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Criminal Jury Instructions

Criminal Jury Instructions Home

10.2-1  Issuing or Passing a Bad Check -- § 53a-128

Revised to December 1, 2007 (modified June 13, 2008)

The defendant is charged [in count __] with (issuing / passing) a bad check.  The statute defining this offense reads in pertinent part as follows:

a person is guilty of issuing a bad check when <insert appropriate subsection:>

  • § 53a-128 (a) (1):  as a (drawer / representative drawer), (he/she) issues a check knowing that ((he/she) / (his/her) principal) does not then have sufficient funds with the drawee to cover it; and (he/she) intends or believes at the time of issuance that payment will be refused by the drawee upon presentation, and payment is refused by the drawee upon presentation.

  • § 53a-128 (a) (2):  (he/she) passes a check knowing that the drawer thereof does not then have sufficient funds with the drawee to cover it, and (he/she) intends or believes at the time the check is passed that payment will be refused by the drawee upon presentation, and payment is refused by the drawee upon presentation.

For you to find the defendant guilty of this charge, the state must prove the following elements beyond a reasonable doubt:

Element 1 - Issued / passed a check
The first element is that the defendant (issued / passed) a check.  <Insert appropriate definitions:>

  • "Check" means any check, draft or similar sight order for the payment of money that is not postdated with respect to the time of issuance.

  • A person "issues" a check when, as drawer or representative drawer thereof, (he/she) delivers it or causes it to be delivered to a person who thereby acquires a right against the drawer with respect to such check.  One who draws a check with intent that it be so delivered is deemed to have issued it if the delivery occurs.

  • A person "passes" a check when, being a payee, holder or bearer of a check that previously has been or purports to have been drawn and issued by another, (he/she) delivers it, for a purpose other than collection, to a third person who thereby acquires a right with respect thereto.

  • "Drawer" of a check means a person whose name appears thereon as the primary obligor, whether the actual signature be that of (himself/herself) or of a person purportedly authorized to draw the check in (his/her) behalf.

  • "Representative drawer" means a person who signs a check as drawer in a representative capacity or as agent of the person whose name appears thereon as the principal drawer or obligor.

Element 2 - Knowledge of insufficient funds
The second element is that the defendant knew that there were insufficient funds to cover that check.  <Insert appropriate definitions:>

  • "Funds" means money or credit.

  • A drawer has "insufficient funds" with a drawee to cover a check when (he/she) has no funds or account whatever, or funds in an amount less than that of the check; and a check dishonored for "no account" shall also be deemed to have been dishonored for "insufficient funds."

  • "Drawee" means a person who must make payment on the check.  In most cases, this will be a bank.

Element 3 - Intent
The third element is that (he/she) intended or believed that payment on the check would be refused by the drawee upon presentation.

<Insert if the presumption in § 53a-128 (b) has been raised:>

[The law presumes that an issuer of a check, other than a postdated check, knew that the check would not be paid because of an insufficiency of funds where either: (1) the issuer has no account with the drawee at the time the check or order was issued, or (2) where the check is presented to the drawee for payment within thirty days of its issuance and the drawee refuses to make payment for reason of insufficient funds, notifies the drawer of such refusal and the drawer thereafter fails to make good on payment within eight days after receiving notice of such refusal.  This means that you may find, but do not have to, that the defendant knew the check would be refused due to insufficient funds if you find that the defendant did not have an account with the bank at the time the check was issued, or the bank had notified the defendant that it had refused payment and the defendant did not make good on the payment within eight days.]

Element 4 - Refusal of check by drawee
The third element is that payment was refused by the drawee upon presentation.

Conclusion

In summary, the state must prove beyond a reasonable doubt that the defendant 1) (issued / passed) a check, 2) (he/she) knew that there were insufficient funds to cover the check, 3) (he/she) intended or believed that payment on the check would be refused by the drawee, and 4) the check was refused by the drawee.

If you unanimously find that the state has proved beyond a reasonable doubt each of the elements of the crime of (issuing / passing) a bad check, then you shall find the defendant guilty.  On the other hand, if you unanimously find that the state has failed to prove beyond a reasonable doubt any of the elements, you shall then find the defendant not guilty.

Commentary

Sentence Enhancer
Section 53a-128 (c) provides for graduated penalties based on the amount of the check:

            > $1,000: D felony
            > $500 and < $1,000: A misdemeanor
            > $250 and < $500: B misdemeanor
            < $250: C misdemeanor

The jury must find this fact proved beyond a reasonable doubt.  See Sentence Enhancers, Instruction 2.11-4.
 


 

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