BATAS PAMBANSA BLG.

22

The gravamen of BP 22 is the issuance of check, not the non-payment of an obligation. -Lozano v Martinez, 146 SCRA 323

BP 22 may be violated in two ways: 1. By making or drawing and issuing 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 dishonoured by the drawee bank for insufficiency of funds or credit or would have been dishonoured for the reason had not the drawer, without any valid reason, ordered the bank to stop payment. 2. Having sufficient funds in or credit with the drawee bank when he makes or draws and issues a check, by failing 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 dishonoured by the drawee bank. The first case has the following elements: 1. That a person makes or draws and issues any check; 2. That the check is made or drawn and issued to apply on account or for value; 3. That the person who makes or draws and issues the check knows at the time of issue that he does not have funds or credit with the drawee bank for the payment of such check in full upon its presentment; 4. That the check is subsequently dishonoured by the drawee bank for insufficiency of funds or credit, or would have been dishonoured for the same reason had not the drawer, without any valid reason, ordered the bank to stop payment. The following are elements of the second violation:

1. That a person has sufficient funds in or credit with the drawee bank when he makes or draws and issues a check; 2. That he fails to keep sufficient funds or to maintain a credit to cover the full amount of the if presented within a period of 90 days from the date appearing thereon; 3. That the check is dishonoured by the drawee bank.

DEFENSES:
The third element of the indicated in the first offense requires that the drawer knows at the time of issue that he does not have sufficient funds in or credit with the drawee bank. If he had sufficient funds in or credit with the drawee bank at the time he issued the check, but later he withdrew all his funds from or lost credit with the drawee bank, he is not liable under the 1st par of Sec. 1. This is because at the time he issued the check, he knew that he had sufficient funds in or credit with the drawee bank. The law further requires that the drawer shall order the bank to stop payment of the check must be without any valid reason. Thus, if there was a mistake in naming the payee of the check; the drawer ordered the bank to stop payment; and it appeared that the drawer knew at the time the check was issued that he no sufficient funds in the bank. In this case, the drawer is not liable, even if the check would have been dishonoured for insufficiency of funds had he not the bank to stop payment, because there was a valid reason (Wrong payee) for ordering the bank to stop payment. Suppose that drawer had kept sufficient funds in the drawee for 100 days from the date thereon to cover the check he had issued. The next day he withdrew all funds. When the check was presented later on that day to the drawee bank, it was dishonoured. The drawer in this scenario is NOT liable because the check was not presented within a period of 90 days from the date appearing thereon. In the case of Domagsang vs. Court of Appeals, GR No. 139292, Dec. 5, 2000, the Supreme Court held that while indeed, Sec. 2 of B.P.22 does not state that the notice of dishonour be in writing, taken in conjunction, however, with Section 3 of the law, that where notice funds in or credit with such drawee bank, such fact

shall always be explicitly stated in the notice of dishonour or refusal. A mere oral notice or demand to pay would appear to be insufficient for conviction under the law. Furthermore, in the case of Caras vs Court of Appeals, G.R. No. 129900, Oct.2, 2001, it was held that the absence of proof that drawer received any notice informing her of the fact her checks were dishonoured and giving her five working days within which to make arrangements of payment of the said checks prevents the application of the disputable presumption that she had knowledge of the insufficiency of her funds. Absent such presumption, the burden shifts to the prosecution to prove that the drawer had knowledge of the insufficiency of funds when the drawer issued the checks, otherwise, the drawer cannot be held liable under the law. In the case of Marigumen vs People, GR No.153451, May 26, 2005, if the drawer or maker is an officer of the corporation, the notice of dishonour to the said corporation is not notice to employee or officer who drew or issued the check for and it is behalf. The responsibility under BP 22 is personal to the accused; hence, personal knowledge of the notice of dishonour is necessary. Consequently, constructive notice to the corporation is not enough to satisfy due process. (Lao vs. Court of Appeals,274 SCRA 572 [1997]) The element of knowledge of insufficieny of funds or credit is not present and therefore, the crime does not exist, when the drawer either: 1. pays the holder of the check the amount due thereon within five 5 banking days after receiving the notice that such check has not been paid by the drawee; 2. makes arrangements for payment in full by the drawee of such check within 5 banking days after notice of non-payment. If 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 of prima facie evidence as provided in Sec. 2 of BP 22 cannot arise, since there would simply be no way of reckoning the crucial 5-day period. (Danao vs. Court of Appeals, GR. No. 122353, June 6, 2001).

Sources: The Revised Penal Code, Criminal Law, Luis B. Reyes, 2008 Criminal Law Reviewer, Atty. Abelardo C. Estrada Compact Reviewer in Criminal Law, Leonor D. Boado, 2013