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.
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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.
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.