Duane Allen Jenkins, an employee of Southern Regional Automotive Consumer Consultant Agency, Inc. “SRACCA”, arranged for one of the company’s clients to purchase a motorcycle from Blue Moon Cycle, Inc. “Blue Moon”. As part of this transaction, Jenkins gave Blue Moon’s president, John E. Landstrom, a check for $8,180 on May 23, 2002. The check was written on SRACCA’s account and signed by its president, Denise W. Smith; it was returned for insufficient funds. Blue Moon gave notice to Jenkins via certified letter that he had ten days from receipt of the letter to tender the amount due plus service charges, or face arrest and prosecution. The letter conformed to the format set forth in the deposit account fraud statute, OCGA § 16-9-20, and was received by Jenkins on June 20, 2002. When the total amount due had not been paid in full by July 2, 2002, Blue Moon employee Robert H. Reed swore out a warrant against Jenkins and Jenkins was arrested. The charges were ultimately dismissed, and Jenkins sued Blue Moon, Landstrom and Reed hereinafter “defendants” for false arrest, false imprisonment and malicious prosecution. The trial court granted summary judgment to defendants on all claims, but in Jenkins v. Blue Moon Cycle, Inc. , 277 Ga. App. 733 627 SE2d 440 2006, the Court of Appeals reversed as to the false arrest and malicious prosecution claims. We granted certiorari to consider the circumstances under which the deposit account fraud statute provides a defendant with immunity from civil liability in an action for false arrest and malicious prosecution. See OCGA § 16-9-20 a, h.
The offense of deposit account fraud occurs when one “makes, draws, utters, executes, or delivers” an instrument with the knowledge that it will not be honored. OCGA § 16-9-20 a. Failure to tender the amount due, plus a service charge, within ten days of receiving written notice that payment was refused constitutes prima facie evidence of such knowledge. OCGA § 16-9-20 a 2. The holder of a worthless instrument who has given written notice in a form substantially similar to that provided in OCGA § 16-9-20 a 2 B is immune from civil liability for pursuing the arrest or prosecution of the person who “made, drew, uttered, executed, or delivered” the instrument. OCGA § 16-9-20 h 1.
