A person with a bank account writes a bad check (also known as a non-sufficient funds or NSF check) when he deliberately or with knowledge writes a check for an amount of funds he knows are not available in the account. The crime of writing a bad check may also occur when a person writes a check on an account that has been closed. Another bad check scheme that may result in criminal charges occurs when an account holder writes a check for an amount in excess of the funds in the account, and deposits the check in a second account (often at a different bank)—and then withdraws the funds from the second account before the check is presented to the first bank for payment.

Bad check laws vary from state to state, and are usually located in the state’s penal or criminal code (statutes). Banks and criminal prosecutors recognize that a person can inadvertently write a check for more than the funds on deposit in their account, and not every instance will result in criminal charges. But many state laws have an expansive definition of the required knowledge or deliberate intent to write a bad check, and a criminal prosecutor does not have to prove a defendant charged with a bad check offense knew exactly how much money was in the account when the defendant wrote the check to prove the defendant knew he was writing a bad check or deliberately wrote a bad check.

In Montana, writing a bad check, also known as issuing a check with non-sufficient funds (NSF), is addressed under Montana Code Annotated (MCA) 45-6-316. A person commits the offense of issuing a bad check when they issue or pass a check knowing that it will not be paid by the drawee (the bank or financial institution). This includes writing checks from an account with insufficient funds or from a closed account. The law also covers situations where an individual writes a check for more than the account balance, deposits it into another account, and withdraws the funds before the check clears. The intent to defraud is a key element of the crime, and the state must prove that the individual knew the check would not be honored at the time it was written. However, Montana law provides that the fact a check is not paid by the drawee is prima facie evidence of intent to defraud and knowledge of insufficient funds, unless the check is paid by the drawer within 10 days after receiving notice that the check has not been paid. The severity of the charges can range from a misdemeanor to a felony, depending on the amount of the check and other circumstances surrounding the incident.