dissenting.
I dissent from the Majority Opinion for the following reasons:
1) The Majority has re-written the statute and invaded the legislature's right to define societial conduct which constitutes a crime.
2) The Indiana Legislature made notice and payment a defense-not an element of check deception.
8) Assuming arguendo that the Majority is correct in its rationale that notice is an element of the offense of check deception and not a defense as urged by the Indiana Legislature, Kimber-ling had actual notice and statutory notice. The statute only defines one type of notice that will constitute notice. Other types of notice are not excluded by the statute.
4) After agreeing with Mr. Kaspar that he would adhere to a payment schedule to repay check number 1134 and after receiving a bank statement showing that check 1134 had been returned for insufficient funds, and after being personally threatened that action would be taken against him if he did not make check 1134 good as he had promised, it is difficult for me to conclude that Kimberling did not have notice that his check had been returned for insufficient funds. If a precise statement in a letter as to the amount and check number is necessary before check deception can be prosecuted then for all practical purposes, Indiana does not have a check deception statute.
*1073In 1981, this Court treated the "notice" provision of the statute as an element of the check deception offense in Vargo v. State (1981), 429 N.E.2d 291. The Statute, IC 35-43-5-5 then read as follows:
(a) A person who: o
(1) Has an account with a credit institution but does not have sufficient funds in that account; and
(2) Issues or delivers a check, draft, or order for payment on that credit institution; does not commit a crime under subsection (a) of this section if he pays the payee or holder the amount due, together with protest fees and any service fee or charge, not exceeding ten dollars [$10] which may be charged by the payee or holder, within twenty [20] days after the date of mailing by the payee or holder of notice to the person that the check, draft, or order has not been paid by the credit institution. Notice sent to either (@) the address printed or written on the check, draft, or order (ii) the address given by the person in writing to the payee at the time the check, draft, or order was issued constitutes notice to the person that the check, draft, or order has not been paid by the credit institution.... (emphasis supplied).
After Vargo v. State, the Indiana Legislature amended the Statute so that there could be no mistake that notice and payment was a defense and not an element of the offense of check deception. The Stat ute was amended to read as follows:
(e) It is a defense under subsection (a) if a person who: (1) Has an account with a credit institution but does not have sufficient funds in that account; and
(2) Issues or delivers a check, draft, or order for payment on that credit institution;
pays the payee or holder the amount due, together with protest fees and any service fee or charge, which may not exceed the greater of fifteen dollars [$15.00] or five percent [5%] but not more than two hundred fifty dollars [$250] of the amount due, that may be charged by the payee or holder, within ten [10] days after the date of mailing by the payee or holder of notice to the person that the check, draft, or order has not been paid by the credit institution. Notice sent in the manner set forth in IC 28-2-8-1(c) constitutes notice to the person that the check, draft, or order has not been paid by the credit institution. The payee or holder of a check draft or order that has been dishonored incurs no civil or criminal liability for sending notice under this subsection.
The Majority Opinion cites Suits v. State (1983), Ind.App., 451 N.E.2d 375 as authority for its interpretation of the Statute. It reads into the Statute an intent that obviously was never meant to exist. Actually, when the previous version of the Statute is read in conjunction with the amended version, it is equally obvious that just the opposite intent was meant; otherwise, there would have been little need to amend the Statute. In Swifts, the Majority quoted this phrase: "Thus, the only interpretation that gives viability to the legislature's expressed intent that a defense shall exist is the construction that the defense is timely payment after the state has proven the element of mailing notice of nonpayment." 451 N.E.2d at 381. This interpretation makes no sense in light of the amended Statute. Too, this interpretation stands for the proposition that intent can only be determined after a notice is sent to the payor by the payee. However, the Statute provides:
(c) The fact that a person issued or delivered a check,; draft, or order, payment of which was refused by the drawee, constitutes prima facie evidence that the person knew that it would not be paid or honored. In addition, evidence that a person had insufficient funds in or no account with a drawee credit institution constitutes prima facie evidence that he knew that the check, draft, or order would not be paid or honored.
If the Majority's interpretation is adopted, no person could be prosecuted under the Statute who had not received a notice from the payee. This is clearly not *1074the intent of the Indiana Legislature. Its intent is that a defense to the charge of check deception is available when the payor makes the check good within ten days after receiving notice from the payee that his check was not honored. If he pays after the ten days has expired, the defense is not available. If he does not pay at all the defense is not available. In Kimberling's ease, there was absolutely no payment. If the State must prove that notice was mailed with a precise statement of the check number and the the amount of the check as an element of the offense, the intent of the Legislature to punish those persons who pass bad checks would be effectively frustrated. If the defense is available only for ten days after the notice is mailed, its availability to a defendant only comes before the Court when two events occur. First, a notice must be sent to the payor by the payee, and second, the payor must have made the check good within ten days from the mailing of the notice; otherwise, notice has no place in the prosecution of a check deception offense.
It is true that the availability of the defense depends upon the payee notifying the payor that his check has been returned for insufficient funds. In most instances, the payee will want his money and notify the payor. The facts in the Kimberling case demonstrate this high probability. Kimberling was notified by letter, in person, his bank statement, a payee's payment schedule, and a threat of legal action. The Majority's concern that the notice defense is in the control of the payee must be left to the Indiana Legislature to change. Notice can not be an element of the check deception offense under the Statute. I would affirm the conviction.