A check you wrote did not clear. Now someone says you owe money, or you have a police report, a summons, or a court date for larceny. You may not have meant to cheat anyone. You may be sure the money was there. Either way, the paperwork says “larceny,” and that word is serious.
I’ll walk you through what the Massachusetts statute actually says. I’ll go in the order a case usually unfolds: what the charge is, what must be proved, the two-day rule, where the case is heard, penalties, the civil side, and how a defense is built.
What Larceny by Check Means
Larceny by check is writing or handing over a check you know will not be paid, in order to cheat someone. The statute is G.L. c. 266, § 37. It reaches anyone who, “with intent to defraud, makes, draws, utters or delivers any check, draft or order for the payment of money upon any bank or other depositary, with knowledge that the maker or drawer has not sufficient funds or credit at such bank or other depositary for the payment of such instrument.”
The statute adds that this is so “although no express representation is made in reference thereto.” So an express statement about the money is not required.
There are two levels of charge:
- Attempted larceny. The statute makes you “guilty of attempted larceny” if the check was written with intent to defraud and knowledge of insufficient funds or credit.
- Larceny. If “money or property or services are obtained thereby,” you are “guilty of larceny.”
This is a different offense from larceny by stealing. Here the check is the tool. The charge is about what you knew when you used it.
What the Commonwealth Must Prove
Reading § 37 closely, the Commonwealth has to prove each of these parts.
- You made, drew, uttered, or delivered a check, draft, or order for the payment of money on a bank or other depositary.
- At that time, you knew the maker or drawer did not have sufficient funds or credit at that bank to pay it.
- You acted with intent to defraud.
- For a larceny charge, money, property, or services were obtained because of the check.
The statute defines one word. “Credit” means “an arrangement or understanding with the bank or depositary for the payment of such check, draft or order.” So a lack of cash in the account is not the whole question. An arrangement with the bank to pay the check matters too.
Notice that knowledge is part of the charge. A check that bounces is not automatically larceny. The statute is aimed at someone who knew the funds or credit were not there.
The Two-Day Rule and “Prima Facie Evidence”
The statute gives the Commonwealth a shortcut, and it gives you a way to answer it. This is one of the most important sentences in § 37.
If the bank (the “drawee”) refuses to pay the check, that refusal is “prima facie evidence of intent to defraud and of knowledge of insufficient funds in, or credit with, such bank or other depositary.” In plain terms, the refusal itself counts as evidence of both your intent and your knowledge.
There is an exception. It does not apply if the maker or drawer “shall have paid the holder thereof the amount due thereon, together with all costs and protest fees, within two days after receiving notice that such check, draft or order has not been paid by the drawee.”
So the statute puts weight on two things: whether the bank refused payment, and whether the holder was paid in full, with costs and protest fees, within two days of notice.
How the Case Starts and Where It Is Heard
A case can start with an arrest or with paperwork telling you to come to court. If you were arrested, my article on what happens when you’re arrested explains the first hours. If you received a summons, see what a criminal summons means.
Under G.L. c. 218, § 26, the district courts have jurisdiction, concurrent with the superior court, over larceny under G.L. c. 266, § 30. Your first court date is the arraignment, where the charge is formally read. I explain it in what happens at an arraignment. The case then moves toward a pre-trial conference, where the lawyers discuss it before any trial.
Penalties for Larceny by Check
The penalty depends on the charge and, for larceny, on the value. Section 37 does not list its own penalty. It describes the conduct as larceny, and G.L. c. 266, § 30 is the general larceny penalty section.
Under § 30(1), for larceny:
- Value over $1,200: state prison for not more than five years, or a fine of not more than $25,000 and jail for not more than two years.
- Value of $1,200 or less: jail for not more than one year, or a fine of not more than $1,500.
For an attempt to commit a larceny under § 30, G.L. c. 274, § 6 provides jail or a house of correction for not more than two and one-half years, or a fine, or both.
Under G.L. c. 274, § 1, a crime punishable by state prison is a felony, and all other crimes are misdemeanors. That means a larceny over $1,200 is a felony charge. A larceny of $1,200 or less is not.
Those are the maximums the legislature set. They do not tell you what will happen in any one case. For how restitution works in criminal cases, see restitution in Massachusetts criminal cases.
The Civil Side: Dishonored-Check Demands
A bounced check can also lead to a civil claim, separate from any criminal case. The law is G.L. c. 93, § 40A.
It applies when a bank refuses to honor a check because the maker has no account or has insufficient funds. If the maker does not pay within thirty days after a written demand from the payee, the maker is liable for the face amount of the check and for additional damages set by the court. By statute, those additional damages are not less than $100 and not more than $500.
The demand has a required form. It must be printed in at least ten-point type in both English and Spanish, and delivered by regular mail and by certified mail, return receipt requested. The statute says the civil liability is “in addition to any criminal penalties which may be imposed.”
The Time Limit for Bringing the Charge
There is a deadline. Under G.L. c. 277, § 63, an indictment for a crime outside the special categories listed there must be found and filed within six years after the crime was committed. Larceny by check is not one of those listed categories.
The statute also excludes any period when the defendant is not usually and publicly a resident of the commonwealth.
Defenses Built on the Statute’s Words
A defense starts with the elements. If the Commonwealth cannot prove a required part of the charge, that is a defense. These are the questions that come out of § 37.
- Was there a check, draft, or order drawn on a bank or depositary, and who made, drew, uttered, or delivered it?
- Did the person charged actually know the funds or credit were not sufficient at that time?
- Was there “credit,” meaning an arrangement or understanding with the bank to pay the check?
- Is there proof of intent to defraud, not just a mistake, a timing problem, or a deposit that had not posted?
- If the Commonwealth relies on the bank’s refusal as prima facie evidence, was the holder paid the amount due, with costs and protest fees, within two days after notice?
- For a larceny charge, was money, property, or services actually obtained by the check? If not, the statute describes only attempted larceny.
- Was the charge brought within the six-year period?
Larceny by check is a charge about the mind as much as the money. The Commonwealth has to prove what you knew and what you intended when the check left your hands.
Other conduct can look similar and fall under a different statute. An altered or counterfeit check may raise forgery. Using someone else’s identity may raise identity fraud. The charge matters, because the elements and penalties are different.
Frequently Asked Questions
Is a bounced check automatically a crime?
No. The statute requires intent to defraud and knowledge that the funds or credit were not sufficient. The refusal by the bank counts as prima facie evidence of both, but the statute also provides the two-day payment exception.
What is the two-day rule?
Under § 37, the bank’s refusal is not treated as prima facie evidence if the maker or drawer paid the holder the amount due, with all costs and protest fees, within two days after receiving notice that the check was not paid.
What is the difference between attempted larceny and larceny here?
The statute says that writing the check with intent to defraud and knowledge of insufficient funds is attempted larceny. If money, property, or services were obtained, it is larceny.
Is larceny by check a felony?
It can be. Under G.L. c. 266, § 30(1), larceny of more than $1,200 carries possible state prison time, and under G.L. c. 274, § 1 a crime punishable by state prison is a felony. At $1,200 or less, the penalty is jail for up to one year or a fine.
Can I also be sued for the check?
Yes. G.L. c. 93, § 40A allows the payee to recover the face amount of the check plus additional damages of $100 to $500, if the maker does not pay within thirty days after a proper written demand. That is a civil claim, and the statute says it is in addition to any criminal penalties.
How long does the Commonwealth have to bring the charge?
For a crime like this one, G.L. c. 277, § 63 sets a six-year period for an indictment, with time excluded when the defendant is not a resident of the commonwealth.
Facing a Larceny by Check Charge? Talk to a Lawyer
A larceny charge is serious, and the details of the check, what you knew, and what you intended all matter. You should not face it alone. The Law Office of William J. Barabino in Medford has over 23 years of experience in Massachusetts criminal defense and represents clients throughout Greater Boston.
Call 781-393-5900 to talk about your charge and your options.
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Disclaimer
This article is for general educational information about Massachusetts criminal law. It is not legal advice for your situation, and reading it does not create an attorney-client relationship. Laws change. For advice about a specific case, speak with a licensed Massachusetts attorney.
