Criminal Liability for Dishonoured Cheques under Kuwaiti Law: Unity of Criminal Acts, Res Judicata and the Limits of Prosecution

10 min 55 sec April 1, 2026 (Edited) الترجمة العربية

Written by

Mohamed Abouakl

Associate

m.abouakl@tamimi.com

Zane Anani

z.anani@tamimi.com View LinkedIn Profile

An Analysis of the Interplay between the Penal Code, the Commercial Code, the Code of Criminal Procedure, and the Jurisprudence of the Court of Cassation

Introduction

The cheque has long occupied a central position in commercial life as an instrument designed to facilitate the swift and secure transfer of funds. Under Kuwaiti law, a cheque is defined as a written order by the account holder (the “Drawer”) instructing a financial institution (the “Drawee”, invariably a bank pursuant to Article 513 of the Commercial Code, Law No. 68 of 1980 as amended in 2024) to pay a specified sum of money from the Drawer’s account to a designated recipient (the “Beneficiary”) upon demand. A cheque must contain the mandatory particulars prescribed by Article 511 of the Commercial Code, including the word “cheque” in the body of the instrument, the date and place of issuance, the name of the Drawee, an unconditional order to pay a certain sum, and the Drawer’s signature. In essence, a cheque serves as a written order for the immediate transfer of funds and operates as a substitute for cash in commercial transactions. Crucially, a cheque is not a security or credit instrument; rather, it is a method of payment payable on sight. Article 532 of the Commercial Code unequivocally provides that a cheque is payable on sight, and any contrary provision shall be null and void. Where a cheque is presented for payment before the date stated therein, it must be paid on the date of presentment.

Since cheques are legally and commercially conceived as a direct method of discharging an existing debt — not as collateral or a deferred credit arrangement — their delivery is treated in commercial practice as fulfilment of a payment obligation. Article 520 of the Commercial Code reinforces this principle by providing that a debt is not renewed by the creditor’s acceptance to receive a cheque in settlement thereof; the principal sum of the debt, together with all its securities, continues to be payable until the value of the cheque has been paid. Accordingly, the failure of a cheque to be honoured upon demand warrants an exceptional degree of legal protection, triggering not only civil liability but also criminal sanctions. This legislative policy is intended to safeguard public confidence in cheques as reliable substitutes for money and to preserve the integrity of commercial circulation.

Within this framework, significant questions arise concerning the proper scope of criminal prosecution when a Drawer issues multiple cheques to the same Beneficiary in respect of a single transaction. This article examines the statutory criminal and civil protections afforded to cheques, the exemptions available to the accused, the doctrine of unity of criminal acts under Article 84 of the Penal Code (Law No. 16 of 1960 as amended in 2020), and the principle of res judicata (double jeopardy) enshrined in Article 184 of the Code of Criminal Procedure (Law No. 17 of 1960), as interpreted by the Kuwaiti Court of Cassation.

I. Statutory Criminal and Civil Protection of Cheques

In order to safeguard public and commercial confidence in cheques as instruments of payment, the Kuwaiti legislature has imposed stringent criminal sanctions. Article 237(1) of the Penal Code (as amended) provides for imprisonment for a term not exceeding three years and/or a fine not exceeding five hundred Kuwaiti Dinars in the following instances:

1. If the Drawer issues a cheque that has no current and cashable payment consideration (Article 237(1)(1));
2. If the Drawer withdraws from his account, after issuing the cheque, all or some of the funds therein, such that the remaining balance is insufficient to cover the value of the cheque (Article 237(1)(2));
3. If the Drawer instructs the Drawee not to cash the cheque (Article 237(1)(3));
4. If the Drawer intentionally prepares or signs the cheque in such a manner as to prevent it from being cashed (Article 237(1)(4)); or
5. If the Drawer endorses or delivers a bearer cheque to another person, knowing that there are insufficient funds to cover the full amount or that the cheque cannot be honoured (Article 237(1)(5)).

It is important to note that, pursuant to Article 237 of the Penal Code, the criminal protection of the cheque does not commence except from the date indicated therein. Furthermore, Article 238 of the Penal Code establishes a procedural prerequisite: criminal proceedings may not be instituted unless the Beneficiary files a complaint with the Public Prosecution within four months of the date of issue stated on the cheque (if drawn inside Kuwait), or within six months (if drawn outside Kuwait and payable within Kuwait). The Public Prosecution has sole jurisdiction to investigate, handle, and prosecute all cheque offences under Article 239 of the Penal Code. To reinforce deterrence, the legislature has further provided for aggravated sanctions in cases of recidivism. Pursuant to Article 86 of the Penal Code, where the accused has previously been convicted of a cheque offence and commits or attempts to commit another such offence within five years, the court may exceed the prescribed maximum penalty, provided that the enhanced sentence does not exceed one and a half times the original maximum.

The legislature did not confine itself to criminal sanctions alone but added a complementary layer of civil protection. Article 554 of the Commercial Code expressly entitles the Beneficiary who has claimed the civil right in criminal proceedings to apply to the criminal court for a judgment ordering payment of a sum equal to the unpaid portion of the cheque’s value, together with legal interest running from the date of presentment for payment, and complementary damages where relevant. This right to join a civil claim to the criminal action before the criminal court directly provides the Beneficiary with an efficient remedy that obviates the need for separate civil proceedings. This dual regime of criminal and civil protection underscores the legislature’s determination to ensure that the cheque retains its status as a trustworthy instrument of payment.

II. Exemption from Punishment and Commercial Considerations

Although the legislature has adopted a strict stance in criminalising the issuance of dishonoured cheques, it has not lost sight of the commercial imperative to preserve the smooth functioning of the market. Recognising that the ultimate objective of the criminal sanction is to encourage payment rather than merely to punish, Article 237 of the Penal Code provides for exemption from punishment in the following circumstances:

1. Where the Drawer pays the value of the cheque during the pendency of the criminal action and before a final judgment is entered, the court may exempt the Drawer from punishment; and
2. Where the Drawer pays the value of the cheque after a final judgment is entered, the court that rendered the judgment may, upon the request of the convicted person or his representative, order that the sentence imposed be stayed (probation). In such case, the penalty is deemed to have been executed, and the request must be submitted within three (3) days from the date of submission.

The law thus adopts an approach that strikes a balance between, on the one hand, deterrence and the maintenance of public confidence in cheques, and on the other, the stability of the commercial market and the practical interest in encouraging voluntary settlement of obligations.

III. Multiple Cheques for Different Transactions: Consecutive Sentences

Where a Drawer issues several cheques to different Beneficiaries in respect of multiple and unrelated transactions, each dishonoured cheque constitutes a separate and distinct criminal act. In such circumstances, the penalties imposed shall be multiplied in accordance with Article 84 of the Penal Code, which provides that where a person commits a series of offences other than those inextricably interrelated for a single purpose, the penalties shall be served consecutively. The conditions for the application of the doctrine of unity of criminal acts — discussed in detail in the following section — are not satisfied, and accordingly, the convicted Drawer shall serve consecutive sentences for each offence. This position was implicitly affirmed by the Court of Cassation in Judgment No. 1118 of 2022 (hearing dated 20 March 2023), where the court upheld the conviction of the defendant for issuing a cheque without sufficient funds, rejecting his defence that the cheque was part of a single transaction underlying earlier prosecutions, on the basis that the evidence established that the cheques were issued in respect of different and distinct transactions.

IV. Unity of Criminal Acts and the Principle of Res Judicata (Double Jeopardy)

The doctrine of unity of criminal acts under Kuwaiti law operates as a significant limitation on the prosecution’s ability to multiply charges arising from what is, in substance, a single course of criminal conduct. Article 84(1) of the Penal Code provides that where a person commits a series of offences for a single purpose, such that they are inextricably interrelated with each other, only the penalty prescribed for the most severe offence — or for one of them if the penalties are equivalent — shall be imposed. Applying this principle to cheque offences, the Court of Cassation has consistently held that the issuance of several cheques — whether all or only some are dishonoured — to the same Beneficiary, on the same day, and in respect of the same transaction, constitutes an indivisible criminal activity, irrespective of the maturity date stated on each cheque or the face value thereof. This was expressly affirmed in Judgment No. 214 of 2000 (hearing dated 24 April 2001) and reaffirmed in Judgment No. 131 of 2002 (hearing dated 29 April 2003).

The conditions required for the application of this doctrine must be carefully delineated. Three cumulative conditions must be satisfied: (a) unity of Beneficiary — all the cheques must be issued in favour of the same person; (b) unity of issuance date — all the cheques must be drawn on the same day; and (c) unity of transaction — all the cheques must arise from a single underlying transaction. Critically, neither the dishonour of all cheques, nor the identity of maturity dates, nor the equivalence of face values is a prerequisite. This scenario is frequently encountered in practice, particularly in real estate contracts involving instalment payment plans and personal loan agreements, where the seller or lender requires the buyer or borrower to issue a series of post-dated cheques covering the entire price or loan amount. In such arrangements, the parties often incorporate a clause in the contract specifying each cheque’s number, face value, and maturity date, with the aim of securing maximum criminal protection on the assumption that each cheque will constitute a separate criminal act carrying consecutive penalties. However, where the three conditions of unity are met, this commercial strategy is defeated by operation of law: all such cheques are deemed to constitute a single indivisible criminal act.

The consequence of such unity is profound and directly engages the principle of res judicata enshrined in Article 184 of the Code of Criminal Procedure (Law No. 17 of 1960). That provision states that where an accused person is acquitted or convicted pursuant to a judgment on the merits, no other criminal action may be instituted against that person in respect of the same acts and facts, even if a different characterisation is assigned to those acts. Accordingly, once one of the cheques in the series is prosecuted and a final judgment — whether of conviction or acquittal — is entered, the prosecution of all remaining dishonoured cheques from the same series is barred by res judicata. This principle was applied by the Court of Cassation in Judgment No. 214 of 2000, where the court overturned the lower court’s refusal to recognise the res judicata defence. The court found that three cheques had been issued on the same day, to the same Beneficiary, in respect of a single vehicle sale transaction — two representing the purchase price and a third as security for timely payment — and that the prosecution for the latter two cheques was barred by the final judgment already entered in respect of the first. Similarly, in Judgment No. 131 of 2002, the Court of Cassation upheld the appellate court’s dismissal of a prosecution on res judicata grounds, confirming that the cheques at issue were part of an indivisible criminal activity arising from a single transaction.

V. Conclusion

The Kuwaiti legislative framework governing dishonoured cheques reflects a carefully calibrated balance between robust criminal deterrence and pragmatic commercial considerations. Article 237 of the Penal Code criminalises the issuance of cheques without sufficient funds, while simultaneously providing avenues for exemption where the Drawer makes payment before or after a final judgment. The dual mechanism of criminal and civil liability — the latter reinforced by Article 554 of the Commercial Code — ensures comprehensive protection for Beneficiaries. However, the doctrine of unity of criminal acts under Article 84 of the Penal Code, as interpreted by the Court of Cassation in its established jurisprudence, imposes an important limitation: where multiple cheques are issued to the same Beneficiary, on the same day, and in respect of a single transaction, the totality of those cheques constitutes a single indivisible criminal act. The entry of a final judgment — whether of conviction or acquittal — in respect of any one of those cheques extinguishes the right to prosecute the remainder, by virtue of the principle of res judicata under Article 184 of the Code of Criminal Procedure. This principle, consistently applied by the Court of Cassation in Judgments No. 214 of 2000, No. 131 of 2002, and No. 1118 of 2022, serves as an essential safeguard against duplicative prosecution, while preserving the integrity of the criminal justice system and the commercial function of cheques under Kuwaiti law.