ABSTRACT
Now; let us consider two particular examples in the light of Preddy. First, consider the case of W who, knowing that a cheque is forged, presents it and obtains cash for it. Then he has dishonestly by deception obtained property (the cash) belonging to another (the bank paying him the cash) with the intention of permanently depriving the bank of it. Thus, he has committed the s 15 offence. If, on other hand, W pays the cheque into the credit of his own bank account, he does not obtain property belonging to another. By his deception, he has simply: (a) extinguished the right of the person on whose account the cheque was drawn; and (b) created a new right of his own to sue his own bank for the amount of the credit (assuming that his account was already in credit at the time). In this situation, he does not obtain property by deception. However, providing that the account upon which the cheque was drawn was in credit at the time the cheque was honoured, W commits theft of that account holder’s right to sue his bank for the amount of the cheque.84 In the second example, X sells a car knowing that he does not own it and that he lacks the owner’s authority to sell it. If he is paid in cash, then he has obtained, by his deception, property (the cash) belonging to another (the buyer). If he is paid by means of a cheque (which he then pays into the credit of his own bank account), then the only property belonging to another which he has obtained is the piece of paper on which the cheque is written. In relation to that tangible piece of paper, he cannot successfully be charged with either theft or obtaining it by deception, since he lacks the intention of permanently depriving the owner of it. Again, however, he could – assuming the cheque is duly presented and honoured and that at that time the buyer’s bank account was in credit – be charged with theft of that amount of the buyer’s intangible property consisting of the buyer’s right to sue his own bank for the amount thus debited from it.85 It may, incidentally, be that X commits theft of the car, assuming he intended to deprive the owner permanently of it. In each of the examples, where W and X do not obtain cash but, instead, have their accounts credited, there can be no conviction for theft unless the victim’s account was in credit when the cheque was honoured. This
problem is now overcome because, in the situation where W or X obtains a cheque and has it credited to his account, there is now the possibility of a conviction for obtaining a money transfer, contrary to s 15A – and that offence is committed irrespective of whether the victim’s account or the defendant’s account was in credit at the time.86
