Cassation No. 518 of 2022
Issued on 19/07/2022 (Penal)
Panel: Presided over by Mr. Judge Ahmed Abdullah Al-Mulla, Chief Judge of the Circuit, with Messrs. Judges Muhammad Ahmed Abdul Qadir and Al-Tayeb Abdul Ghafour Abdul Wahab as members.
1- The contested ruling is deemed to have erred in the application of the law by erroneously determining that there was no crime of issuing a check in bad faith. This error stems from the court's lack of insight into the legal basis under which the appellant was brought to trial.
- Ruling “Deficiencies in Causation: Error in the Application of the Law.” Crime: “Issuing a Check in Bad Faith When the Account is Closed.”
The Public Prosecution has brought charges against the respondent for issuing a check in bad faith, while the account on which the check was drawn was closed, as per Article 641 bis (2) of the Commercial Transactions Law. The contested ruling displayed a lack of legal acumen by erroneously concluding that the offence was not committed by virtue of the Crimes and Penalties Law, thus misapplying the law.
Article 641 bis (2)/2 of Federal Decree Law No. 14 of 2020, amending certain provisions of the Commercial Transactions Law enacted by Federal Law No. 18 of 1993, explicitly states: (a term of imprisonment ranging from a minimum of six months to a maximum of two years, coupled with a monetary fine, specifically amounting to not less than 10% of the check's value and a minimum threshold of 5000 dirhams, and not exceeding twice the value of the check or either of these two penalties shall be imposed on anyone engage in any of the following acts: 2- a: the deliberate closure of the account or the withdrawal of its entire balance before issuing the check, presenting it to the drawee for withdrawal, or in instances where the account has been frozen.) Given this legal context and considering that the contested ruling failed to recognise the relevant law pursuant to which the respondent was charged, leading to a declaration of non-criminality, it is evident that the ruling had erred in the application of the law. Therefore, its reversal and remand are warranted.
The Court,
Whereas in the facts, as apparent to the perusal of the contested ruling and other documents, that the Public Prosecution accused the respondent of, on 25/8/2021 in the Emirate of ........,
acting in bad faith by issuing check No. 25 drawn on Bank .......... with a value of 5375 dirhams to the victim .........., while the account was closed, as indicated in the report.
The Public Prosecution sought punishment under Article 641 bis (2)/2 of the Federal Law on Commercial Transactions.
On 28/2/2020, the court of first instance, in absentia, ruled to impose a fine of one thousand and one hundred dirhams on the respondent for the alleged offence.
The Public Prosecution appealed this ruling in Appeal No. 324 of 2022.
On 18/4/2022, the Court of Appeal decided to accept the appeal in form but rejected it on the merits. Additionally, it ruled to annul the appealed ruling, thereby decriminalising the case.
The Public Prosecution, dissatisfied with this decision, filed the present appeal in cassation against it.
Whereas the Public Prosecution objects to the contested ruling, specifically alleging an error in the application of the law. The objection centers on the court's decision to reject the appeal and, once again, nullify the appealed ruling based on the absence of criminalisation resulting from the enactment of Crimes and Penalties Law No. 31 of 2021 wherein the issuance of a check with insufficient funds is not criminalised. The Public Prosecution contends that the ruling failed to recognise that the respondent was referred to trial for violating the provisions of Article 641 bis (2)/2 of the Federal Law on Commercial Transactions. This flaw in the ruling necessitates its reversal.
Whereas this objection holds merits, since Article 641 bis (2)/2 of Federal Decree Law No. 14 of 2020, amending certain provisions of the Commercial Transactions Law enacted by Federal Law No. 18 of 1993, explicitly states:
(a term of imprisonment ranging from a minimum of six months to a maximum of two years, coupled with a monetary fine, specifically amounting to not less than 10% of the check's value and a minimum threshold of 5000 dirhams, and not exceeding twice the value of the check or either of these two penalties shall be imposed on anyone engage in any of the following acts: 2- a: the deliberate closure of the account or the withdrawal of its entire balance before issuing the check, presenting it to the drawee for withdrawal, or in instances where the account has been frozen.)
Given this legal context and considering that the contested ruling failed to recognise the relevant law pursuant to which the respondent was charged, leading to a declaration of non-criminality, it is evident that the ruling had erred in the application of the law. Therefore, its reversal and remand are warranted.

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