APPEAL from the Circuit Court of Tazewell County; the Hon.
CARL DAVIES, Judge, presiding.
MR. JUSTICE DIXON DELIVERED THE OPINION OF THE COURT:
This is a criminal prosecution arising from two counts of deceptive practice. The defendant, John Cundiff, delivered two checks that were not honored due to insufficient funds. Defendant was found guilty by a jury and was sentenced by the Circuit Court of Tazewell County to one year in Vandalia on Count I and given three years probation on Count II. Defendant has appealed contending basically that he could not be guilty of deceptive practice on the facts adduced on the trial of the cases.
The defendant owned a grain storage business in Deer Creek, Tazewell County, Illinois. The business consisted of storing grain at his elevator warehouse, buying grain from farmers and reselling it to terminal elevators.
A warehouse inspector from the Illinois Department of Agriculture began to inspect the defendant's warehouse on April 6. The inspector found a 12,027 bushel shortage of corn and ordered that no grain be shipped from the warehouse. Both of defendant's checks at issue were written thereafter.
Warren Kaiser, the complainant of Count I had stored grain in defendant's warehouse. On March 28, 1972 he sold the grain to defendant. He testified that, "Well, when I sold it he asked me for about 10 day's time so he could move out some grain in preparation for the settlement which he asked me to wait until April 10th to settle for the grain, which I agreed to do." On April 6, defendant gave Kaiser a check and "asked me to hold this check until the 10th of April which I did."
On April 10, Kaiser deposited the check for collection and it was returned marked, "insufficient funds". He was never paid. Defendant's bank records showed a balance on April 6 of $169.74, on April 7 of $2103.91 and on April 10, 1972 of $962.73.
The defendant testified in his own behalf and offered reputation witnesses. As part of rebuttal, however, testimony was introduced that Warehouse Receipt # 147 for 9397 bushels of corn was purchased by check number 19555 issued April 6 to Mr. Kaiser.
Section 17-1(d) of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, sec. 17-1(d)) provides that a person commits a deceptive practice when, with intent to defraud:
"With intent to obtain control over property or to pay for property, labor or services of another he issues or delivers a check * * * knowing that it will not be paid by the depository."
• 1 As was pointed out by the Joint Committee Comments, section 17-1(d) is a codification of former section 255. In People v. Balalas, 334 Ill. 444, the Illinois Supreme Court described the essential elements of the crime. On page 446 the court said, "The statute divides the offense into four separate, essential elements: (1) An intent to defraud; (2) the making, drawing, uttering or delivering of a check, draft or order for the payment of money upon some bank or other depository; (3) the obtaining thereby from another of money, personal property or other valuable thing; and (4) knowledge of the maker or drawer at the time that he has not sufficient funds in or credit with such bank or other depository for the payment of such check, draft or order in full upon presentation."
Where an intent to defraud is an element of the offense under a worthless check statute, a disclosure by the drawer of a check to the payee, at the time of the issuance of the check, that the drawer does not have sufficient funds in or credit with the bank to meet the check purges the transaction of its criminal character, because fraudulent intent is absent and the transaction is essentially one of extending credit to the drawer. A conviction may not be had under such circumstances. (32 Am.Jur.2d False Pretenses § 81.) The giving of a worthless check in payment of a pre-existing debt is generally held not to be within the ban of the statute (Annot., 59 A.L.R.2d 1159, sec. 2), the reasons being that the party alleged to have been defrauded did not, on the strength of the check, part with anything of value and further the acceptance of a check does not pay a debt. The payment is only conditional upon the integrity of the check in the absence of an agreement to the contrary. The check was a conditional payment and being dishonored the conditional payment was abortive.
2 Wharton, Criminal Law and Procedure, sec. 613, p. 384 (1957) states, "When intent is required to constitute the offense and the Defendant discloses to payee that he does not at the time have sufficient funds on deposit and the payee agrees to refrain from making immediate presentment, the Defendant is not guilty of the offense."
Where the parties agree at the time the check is issued that it shall not be presented for payment until a later date, and the fair implication is that there were not sufficient funds at the time the check was issued the offense is generally held not to have been committed because the fraudulent intent is lacking, the transaction being in its essential nature an extension of credit to the drawer. 35 C.J.S. False Pretenses § 21b(2) p. 834.
Under statutes denouncing the obtaining of money or property by false pretense or token, the mere uttering or passing of a worthless check in payment of a past indebtedness does not constitute such a crime. This has also been held true under a statute denouncing the giving of a worthless check with intent to defraud, because in the absence of simultaneously obtaining ...