Sometimes a person puts a date on a check that is after the date on which they are writing the check. They may innocently expect that the recipient of the check will not cash the check until a later date if payment is not due until then. If monthly payments for rent or utilities are billed on a certain date each month, this may be a reasonable expectation. Or a consumer may have reached an agreement with a vendor that payment will be postponed until a certain date, when they will have sufficient funds in their account to cover the amount of the check. There is nothing illegal about these arrangements. On the other hand, check fraud can occur when someone postdates a check with the intent to defraud someone else of goods or services.
If a postdated check bounces at the future date agreed by the parties, this may suggest that the person who wrote the check had the intent to defraud the other party. However, the defendant must have had the intent to defraud when they wrote the check. The prosecution cannot get a conviction if the check bounced because an unexpected event prevented the defendant from putting funds into the account as planned. This is because they intended to make the payment as required when they wrote the check.
Proving Intent in Check Fraud Cases
Often, a prosecutor will have direct evidence showing the defendant’s intent. Perhaps the defendant told someone else about their plan to defraud the victim, and that person can testify as a witness at trial. If no direct evidence is available, the prosecutor will need to resort to circumstantial evidence. The laws in many states provide a presumption of intent if the prosecutor can satisfy certain conditions. For example, showing that the defendant did not have an account with the bank at issue when the check was written may create a presumption of intent. In other cases, intent may be presumed if the defendant failed to respond within a certain time to a written notice that the check had bounced.
Penalties for Check Fraud
There may be both civil and criminal fines for committing check fraud. In addition, a judge typically will require a defendant to pay restitution to the victim, which will compensate them for the value of the goods or services purchased with the worthless check. A defendant also may receive a certain term of probation. This means that they may need to complete conditions imposed by the judge, while also refraining from writing more worthless checks or committing other crimes. In some unusual cases, a defendant may be sentenced to a short term of imprisonment. This probably will not last for more than 12 to 18 months and likely will be much shorter.
Check fraud most often is charged as a misdemeanor rather than a felony. The level of the charge will depend on the value of the check or checks. (If a defendant wrote multiple worthless checks, the value will be determined by the total value of the checks.) The fine may be larger than the value of the check or checks.