Only some of the checks returned from the bank can be prosecuted in criminal court. The following is a guideline in making a determination of whether you should apply for a criminal warrant or citation.
- Was the check given for present consideration or wages? If not, you must sue in civil court. Present consideration generally means that services or goods are delivered at the same time that the check is received. It also includes rent, a debt of state taxes, a child support payments when there is a written court order. A payment on a credit account would not be present consideration.
- Did the person who accepted the check know the check was not good at the time it was given? If you know the check would not be honored when you accepted it, then you cannot prosecute the person who gave it to you. Examples of this would be when a customer asks that a check be held until a specific day or when you accept a postdated check. In both instances you have extended credit even if it is only for a few days. When you extend credit it it is no longer considered a criminal bad check offense.
- Was the check returned for the reasons of No Account (includes Account Closed) or Insufficient Funds? If the check was returned for any reason other than no account, insufficient funds, you probably do not have a check that can be prosecuted in criminal court. However, if the check is stamped "Refer to Maker" and "Cannot Locate" you should inquire with the bank to see if the account was closed or there was insufficient funds on the date the check was passed. If this was the case, you may be able to proceed with a criminal action. You should get the bank to verify this information by letter or by putting the information on the face of the check and having the bank official then initial it.
A stop payment cannot be a violation of the criminal bad check statute (except in the rarest of cases). Even though a bad check warrant would not be proper, a magistrate may determine that some of the other type of crime has occurred. Each case would be different and a decision could not be reached without hearing all the facts and circumstances surrounding the occurrence.