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The Bouncing Checks Law, or Batas Pambansa (BP) Blg. 22, is a law that governs the criminal liability arising from the issuance of bounced checks. What the law punishes is the issuance of a bouncing check and not the purpose for which the check was issued, nor the terms and conditions of its issuance. To determine the reasons for which checks are issued, or the terms and conditions for their issuance, will greatly erode the faith the public reposes in the stability and commercial value of checks as currency substitutes, and bring about havoc in trade and in banking communities.[1]
Constitutional challenge
The attacks on the constitutionality of BP 22, as discussed in Lozano vs. Martinez,[2] are the following: (1) it offends the constitutional provision forbidding imprisonment for debt; (2) it impairs freedom of contract; (3) it contravenes the equal protection clause; (4) it unduly delegates legislative and executive powers; and (5) its enactment is flawed in that during its passage the Interim Batasan violated the constitutional provision prohibiting amendments to a bill on Third Reading. Unless otherwise indicated, the succeeding discussions are lifted from Lozano.
The enactment of BP 22 is a declaration by the legislature that, as a matter of public policy, the making and issuance of a worthless check is deemed public nuisance to be abated by the imposition of penal sanctions. It had been reported that the approximate value of bouncing checks per day was close to 200 million pesos. It is not for the court to question the wisdom or policy of the statute. It is sufficient that a reasonable nexus exists between means and end. Considering the factual and legal antecedents that led to the adoption of the statute, it is not difficult to understand the public concern which prompted its enactment.
It is argued that Section 9 (2) of Article VII of the 1973 Constitution was violated by the legislative body when it enacted BP 22 into law. This constitutional provision prohibits the introduction of amendments to a bill during the Third Reading. It is claimed that during its Third Reading, the bill which eventually became BP 22 was amended in that the text of the second paragraph of Section 1 of the bill as adopted on Second Reading was altered or changed in the printed text of the bill submitted for approval on Third Reading. However, it is clear from the records that the text of the second paragraph of Section 1 of BP 22 is the text which was actually approved by the body on Second Reading.
(1) Making or drawing and issuing any check to apply on account or for value, knowing at the time of issue that the drawer does not have sufficient funds in or credit with the drawee bank. (2) Having sufficient funds in or credit with the drawee bank shall fail to keep sufficient funds or to maintain a credit to cover the full amount of the check if presented within a period of 90 days from the date appearing thereon, for which reason it is dishonored by the drawee bank.
In the first paragraph, the drawer knows that he does not have sufficient funds to cover the check at the time of its issuance, while in the second paragraph, the drawer has sufficient funds at the time of issuance but fails to keep sufficient funds or maintain credit within ninety (90) days from the date appearing on the check. In both instances, the offense is consummated by the dishonor of the check for insufficiency of funds or credit. The check involved in the first offense is worthless at the time of issuance since the drawer had neither sufficient funds in nor credit with the drawee bank at the time, while that involved in the second offense is good when issued as drawer had sufficient funds in or credit with the drawee bank when issued. Under the first offense, the 90-day presentment period is not expressly provided, while such period is an express element of the second offense.
Elements: General
The elements of the offense under Section 1 of B.P. Blg. 22 are:
(1) drawing and issuance of any check to apply on account or for value; (2) knowledge by the maker, drawer, or issuer that at the time of issue he did not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon presentment; and
(3) said 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.[4]
Element 1: Issuance of check The gravamen of the offense punished by B.P. Blg. 22 is the act of making or issuing a worthless check or a check that is dishonored upon its presentation for payment. The mere act of issuing a worthless check whether as a deposit, as a guarantee or even as evidence of pre-existing debt is malum prohibitum.[5] Element 2: Knowledge of insufficiency of funds It must be shown beyond reasonable doubt that the accused knew of the insufficiency of funds at the time the check was issued. BP 22 provides that the accused must be notified of the dishonor, thus: SEC. 2. Evidence of knowledge of insufficient funds. The making, drawing and issuance of a check payment of which is refused by the drawee bank 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. The prosecution must 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. The notice of dishonor of a check to the maker must be in writing. A mere oral notice to the drawer or maker of the dishonor of his check is not enough. It's true that Section 2 does not state that the notice of dishonor be in writing. This, however, should be taken in conjunction with Section 3, which provides that where there are no sufficient funds in or credit with such drawee bank, such fact shall always be explicitly stated in the notice of dishonor or refusal.This is consistent with the rule that penal statutes have to be construed strictly against the State and liberally in favor of the accused. Without a written notice of dishonor of the checks, there is no way of determining when the 5-day period prescribed in Section 2 would start and end.[6] In other words, the prima facie presumption arises when a check is issued. But the law also provides that the presumption does not arise when the issuer pays the amount of the check or makes arrangement for its payment "within five banking days after receiving notice that such check has not been paid by the drawee." Verily, BP 22 gives the accused an opportunity to satisfy the amount indicated in the check and thus avert prosecution.[7] The absence of a notice of dishonor necessarily deprives an accused an opportunity to preclude a criminal prosecution. Procedural due process clearly enjoins that a notice of dishonor be actually sent to and received by the accused. The accused has a right to demand and the basic postulates of fairness require
that the notice of dishonor be actually sent to and received by the same to afford him/her the opportunity to avert prosecution under B.P. 22.[8] The foregoing discussion abundantly shows that the notice must be in writing. A verbal and indirect notice, however, was found to be sufficient in the case of Yulo vs. People.[9] The pertinent finding of fact in this case is as follows: As Myrna [the complainant] did not know petitioners [the accused] address, she immediately informed Josefina [the "best friend of the accused] about the dishonored checks. The latter told Myrna not to worry and repeated her assurance that petitioner is her best friend and a good payer. Myrna tried to get petitioners address from Josefina, but the latter refused and instead made the assurance that she will inform petitioner that the checks were dishonored. It is clear from these findings that there was no written notice given to the accused. It is also clear that no notice, even a verbal notice, was given directly to the accused. Still, the Supreme Court concluded that: We likewise find no reason to sustain petitioners contention that she was not given any notice of dishonor. Myrna had no reason to be suspicious of petitioner. It will be recalled that Josefina Dimalanta assured Myrna that petitioner is her "best friend" and "a good payer." Consequently, when the checks bounced, Myrna would naturally turn to Josefina for help. We note that Josefina refused to give Myrna petitioners address but promised to inform petitioner about the dishonored checks. This ruling would appear to be inconsistent with the required burden of proof and the rule of interpretation of penal laws, succinctly noted in King vs. People, thus: We must stress that BP 22, like all penal statutes, is construed strictly against the State and liberally in favor of the accused. Likewise, the prosecution has the burden to prove beyond reasonable doubt each element of the crime. Hence, the prosecutions case must rise or fall on the strength of its own evidence, never on the weakness or even absence of that of the defense. Element 3: Dishonor of check Under Section 3 of BP 22, "the introduction in evidence of any unpaid and dishonored check, having the drawees refusal to pay stamped or written thereon, or attached thereto, with the reason therefor as aforesaid, shall be prima facie evidence of the making or issuance of said check, and the due presentment to the drawee for payment and the dishonor thereof, and that the same was properly dishonored for the reason written, stamped, or attached by the drawee on such dishonored check." For instance, in the case of King vs. People,[10], the prosecution presented the checks which were stamped with the words ACCOUNT CLOSED, supported by the returned check tickets issued by the depository bank stating that the checks had been dishonored. The documents constitute prima facie evidence that the drawee bank dishonored the checks, and no no evidence was presented to rebut the claim.
Jurisdiction
Where filed
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Other Issues
Separate from estafa
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The issuer is not automatically liable simply because the check bounced
A check generally bounces when dishonored upon presentment (reasons include, account closed, drawn against insufficient funds or DAIF). However, it is indispensable that the issuer must be notified in WRITING about the fact of dishonor, and he has 5 days from receipt to pay the value of the check or make arrangements for the payment thereof.
Check as guarantee
As noted above, law punishes the mere issuance of a bouncing check and not the purpose for which the check was issued, nor the terms and conditions of its issuance. The mere act of issuing a worthless check is malum prohibitum, and the argument that the check is merely to guarantee payment of an obligation is not a defense.[11]
Even if a criminal case under B.P. 22 is filed, the court cant issue a HDO. All violations of the Bouncing Checks Law, regardless of the amount involved, are filed only with the municipal/metropolitan trial courts. These courts cannot issue a HDO.
Applicable penalties
Courts have the discretion of imposing: (a) imprisonment only; (b) fine only; OR (c) both. It is entirely possible that only a fine, without imprisonment, is imposed.