If you are accused of writing a bad check, you need to be aware of your rights and obligations. The statutes cited in this guide are current as of October, 2013.
If you actually wrote the check, you should make every effort to make it good directly with the recipient as soon as possible. Communication and good faith is key. If you are unable to pay the check in full, the recipient may consider accepting payments over a short period of time if there is a reasonable explanation of why the check was dishonored. If so, be sure to get a receipt for payments made. Otherwise, the holder of the check may turn the check over to the county attorney for collection and possible criminal prosecution. They could also pursue civil collection themselves or through an attorney or collection agency.
Under ARS 47-4404, a bank is not obligated to pay a check which is more than six months old. If the problem has arisen because someone did not timely deposit a check, it is not your fault. However, you may still be civilly or criminally liable, depending on the facts and circumstances.
Regarding the criminal law aspects of writing a bad check, pursuant to ARS 13-1807, issuing a bad check is a class 1 misdemeanor if under $5,000. If $5,000 or more, it is a felony.
That statute states that: "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."
Even if you technically wrote the bad check, there are some defenses to criminal prosecution as provided in the statute. They include (1) if 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) if 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; and (3) if the insufficiency of funds results from an adjustment to the person's account by the credit institution without notice to the person.
Under ARS 13-107, there is a one (1) year statute of limitations for prosecuting misdemeanors, and seven (7) years for a class 6 felony.
You should note that the statute of limitation starts to run only when there has been actual discovery of the crime by the prosecuting agency if or when discovery should have occurred with the exercise of reasonable diligence, whichever first occurs.
In addition to possible criminal prosecution, the writer of a bad check can be held civilly liable. If a dishonored check is not paid within twelve (12) days of the date of a notice of dishonor (written or in person), under ARS 12-671 you will owe to the holder of the check an amount equal to twice the amount of check, or an additional $50, whichever greater, plus attorney fees and costs.
Under ARS 47-3118(C), the holder of a bad check has to bring a civil lawsuit within three (3) years from the date of dishonor, or ten (10) years from the date of the check, which first expires. A check is legally a "draft".
If You Dispute The Check
If you dispute that you wrote a bad check, or if the statute of limitations has expired, be sure you know your rights as outlined above and stand your ground. If a collection agency or attorney is attempting to collect, you should dispute the claim and demand verification of the debt. You should also gather any available proof that supports your position, such as a bank statement showing payment of the check, a copy of the cleared check, a receipt for payment, a written notice to the recipient of the check advising them not to deposit the check, etc.
You should also be aware that it is a crime for someone to threaten to accuse you of a crime in order to collect money from you. Under ARS 13-1804(A)(5), a person commits theft by extortion by knowingly obtaining or seeking to obtain property or services by means of a threat to accuse anyone of a crime or bring criminal charges against anyone.