Request By:
Mr. John L. Arnett
City Attorney
128 West Dixie Avenue
Elizabethtown, Kentucky 42701
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: William H. Mohr, Assistant Attorney General
The following response is made to your inquiry of June 30, 1977 concerning KRS 514.040, in which you ask:
Whether a post-dated check, when presented on the post-date dishonored, is a violation of KRS 514.040?
The starting point of any analysis of post-dated checks in Kentucky is Burnam v. Commonwealth, 228 Ky. 410, 15 S.W.2d 256 (1929). In that opinion a statute which made it an offense to draw a check without having sufficient funds to meet it - irrespective of intent - was held unconstitutional because of its failure to discriminate between a guilty intent and an innocent purpose. The court went on to observe:
"These observations are particularly true of a post-dated check, which is in effect but a representation on the part of the payor that on a future date he will have funds with which to satisfy it, and is only an obligation on his part to pay the sum involved on a future date. "
Burnam thus established the proposition that post-dated checks were outside the reach of the bad check statute. Gibbs v. Commonwealth, 273 S.W.2d 583 (1954) affirmed this view. However, Roberson's Kentucky Criminal Law and Procedure § 975 (2d ed. 1927) observes that: "A post-dated check, falsely declared to be good, and that it would be paid on the day of its date," is within the statute making it an offense to obtain property by false pretenses.
When the theft by deception statute is read in light of this background, it must be concluded that a post-dated check, dishonored on the post-date, can be a violation of KRS 514.040(1)(a) on the date it is dishonored where the attendant circumstances are such that property is obtained through the giving of a post-dated check and a person intentionally creates a false impression as to the value of the item, or one's intention to have funds available to meet the item on the post-date.
A post-dated check is not embraced within KRS 514.040(1)(e) or the presumptions in subsection (4). A post-dated check is not a sight order, indeed, it is not even a check under KRS 355.3-104(2)(b) since it is not payable upon demand. Subsection (4)'s usage of check or sight order specifically excludes the operation of the presumptions from the area of post-dated checks by the language "other than a post-dated check or order."
In summary, therefore, it is the opinion of this office that a dishonored post-dated check may be a criminal offense under KRS 514.040 immediately upon dishonor under circumstances substantiating a deprivation of property through false pretense. While failure to make the item good may be evidence probative of criminal intent, or conversely, the making good of the item may negative criminal intent, either circumstance is merely secondary evidence upon the issue of having intentionally obtained the property of another by false pretense.