DECEIT AND DAMAGE AS ELEMENTS OF ESTAFA
Under paragraph 2 (d) of Article 315 of the RPC, as amended by RA 4885, the elements of estafa are: (1) a check is postdated or issued in payment of an obligation contracted at the time it is issued; (2) lack or insufficiency of funds to cover the check; (3) damage to the payee thereof. Deceit and damage are essential elements of the offense and must be established by satisfactory proof to warrant conviction. Thus, the drawer of the dishonored check is given three days from receipt of the notice of dishonor to cover the amount of the check. Otherwise a prima facie presumption of deceit arises.
The prosecution failed to prove deceit in this case. The prima facie presumption of deceit was successfully rebutted by appellant’s evidence of good faith, a defense in estafa by postdating a check. Good faith may be demonstrated, for instance, by a debtor’s offer to arrange a payment scheme with his creditor. In this case, the debtor not only made arrangements for payment; as complainant herself categorically stated, the debtor-appellant fully paid the entire amount of the dishonored checks.
It must be noted that our Revised Penal Code was enacted to penalize unlawful acts accompanied by evil intent denominated as crimes mala in se. The principal consideration is the existence of malicious intent. There is a concurrence of freedom, intelligence and intent which together make up the “criminal mind” behind the “criminal act.” Thus, to constitute a crime, the act must, generally and in most cases, be accompanied by a criminal intent. Actus non facit reum, nisi mens sit rea. No crime is committed if the mind of the person performing the act complained of is innocent. As we held in Tabuena vs. Sandiganbayan:
The rule was reiterated in People v. Pacana, although this case involved falsification of public documents and estafa:
“Ordinarily, evil intent must unite with an unlawful act for there to be a crime. Actus non facit reum, nisi mens sit rea. There can be no crime when the criminal mind is wanting.”
American jurisprudence echoes the same principle. It adheres to the view that criminal intent in embezzlement is not based on technical mistakes as to the legal effect of a transaction honestly entered into, and there can be no embezzlement if the mind of the person doing the act is innocent or if there is no wrongful purpose.
The accused may thus prove that he acted in good faith and that he had no intention to convert the money or goods for his personal benefit. We are convinced that appellant was able to prove the absence of criminal intent in her transactions with Chua. Had her intention been tainted with malice and deceit, appellant would not have exerted extraordinary effort to pay the complainant, given her own business and financial reverses.
Aside from the above testimony, no other reference to the demand letter was made by the prosecution. The prosecution claimed that the demand letter was sent by registered mail. To prove this, it presented a copy of the demand letter as well as the registry return receipt bearing a signature which was, however, not even authenticated or identified. A registry receipt alone is insufficient as proof of mailing. “Receipts for registered letters and return receipts do not prove themselves; they must be properly authenticated in order to serve as proof of receipt of the letters.”
It is clear from the foregoing that complainant merely presumed that appellant received the demand letter prepared and sent by her lawyer. She was not certain if appellant indeed received the notice of dishonor of the checks. All she knew was that a demand letter was sent by her lawyer to the appellant. In fact, right after complainant made that presumption, her lawyer filed the criminal cases against appellant at the Fiscal’s office without any confirmation that the demand letter supposedly sent through registered mail was actually received by appellant.
With the evident lack of notice of dishonor of the checks, appellant cannot be held guilty of violation of BP 22. The lack of such notice violated appellant’s right to procedural due process. “It is a general rule that when service of notice is an issue, the person alleging that the notice was served must prove the fact of service.” The burden of proving receipt of notice rests upon the party asserting it and the quantum of proof required for conviction in this criminal case is proof beyond reasonable doubt.
When, during the trial, appellant denied having received the demand letter, it became incumbent upon the prosecution to prove that the demand letter was indeed sent through registered mail and that the same was received by appellant. But it did not. Obviously, it relied merely on the weakness of the evidence of the defense.
This Court therefore cannot, with moral certainty, convict appellant of violation of BP 22. The evident failure of the prosecution to establish that she was given the requisite notice of dishonor justifies her acquittal.
As held in Lao vs. Court of Appeals:
“It has been observed that the State, under this statute, actually offers the violator ‘a compromise by allowing him to perform some act which operates to preempt the criminal action, and if he opts to perform it the action is abated.’ This was also compared ‘to certain laws allowing illegal possessors of firearms a certain period of time to surrender the illegally possessed firearms to the Government, without incurring any criminal liability.’ In this light, the full payment of the amount appearing in the check within five banking days from notice of dishonor is a ‘complete defense.’ The absence of a notice of dishonor necessarily deprives an accused an opportunity to preclude a criminal prosecution. Accordingly, procedural due process clearly enjoins that a notice of dishonor be actually served on petitioner. Petitioner has a right to demand – and the basic postulates of fairness require — that the notice of dishonor be actually sent to and received by her to afford her the opportunity to avert prosecution under B.P. 22.
Stated otherwise, responsibility under BP 22 was personal to appellant; hence, personal knowledge of the notice of dishonor was necessary. Consequently, while there may have been constructive notice to appellant regarding the insufficiency of her funds in the bank, it was not enough to satisfy the requirements of procedural due process.
Finally, it is worth mentioning that notice of dishonor is required under both par. 2(d) Art. 315 of the RPC and Sec. 2 of BP 22. While the RPC prescribes that the drawer of the check must deposit the amount needed to cover his check within three days from receipt of notice of dishonor, BP 22, on the other hand, requires the maker or drawer to pay the amount of the check within five days from receipt of notice of dishonor. Under both laws, notice of dishonor is necessary for prosecution (for estafa and violation of BP 22). Without proof of notice of dishonor, knowledge of insufficiency of funds cannot be presumed and no crime (whether estafa or violation of BP 22) can be deemed to exist.