مشكلة تجريم شيكات الضمان في القانون العماني

Abstract EN

This study examines the problematic issue of criminalising postdated cheques, which are intended not to be payable on demand but on a stated date.

This consideration of the criminalisation question arises mainly from the situation in Oman, where cheques have recently been increasingly used for financial security or guarantee purposes, contrary to its legal function as an instrument of payment, that has triggered a debatable question as to whether or not the drawer of a security cheque has committed a crime when the postdated cheque is returned unpaid.

The Omani Supreme Court has grappled with this question, but with no unified answer, mainly because of two issues.

The first one definitional clarity relates to whether a postdated check falls within the criminal meaning of cheque.

The second is structural results from the lacking of mens-rea or the difficulty of establishing that the postdated check was issued in bad faith.

As both issues remain unresolved, the claim that a cheque was issued for security, not for payment has become the most common defence raised in the high volume of cheque cases before criminal courts, despite the promulgation of the new Penal Code (RD.

7/2018).

Arguably, there is no compelling legal reason why such cheques should not be subjected to the Penal Code.

In effect, the courts' reluctance to regard unpaid postdated cheques as punishable cheques would lead to increasing the number of bounced cheques in the Omani market.