Notice of Dishonored Check - Criminal - Compaint for bad check or bounced check
Note: This summary is not intended to be an-all inclusive summary of the law of bad checks, but does contain basic
and other provisions.
CIVIL PROVISIONS
TITLE 12 - COURTS AND CIVIL PROCEEDINGS
CHAPTER 6 - SPECIAL ACTIONS AND PROCEEDINGS BY INDIVIDUAL PERSONS
(Article 8 - Insufficient Funds Check)
SECTION 671
12-671 - Drawing check or draft on no account or insufficient
account with intent to defraud; civil action; definition of credit; prima
facie evidence
A. A person who, for himself or for another, with intent to defraud,
makes, draws, utters or delivers to another person or persons a check or
draft on a bank or depositary for payment of money, knowing at the time
of such making, drawing, uttering or delivery, that he or his principal
does not have an account or does not have sufficient funds in, or credit
with, such bank or depositary to meet the check or draft in full upon presentation,
shall be liable to the holder of such check or draft for twice the amount
of such check or draft or fifty dollars, whichever is greater, together
with costs and reasonable attorney's fees as allowed by the court on the
basis of time and effort expended by such attorney on behalf of plaintiff.
B. The word "credit" as used in this section shall be construed
to be an express agreement with the bank or depositary for payment of the
check or draft.
C. Proof that, at the time of presentment, the maker, issuer or
drawer did not have sufficient funds with the bank or depositary, and that
he
failed within twelve days after receiving notice of nonpayment or dishonor
to pay the check or draft is prima facie evidence of intent to defraud.
D. Where a check, draft or order is protested, on the ground of
insufficiency of funds or credit, the notice of formal protest thereof
shall be admissible as proof of presentation, nonpayment and protest and
shall be prima facie evidence of the insufficiency of funds or credit with
the bank or depositary, or person, or firm or corporation.
E. "Notice", as used in this section, means notice given to the
person entitled thereto, either in person, or in writing. Such notice in
writing shall be given by certified mail, return receipt requested, to
the person at his address as it appears on such check or draft.
F. Nothing in this section shall be applicable to any criminal case
or affect eligibility or terms of probation.
TITLE 44 - TRADE AND COMMERCE
CHAPTER 23 - DISHONORED CHECK FEES
(Article 1 - General Provisions)
SECTION 6852
44-6852. Dishonored checks; service fee
Notwithstanding any other law, the holder, payee or assignee of
the holder or payee of a dishonored check, draft, order or note may charge
and collect from the maker or drawer a service fee of not more than twenty-five
dollars plus any actual charges assessed by the financial institution of
the holder, payee or assignee of the holder or payee as a result of the
dishonored instrument.
CRIMINAL PROVISIONS
TITLE 13 - CRIMINAL CODE
CHAPTER 18 - THEFT
SECTION 1807
13-1807. Issuing a bad check; violation; classification
A. A person commits issuing a bad check if the person issues or
passes a check knowing that the person does not have sufficient funds in
or on deposit with the bank or other drawee for the payment in full of
the check as well as all other checks outstanding at the time of issuance.
B. Any of the following is a defense to prosecution under this section:
1. The payee or holder knows or has been expressly notified before
the drawing of the check or has reason to believe that the drawer did not
have on deposit or to the drawer's credit with the drawee sufficient funds
to ensure payment on its presentation.
2. The check is postdated and sufficient funds are on deposit with
the drawee on such later date for the payment in full of the check.
3. Insufficiency of funds results from an adjustment to the person's
account by the credit institution without notice to the person.
C. Issuing a bad check is a class 1 misdemeanor.
13-1808. Presumptions relating to issuing a bad check;
proof of presentation; nonpayment; protest; notice
A. For purposes of this chapter,
the issuer's knowledge of insufficient funds may be presumed if either:
1. The issuer had no account
or a closed account with the bank or other drawee at the time the issuer
issued the check.
2. Payment was refused by the
bank or other drawee for lack of funds on presentation within thirty days
after issue and the issuer failed to pay the holder in full the amount
due on the check, together with reasonable costs, within twelve daysafter
receiving notice of that refusal.
B. If a person obtained property
or secured performance of services by issuing or passing a check when the
issuer did not have sufficient funds in or on deposit with the bank or
other drawee for the payment in full of the check as well as all other
checks then outstanding, the person's intent to deprive the owner of property
or to avoid payment for service under section 13-1802 may be presumed if
either:
1. The issuer had no account
or a closed account with the bank or other drawee at the time the issuer
issued the check.
2. Payment was refused by the
bank or other drawee for lack of funds on presentation within thirty days
after issue and the issuer failed to pay the holder in full the amount
due on the check, together with reasonable costs, within twelve days after
receiving notice of that refusal.
C. Nothing in this section
prevents the prosecution from establishing the requisite intent by direct
evidence.
D. Notice may be actual
notice or notice in writing, sent by registered mail with return receipt
requested and addressed to the issuer at the issuer's address shown on
any of the following:
1. The check.
2. The records of the bank
or other drawee.
3. The records of the person
to whom the check is issued or passed.
E. The form of notice shall
be substantially as follows:
... [see, USLF form AZ-402N ] ...
F. If written notice is given
in accordance with this section, it is presumed that the notice was received
no later than five days after it was sent.
