Increase In The Amount Of The Check Based On The Follow-Up By Tampering
T.C JUDGMENT
19th Civil Chamber
Basis: 2017/ 1359
Decision: 2018 / 3439
Decision Date: 20.06.2018
At the end of the trial held in accordance with the reversal of the negative assessment lawsuit between the parties, the file was examined and the file was examined upon the appeal of the judgment given for the partial acceptance of the lawsuit for the reasons written in the judgment by the defendant’s attorney.
Decision: The plaintiff’s attorney stated that an execution proceeding was made against the defendant based on a check, the amount of the underlying check was falsified and made 13. 000,00 TL, the change was not initialed by the drawer, the check lost its quality of foreign exchange, the endorsements lost their legal validity, the prosecutor’s investigation is ongoing, the Enforcement Law Court decided to cancel the enforcement proceeding based on the expert report, the defendant is malicious, and requested and sued for the cancellation of the enforcement proceeding and the determination that the plaintiff is not indebted and at least 40% malice compensation.
The defendant’s attorney stated that the defendant received the check from …, that he did not know that the check was forged, that the plaintiff’s objections that the check was not in the nature of a bill of exchange were not made in due time, that the decision of the Execution Law Court consisted of a formal examination, that the endorser … and the plaintiff were tried for forgery in the heavy criminal court, that the defendant … accepted the accusation, that the plaintiff acted together with the endorser … and requested the dismissal of the lawsuit and 40% execution denial compensation.
The court, according to the evidence collected, … 2nd Execution Law Court dated 11/10/2011, 2011/262 E.-2011 /814 K. numbered judgment, it was decided to cancel the underlying enforcement proceedings, the falsification was determined in the report of the Criminal Expert dated 08/09/2011 in the file, the check lost its quality of foreign exchange, in the criminal proceedings, one of the check debtors … admitted that he falsified the check, it is fixed that the plaintiff owes the defendant 3. 000.00 TL to the defendant, the plaintiff’s lawsuit petition and 21/06/2012 dated hearing on the grounds that the check was 3.000.00 TL, partial acceptance of the lawsuit, determination that the plaintiff is not indebted to the defendant for the part other than 3.000.00 TL out of 14.732,00 TL for which execution proceedings were carried out and the interest and accessories corresponding to this amount, 10. 000.00 TL, the judgment was appealed by the defendant’s attorney, and with the decision of our Chamber dated 17.01.2013 and numbered 2012/14398 E. – 2013/840 K., “The plaintiff has falsified the promissory note of which he is the beneficiary by correcting 3.000 TL as 13. 000 TL on the promissory note that the plaintiff is the beneficiary of, and that the check is not valid, the court decided to partially accept the case by taking into account the report received in the Enforcement Law Court, however, since the Enforcement Law Courts are a court of narrow jurisdiction, the expert report received in this court cannot be taken as a basis for the judgment in the Civil Court of First Instance, which is a general court. In addition, since it is understood that the proceedings in the Heavy Criminal Court regarding forgery are ongoing, the determination of the material fact of the judgment in the Heavy Criminal Court is binding on the civil judge. While the court should wait for the result of the criminal proceedings and, if necessary, have an expert expert examination on falsification and decide accordingly, it was not deemed correct to make a decision as a result of incomplete examination, and the decision had to be reversed. ”, and as a result of the trial conducted in accordance with the reversal, it was decided to partially accept the lawsuit on the grounds that the plaintiff was acquitted of the crimes of forgery of official documents and qualified fraud as a result of the trial held at the Assize Court, the decision became final as a result of the appellate review, the plaintiff was not responsible for the falsification on the check, and the judgment was appealed by the defendant’s attorney.
1- According to the writings in the file, the fact that the court has examined and ruled in accordance with the reversal decision complied with, that there is no inaccuracy in the evaluation of the evidence, and that the appellate objections regarding the finalized aspects outside the scope of the reversal cannot be examined, it has been decided to reject the appellate objections of the defendant’s attorney other than the scope of the following paragraph.
2- Even though the case is a negative determination case and according to the result of the investigation made by the court, it is understood that the check on which the proceeding is based was amounting to TL 13.000 as a result of falsification while it was amounting to TL 3.000, it was not correct to establish a positive determination judgment by stating the part that the defendant owes, while the part that the defendant does not owe in the proceeding should be calculated and a negative determination decision should be made.
3- Since the defendant judgment creditor did not receive the bond based on the proceeding from the plaintiff by endorsement, but received it from a person outside the lawsuit, and since it was stated in the decision of the criminal court on the subject that the falsification was capable of misleading, the defendant should not be held liable for the unfair proceeding compensation, but it required a reversal to be held liable.
Conclusion For the reasons explained in subparagraph (1) above, the other appellate objections of the defendant are rejected, for the reasons explained in subparagraphs (2) and (3) above, the judgment is DISMISSED in favor of the defendant, the advance fee shall be refunded to the appellant upon request, it was unanimously decided on 20.06.2018