The Honorable Larry Cook Prosecuting Attorney 17th West Judicial District P.O. Box 423 Lonoke, Arkansas 72086
Dear Mr. Cook:
This is in response to your request for an opinion on the following question concerning the "Arkansas Hot Check Law:"
If a check is written on a corporation, business or other entity which is not a personal account of the signer of the check, can the person who signs the check be held criminally liable if the check is returned for insufficient funds or closed account?
It is my opinion that the answer to your question is generally "yes."
The issue you have raised is not directly addressed in the relevant Arkansas statutes. Section 5-37-302 states merely that: "It shall be unlawful for any person: (1) To procure any article or thing of value . . . or for any other purpose to make or draw or utter or deliver [a worthless check]. See also A.C.A. § 5-37-307(a) (referring only to a "person.")
Nonetheless, another provision in the Arkansas Criminal Code imposes criminal liability on agents acting on behalf of organizations. Section5-2-503 of the Arkansas Code states in pertinent part that:
(a) A person is criminally liable for any conduct constituting an offense that he performs or causes to be performed in the name of or in behalf of an organization to the same extent as if that conduct were performed in his own name or behalf.
It is therefore my opinion that the answer to your question is "yes," as a general matter, assuming all elements of proof can be met, including the requisite mental state required for the offense. This conclusion is consistent with what has been called the "general rule." See "Criminal Liability of Corporate Officer Who Issues Worthless Checks in Corporate Name," 68 A.L.R. 2d 1269 (1956), and cases cited therein. See also Cooperv. State, 181 Ind. App. 275, 391 N.E.2d 841 (1979).
The foregoing opinion, which I hereby approve, was prepared by Deputy Attorney General Elana C. Wills.
Sincerely,
WINSTON BRYANT Attorney General
WB:ECW/cyh