BAD CHECK PROSECUTION POLICY
Making and passing a worthless check is a crime. If the value of the check is under $500 the crime is a misdemeanor. If the value of the check is $1,000.00 or more, the crime is a felony. See K.S.A. 21-5812.
The prosecution of such a case is governed by the same standards of proof and rules of evidence that are applicable in all criminal cases. Each bad check case is viewed as if it would be necessary to proceed to a jury trial for conviction. In other words, there must be sufficient evidence or the case should not be filed.
Additionally, it is a misdemeanor crime to cause an unlawful prosecution for bad check. Causing an unlawful prosecution for a bad check is supplying information upon which a prosecution for giving a bad check is commenced with knowledge that the check upon which such prosecution is based was postdated and such check is presented for payment prior to the postdated date or when the payee had knowledge at the time the payee accepted such check that there were no funds or insufficient funds in the hands of the maker’s bank but the payee presented the check for payment prior to the date the maker informed the payee there would be sufficient funds.
There are ordinarily two types of bad checks – not sufficient funds, and account closed. These two kinds of checks are treated differently. Account closed checks are deemed to have been intentionally passed because of the knowing and affirmative act of closing one’s checking account. When on closes the account, one is signaling a desire to have outstanding checks dishonored. If one makes a check after having closed the account then knowledge and intent are likewise implied.
Not sufficient funds checks are given initial benefit of the doubt in the eyes of the law. A math error or a failure of delivery of a deposit, or any of several reasons may be behind an insufficient funds check – which means the maker may not have intended to issue a worthless check. In criminal law, ordinarily only intentional offenses are prosecuted. Negligent acts and accidental conduct are typically not treated as crimes. So, the legislature required the payee to give notice to the maker of an insufficient fund check before a criminal prosecution may be filed. If after being put on notice the maker fails to fully fund an insufficient fund check, then the law presumes that the maker had intended the check to be worthless when it was issued. The notice is sometimes called a “seven-day letter” because the law specified that the maker of the insufficient funds check must be given seven days in which to fully fund the check and to pay a $30.00 service charge. The seven-day letter must be mailed by RESTRICTED MAIL, return receipt requested. Restricted mail is not the same as certified mail, but certified mail is sufficient.
If the merchant/ payee is successful at collecting the bad check in-house before sending out the seven-day letter, then perhaps a greater check charge is possible. But those checks being presented for criminal prosecution are limited to $30 check charge, and that is all that may be requested in the seven-day letter.
Making and passing a worthless check is also a civil wrong. See K.S.A. 60-2610. A person who gives a worthless check is liable to the payee for the amount of the check, the civil case court costs, the costs of restricted mail, the service charge, the costs of collecting the debt -- including reasonable attorney fees -- and damages in the amount of three times the amount of the check. There are some limitations with respect to the damages. In order to have worthless checks recovered civilly, you should hire a private attorney. If a worthless check is being pursued civilly, the county attorney will ordinarily not prosecute the same matter criminally.
Having made the foregoing points clear, however, the county attorney does prosecute worthless check cases -- but not all worthless check cases. There are examples of worthless check cases that for reasons of justice, business management, and county liability the county attorney does not ordinarily prosecute.
Based upon this information you may wish to tailor your in-store policy for accepting payment by check. The following types of worthless checks are not prosecuted:
- Two-party checks.
- Counter checks.
- Post-dated checks.
- Hold checks.
- Checks without adequate identification of the maker. This information should be taken from a photo ID, and the type of ID should be noted. Identification numbers from the photo ID, residential telephone number, and/or place of employment are helpful. One of the most common forms of ID is the driver's license or non-driver's identification card. Without adequate ID, the sheriff will not serve the summons or arrest warrant on the maker. Criminal charges should not be filed against the wrong person, so the necessary identification should distinguish the maker from any other person. Examples include date of birth, full name, and residential address. If the photo ID offered is a driver's license, then the driver's license number will allow the sheriff to get that sort of information from the driver's license computer in his office.
- Checks of a value of less than $15.00.
- Checks not presented to the county attorney in less than 90 days after the date of the check.
- Checks not accompanied by a fully completed affidavit - statement of payee. This statement must be signed by the employee who received the check. The payee, or the employee designated to collect worthless checks for the payee, and the person who received the check may be called upon to testify in court.
- Checks on which partial payment has been made.
- Misdemeanor checks (those of a value of less than $500) written on an out-of-state bank.