Court of Appeal Law Report December 21 1973 Before Lord Justice Lawton, Lord Justice james and Mr Justice Mlchael Davies lVhen a bank's customer with an overdrawn account uses a cheque card to obtain goods after a warning that no more cheques would be met and after being re- quested to return the card, the cus- tomer commits the offence of obtaining a pecuniary advantage by deception conitrar y to section 16 of the Theft Act, 1968. Their Lordships gave reserved reasons for dismissing an appeal by Stephanie Janika Kiovacs, a housekeeper, aged 52. from con- viction at Avylesbury Crown Court (Judge Verney) in July on two counts of contravening section 16. Section 16 provides: (1) A per- son who by any decepLion dis- honestly obtains for himself . . . any pecuniary advantagc- shall . . . be liable to imprisonment. . . . (z) The cases in which a pecuniary advantage . - . is to be regarded as obtained for a person are . . . where. . . . (b) he is allowed to borrow by way of overdraft...." Mr G. Ian Rich for the appel- lant ; Mr T. I. K. Berry for the Crown. LORD JUSTICE LAWTON said that the appellant's account at thc National Westminster Bank was overdrawn by ?S72. By letter the bank told her the extent of her indebtedness and that no nlore cheques drawn by her would be met. Shortly aftervards a bank official called on her and asked her for her cheque book and the cheque card which had been issued to her. She said that they were not in her possession. Two months later she used a cheque and the card to obtain a railway ticket for ?2.89 and then she obtained a pekinese dog cost- ing ?42 from a pet shop by the same nieatis. Her counsel accepted that, as a result of her conduct, she had in- creased her overdraft by the amounts of the two cheques without the consent and contrary to the intentions of the bank, but he sub- mitted that those results had been brought about by the deception of the railway booking clerk and the pet shop ovner, not of the bank. The booking clerk and shop owner had been deceived because the appellant, in presenting the cheque card with her cheque, had repre- sented that she was entitled to be in possession of it and to use it. When the bank issued the cheque card to her they put her in posses- sion of a document which was an undertaking by them to anv person to whom she showed it thlat they would honour her cheque subject to certain conditions about whicl no question arose in the present case. It meant that, if she was overdrawn wvhen she used her cheque card, she would be allowed by the bank to overdraw further to the extent of the cheque covered by it. She was obtaining a pecti- niary advantage as defined by section 16 (2) (b). The next question was how she had obtained the pecuniary ad- vantage. On the facts the answer was clear: by inducing the rail- way booking clerk and the pet shop owner to believe that she was entitled to use the cheque card when she was not. As a result of the deception they both accepted payment by cheques which the bank were bound to honour pur- suant to their undertaking as set out on the face of the card. The loss suffered by the bank was as the result of the appellant's deception of the clerk and the shop owner. Section 16 (1) did not pro- vide either expressly or by implica- tion that the person deceived had to suffer any loss arising from the deception. What had to be proved was that the accused by deception obtained for himself or another a pecuniary advantage. There had to be a causal connexion between the deception used and the pecuniary advantage obtained. There was such a connexion and that was why the appeal had been dismissed. Solicitors : Registrar of Criminal Appeals ; Mr J. Malcolm Simons, Kidlington. Point of law certified Regina v Thomson Holidays Ltd The Court of Appeal (Lord Justice Lawton, Lord Justice Scarman and Mr Justice Mars- Jones) certified that a point of law of general public importance was involved in the decision (The Times, December 20) ; namely (1) what for the purpose of sec- tion 14(1)(b) of the Trade Descriptions Act, 1968, constitutes the making of a statement; (2) when a false statement is contained in a brochure widely distributed in the course of a trade or busi- ness to the public, whether upon the true construction of the statute the offence of recklessly making a false statement is commnitted only once, that is when it is printed or distributed, or on every occasion when it is read by those for whom it is intended. Leave to appeal to the House of Lords was refused. Court of Appeal Deception by bank cheaue card Regina v Kovacs