Scottish High Court of Justiciary Decisons

Lord Justice-General.—I think this indictment relevantly charged the accused with telling a falsehood, but telling a falsehood simpliciter is not a crime by the law of Scotland. I think it is equally clear that it does not charge the complainer with fraud according to the law of Scotland; because it appears that he actually had purchased and obtained delivery of the nine cattle, and had obtained credit for the former debt of £5, 10s., before granting the cheque in question in this case. It is not a relevant statement of a crime to say, as the indictment does, that when the accused granted the cheque he knew that he had no funds at the bank to meet the cheque. Is it then relevant to infer fraud to add that he well knew that the cheque would not be honoured? I think not.

In plain language what he did was this. Having obtained delivery of the cattle—I know not how long before the cheque was granted—he said to the seller of the cattle: “Here is a written order upon A. B., who will pay you the money,” well knowing that A. B. would not pay the money. That was a falsehood, but it was not the means by which he either secured delivery of these cattle or obtained credit for £5, 10s. I do not for a moment doubt that the law is as stated in the cases to which we were referred, viz., that if a person obtains goods or money by issuing a cheque, he having no funds in bank and knowing the cheque will not be honoured, he commits a fraud. The essence of that statement lies in the little preposition “by,” which is lacking in this indictment. That, I think, is a fatal flaw.

Therefore I am of opinion that the conviction ought to be suspended and liberation granted.

Lord Dundas and Lord Guthrie concurred.