Case For Recovery Of Stolen Checks – Supreme Court Decision On Determination Of Rights
Summary:
The endorsement chain on the check is complete, and it is understood that the defendant is the authorized holder. The aforementioned article of the law states that “If the check has left the holder’s possession in any way, whether it is a check that can be transferred to the holder in writing or by endorsement, and the holder proves his right under Article 790, the new holder who has acquired the check is only obligated to return it if they acquired it in bad faith or with gross negligence.” According to this provision, the defendant has no obligation to prove the reason for acquiring the check. The defendant must know or be in a position to know that the check was transferred without consent. In the event that the check was transferred without consent, the burden of proof lies with the plaintiff, who claims to be the authorized holder of the check and that it was transferred without their consent, and the plaintiff must prove their claim with conclusive and convincing evidence.
T.C.
Court of Cassation
11th Civil Chamber
Case No: 2014/10768
Decision No: 2014/20288
Date: 12/23/2014
COURT: ISTANBUL (CLOSED) 47th CIVIL COMMERCIAL COURT
DATE: 07/04/2014
NUMBER: 2012/195-2014/131
In the case between the parties, the defendant’s representative requested that the decision dated 07/04/2014 and numbered 2012/195-2014/131, issued by the Istanbul (Closed) 47th Commercial Court of First Instance, be reviewed by the Court of Cassation, and it was understood that the appeal petition was submitted within the time limit. After hearing the report prepared by the Examining Judge for the case file and reading and examining the petition, pleadings, trial minutes, and all documents in the file, the matter was discussed and considered:
The plaintiff’s attorney stated that a robbery took place at his client’s workplace on 02.02.2012, and that the subject of the lawsuit was a check dated 30.02.2012 and worth TL 70,000.00 belonging to G..Bank Kasımpaşa Branch, drawn by A.. G.., was stolen. The prosecutor stated that an indictment was issued and a lawsuit was filed as a result of the investigation conducted by the Istanbul Chief Public Prosecutor’s Office under preparation number 2012/24565 regarding the aforementioned theft incident, and that the lawsuit was pending before the Istanbul 39th Criminal Court of First Instance under case number 2012/278. A case for the loss of the stolen valuable documents was filed with the Istanbul 26th Commercial Court of First Instance under case number 2012/33, and a payment prohibition order was issued regarding the stolen checks. The defendant, in their intervention petition submitted to the aforementioned case, declared that the check in question belonged to them and requested that the payment prohibition be lifted. the court hearing the case gave them one week to file a recovery lawsuit against the defendant with a request for precautionary measures, the decision was served to them on 20.07.2012, and the present lawsuit was filed within the legal time limit, the check in question was taken by their client based on the debtor/creditor relationship between them and the drawer A.. G.. based on the debt/receivable relationship between them, that the defendant submitted a delivery and receipt certificate to the Istanbul 26th Civil Commercial Court, file no. 2012/33, stating that he had received the check in question from A.. S.., and submitted a delivery and receipt document related to this matter. The said document is dated February 13, 2012, and was issued after the theft incident. After the theft incident, the drawer informed the bank, and that the defendant’s failure to ask the bank whether there was any problem when receiving this check was not in line with the normal course of commercial life, and requested that a precautionary decision be made regarding the check in question, that the check in question be returned to his client, and that, otherwise, the check amount of 70,000.00 TL be collected from the defendant and given to his client.
The defendant’s attorney requested that the case be dismissed.
Based on the entire case file, the evidence gathered, and the expert report prepared, the court ruled that the defendant had no right to acquire the check in question and that the check, which he held unjustly, must be returned to the plaintiff. The court accepted the claim and ruled that the check numbered A G 0612133, dated December 30, 2012, issued by G Bank, Kasımpaşa Branch, in the amount of TL 70,000.00, should be taken from the defendant and returned to the plaintiff.
The defendant’s attorney appealed the decision.
The case concerns a claim for restitution based on Article 792 of Law No. 6102, and the court has decided to accept the case for the reasons explained above. The endorsement chain on the check is complete, and it is understood that the defendant is the authorized holder. The aforementioned article of the law states that “If the check has left the holder’s possession in any way, whether it is a check that can be transferred to the holder in writing or by endorsement, and the holder proves his right under Article 790, the new holder who has acquired the check is only obligated to return it if they acquired it in bad faith or with gross negligence.” According to this provision, the defendant has no obligation to prove the reason for acquiring the check. The defendant must know or be in a position to know that the check was transferred without consent. In the event that the check was transferred without consent, the burden of proof lies with the plaintiff, who claims to be the authorized holder of the check and that it was transferred without their consent, and the plaintiff must prove their claim with conclusive and convincing evidence. The court determined that the plaintiff was not the authorized holder of the check and, based on an erroneous assessment of the evidence presented by the defendant, ruled in favor of the plaintiff on the grounds that the defendant was unjustly in possession of the check. The fact that the defendant acquired the check in question after the robbery against the plaintiff and that there is no record in the ledger does not indicate that the defendant had no commercial relationship with the drawer and that the defendant was grossly negligent in acquiring the check. For these reasons, and considering that the defendant was not a defendant in the criminal case, it was deemed incorrect to accept the case, and the defendant’s attorney’s appeal should be accepted, and the decision should be overturned in favor of the defendant.
CONCLUSION: For the reasons explained above, the defendant’s attorney’s appeal was accepted, the decision was REVERSED in favor of the defendant, and the appeal fee paid was to be refunded to the appellant upon request. The decision was made unanimously on December 23, 2014.