HB 2741 Text

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.

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