State v. Blasi

312 A.2d 135, 64 N.J. 51, 1973 N.J. LEXIS 143

Opinions

Pee Ctjeiam.

Defendant was convicted on two counts of overdrawing checking accounts, in violation of N. J. S. A. 2A:111—15. One of the counts was based on the delivery by defendant of a check in partial payment of a prior debt owed by a corporation in which he had an interest. The Appellate Division reversed the conviction on that count on the ground that, although there was ample evidence of the statutory requirement of knowledge by defendant that there were insufficient funds in his bank account to cover the check, there was no evidence of intent by defendant to defraud the payee of the check. 125 N. J. Super. 543 (1973). The Appellate Division relied on State v. Turetsky, 78 N. J. Super. 203 (App. Div. 1963). The court sustained the conviction on the other count. On cross-petitions for certification we granted that of the State and denied that of the defendant. 63 N. J. 499 (1973).

We 'affirm essentially for the reasons stated in the Appellate Division’s opinion, and add the following comment.

This court has never heretofore dealt with the question whether fraudulent intent may be inferred by a jury where a known worthless check is uttered solely as purported payment on account or in discharge of an antecedent debt, with no present benefit from payee to negotiator passing or contemplated. State v. Turetsky, supra, which relied on the prior decision of State v. Riccardo, 32 N. J. Super. 89 (App. Div. 1954), held in the negative on that proposition. We are askéd by the State to overrule those decisions on the reasoning in cases like State v. Bradley, 190 Wash. 538, 69 P. 2d 819, 823 (Sup. Ct. 1937), that fraudulent intent is inferable in a past-consideration case on the theory that “the delivery of the cheek might maintain the drawer’s'credit for a limited period of time” or “lead the payee to believe that his claim had in fact been paid * * .We decline to do so. As stated in Turetsky and Biccardo, both supra, fraudulent intent is inferable where the bad check is given to obtain an extension of credit or relief from threatened legal action although tendered as payment of an antecedent debt. 78 N. J. Super, at 213; 32 N. J. Super, at 94. But the evidence here does not permit any such finding. Considera-' tions such as those mentioned in the Bradley case, supra, seem to us too insubstantial, standing alone, to justify a finding of the fraudulent intent required by the statute. They are inherent in almost any bad check transaction, and, if deemed sufficient for a conviction, would in effect write the fraudulent intent requisite out of the statute.

Affirmed.