Summary:
The turnover sequence on the cheque is complete and it is understood that the defendant is the authorized holder. The law mentioned in article “Check if it is knocked out by any means, or are pregnant or endorsement written you a check that the holder of the rights in question can be transferred through to get ahold of you and 790 new Hamil according to Article proved in the past, but still with bad intent purchases or acquisitions to give the check back in a severe defect was found, then he is obliged.” as stated. According to the provision of this article, the defendant has no obligation to prove the reason for obtaining the check. The defendant must know or be in a position to know that the cheque was disposed of without consent. If the cheque is disposed of without consent, the burden of proof belongs to the plaintiff, who claims that he is the authorized holder of the cheque and that he left his hand with his consent, and the plaintiff must prove his claim with conclusive and convincing evidence.
T.C.
SUPREME
11. law office
Main Number: 2014/10768
Decision No: 2014/20288
K. Date:23.12.2014
COURT : ISTANBUL(CLOSED) 47. COMMERCIAL COURT OF FIRST INSTANCE
DATE : 07/04/2014
NUMBER : 2012/195-2014/131
In the case between the parties, Istanbul (Decommissioned) 47. 07/04/2014 2012/195 actually given by the court to date and trade-examination of the defendant and the attorney 2014/131 Decision No. yargitayca given within the period of the appeal petition filed by being understood that, with the audit report to file a claim held by a judge rested, and again within the file petitions, pleadings, and trial proceedings and all documents are read and analyzed, after the nature of the business is discussed, considered:
The plaintiff’s attorney, the subject of the case in the robbery that took place on 02.02.2012 at the workplace belonging to his client is G, which was dated 30.02.2012 and cost 70.000,00 TL..The bank belongs to the Kasimpasa Branch, the discoverer is A non-litigant..G.. the check numbered 0612133 was stolen, the Istanbul Chief Public Prosecutor’s Office issued an indictment as a result of the investigation with the preparation number 2012/24565 regarding the theft incident in question and a lawsuit was opened, the case opened in Istanbul 39.The Criminal Court of First Instance is concerned in the main number 2012/278, Istanbul 26 about the valuable documents stolen in the robbery. The main waste of the court case opened the first commercial 2012/33 Czech numbered with the file, and checks if stolen payment has been made about the decision to ban the defendant in the aforesaid case, given that a petition to intervene in the present case belongs to the thread to pull on itself by announcing that the removal of the Prohibition of the payment requested within a week of the court case against the defendant as seen by demanding time to open a case for restitution in the measure that was given, and the decision on the case within the statutory deadline and that had been communicated themselves 20.07.2012 the presence of the substitution has been, the subject of the lawsuit is keşideci A. by the client of the check.. G.. that it was taken in reference to the debt / credit relationship between them and the defendant, Istanbul Dec. 26.According to the file of the Commercial Court of First Instance numbered 2012/33, the subject of the case is the cheque A..S..delivery and acceptance certificate received from that presented related to this topic by stating that, after the robbery and that it was dated 13.02.2012 of the document in question was that of theft after the event, to the drawer’s bank informed the defendant asking whether there is any problem while taking this shot of the bank that are not appropriate to the nature of the commercial life of noting, he requested and sued that a precautionary decision be made on the check subject to the lawsuit, that the said check be decided to be returned to his client, otherwise that the amount of the check, TL 70,000.00, be taken from the defendant and given to his client.
The defendant’s attorney requested the dismissal of the case.
By the court, all file scope, collected evidence and opinions according to the report, the defendant’s case is not justified in the acquisition of subject of the shot, and pull on the grounds that the plaintiff would have to return to wrongly in his possession, dated 30.12.2012 bank branch drawing with the acceptance of the case G D A G that belong to 0612133 Czech Kasimpasa No. 70.000,00-TL-profile defendant is taken from the plaintiff, and has decided to return to pull.
The decision was appealed by the defendant’s attorney.
The case is part of article 792 of law No. 6102. it is related to the request for ouster based on the article, and the court decided to accept the case on the grounds described above. The turnover sequence on the cheque is complete and it is understood that the defendant is the authorized holder. The law mentioned in article “Check if it is knocked out by any means, or are pregnant or endorsement written you a check that the holder of the rights in question can be transferred through to get ahold of you and 790 new Hamil according to Article proved in the past, but still with bad intent purchases or acquisitions to give the check back in a severe defect was found, then he is obliged.” as stated. According to the provision of this article, the defendant has no obligation to prove the reason for obtaining the check. The defendant must know or be in a position to know that the cheque was disposed of without consent. If the cheque is disposed of without consent, the burden of proof belongs to the plaintiff, who claims that he is the authorized holder of the cheque and that he left his hand with his consent, and the plaintiff must prove his claim with conclusive and convincing evidence. The court could not determine that the plaintiff was the authorized holder of the check, as well as the evidence presented by the defendant was incorrectly evaluated and it was decided to accept the case with a bet that the defendant was unfair in holding the check. The fact that the defendant acquired the check subject to the lawsuit after the robbery act against the plaintiff and the absence of a book record does not indicate that the defendant does not have a commercial relationship with the turnover and that the defendant is seriously defective in the acquisition of the check. For these reasons, and considering that the defendant is not a defendant in the criminal case being conducted, it was not considered correct to decide to accept the case when the case should have been dismissed, and with the acceptance of the appeal appeal of the defendant’s attorney, the decision had to be overturned in the interest of the defendant.
CONCLUSION: With the acceptance of the appeal objection of the defendant’s attorney for the reasons described above, it was unanimously decided on 23.12.2014 to OVERTURN the decision in the interest of the defendant, to return the appeal advance fee paid to the appellant if requested.
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