mail Agency do some bank transactions; it receives cash deposits and authorize for their owners to withdraw them by checks they pass them. The mail check is an order of payment upon reading it by virtue of which the drawer can receive all or some of the current money at his account with the Mail Agency or pay this money to another person he appoints.

Mail checks are not for circulation and their value shall not be paid except for the appointed person or the representative thereof. Being unacceptable for circulation does not reduce their power as checks because circulatability is not one of the prerequisites of a check.

The question posed by mail checks is determining whether the issuer thereof is to be punished if he does not have balance at the Agency equaling the amount of the check. The opinion in Jurisprudence was divided and the legislator settled the matter by applying the definition of the check on it (order of payment upon reading it) and that it shall have all the elements of the check, shall be issued for a cash amount, the transactors therein set trust not less than the trust set in the ordinary check. Therefore, the mail check requires an equivalent balance to do its economic function.

A Lined Check: it is a check in the form of the ordinary check; however, it has two parallel lines on top of the check. This results in that the bank does not pay the amount of the check except for a bank or bank customer. Therefore, the bearer of the lined check shall endorse the check to a bank that takes over paying the amount to the account of that customer.

Lining can be general or special; it is general if the empty space between the two lines is blank without writing any word or if the word "bank" is written without specifying a bank name in particular. When the lining is general, the check shall be submitted to any bank to pay the amount. The lining shall be special when a name of a specific bank is mentioned between the two lines. Then, the drawee bank is prevented to pay the amount of the check except to the bank specified between the two lines.

The Certified Check: it is a check written in the form of the ordinary check. In addition, it bears the signature of the bank on top of the check in such a way that indicates the approval of the bank. This accrediting of the check results in freezing the payment consideration for the good of the bearer and thus payment is definite. The certified check is used in Egypt and it is know as "payable check".

Torn-up Check: if the drawer makes the check then tore it up which meant the drawer is willing to nullify the check. The bank may not pay the check without this leading to splitting the paper into two parts or more, the bank may pay the value of the check. If the bank doubts it, it shall give it back to the customer without cashing the value thereof.

Both of them have three parties: the drawer, the drawee and the beneficiary. Both of them suppose that there is a legal relationship between the drawer and the drawee called payment consideration or balance and a legal relationship between the drawer and the beneficiary called receipt of value.

A-   The check is payable upon reading it while the bill of exchange is deferred to a certain point in time.

B-    The check shall have a payment consideration at the time of issuing it because it is payable upon reading it while the payment consideration in the bill of exchange can be deferred till the maturity date.

C-    There is a punishment for issuing a check without balance but there is no punishment for issuing a bill of exchange without a payment consideration.

D-   The check is considered a mode of payment but the bill of exchange is a mode of credit.

A promissory Note: it is a commercial paper that includes the declaration of the issuer thereof to pay a specific amount of money for the permission of a second person who is the beneficiary upon reading it or at an appointed  or determinable time. The promissory note is a bilateral paper and  it format is as follows:

Kuwait on (date)           Amount in Figures

I, the issuer, declare to pay for (Beneficiary's name) a sum of money amounting (amount in letters) on the maturity date.

A promissory note shall not be considered a commercial paper except in two cases:

1- If the promissory note is written for a commercial work and in this case it is equal whether written for a trader or non-trader.

2- If the issuer thereof is a trader and in such a case it is equal whether issued for a civil or commercial work.

Bond Bearer:

Kuwait on  /    / 19   A.D                  1000 Kuwaiti Dinars

I declare to pay for its bearer a sum of One thousand Kuwaiti dinars

  /   / 19    A.D

Upon reading it and we received the value

Signature of the issuer

It includes a declaration from the issuer thereof to pay a certain sum of money to the person who carries the commercial paper upon reading it or at a specific determined or determinable date and its form is as follows:

We find that a bond bearer is a written deed that also includes the commitment of the issuer to pay a certain sum of money to its bearer at a certain date. The guarantee of the promissory note is represented in the signatures of the issuer and the endorsers but the bond bearer has only the signature of its issuer without endorser because its circulation does not occur with endorsement but by giving by hand.

The Incrimination of the Check and the Punishments stipulated for it:

Essence of the Crime:

Kuwaiti Penal Code followed in the footsteps of most penal legislations. It did not include a definition for a crime. The legislator did a good job not to set a definition; the wording of definition is not the task of the legislator but the specialization of Jurists. Most of the definitions which defined crime were criticized as incompetent and extremism. A crime was defined as a non-social behavior that criminal legislative gives it a legal stamp to define it and stipulate a penalty for the committer thereof.

The check is not given the opportunity to do its functions except if it is an object of trust from the part of the transactors therein. Therefore, the legislator aimed from incriminating the acts of violating the trust set in the check as a mode of payment to protect public credit that judges that a check shall regularly have its function after it replaced money. This is in addition to the special interest of the beneficiary the society members who might circulate the check by endorsement.

From the stipulation of Article 237, it is clear that the crime of issuing a check without balance has three elements, which are as follows:

1-    Issuing a check.

2-    No drawable balance that equals the value of the check with the drawee.

3-    Criminal intent.

We study these elements in the minute detail:

The check in protection, in this meaning, is a mode of payment with which debts are repaid. Not included under this protection is giving other commercial papers such as a bill of exchange and promissory note. Rather, the paper must be a check and giving a check is getting it out of the possession of the drawer and putting it for circulation, and this is by handing it to the beneficiary or sending it to him. Handing the check from the issuer to his attorney is not considered giving because it might have permanently gone out of the possession of the drawer.

Whereas if the handing of the check to the beneficiary's attorney is in a way that leads to the permanent assignment of the drawer, the act of giving is to have been achieved.

The presence of the check with the beneficiary is evidence for giving unless the drawer proves that the check is stolen or lost from him.

Balance is defined as " a commitment in the custody of the drawee for the drawer to pay a sum of money. It is a condition that this balance shall be present when issuing the check and cashable and to be equivalent at least to the amount of the check.

giving the check a criminal incidence according to Article 237 of Kuwaiti Penal Code is considered in the following cases:

A-   If the check has no current and withdrawable balance and it is not a condition that the balance must be deposited by the drawer or others at the bank. Rather, it is enough that the drawee had opened an account for him as per a prior agreement among them. If there is no balance, this does not inevitably mean that there is no crime because balance must be withdrawable. It is possible that the balance is annexed or that the drawer does not have the management of his money because he is underage or annexed because of squandering or because of being a trader who announced that he is bankrupt; in such a case, the crime becomes real.

B-   If the balance is less than the value of the check and it is not a condition that the decrease reaches a certain limit. Any deficit in the value of the balance for payment of the whole amount of the check is enough.

C-   If the issuer of the check withdrew, after giving the check, all or some of the balance in such a way that the remaining amount is not sufficient for the value of the check.

D-   If the drawer told the bank (the drawee) not the pay the value of the check. The crime becomes real even if because of a legal reason and in exception an order of non-payment shall be given in two cases:

1-    Bankruptcy of the bearer.

2-    The check is lost or stolen.

The crime of issuing a check without balance is a deliberate crime. The perpetrator therein shall have the criminal intent. The question her is whether it is the general necessary  or special  likely intent in the light of Article 237 of the Egyptian Penal Code is that the necessary intent in such a crime is the general criminal intent and that it becomes real whenever the perpetrator, at the time of giving the check, know whether there is no or insufficient balance or non-withdrawable  or that he knows, when cashing the balance, that the check has not been cashed yet and that it hinders the payment of the value thereof upon reading it.

We find that Article 237 of the Kuwaiti Penal Code has expressed this intent with its stipulation that "if a person gives with bad intention", it is understood here from this sentence that the Kuwaiti legislator means what is meant in the Egyptian law, i.e. he takes it with its likely meaning. Hence, it can be said that the necessary intent in the light of Article 237 Penalties is the general criminal intent.

The second question is: is the crime of issuing a check without balance a felony or misdemeanor?

A- Article 237 Penalties makes the crime of issuing a check without balance a misdemeanor the punishment of which shall be an imprisonment term not exceeding 3 years and a fine not exceeding 3000 rupees or either punishment.

B- However, due to the important role played by the check in transaction as  a mode of payment like money and due to the increasing importance of this role of the check in the Kuwaiti society, the legislator has enacted the Decree of Law no. 15 for the year 1978 A.D by replacing Article 237 of the Penal Code as follows:

"An imprisonment punishment, not exceeding five years and with a fine not exceeding dinars or either punishment, shall be served by a person who, with bad intention, commits one of the following acts:

1- If he issues a check that has no current and cashable payment consideration.

2- If he regains, after issuing the check, all or some of the consideration in such a way that is not sufficient for the value thereof.

3- If he tells the drawee not to cash the check.

4- If he deliberately makes or signs the check in such a way that prevents it from being cashed.

5- If he endorses or delivers a payable bearer check despite knowing that it has no sufficient consideration for all its value or that it is not cashable.

Second: Introducing modern crimes:

This law introduced the incrimination of the endorser's act or that of the one who delivers a payable check though he knows that the check he endorses or delivers has not current balance that is enough for all its value or that it is not cashable. In addition, this amendment has removed doubt raised for some people in the case in which the check drawer tampers in the signature to prevent it from being cashed. Some people think that this act is away from the scope of incrimination; therefore, law did a good job be settling this matter by stipulating that the check issuer who tampers in the signature to prevent it from being cashed shall be considered a committer of the crime whenever his intent is proved. The check crimes have become, in their different ways, among the felonies which the Public Prosecution has the jurisdiction in the investigation and taking the legal action therein.

If the perpetrator repeats committing any of these crimes within five years as from the date of sentencing him in any of them, the punishment shall be imprisonment for a term not exceeding seven years and a fine not exceeding seven hundred dinars. In all cases, the pronunciation of sentence shall not be refrained from or the suspension of enforcing the sentence shall not be ordered except if the perpetrator proved to have paid the value of the check.

From this also, courts have become restricted under the new law in dealing with the defendants in the check crimes in regards of refraining from pronouncing sentence or ordering the suspension of the sentence because law stipulates for practicing this right that the drawer, committer of the crimes, shall prove to the court to have paid the value of the check completely so that the good-intentioned beneficiaries can guarantee to obtain their legal rights before exempting the defendants from enforcing the stipulated originally for their crimes.

However, this new amendment gives the court, in case of payment, the possibility to refrain from pronouncing punishment or order the suspension of the enforcement of the sentence. The aim behind this is to urge the perpetrator to reform what he has destroyed with his previous act.

Is damage considered one of the elements of the crime of issuing a check without balance?

Some jurists view that damage is considered one of the elements of the crime of issuing check without balance. However, what is prevalent in regards of damage is that it is enough to be a probable justification whether for the beneficiary or third parties to whom the check is transferred. The probability of damage violates trust in the check in itself and hinders the intended function as a mode of payment that replaces money in transaction.

Law has estimated the probability of damage from the completion of the materiality of crime, i.e. whenever the giving of check occurs, lack of his balance, the balance was not cashable, the check was withdrawn, or an order was issued not to cash the check in cases other than allowed by law . with all these conditions combined, the occurrence or probability of damage, which necessitated the incrimination of the act and there is no need afterwards to prove damage or investigate it from the part of the judge.

Dr. Mustafa Magdi Harja: Fraud, Breach of Trust and Provisions of the Check, Dar Al-Thaqafa for Printing and Publishing, 1989 A.D.

Dr. Abdul Muhaymen Bakr Salim: Al-Waseet in Explaining Kuwait Penal Code, 1982 A.D.

Dr. Magdi Mohib Hafiz: Check Crimes, Dar Al-Fikr Al-Jam'I, 1994 A.D.

Dr. Mustafa Magdi Harja: Practical Problems in Check Crimes, Dar Al-Matbo'at Al-Jam'iya, 1995 A.D.