dissenting.
The record reveals that on September 22, 1972, Hudson filed a motion for judgment against Payne alleging that they terminated their partnership by mutual agreement on July 12, 1972; that on August 1, 1972, the partners met at the office of Hudson’s attorney, where Payne agreed to pay Hudson $8,574.17 “which amount represents that portion which is owed by [Payne] to [Hudson] in the dissolution of the . . . partnership”; and that Payne gave Hudson a check in the amount of $8,574.17 which the bank returned with the notation “not sufficient funds.” Payne did not contest the motion for judgment, and the court entered judgment on the claim on November 9, 1972. The record makes further reference that Payne initiated bankruptcy proceedings to discharge this indebtedness.
Seven years later, on December 10, 1979, the grand jury returned this indictment against Payne alleging that on or about August 1, 1972, Payne “did . . . obtain by means of a worthless check merchandise in the amount of $100.00 or more with intent to cheat and defraud Clarence W. Hudson . . . .”
The majority opinion states:
As Payne notes on brief, “there was no contemporaneous transfer of either goods or services in exchange for the *490check”. But such a transfer is not an element of the statutory offense. To prove a bad-check offense, “[i]t need not be shown . . . that anything was received in return for the check”, for “the offense is complete when, with the requisite intent, a person utters a check he knows to be worthless.” [Citations omitted.]
I do not agree with this interpretation. The present statute, Code § 18.2-181, makes Payne’s offense larceny. This poses the question “larceny of what?”. In 1978, the legislature clarified the statute’s purpose with this amendment:
Any person making, drawing, uttering or delivering any such check, draft or order in payment as a present consideration for goods or services for the purposes set out in this section shall be guilty as provided herein. [Emphasis added.]*
The Bad Check Act applies a criminal sanction only when a person with the requisite criminal intent utters a worthless check as a present consideration for cash or a cash purchase.
The final order of conviction in this case, entered May 13, 1980, suspends imposition of any sentence for a period of five years dependent upon several conditions which include that Payne “make full restitution for any amount due by reason of the check, if any, at the rate of $200.00 per month.”
In the present case this court uses the criminal sanction to collect a civil debt, a practice we previously disapproved. Cf. Makarov v. Commonwealth, 217 Va. 381, 228 S.E.2d 573 (1976). This court should not countenance an obvious perversion of the criminal process.
This prosecution is controlled by the statute in effect in 1972. The 1978 amendment was obviously intended to clarify the meaning of the statute.