Definitions

bad cheque

Cheque fraud

Cheque (or check) fraud refers to a category of criminal acts that involve making the unlawful use of cheques in order to illegally acquire or borrow funds that do not exist within the account balance or account-holder's legal ownership. Most methods involve taking advantage of the float (the time between the negotiation of the cheque and its clearance at the cheque-writer's bank) to draw out these funds. Such acts are often colloquially referred to as cheque kiting or paper hanging

The most notorious "bad cheque artist" of the 20th century, Frank Abagnale, devised a scheme to put incorrect MICR numbers at the bottom of the cheque he wrote, so that they would be routed to the incorrect Federal Reserve Bank for clearing. This allowed him to work longer in one area before his criminal activity was detected.

Types of cheque fraud

There are various methods in which cheque kiting and paper hanging have been widely committed. These include:

Illegal borrowing

Some forms of cheque fraud involve the use of a second bank or a third party, usually a place of retail, in order to delay the absence of funds in a transactional account on the day the cheque is due to clear at the bank, essentially robbing Peter to pay Paul. Such acts are frequently committed by broke or temporarily unemployed individuals or small businesses seeking emergency loans, by start-up businesses or other struggling businesses seeking interest-free financing while intending to make good on their balances, or by pathological gamblers who have the expectation of depositing funds upon winning. It has also been used by those who have some genuine funds in interest-bearing accounts, but who artificially inflate their balances in order to increase the interest paid by their banks.

Circular kiting

Circular kiting describes forms of kiting in which one or more additional banks serve as the location of float, and involve the use of multiple accounts at different banks. In its simplest form, the kiter, who has two or more accounts of his/her own at different banks, writes a cheque on day one to himself from Bank A to Bank B (this cheque is referred to as the kite), so funds become available that day at Bank B sufficient for all cheques due to clear. On the following business day, the kiter writes a cheque on his Bank B account to himself and deposits it into his account at Bank A to provide artificial funds allowing the cheque he wrote a day earlier to clear. This cycle repeats until the offender is caught, or until the offender deposits genuine funds, thereby eliminating the need to kite, and often going unnoticed.

Complex versions of this scheme have occurred involving two separate people, each with an account at a different bank, constantly writing cheque to one another, or a group of individuals writing cheque in a circular fashion, thereby making detection more difficult. Some kiting rings involve offenders posing as large businesses, thereby masking their activity as normal business transactions and making banks inclined to waive the limit of funds made available.

Retail-based kiting

Retail-based kiting involves the use of a party other than a bank to unknowingly provide temporary funds to an account holder lacking funds needed for cheque to clear. In these cases, the kiter writes cheque(s) to one or more places of retail (usually supermarket(s)) that offer cash back in addition to the amount of a purchase as a courtesy to their patrons. Following the transaction, the kiter deposits the cash received back into his/her bank on the same day in order to provide sufficient funds for other cheque to clear, while the cheque written that day will clear one or more business days later. This action is repeated as necessary until legitimate funds can be deposited into the account.

Another version of this scheme involves purchasing an item from a place of retail with a cheque, and returning it promptly for a cash refund, followed by depositing that cash into the transactional account. This is more difficult these days, as more places of retail will delay a refund on purchases made by cheque.

Retail kiting is more common in suburban areas, where multiple supermarket chains exist within close proximity. While it is more difficult to detect and prosecute, it involves lesser amounts of cash than circular kiting, and therefore is a lower threat. However, a 1999 episode of the CBS program Real TV showed video surveillance of a man purchasing a single item with a cheque at a supermarket, obtaining $50 cash back, the maximum allowed by the store, and depositing the cash into his account at a bank branch within the store in order to prevent other cheque from bouncing. According to the show, a suspicious employee reported his behavior to police, and the video was used in his prosecution.

Embezzlement

While some cheque kiters fully intend to bring their accounts into good standing, others, often known as paper hangers, have pure fraud in mind, attempting to "take the money and run."

Bad cheque writing

A cheque is written to a merchant or other recipient, hoping the recipient will not suspect that the cheque will not clear. The buyer will then take possession of the cash, goods, or services purchased with the cheque, and will hope the recipient will not take action or will do so in vain.

Abandonment

The paper hanger deposits a cheque one time that s/he knows is bad or fictitious into his/her account. When the bank considers the funds available (usually on the next business day), but before the bank is informed the cheque is bad, the paper hanger then withdraws the funds in cash. The offender knows the cheque will bounce, and the resulting account will be in the hole, but the offender will abandon the account and take the cash.

Such crimes are often used by petty criminals to obtain funds through a quick embezzlement, and are frequently conducted using a fictitious or stolen identity in order to hide that of the real offender.

This form of fraud is the basis for the Nigerian cheque scam and other similar schemes; however, in these cases, the victim will be the one accused of committing such crimes, and will be left to prove his/her innocence.

Forgery

Sometimes, forgery is the method of choice in defrauding a bank. One form of forgery involves the use of a victim's legitimate cheques, that have either been altogether stolen and then cashed, or altering a cheque that has been legitimately written to the perpetrator, but adding words and/or digits in order to inflate the amount.

Other cases involved the use of completely fake cheques, as in the case of Frank Abagnale. The perpetrator passes or attempts to pass a cheque that has been manufactured by him/herself, but that represents a non-existent account.

Unusual cases

Some more unusual methods of cheque fraud have been committed at various times.

For example, disappearing ink has been used to commit a rare form of fraud. In such cases, the perpetrator chemically alters the substance that so it disappears in several hours or days rather than a few minutes. S/he then writes a cheque to him/herself (or a partner in the scheme) using Bank A's account for a specified amount, say, $5100. In this amount, the digit 5 is written with the disappearing ink, and the remainder of the amount in regular ink. The cheque will be deposited in Bank B's account, where $5100 will be added, but by the time it reaches Bank A for clearance, the cheque will then read $100, and only $100 will be debited from that account.

"Cheque washing" involves the theft of a cheque in transit between the writer and recipient, followed by the use of chemicals to remove the ink representing all parts other than the signature The perpetrator then fills in the blanks to his/her advantage.

Combating cheque fraud

In most jurisdictions, passing a cheque for an amount of money the writer knows is not in the account at the time of negotiation (or available for overdraft protection) is usually considered a violation of criminal law (see National Check Fraud Center for a description of laws in all 50 U.S. states). However, the general practice followed by banks has been to refrain from prosecuting cheque writers if the cheque reaches the bank after sufficient funds have been deposited, thereby allowing it to clear. But the account holder is normally held fully liable for all bank penalties, civil penalties, and criminal charges allowable by law in the event the cheque does not clear the bank.

Only when the successful clearance of a cheque is due to a kiting scheme does the bank traditionally take action. Banks have always had various methods of detecting kiting schemes and stopping them in the act. Computer systems in place will alert bank officials when a customer engages in various suspicious activities, including frequently depositing cheques bearing the same, large monthly total deposits accompanied by near-zero average daily balances, or avoidance of tellers by frequent use of ATMs for deposits.

New technology in place today may make most forms of cheque kiting and paper hanging a thing of the past. As new software rapidly catches illegal activity at the teller/branch level instead of waiting for the nightly runs to the back office, schemes are not only easier to detect, but may be prevented by tellers who deny customers illegal transactions before they are even started.

Before the passage of the Check Clearing for the 21st Century Act, when cheques could take 3 or more days to clear, playing the float was fairly common practice in otherwise-honest individuals who encountered emergencies right before payday.

Circular and abandonment frauds are gradually being eliminated as cheques will clear in Bank B the same day they are deposited into Bank A, giving no time at all for non-existent funds to become available for withdrawal. With image-sharing technology, the funds that temporarily become available in Bank A's account are wiped out the same day.

While there may still be some room for retail kiting, security measures taken by retail chains are helping reduce such incidents. Increasingly, more chains are limiting the amount of cash back received, the number of times cash back can be offered in a week or a given period of time, and obtaining transactional account balances before offering cash back, thereby denying it to those with low balances. For example, Wal-Mart's policy is to determine account balances of those obtaining cash back, and some Safeway locations will not offer cash back on any accounts with balances under $250, even when funds are sufficient to cover the amount on the cheque. Customers who are noted to obtain cash back frequently are also investigated by the corporation to observe patterns.

Some businesses will also use the cheque strictly as an informational device to automatically debit funds from the account, and will return the item to the customer thereafter. However, in the United States this is done thru the Automated Clearing House (ACH); though faster than traditional cheque clearing, contrary to popular belief the ACH is not instantaneous. Though this practice reduces the room for kiting (by reducing float), it does not always eliminate it.

Laws about cheque kiting

Cheque kiting is illegal in most countries. In the United States, the banking industry is heavily regulated and even insured by the U.S. government. According to the United States Department of Justice, cheque kiting can be prosecuted under several existing laws including those against bank fraud misapplication or required entries (). It can draw a fine of up to $1,000,000.00, imprisonment for up to 30 years, or both, and many first-time offenders with no criminal background have received stiff sentences. In addition to the federal remedies, state law often provides for alternate civil and criminal consequences.

Although the United States prosecutes some paper hangers under federal law, most uttering of a bad cheque in the United States is prosecuted as a state offense.

Laws will vary from state to state, but in Ohio, Revised Code 2913.11(2)(B) says "No person, with purpose to defraud, shall issue or transfer or cause to be issued or transferred a check or other negotiable instrument, knowing that it will be dishonored or knowing that a person has ordered or will order stop payment on the check or other negotiable instrument". Ordinarily, passing a bad cheque in Ohio is a misdemeanor, but large cheques or multiple cheques within a six-month period aggregating to large amounts make it a 5th-, 4th-, or 3rd-degree felony, depending on the amounts involved.

Although not in Ohio, some states protect the careless with regard to the "with purpose to defraud" provision. Indiana's statute IC 35-43-5-5 holds that it is a defense if the person issuing the cheque "pays the payee or holder the amount due, together with protest fees and any service fee or charge, which may not exceed the greater of twenty-seven dollars and fifty cents ($27.50) or five percent (5%) (but not more than two hundred fifty dollars ($250)) of the amount due, that may be charged by the payee or holder, within ten (10) days after the date of mailing by the payee or holder of notice to the person that the check, draft, or order has not been paid by the credit institution." Furthermore, it is not a crime if "the payee or holder knows that the person has insufficient funds to ensure payment or that the check, draft, or order is postdated", or "insufficiency of funds or credit results from an adjustment to the person's account by the credit institution without notice to the person.

References

See also

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