An overdraft facility was property which could be the subject of a charge of theft. In the context of the presentation of a cheque, improperly presented to a bank but which the bank pays, it was a theft of a chose in action by the person who presented such a cheque. The company’s accountant appealed from his conviction, having used the lawful possession of the company’s cheque book to write cheques for his own gain.
The Court confirmed that the form of charge was appropriate: ‘The sequence of events in this case can be brought down to a simple series of facts. The defendant starts with a cheque book in his possession. It is the cheque book of the company and he is plainly in lawful possession of that book with the cheques inside it. He apparently had the habit, as we have already indicated, at least occasionally of removing blank cheques from the book, tearing out the cheque, leaving the counterfoil in position, putting the cheque in his pocket and filling it in at a later stage. Still nothing wrong at all in that. He is still acting lawfully, although it may be somewhat unusual. He then makes up his mind to fill in the cheque with the amount, then the payees and the date and so on. The third party in whose favour the cheques were being made were ex hypothesi not entitled not entitled these sums. The appellant was therefore using the company’s cheques and the company’s bank account for his own purposes. Ms Goddard suggests that there was a gradual appropriation as the events moved on in this way.
The next stage is this. He says to himself, ‘I am now going to make the cheques payable to [another individual]. This action is unknown to [the principal of the company]. It is ex hypothesi once again contrary to the interests of the company. It is contrary to the will of the company and it is dishonest. This is dealing with a cheque not as agent of the company duly authorised, but is dealing with the cheque as if it was his own. That seems to us sufficient to amount to an appropriation under the Act.’
(1979) 69 Cr App Rep 395, [1979] Crim LR 675
Theft Act 1968
England and Wales
Cited by:
Cited – JSC BTA Bank v Ablyazov SC 21-Oct-2015
The court was asked as to the interpretation and application of the standard form freezing order. In the course of long-running litigation between JSC BTA Bank and Mr Ablyazov the Bank had obtained a number of judgments against the respondent . .
Cited – The United States of America v Nolan SC 21-Oct-2015
Mrs Nolan had been employed at a US airbase. When it closed, and she was made redundant, she complained that the appellant had not consulted properly on the redundancies. The US denied that it had responsibility to consult, and now appealed.
Updated: 15 October 2021; Ref: scu.591725
