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Bounced cheque case

Bounced cheque case

Magnificent Women Series Q&A: Norma Mngoma

Question: A month ago, Dubai Supreme Court sentenced my friend to one year in jail in a bounced cheque case. The court order was final. My question is: According to UAE criminal law, 1) Do we have any chance to have the jail sentence waived off? 2) In case the aggrieved party agrees to drop the case, can a pardon be worked out? Please advise.

Answer: According to Article 20 of the Code of Criminal Procedure, a criminal case will be considered as terminated under the following circumstances:

— The death of the accused.

— Issuance of final judgement.

— Waiving of the legal suit by the one who has the right to do it.

— A comprehensive pardon.

— Repealing the law that punishes the act.

— A criminal case shall expire after the lapse of 20 years in the articles of felonies for which he or she shall be sentenced to death or imprisonment; by the lapse of ten years in the materials of other felonies; by the passage of three years in the articles of misdemeanour; and by the lapse of one year in the material of the offence — all from the day of the crime. The period of time for the criminal case to expire shall not be suspended for any reason.

As for bounced cheques, Article 401 states the ways in which a criminal case is ended in the third paragraph of Federal Law No 34 of 2005, amending some of the provisions of the Federal Penal Code No 3 of 1987, that states: ‘The criminal case in the crime of giving a cheque in bad faith will expire by payment, or by the victim’s waiver after the crime occurred, and before a final ruling is reached. If the payment or waiver is done after a final judgement, then the execution of the judgement shall stop immediately.’

This was implemented by the Federal Supreme Court in Dubai on May 1, 2017, stating that: The criminal lawsuit will lapse if payment or waiver occurs after the crime has occurred and before a final ruling has been reached. It is mandatory to rule the end of the criminal case in the crime of bounced cheque by waving off or making a payment before a final ruling is issued in the case, which is what we achieve by the most appropriate law for the accused in the provision of Article 13/1 of the Federal Penal Code No 3 of 1987.

The Federal Supreme Court also confirmed that the criminal case for the crime of giving a cheque without a balance does not end except by full payment of the cheque amount or wavier by the victim. But, if the payment is incomplete, there is no place for the judiciary to close the case.

This came through in the merits of a case that was examined by the federal Supreme Court, in which the court refused an appeal in the crime of issuing a cheque without sufficient balance and the Appeals Court sentenced the accused to one month in prison. Public Prosecution referred the accused to criminal trial, because he had issued, in bad faith, to the beneficiary a cheque for Dh127,400 that was not matched by sufficient withdrawable balance. A first-degree court sentenced the accused to one month in prison and the sentence was upheld by the Court of Appeal. The accused did not accept this ruling and again appealed against it.

Payment of the cheque amount by the accused or waiver by the victim and stopping the execution of the court order or ending the case should be done through Public Prosecution. The Supreme Court confirmed this in Dubai on February 24, 2014, when the appellant submitted a document of assignment in the case documented by Dubai Notary Public dated 2/2/2014 and issued by the complainant. This was submitted to Public Prosecution with a request for exemption from punishment Then, pursuant with Article 401, the third paragraph of the aforementioned law, the court ordered termination of the criminal lawsuit.

 

Dismissal of a company manager

 

Question: According to UAE Commercial Law, what is the procedure to dismiss the manager of an LLC company? Does it make any difference if the manager is a partner in the company? Does one need to appoint a new manager immediately? Please advise.

Answer: Article 85 on ‘Vacancy of the office of the manager’ states the following conditions:

1. Unless the Memorandum of Association of the company or the contract appointing the manager provides otherwise, the manager shall be dismissed by a decision of the General Assembly, irrespective of whether the manager is a partner or not. The court may dismiss the manager at the request made by one or more of the partners in the company, if the court deems that such dismissal is justified.

2. The manager may file a written resignation to the General Assembly, with a copy to the competent authority. The General Assembly shall decide within 30 days from the date of submission of his or her resignation. Otherwise, his or her resignation shall be effective upon the expiry of this period — unless the Memorandum of Association of the company or the contract appointing the manager states otherwise.

The company shall notify the competent authority about the termination of services of the manager within no later than 30 days from the date of termination of service. The company is free to appoint another manager during such period.