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Re: Should of got a deposit.
The only proof needed is the returned cheque, that in itself is all that is needed nothing more.
Big well known case, Polly Peck International (Azil Nadia) v SFO
Not so well known, HSNW (Gareth Cawley) v Merloni
Both issued cheques which bounced both reported to the police for fraud, both found guilty based on the evidential element if the cheques return. Both serving time as a result.
The fact that it is unusual us down to the ignorance of the law if those whom could use it.
Cheque value makes no difference other than once over £750 you can also issue bankruptcy proceedings at the same time.
Jackal
Re: Should of got a deposit.
Jackal wrote:Go read the bills of exchange act!
I did and in section 21 (delivery) it states : “(1)Every contract on a bill, whether it be the drawer’s, the acceptor’s, or an indorser’s, is incomplete and revocable, until delivery of the instrument in order to give effect thereto.
The customer (defendant) would cite that the contract (delivery) between the parties was incomplete would he/she not?
Should of got a deposit.
No
Contract is completed by way delivery of the goods and or service and payment by way of the cheque.
The cheque is the promise in law to pay under the Bills of Exchange Act.
Bouncing it breaches that promise and is therefore a criminal offence.
In the olden days it used to be classified under theft act of 1968 and was a criminal offence as it was deemed to have been obtaining goods and or services by deception.
However on 15 January 2007, Sections 2 and 11 (in the case of a service being delivered) of the Fraud Act 2006 repealed the Theft Act (items relating to deception) and made the knowing bouncing of a cheque a criminal offence punishable by a prison sentence of up to 5 years.
What needs to be proved is intent.
To prove intent show the police the bounced cheque. It proves goods and or services were supplied and payment for that was both expected and agreed to, otherwise how would you get the cheque.
The subsequent stop after it being issued proves you intend to prevent the cheque from being honoured.
Tell me do you think the issuer of the cheque phoning, visiting or writing to his bank to ask for the cheque to be stopped would be an act of intent to stop the entity obtaining the money after the goods or services had been supplied?
There are very few legal reasons to stop a cheque. Very few indeed, so every other occasion where it occurs, you run the risk of committing a criminal offence.
Martin do a google search on Section 11 Fraud Act 2006 and I think you will see what I am referring to.
J
Re: Should of got a deposit.
Jackal wrote:Martin do a google search on Section 11 Fraud Act 2006 and I think you will see what I am referring to.
Gotta hand it to you and having read that there indeed appears to be a case of fraud committed. How exactly Gazman will go from here though is hard to imagine. I can’t see him going to the local nick and reporting it to the desk sergeant, but, we shall see.
Thanks Jackal 😀
Re: Should of got a deposit.
Now Martin, write out 100 times….
I must not argue with Jackal on legal points!
😆
To be fair, I learned that the hard way as well.
K.
Re: Should of got a deposit.
I must not argue with Jackal on legal points!
I must not argue with Jackal on legal points!
I must not argue with Jackal on legal points!
I must not argue with Jackal on legal points!
………
……..
…..
…. 😀Re: Should of got a deposit.
twicknix wrote:
Just curious, has anyone reported fraud to the police over stopped cheques? Love to know the outcome of it. The prospect of a customer being charged with fraud, you need strong evidence for this such as proof of contracts.
How much was the cheque by the way?
Yes, I took a stopped cheque to Barclays Bank claiming a fraudulent act had been perpetrated as the issuer had stopped the cheque after receiving the goods…
The Bank were not interested and said “We cannot help you other than to try to contact the customer”.. so I went to the Police, who stated that it is not the sort of matter they get involved with and said: “It is a civil matter, you will need to take him to the small claims court”.
I got a little angry at all this running around and buck passing, so I looked-up the fraud offences relating to cheques, printed them off, and took them to the police station.
A week later I had the cash in my hand… The Police had tracked the guy to London and informed him to pay-up or be arrested.
Cheque value = £394
George
Re: Should of got a deposit.
Thanks George,
I guess the threat of being charged with fraud and ending up with a criminal record is a powerful deterrent to those who thinks can get away with stopping the cheques.
I have not had the pleasure of bounced cheques but I had two incidents of customers who refuses to pay for the goods/services despite numerous times of contacts. This fraud acts, does this applies to this as well? Such as I supplied the goods/services and invoiced for the work on the condition that they pay up by certain date. The deadline passed, no attempts made to settle the outstanding amount, does this count as fraud or a civil matter on breach of contract?
Re: Should of got a deposit.
I’ve got a bounced cheque from a woman who used a cheque from her business which according to companies house were no longer trading at the time of issue.
She has since gone to ground (Not answering phone or door)Re: Should have got a deposit.
Twicknix
For fraud we need to establish intent.
Bounced cheque does that implicitly however, without the cheque it is a lot more tricky to prove.
You will need to prove both the contract and the intent to prevent payment which is hard.
For this reason it is better suited to pursue the matter via the civil court as you have little evidence of the intent to deceive without the cheque.
Lawrence
If the cheque has come back account closed then it is 101{e5d1b7155a01ef1f3b9c9968eaba33524ee81600d00d4be2b4d93ac2e58cec2d} fraud. Demand the police take action under Section 11 of the Fraud Act 2006.
For obvious reasons they have a far better chance of tracking down the fraudster than you ever will.
Also, once one complainant comes to light, often a string of others appear once the police contact the issuing bank, thus more evidence of the deliberate fraud is uncovered.
You may not get all you are owed but it sure as hell gives you some legal satisfaction. Remember of course, if it goes to court then the court will usually impose a damages fine, payable to you for your losses. You may only get it back at a pound a week but you do get it.
J
Re: Should have got a deposit.
This is really very interesting.
Can I ask using a common problem that any of us that does warranty work comes across a fair bit?
I wondering if this would/could apply to a customer who places a service call for a product under warranty who is told that (I realise most warranties do) that if the cause is not electro-mechanical and therefore not covered that they have to pay.
The engineer goes and will often resolve the issue but, it’s got nothing to do with the product, it’s an installation or use related problem like a blocked filter etc.
Customer then turns and goes into a strop refusing to pay for the service call.
I’m not sure from a legal standpoint but, strikes me, that they have broken the terms of the contract with the attending agent or with the terms by which the service was provided.
It could be argued, I suppose logically, that there was never any intent to pay and therefore it could constitute fraud as the customer gained the resolution by way of the visit by a professional person with never having any intention to pay for that service if it came down to that.
I’m just curious is all.
K.
Re: Should have got a deposit.
kwatt wrote:T
I’m just curious is all.
K.
As am I ,we have had a spate of jobs where the cust was told categorically that if it was a mis install or misuse then its chargeable ,they then decide they didn’t here that when the call was booked and then refuse to pay.
Re: Should have got a deposit.
Basically yes
If you can prove via your T&C’s and your job signed job sheet that the customer agreed to settle and then refuses subsequent to having received the goods and or services then the argument is fraud has been committed.
We are back to the Bills of Exchange Act again.
A cheque is just a piece of paper which establishes a promise to pay in law. Cash is exactly the same, and in fact states the Bank of England promises to pay the bearer the sum of £X. Take a look at a bank note! If someone bounces a cheque it is the same for the purposes of law as passing forged cash.
Now if your T&C’s are correct and your jobs sheets contain the customers signature confirming acceptance of those T&C’s then you have effectively created a bill of exchange which establishes a promise to pay.
Failure to pay in line with that document demonstrates an intent to prevent you receiving payment in full.
Having then obtained the goods and or services knowing he may be required to pay for them, having agreed to pay for them and then not paying for them with the intent not to pay for them an act of fraud has been committed under S11 of the Fraud Act 2006.
Where most fall down is either poor T&C’s (which are as much use as an iPod is for a Swan), or a non signed job sheet. Without them both you cannot form the Bill of Exchange without other evidence such as a bounced cheque.
And yes, if a third party work provider issues you with a service call and you follow the terms of that contract, you invoice it correctly and they subsequently don’t pay you, provided your T&C’s are correct then you can instigate a criminal complaint for fraud under S11. Remember it says a person is guilty if he obtains goods or services for himself or another……..
It is the or another part which links the customer with the faulty appliance to the action.
My T&C’S specifically link via an indemnity the person with the faulty appliance receiving the benefit of my attendance on them with the invoice, thus co joining liability under a Bill of Exchange to both them and the party instructing me to attend.
A number of third party work providers and manufacturers have realised the hard way when they have attempted to defraud me by not paying for the work done, that me taking the customer to task is not a pleasant way forward for them or the customer and it can be rather embarrassing for them.
Of additional interest, a Bill of Exchange can also be formed if you sign a Direct Debit, but not a Standing Order. Technically therefore, bouncing a direct debit could also be a criminal offence under S11. However preventing a standing order leaving your account does not fall into this scenario.
It is for this reason most financial establishments, mobile phone and such like use DD as the preferred collection method rather than Standing Order.
As a matter of interest, Amex instigate more allegations of fraud for bad debt than any other financial institution in the UK. They also have the best bad debt collection rate in the UK. Wonder why that is?
HTH
J
Re: Should have got a deposit.
Lawrence
We get that too.
All telephone calls in to and out of our office are recorded. We pay around £6 per month for all calls to be held securely for six years which is a requirement of our FSA Licence.
We can and do use these calls to prove our contract between us and the end user both PreLitigation and if necessary for litigation if needed.
We have never lost a case as a result. Last year we took action against around 350 customers and took 31 customers to Court. To put that into perspective we attend around 35k calls per year.
As always the courts look to find out on the balance of probabilities whom is telling the truth and its damned difficult to argue with a recording of a customer verbally agreeing a contract, then signing your job sheet confirming your attendance thus completing a contract.
As I constantly bang on about, getting paperwork and your T&C’s right at the beginning is more important than doing the job itself.
J
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