Check Fraud Overview

  • Check fraud is the offense of intentionally or knowingly writing or passing a check for which there are no funds, with the purpose of defrauding the payee.
  • Check fraud may take various forms, as described below.

Forms of Check Fraud

  • Insufficient funds bad check: a check that is given for payment of goods, services or cash for which there are no funds in the bank account.
  • Forged checks: when a check is passed in which the payee’s signature is forged (i.e., fraudulently signed).
  • Passing counterfeit checks: when a check is passed that is determined to not be genuine, a counterfeit check has been used as a means to fraudulently obtain goods, services or cash.
  • Check kiting: the individual deposits a check from one bank account into another, although the funds do not exist. This is said to be taking advantage of the float time.

Drawer and Payee:

  • The drawer is the person who writes the check.
  • The payee is the person or business to whom the check is issued.


Under California Penal Code 476, anyone who “…makes, passes, utters or publishes, with intent to defraud any other person…or who has in his or her possession, with like intent to utter, pass, or publish, any fictitious or altered bill, note, or check…or other instrument in writing for the payment of money or property of any real or fictitious financial institution… is guilty of forgery.”

California Check Fraud Penalties

Felony check fraud – up to 3 years incarceration.

  • Misdemeanor check fraud – up to 1 year in jail.
  • Under the California Penal Code, Section 470, forgery is known as a wobbler, which means that the prosecution may prosecute the offense as either a felony or as a misdemeanor

Passing Bad Checks and Intent, Defenses

  • If a person passes a check for which there are insufficient funds, but they genuinely believed there were funds in the account, this may be used as a defense against prosecution and conviction.
  • If the person passes a check and states to the payee that there presently are not sufficient funds in the account, and/or informs the payee to hold the check until the date that is posted on the check (post-dated), this may be used as a defense against passing a bad check.
  • If the person is actually not the individual who passed the check, (mistaken identity) this is a defense.

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Michael S. Berg
Attorney At Law