Batas Pambansa Blg 22 - SPL

Batas Pambansa Blg 22 AN ACT PENALIZING THE MAKING OR DRAWING AND ISSUANCE OF A CHECK WIHOUT SUFFICIENT FUNDS OR CREDIT AND FOR OTHER PURPOSES

Acts Penalized: First Situation: 

Offender makes or draws and issues any check

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The same to be applied on account o r for value

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He knows that 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

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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 alid reason, ordered the bank to stop payment

Second Situation 

Offender whom having sufficient funds in r credit with the drawee bank, makes or draws and issues a check

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He fails to keep sufficient funds or to maintain a credit to cover the full amount of the check if presented within a period of ninety (90) days from the date appearing thereon

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For which reason it is dishonoured by the drawee bank

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Where the check is drawn by a corporation company or entity, the person or persons who actually signed the check in behalf of such drawer shall be liable under BP 22.

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The term “for value” is construed to m ean “an obligation incurred simultaneously with the issuance issuance of the check”.

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Value simply means the valuable v aluable consideration.

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Issue means the first delivery of the instrument complete in form, to a person who takes it as a holder.

When is a check considered dishonoured? dishonoured? 

A check is considered dishonoured when it is presented for payment and payment is refused or cannot be obtained.

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A check is dishonoured when the account against which it was drawn is insufficient or is closed or payment is “stopped” without valid reason.

When is there prima facie evidence of knowledge of insufficiency of funds or credit? 

Sec 2. Evidence of knowledge f 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 90 days from t he date of the check, shall be prima facie evidence of knowledge of usch insufficiency of funds or credit unless such maker or drawer pays the holder thereof the amount due thereon, o r makes arrangements for payment in full by t he drawee of such check within (5) banking days after receiving notice that such check has not been paid by the drawee.

What is the duty of the drawee bank when it refuses payment of the check? 

Sec 3. Duty of drawee… - It shall be the duty of the drawee of any check, when refusing to pay the same to the holder thereof upon presentment, to cause to be written, printed, or stamped in plain language thereon, or attached thereto , the reason for drawee’s dishonour or refusal to pay the same: Provided, 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 dishonour or refusal…

What is the prima facie evidence of the making or issuance of bouncing check? 

The introduction in evidence of any unpaid and dishonoured check, having the drawee’s refusal to pay stamped or written thereon or attached thereto, with the reason therefor as aforesaid, shall be prima facie evidence of the m aking or issuance of said check, and the due pre sentment to the drawee for payment and the dishonour thereof, and that the same was properly dishonoured for the reason written, stamped or attached by the drawee on such dishonoured check.

Is it possible for the same person to be punished under the Bouncing Checks Law and the Revised Penal Code for the same offense and/or act simultaneously? 

Sec 5. Liability under the Revised Penal Code – Prosecution under this Act shall be without prejudice to any liability for violation of any provision of the Revised Penal Code.

Article 315 (2)(d) of the Revised Penal Code 

By postdating a check, or issuing a check in payment f an obligation when the offender had no  funds in the bank or his funds deposited therein were not sufficient to cover the amount of the check. The failure of the drawer if the check to deposit the amount necessary to cover his check within (3) days from the receipt of the notice from the bank and/or payee holder that said check

has been dishonoured for lack or insufficiency of funds shall be prima facie evidence of deceit constituting false pretense or fraudulent act.

Is there no “double jeopardy” when a person is punished to i ssuing a bouncing check under both the

Revised Penal Code and BP 22? 

It is submitted that there is none. This is so because the Constitutional provision on double  jeopardy speaks of “punishment for the same offense” and for the same act . Thus, if a “single act may be an offense against two statutes, and if each statutes require proof of an additional fact which the others does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution or conviction under the other”. (Judge Je sus F. Guerero)

Distinction between BP 22 and Art. 315(2)(d) RPC: 

The maker’s/drawer’s/issuer’s knowledge of insufficient funds or credit with the drawee bank for the payment of such check at the time of issue is a requirement under BP 22 but not under Art. 315(2)(d) RPC.

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The requirement of deceit constituting false pretense o r fraudulent act is mandated in Art. 315(2)(d) RPC but never required in BP 2 2.

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The maker’s/drawer’s/issuer’s failure to pay in full the holder/payee within (5) banking days after receiving notice that such che ck has not been paid by the draw ee bank shall be conclusive evidence of knowledge of such insufficiency of funds or credit under BP 22. This is not so under Art. 315 (2)(d) RPC.

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Failure to give the issuer/ maker/ drawer of a bouncing check an opportunity to make good with the payment of his obligation within 5 banking days after rece iving the notice that such check has not been paid by the drawee shall cause the dismissal of the complaint.

Situs of the criminal action of a bouncing check 

The venue of the offense of BP 22 is determined either by the situs of the issuance or of the dishonour of the check. This is so because offenses punishable under BP22 require the fact of dishonour as essential ingredient thereof, venue of the offense m ay likewise be aid in the place where the check was dishonoured following the rules on continuing or transitory offenses.

GR No. 142762. March 04, 2005. LILANY YULO Y BILLIONES, petitioner, vs. PP, respondent. The elements of the offense penalized by B atas Pambansa Blg. 22 are: 1) The making, drawing, and issuance of any check to apply for account o r for value; 2) the knowledge of t he maker, drawer, or issuer, that at the time of issue he does not have sufficient funds in or c redit with the drawee bank for the payment of the check in full upon its presentment; and 3) the subsequent dishonor of the check by the drawee bank for insufficient funds or c redit or dishonor for the same reason had not the drawer, without any valid cause, ordered the bank to stop payment.

GR No. 139006. November 27, 2000. REMIGIO ONG, petitioner, vs. PP, respondent.

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What the law punishes is the issuance of a bouncing check, not the purpose for which it was issued nor the terms and conditions relating to its issuance. The mere act of issuing a worthless check is mala prohibitum. The gravamen of the offense punished by BP 22 is the act of making and issuing a wo rthless check or a check that is dishonoured upon its presentation for payment. It is not the nonpayment of an obligation which the law punishes. The law is not intended or designed to coerce a debtor to pay his debt. The thrust o f the law is to prohibit, under pain of penal sanctions, the making of worthless checks and putting them in c irculation. Petitioner’s argument that the subject check was issued without consideration is inconsequential. The law invariably declares the mere act of issuing a wo rthless check as mala prohibitum.

In prosecution for violation of BP 22, therefore, prejudice or damage is not a pre requisite for conviction 

In the more recent case of People vs. Nitalion, the SC ruled that the argument surrounding the issuance of the check need not be best looked into since the law clear ly prohibits that the mere issuance of any kind of check, regardless of the intent of the parties, i.e., whet her the check was intended merely to serve as guarantee or deposit, but which check was subsequently dishonored, makes the person who issued the check liable. The intent of the law is to curb the proliferation of worthless checks and to protect the stability and integrity of checks as a means of payment of obligation. (Lazaro vs. CA, 227 SCRA 723, 726-727)

Fact that object of contract was not of good quality, irrelevant: 

The fact that the object of the contract, the animal feeds, was not of good quality is irrelevant in the prosecution of a case involving BP 22, for the said law was enacted to prohibit, under pain of penal sanctions, the making of worthless checks and putting them in circulation. It is not the non-payment of an obligation which the law punishes, but the act of m aking and issuing a check that is dishonoured upon presentment for payment.

Venue of Transitory offenses, How Determined: 

Violation of BP 22 is in the nature of a continuing crime. Venue is determined by the place where the elements of making, issuing, or drawing of the check land delivery thereof are committed. Thus, as explained in People vs Yabut “*t+he theory is that a person indicted with a transitory offense may be validly tried in any jurisdiction where the o ffense was in part committed. The place where the bills were written, signed, or dated does not necessarily fix or determine the place where they were executed. What is of decisive importance is the delivery thereof. The delivery of the instrument is in the final act essential to its consummation as an obligation.

That Accommodation or Guarantee is a Defense, Reversed by Ministry Circular No 12 Dated August 1984 

The petitioner admits that the checks he issued were dishonoured. His main defense as to the dishonoured checks is that they were issued not for value but for accommodation or guarantee and invokes our ruling in Magno vs CA, where we held that there was no violation of BP 22 where the bounced check was issued to cover a required warranty deposit. He also cites Ministry Circular No 4 issued by the DOJ n 15 Dec. 1981, the pertinent portion of which reads: 2.3.4 Where issuance of bouncing check is neither estafa nor violation of BP 22. Where t he check is issued as part of an ar rangement to guarantee or secure the payment of the obligation, whether pre-existing r not, the drawer is not criminally liable for either estafa or violation of BP 22.

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It was subsequently reversed by Ministry Circular No 12 issued on 8 August 1984, which admitted its misinterpretation of BP 22. The pertinent portion of t he latter reads: Henceforth, conforming with the rule that an administrative agency having interpreting authority may reverse its administrative interpretation of a statute, but that its new interpretation applies only prospectively. (Waterbury Savings Bank vs Danaher, 128 Conn. 476; 2 0 a2d [1941]), in all cases involving violation of BP 22 where the check in question is issued after this date, the claim t hat the check is issued as a guarantee or part of an agreement to secure an obligation or to facilitate collection will no longer be considered as a valid defense.

GR No. 150618. July 24, 2003. EVANGELINE CABRERA,  petitioner, vs. PP AND LUIS GO, respondent.

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In order to create the prima facie presumption, that the issuer knew o f the insufficiency of funds, it must be shown that he or she received a notice of dishonour and within five banking days thereafter; failed to satisfy the amount of t he check for its payment. The prosecution is burdened to prove the acts that gave rise to the prima facie presumption. On the other hand, the drawer has the right to adduce evidence to rebut the same. It is important to stress that this presumption is not conclusive, or one that forecloses or precludes the presentation of evidence to the contrary. Thus, the drawer of the check can still overturn the prima facie presumption by

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proving that the holder thereof was paid the amount due thereon, or that arrangements we re made for payment in full by the drawee of the check within five banking days after receipt of notice that such check has not been paid by the drawee bank. While, indeed, Sec. 2 of BP 22 does not state that the notice of dishonour be in writing taken in conjunction, however with Sec. 3 of the law, i.e., that where there are no sufficient funds or credit with such drawee bank, such fact shall always be explicitly stated in the notice of dishonour or refusal, a mere oral notice o r demand to pay would appear to be insufficient for conviction under the law. The Court is convinced that both the spirit and letter of the Bouncing Checks law would require for the ac t to be punished thereunder not only that the accused issued a check that is dishonoured, but that likewise the accused has actually been notified in writing of the fact of dishonour. The consistent rule is that penal statutes have to be construed strictly against the State and liberally in favour of the accused. It is not enough for the prosecution to prove that a notice of dishonour was sent to the drawee of the check. It must also show that the drawer of the check received the said notice because the fact of service provided for in the law is reckoned from receipt of such notice of dishonour by the drawee of the check.