BP 22 and Notice of Dishonor

Petitioner was specifically charged with violation of the first paragraph of Section 1 of BP Blg. 22, which provides:

“SECTION 1.  Checks without sufficient funds. – Any person who makes or draws and issues any check to apply on account or for value, knowing at the time of issue that he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment, which check is subsequently dishonored by the drawee bank for insufficiency of funds or credit or would have been dishonored for the same reason had not the drawer, without any valid reason, ordered the bank to stop payment, shall be punished by imprisonment of not less than thirty days but not more than one (1) year or by a fine of not less than but not more than double the amount of the check which fine shall in no case exceed Two Hundred Thousand Pesos, or both such fine and imprisonment at the discretion of the court.” (Underscoring supplied)

The elements [See also People vs. Laggui, 171 SCRA 305 (1989)] of the offense under the abovequoted provision are:

1.  The accused makes, draws or issues any check to apply to account or for value;

2.  The accused knows at the time of the issuance that he or she does not have sufficient funds in, or credit with, the drawee bank for the payment of the check in full upon its presentment; and

3.  The check is subsequently dishonored by the drawee bank for insufficiency of funds or credit, or it would have been dishonored for the same reason had not the drawer, without any valid reason, ordered the bank to stop payment.

In King vs. People [319 SCRA 667-668 (1999)], this Court, through Justice Artemio V. Panganiban, held:  “To hold a person liable under B.P. Blg. 22, it is not enough to establish that a check issued was subsequently dishonored.  It must be shown further that the person who issued the check knew ‘at the time of issue that he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment.’ Because this element involves a state of mind which is difficult to establish, Section 2 of the law creates a prima facie presumption of such knowledge, as follows:

‘SEC. 2. Evidence of knowledge of insufficient funds. – The making, drawing and issuance of a check payment of which is refused by the drawee because of insufficient funds in or credit with such bank, when presented within ninety (90) days from the date of the check, shall be prima facie evidence of knowledge of such insufficiency of funds or credit unless such maker or drawer pays the holder thereof the amount due thereon, or makes arrangements for payment in full by the drawee of such check within five (5) banking days after receiving notice that such check has not been paid by the drawee.’’’

Thus, this Court further ruled in King, [319 SCRA 669 (1999)]. “in order to create the prima facie presumption that the issuer knew of the insufficiency of funds, it must be shown that he or she received a notice of dishonor and, within five banking days thereafter, failed to satisfy the amount of the check or make arrangement for its payment.”

Indeed, the prima facie presumption in Section 2 of B.P. Blg. 22 “gives the accused an opportunity to satisfy the amount indicated in the check and thus avert prosecution.” [319 SCRA 668 (1999)]. This opportunity, as this Court stated in Lozano vs. Martinez, [146 SCRA 324 (1986)] serves to “mitigate the harshness of the law in its application.”

In other words, if such notice of non-payment by the drawee bank is not sent to the maker or drawer of the bum check, or if there is no proof as to when such notice was received by the drawer, then the presumption or prima facie evidence as provided in Section 2  of B.P. Blg. 22 cannot arise, since there would simply be no way of reckoning the crucial 5-day period.

In the present case, no proof of receipt by petitioner of any notice of non-payment of the checks was ever presented during the trial.  As found by the trial court itself, “(t)he evidence however is not clear when Macasieb (private complainant) made the demands.  There is  no proof  of the date when DANAO received  the demand letter (Exh. F).”

Obviously, in the instant case, there is no way of determining when the 5-day period prescribed in Section 2 of B.P. Blg. 22 would start and end.  Thus, the presumption or prima facie evidence of knowledge by the petitioner of the insufficiency of funds or credit at the times she issued the checks did not arise.

It is clear that the essential element of knowledge of insufficiency of funds or credit on the part of petitioner is absent in the case at bar, not having been proved by the prosecution.   On this ground alone, petitioner should be acquitted.

Again, the ruling of this Court in King bears repeating:

“Under Batas Pambansa Blg. 22 (BP 22), the prosecution must prove not only that the accused issued a check that was subsequently dishonored.  It must also establish that the accused was actually notified that the check was dishonored, and that he or she failed, within five banking days from receipt of the notice, to pay the holder of the check the amount due thereon or to make arrangement for its payment.  Absent proof that the accused received such notice, a prosecution for violation of the Bouncing Checks Law cannot prosper.”

In the same vein, we clarified in Lao vs. Court of Appeals [274 SCRA 586 (1997)] that “(a)lthough the offense charged is a malum prohibitum, the prosecution is not thereby excused from its responsibility of proving beyond reasonable doubt all the elements of the offense, one of which is knowledge of the insufficiency of funds.”

http://sc.judiciary.gov.ph/jurisprudence/2000/nov2000/139006.htm

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About Erineus

Ernesto O. Bendita. Born on December 28, 1965, Surallah, South Cotabato, Southern Mindanao, Philippines.
This entry was posted in Anti Bouncing Check and tagged . Bookmark the permalink.

2 Responses to BP 22 and Notice of Dishonor

  1. gerald says:

    Is registry receipt of the notice considered proof of notice? What if a person other than the drawer received the notice of dishonor and signed the registry receipt, will this be considered as proof of notice?

    • Erineus says:

      Under normal circumstances it must be received and signed by the drawer himself to be liable. In a situation in which the drawer cannot be contacted in his last address address specified and known the registry receipt of the notice will be considered the proof of notice else there is no way for the justice system to make the drawer accountable for his crime. this is just an opinion based on one case so you better consult your lawyer.

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