H. B. 2741
(By Delegates Webster, Ellem, Stemple,
Mahan and Proudfoot)
[Introduced January 30, 2007; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §61-3-39a, §61-3-39b and §61-3-39f of
the Code of West Virginia, 1931, as amended, all relating to
worthless checks generally; providing a defense; and
authorizing magistrate courts to accept certain criminal
complaints from private citizens.
Be it enacted by the Legislature of West Virginia:
That §61-3-39a, §61-3-39b and §61-3-39f of the Code of West
Virginia, 1931, as amended, be amended and reenacted, all to read
as follows:
ARTICLE 3. CRIMES AGAINST PROPERTY.
§61-3-39a. Making, issuing, etc., worthless checks on a
preexisting debt; penalty.
(a) It is unlawful for any person, firm or corporation to
make, draw, issue, utter or deliver any check, draft or order for
the payment of money or its equivalent
on a preexisting debt upon
any bank or other depository, knowing or having reason to know
there is not sufficient funds on deposit in or credit with the bank
or other depository with which to pay the check, draft or order upon presentation. The making, drawing, issuing, uttering or
delivering of any check, draft or order
on a preexisting debt, for
or on behalf of any corporation, or its name, by any officer or
agent of the corporation, shall subject the officer or agent to the
penalty of this section to the same extent as though the check,
draft or order was his or her own personal act.
(b) This section shall not apply to any
such check, draft or
order when the payee or holder knows or has been expressly notified
prior to the acceptance of same or has reason to believe that the
drawer did not have on deposit or to his or her credit with the
drawee sufficient funds to insure payment as aforesaid, nor shall
this section apply to any postdated check, draft or order. This
section shall not apply when the insufficiency of funds or credit
is caused by any adjustment to the drawer's account by the bank or
other depository without notice to the drawer or is caused by the
dishonoring of any check, draft or order deposited in the account
unless there is knowledge or reason to believe that the check,
draft or order would be dishonored.
(c) Any person violating the provisions of this section is
guilty of a misdemeanor and, upon conviction thereof, shall be
fined not more than two hundred dollars; and upon a third or
subsequent conviction thereof, shall be fined not more than two
hundred dollars, or confined in the county or regional jail not
more than ten days, or both.
§61-3-39b. Payment as defense.
Payment of a dishonored check, draft or order
received during the ten day notice period provided in section thirty-nine-g of this
article shall
not constitute a defense or ground for dismissal of
charges brought under section thirty-nine
and thirty-nine-a of this
article.
Payment of a dishonored check, including any authorized
charges or costs, shall constitute a defense or grounds for
dismissal of charges brought under section thirty-nine-a of this
article.
§61-3-39f. Manner of filing complaint for warrant; form.
Notwithstanding the provisions of section one, article one,
chapter sixty-two of this code, a complaint for warrant for
violations of section thirty-nine-a of this article need not be
made upon oath before a magistrate but may be made upon oath before
any magistrate court clerk or other court officer authorized to
administer oaths or before a notary public in any county of the
state and may be delivered by mail or otherwise to the magistrate
court of the county wherein venue lies:
Provided, That nothing in
this section changes the authority and responsibility of the
prosecuting attorney to prosecute any person for violation of
section thirty-nine or thirty-nine-a of this article.
A complaint for warrant for violations of section
thirty-nine-a of this article shall be deemed sufficient if it is
in form substantially as follows:
"State of West Virginia
County of ....................., to wit:
......................................, upon oath complains that:
(a) Within one year past, on the ...... day of ............,
19 20...., in the county stated above,
............................. ("the maker") unlawfully issued and
delivered to ........................... a check, draft or order
with the following words and figures:
.........................
19 20 ....
No...........
..............................................
(Name of Bank)
Pay to the Order of ..................... $.......... Dollars
For.........................................................
when the maker did not have funds on deposit in or credit with this
bank with which to pay the check, draft or order upon presentation
against the peace and dignity of the State of West Virginia. The
complainant therefore prays a warrant issue and that the maker be
apprehended and held to answer the warrant and dealt with in
relation thereto according to the law.
(b) At the time the check, draft or order was delivered and
before it was accepted there was either on the check or on a record
in the possession of the complainant the following information
regarding the identity of the maker:
(1) Name....................................................
(2) Residence address.......................................
(3) Business address........................................
(4) Mailing address.........................................
(5) Motor vehicle operator's number.........................
(6) Home phone..............................................
(7) Work phone..............................................
(8) Place of employment.....................................
That since the time the check, draft or order was delivered
the complainant has ascertained to the best of his or her knowledge
and belief the following facts concerning the maker:
Full name .......................................................
Home address ....................................................
Home phone no............... Business phone no...................
Place of employment .............................................
Race ............ Sex .............. Height .....................
Date of birth ...................................................
Day Month Year
..................................., Complainant
.................................... ............
Address Phone No.
(c) The complainant's bank or financial institution has
imposed on or collected from the complainant a service charge in
the amount of $........................ in connection with the
check, draft or order described above.
Taken, subscribed and sworn to before me, this ..............
day of ......................,
19 20.....
.............................................
.............................................
(Title)
My commission expires the ........ day of ..................,
19 20....."
The failure to supply information indicated in parts (b) or
(c) of the foregoing complaint for warrant shall not affect the
sufficiency
thereof of the complaint.
NOTE: the purpose of this bill is to clarify that §61-3-39a of
the code of West Virginia relates to worthless checks written for
preexisting debts, to provide that total payment of the worthless
check is a complete defense and allowing magistrate courts to
accept certain criminal complaints from private citizens.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.