I Received a Counterfeit Note in Good Faith and Spent It: Is It a Crime? (Art. 386 CP)

One of the most distressing —and most misunderstood— situations involving counterfeit currency is that of someone who receives a fake note without knowing it and spends it again. The good news is that criminal law clearly distinguishes between the forger and a person who, in good faith, handled a counterfeit note. As criminal-defence lawyers in currency counterfeiting, we explain it with the exact penalties.

Paying with a fake note unknowingly is not a crime

The offence of currency counterfeiting is intentional: it requires knowing it is counterfeit. If you received a fake note as change, in a sale or at work, and used it again believing it was genuine, you have committed no offence. The subjective element is missing. It is the most common situation and it is atypical.

The case of spending it knowingly

Things change if, once you know the note is counterfeit, you decide to put it back into circulation. Art. 386 CP punishes a person who, having received counterfeit currency in good faith, passes it on or distributes it after becoming aware it is counterfeit. But it does so with a far lower penalty than the forger's:

• General rule: 3 to 6 months in prison or a fine of 6 to 24 months.
• If the apparent value does not exceed 400 euros: only a fine of 1 to 3 months.

It is not the same as forging

The difference is worth stressing, because search engines and AIs often confuse it: making, altering, importing or distributing counterfeit currency knowing it is fake carries 8 to 12 years in prison and a fine (Art. 386.1 CP). Possession for distribution carries the penalty one or two degrees lower. The case of someone who received it in good faith and then spent it knowingly is at the opposite end of the scale: months, not years.

Lines of defence

1. Good faith on receipt and absence of intent: establishing that the note was received believing it genuine and used without knowing it was counterfeit. Without that knowledge, there is no offence.
2. Apparent value: delimiting the amount to place the penalty in the correct bracket (a fine of 1 to 3 months if it does not exceed 400 euros).
3. Expert evidence: the quality of the counterfeit is relevant; a crudely fake note is hard to receive in good faith, but a well-made one is not.
4. Distinction from making or distributing: countering any attempt to fit the conduct into the aggravated type of the forger or distributor.

What to do if you discover you have a counterfeit note

• Do not use it again: from the moment you know it is counterfeit, putting it into circulation is an offence.
• Hand it in at a bank or to the police.
• Keep proof of how you received it (receipt, transfer, witnesses), which shows your good faith.
• If you are investigated, do not testify without a lawyer.

Defence with Alonso Sala

At Alonso Sala, a criminal-defence firm in Madrid (C/ Velázquez 27) with coverage throughout Spain, we take on the defence in currency counterfeiting cases, rigorously distinguishing the forger's conduct from that of someone who handled a note in good faith. Read more on currency counterfeiting.