16-9-20.(a) A person commits the offense of deposit
account fraud when such person makes, draws, utters, executes, or
delivers an instrument for the payment of money on any bank or
other depository in exchange for a present consideration or wages,
knowing that it will not be honored by the drawee. For the purposes
of this Code section, it is prima-facie evidence that the accused
knew that the instrument would not be honored if:(1) The accused had no account with
the drawee at the time the instrument was made, drawn, uttered, or
delivered;(2) Payment was
refused by the drawee for lack of funds upon presentation within 30
days after delivery and the accused or someone for him or her shall
not have tendered the holder thereof the amount due thereon,
together with a service charge, within ten days after receiving
written notice that payment was refused upon such instrument. For
purposes of this paragraph:(A) Notice mailed by certified or registered
mail or statutory overnight delivery evidenced by return receipt to
the person at the address printed on the instrument or given at the
time of issuance shall be deemed sufficient and equivalent to
notice having been received as of the date on the return receipt by
the person making, drawing, uttering, executing, or delivering the
instrument. A single notice as provided in subparagraph (B) of this
paragraph shall be sufficient to cover all instruments on which
payment was refused and which were delivered within a ten-day
period by the accused to a single entity, provided that the form of
notice lists and identifies each instrument; and(B) The form of notice shall be
substantially as follows:'You are hereby notified that the following
instrument(s)
Number
Date
Amount
NameofBank
__________
__________
__________
__________
__________
__________
__________
__________
__________
__________
__________
__________
__________
__________
__________
__________
__________
__________
__________
__________
drawn upon ____________ and payable
to ___________, (has) (have) been dishonored. Pursuant to Georgia
law, you have ten days from receipt of this notice to tender
payment of the total amount of the instrument(s) plus the
applicable service charge(s) of $________ and any fee charged to
the holder of the instrument(s) by a bank or financial institution
as a result of the instrument(s) not being honored, the total
amount due being ____________ dollars and ______ cents. Unless this
amount is paid in full within the specified time above, a
presumption in law arises that you delivered the instrument(s) with
the intent to defraud and the dishonored instrument(s) and all
other available information relating to this incident may be
submitted to the magistrate for the issuance of a criminal warrant
or citation or to the district attorney or solicitor-general for
criminal prosecution.'; or(3) Notice mailed by certified or registered
mail or statutory overnight delivery is returned undelivered to the
sender when such notice was mailed within 90 days of dishonor to
the person at the address printed on the instrument or given by the
accused at the time of issuance of the instrument.(b)(1) Except as provided in
paragraphs (2) and (3) of this subsection and subsection (c) of
this Code section, a person convicted of the offense of deposit
account fraud shall be guilty of a misdemeanor and, upon conviction
thereof, shall be punished as follows:(A) When the instrument is for less than
$100.00, a fine of not more than $500.00 or imprisonment not to
exceed 12 months, or both;(B) When the instrument is for $100.00 or more
but less than $300.00, a fine of not more than $1,000.00 or
imprisonment not to exceed 12 months, or both; or(C) When more than one instrument is
involved and such instruments were drawn within 90 days of one
another and each is in an amount less than $100.00, the amounts of
such separate instruments may be added together to arrive at and be
punishable under subparagraph (B) of this paragraph.(2) Except as provided in paragraph
(3) of this subsection and subsection (c) of this Code section, a
person convicted of the offense of deposit account fraud, when the
instrument is for an amount of not less than $300.00 nor more than
$499.99, shall be guilty of a misdemeanor of a high and aggravated
nature. When more than one instrument is involved and such
instruments were given to the same entity within a 15 day period
and the cumulative total of such instruments is not less than
$300.00 nor more than $499.99, the person drawing and giving such
instruments shall upon conviction be guilty of a misdemeanor of a
high and aggravated nature.(3) Except as provided in subsection (c) of this
Code section, a person convicted of the offense of deposit account
fraud, when the instrument is for $500.00 or more, shall be guilty
of a felony and, upon conviction thereof, shall be punished by a
fine of not less than $500.00 nor more than $5,000.00 or by
imprisonment for not more than three years, or both.(4) Upon conviction of a first or
any subsequent offense under this subsection or subsection (c) of
this Code section, in addition to any other punishment provided by
this Code section, the defendant shall be required to make
restitution of the amount of the instrument, together with all
costs of bringing a complaint under this Code section. The court
may require the defendant to pay as interest a monthly payment
equal to 1 percent of the amount of the instrument. Such amount
shall be paid each month in addition to any payments on the
principal until the entire balance, including the principal and any
unpaid interest payments, is paid in full. Such amount shall be
paid without regard to any reduction in the principal balance owed.
Costs shall be determined by the court from competent evidence of
costs provided by the party causing the criminal warrant or
citation to issue; provided, however, that the minimum costs shall
not be less than $25.00. Restitution may be made while the
defendant is serving a probated or suspended sentence.(c) A person who commits the offense
of deposit account fraud by the making, drawing, uttering,
executing, or delivering of an instrument on a bank of another
state shall be guilty of a felony and, upon conviction thereof,
shall be punished by imprisonment for not less than one nor more
than five years or by a fine in an amount of up to $1,000.00, or
both.(d) The prosecuting
authority of the court with jurisdiction over a violation of
subsection (c) of this Code section may seek extradition for
criminal prosecution of any person not within this state who flees
the state to avoid prosecution under this Code section.(e) In any prosecution or action
under this Code section, an instrument for which the information
required in this subsection is available at the time of issuance
shall constitute prima-facie evidence of the identity of the party
issuing or executing the instrument and that the person was a party
authorized to draw upon the named account. To establish this
prima-facie evidence, the following information regarding the
identity of the party presenting the instrument shall be obtained
by the party receiving such instrument: the full name, residence
address, and home phone number.(1) Such information may be provided by either
of two methods:(A) The
information may be recorded upon the instrument itself; or(B) The number of a check-cashing
identification card issued by the receiving party may be recorded
on the instrument. The check-cashing identification card shall be
issued only after the information required in this subsection has
been placed on file by the receiving party.(2) In addition to the information required in
this subsection, the party receiving an instrument shall witness
the signature or endorsement of the party presenting such
instrument and as evidence of such the receiving party shall
initial the instrument.(f)
As used in this Code section, the term:(1) 'Bank' shall include a financial institution
as defined in this Code section.(2) 'Conviction' shall include the entering of a
guilty plea, the entering of a plea of nolo contendere, or the
forfeiting of bail.(3)
'Financial institution' shall have the same meaning as defined in
paragraph (21) of Code Section 7-1-4 and shall also include a
national bank, a state or federal savings bank, a state or federal
credit union, and a state or federal savings and loan
association.(4) 'Holder in
due course' shall have the same meaning as in Code Section
11-3-302.(5) 'Instrument'
means a check, draft, debit card sales draft, or order for the
payment of money.(6)
'Present consideration' shall include without limitation:(A) An obligation or debt of rent
which is past due or presently due;(B) An obligation or debt of state taxes which
is past due or presently due;(C) An obligation or debt which is past due or
presently due for child support when made for the support of such
minor child and which is given pursuant to an order of court or
written agreement signed by the person making the payment;(D) A simultaneous agreement for the
extension of additional credit where additional credit is being
denied; and(E) A written
waiver of mechanićs
or materialmeńs
lien rights.(7) 'State
taxes' shall include payments made to the Georgia Department of
Labor as required by Chapter 8 of Title 34.(g) This Code section shall in no way affect the
authority of a sentencing judge to provide for a sentence to be
served on weekends or during the nonworking hours of the defendant
as provided in Code Section 17-10-3.(h)(1) Any party holding a worthless instrument
and giving notice in substantially similar form to that provided in
subparagraph (a)(2)(B) of this Code section shall be immune from
civil liability for the giving of such notice and for proceeding as
required under the forms of such notice; provided, however, that,
if any person shall be arrested or prosecuted for violation of this
Code section and payment of any instrument shall have been refused
because the maker or drawer had no account with the bank or other
depository on which such instrument was drawn, the one causing the
arrest or prosecution shall be deemed to have acted with reasonable
or probable cause even though he, she, or it has not mailed the
written notice or waited for the ten-day period to elapse. In any
civil action for damages which may be brought by the person who
made, drew, uttered, executed, or delivered such instrument, no
evidence of statements or representations as to the status of the
instrument involved or of any collateral agreement with reference
to the instrument shall be admissible unless such statements,
representations, or collateral agreement shall be written
simultaneously with or upon the instrument at the time it is
delivered by the maker thereof.(2) Except as otherwise provided by law, any
party who holds a worthless instrument, who complies with the
requirements of subsection (a) of this Code section, and who causes
a criminal warrant or citation to be issued shall not forfeit his
or her right to continue or pursue civil remedies authorized by law
for the collection of the worthless instrument; provided, however,
that if interest is awarded and collected on any amount ordered by
the court as restitution in the criminal case, interest shall not
be collectable in any civil action on the same amount. It shall be
deemed conclusive evidence that any action is brought upon probable
cause and without malice where such party holding a worthless
instrument has complied with the provisions of subsection (a) of
this Code section regardless of whether the criminal charges are
dismissed by a court due to payment in full of the face value of
the instrument and applicable service charges subsequent to the
date that affidavit for the warrant or citation is made. In any
civil action for damages which may be brought by the person who
made, drew, uttered, executed, or delivered such instrument, no
evidence of statements or representations as to the status of the
instrument involved or of any collateral agreement with reference
to the instrument shall be admissible unless such statements,
representations, or collateral agreement shall be written
simultaneously with or upon the instrument at the time it is
delivered by the maker thereof.(i) Notwithstanding paragraph (2) of subsection
(a) of this Code section or any other law on usury, charges, or
fees on loans or credit extensions, any lender of money or extender
of other credit who receives an instrument drawn on a bank or other
depository institution given by any person in full or partial
repayment of a loan, installment payment, or other extension of
credit may, if such instrument is not paid or is dishonored by such
institution, charge and collect from the borrower or person to whom
the credit was extended a bad instrument charge. This charge shall
not be deemed interest or a finance or other charge made as an
incident to or as a condition to the granting of the loan or other
extension of credit and shall not be included in determining the
limit on charges which may be made in connection with the loan or
extension of credit or any other law of this state.(j) For purposes of this Code
section, no service charge or bad instrument charge shall exceed
$30.00 or 5 percent of the face amount of the instrument, whichever
is greater, except that the holder of the instrument may also
charge the maker an additional fee in an amount equal to that
charged to the holder by the bank or financial institution as a
result of the instrument not being honored.(k) An action under this Code section may be
prosecuted by the party initially receiving a worthless instrument
or by any subsequent holder in due course of any such worthless
instrument.
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