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Comparative Notes on BP Bilang 22 and


Estafa Article 315 paragraph 2 (d) under
The Revised Penal Code
AND THE CLEARING HOUSE RULES AND
PROCEDURE

BATAS PAMBANSA BLG. 22


AN ACT PENALIZING THE MAKING OR
DRAWING AND ISSUANCE OF A CHECK
WITHOUT SUFFICIENT FUNDS OR
CREDIT AND FOR OTHER PURPOSES

Prosecutor Janet Grace B. Dalisay-Fabrero

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.

SECTION 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 (5) banking days after receiving notice
that such check has not been paid by the
drawee.

The same penalty shall be imposed upon any


person who, having sufficient funds in or
credit with the drawee bank when he makes
or draws and issues a check, 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 ninety (90) days
from the date appearing thereon, for which
reason it is dishonored by the drawee bank.
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 this Act.

SECTION 3.
Duty of drawee; rules of evidence. 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 dishonor 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 dishonor or refusal. In all prosecutions
under this Act, the introduction in evidence of any unpaid and
dishonored 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 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.
Notwithstanding receipt of an order to stop payment, the drawee
shall state in the notice that there were no sufficient funds in or
credit with such bank for the payment in full of such check, if such
be the fact.

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SECTION 4. Credit construed. The word "credit" as used


herein shall be construed to mean an arrangement or
understanding with the bank for the payment of such check.
SECTION 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.
SECTION 6. Separability clause. If any separable provision
of this Act be declared unconstitutional, the remaining
provisions shall continue to be in force.
SECTION 7. Effectivity. This Act shall take effect fifteen
days after publication in the Official Gazette.
Approved, April 3, 1979.

SECOND
Having sufficient funds in or credit with the
drawee bank when he makes or draws and
issues 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 ninety (90) days from the date
appearing thereon, for which reason it is
dishonored by the drawee bank.

ELEMENTS OF THE SECOND OFFENSE DEFINED IN THE


2ND PARAGRAPH OF SEC.1
That a person has sufficient funds in or credit with
the drawee bank when he makes or draws and
issues a check;
That 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 90 days from the date
appearing thereon.
That the check is dishonored by the drawee bank.

PERTINENT NOTES AND DISCUSSION


BP Blg. 22 may be violated in two ways:
First:
By making or drawing and issuing any check to
apply on 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.

ELEMENTS OF THE FIRST OFFENSE DEFINED IN THE FIRST


PARAGRAPH OF SEC. 1
That a person makes or draws and issues any check.
That the check is made or drawn and issued to apply on
account or for value;
That the person who makes or draws and issues the
check 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.
That the 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.

The gravamen of BP 22 is the issuance of a check,


not the non payment of an obligation. The law has
made the mere issuing a bum check a malum
prohibitum (a special law).
BP 22 does not make a distinction as to whether the
bad check is issued in payment of an obligation or
to merely guarantee an obligation. It is a crime
against public interest. Deceit is not an element of
the crime such in the case of ESTAFA.

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Note: There is a presumption of drawers knowledge of


insufficient funds. Exceptions:
When the check is presented after 90 days from the date
of check.
When the 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 5 banking days
after receiving notice that such check has not been paid
by the drawee.

The presumption of knowledge of insufficiency of


funds or credit does not lie when the check is presented
after 90 days from the date of the check, because Section
2 which establishes the presumption requires that the
check be presented within 90 days from the date of check.

The element of knowledge of insufficiency of funds


or credit is not present and, therefore, the crime
does not exist when the drawer wither Pays the holder of the check the mount due thereon
within 5 banking days after receiving notice that
such check has not been paid by the drawee; or
Makes arrangements for payment in full by the
drawee of such check within five (5) banking days
after notice of non-payment

PENALTY
RULES ON EVIDENCE

Section 3 requires the drawee, who refuses to pay the


check ot the holder thereof, to cause to be written,
printed or stamped in the plain language thereon, or
attached thereto, the reason for its dishonor or refusal to
pay the same. Where there are no sufficient funds in or
credit with it, the drawee bank shall explicitly state the
fact in the notice of dishonor or refusal.

If the drawee bank received an order to stop payment


from the drawer, the former shall state in the notice that
there were no sufficient funds in or credit with it for the
payment in full of the check, if such be the fact.

BP. 22 - Applies to Crossed-Checks. Knowledge of the


payee of the insufficiency or lack of funds of the
drawer with the drawee bank is immaterial as
deceit is not an essential element of an offense
penalized by B.P. 22. As already afore-stated, the
gravamen of the offense is the issuance of a bad
check, hence, malice and intent in the issuance
thereof are inconsequential- Moreover, the fact feat
the check issued is restricted is likewise of no
moment Cross checks or restricted checks are
negotiable instrument within the coverage of B.P.
22 (Cruz vs. Court of Appeals 233 SC.U 509).

BP 22 imposes the penalty of imprisonment of


not less than 30 days but not more than 1 year or a
fine of not less than but not more than double the
amount of the check which I no case shall exceed P
200,000.
Supreme Court Administrative Circular No 122000, November 21, 2000 enjoined judges to
impose only the penalty of the dine in an amount
double the amount of check on the premised that
such would best serve the ends of criminal justice.
( Eduardo Vaca, Court of Appeals , 298 SCRA
656,664)

Issuance of worthless checks; Effects of. The effects of


the issuance of a worthless check transcends the
private interests of the parties directly involved in
the transaction and touches the interests of the
community at large. The mischief it creates is not
only a wrong to the payee or holder, but also an
injury to the public. The harmful practice of
putting valueless commercial papers in circulation,
multiplied a thousand fold, can very well pollute
the channel of trade and commerce, injure the
banking system and eventually hurt the welfare of
society and the public interest.

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The check flasher' does a great deal more than


contract a debt; he shakes the pillars of business;
and to my mind, it is a mistaken charity of judgment
to place him in the same category with the honest
man who is unable to pay his debts, and for whom
the constitutional inhibition against "imprisonment
for debt, except in cases of fraud was intended as a
shield and not a sword." (Stacy, C.J., concurring in
State v. Yarboro (1927) 194 N.C., 498 140 S.E.
216,220.)

Elements
That the offender postdated a check, or
issued a check in payment of an obligation;
That such postdating or issuing a check was
done when the offender had no funds in the
bank, or his funds deposited therein were
not sufficient to cover the amount of the
check.
Damage to the payee thereof ( PP vs.
Panganiban, 335 SCRA 354)

Issuance of check to perpetuate fraud. It is true


that if the amount were invested as capital in a
business, an accused would not be liable for
Estafa as his liability would be civil. However, we
find as established that A (accused) had
employed deceit to induce B (complainant) to
deliver the sum for investment not only through
acts of misrepresentation that led B to believed
that A was moneyed and simultaneously with
the delivery of the sum by B, A resorted to the
deceitful practice of issuing an unfounded check
for P88,350.00, ostensibly with a profitable
return, on investment, to perpetuate the fraud.
It turned out that he never has this money in the
bank. He was never able to make good the
dishonored check despite notice. (Chang vs. IAC,
146 SCRA 464).

ESTAFA UNDER ARTICLE 315 NO. 2(D), Revised Penal Code, as


mended by Republic Act No. 4885, the act constituting an
offense is postdating or issuing check in payment of 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
By postdating a check, or issuing a check in payment of 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 of the check
to deposit the amount necessary to cover his check within
three (3) days from receipt of notice from the bank and/or
payee or holder that said check has been dishonored for lack
or insufficiency of funds shall be prima facie evidence of
deceit constituting false pretense or fraudulent act. (Art.
315, No 2 (d), as amended by Republic act No. 4885,
approved June 17, 1967)

Estafa by postdating a check or issuing a check in


payment of an obligation.

Rules:
The check issued must be genuine and not falsified.
That check must be postdated or issued in payment
of an obligation contracted at the time of the
issuance and delivery of the check. It means the
check should not be postdated or issued in payment
of pre-existing obligation.
the accused must be able to obtain something from
the offended party by means of the check he issues
and deliver showing his false pretense or fraudulent
act.
Good faith is a defense in a charge of estafa by
postdating or issuing a check.

Distinctions Between Estafa and Violation of BP 22


1. Deceit and damage are essential elements of Estafa
and have to be established with satisfactory proof for
conviction. The act postdating or issuing a check in
payment of an obligation must be the efficient cause
of defrauding and as such should be either prior to or
simultaneous with the act of fraud. (People vs.
Fernando, 317 SCRA 617)
2. On the other hand, deceit and damage are not
essential for violation of the Bouncing Law. (Uy vs.
CA, 276 SCRA 367) What is punished is the mere
issuance of the check without sufficient funds. One
need not prove that there was damage because the
damage done is to the banking system. (Lim vs.
People, 340 SCRA 497)

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Distinctions Between Estafa and Violation of BP 22


The Bouncing Check law was enacted to
prevent the of worthless checks in the
mainstream of daily business and to avert
not only the undermining of the banking
system of the country but also the infliction
of damage and injury upon trade and
commerce. (Cueme vs. People, 335 SCRA
795)

Distinctions Between Estafa and Violation of BP 22


A single act of issuing a check that is subsequently
dishonored may result in Estafa and Violation of
the Bouncing Check Law (BP 22) if the check was
issued prior to or simultaneously with the
transaction. In the case of Estafa, the deceit
consists in the misrepresentation that the check
would be honored upon presentment for
payment for which reason the payee agreed to
the transaction. However, if the check was
issued to pay pre-existing debt, only a violation
of the Bouncing Check law is committed.

ILLUSTRATIONS
Example 1: R purchased goods from P. He issued a
check against his ABC Bank account to P
simultaneously with the purchase. The check is later
dishonored by ABC Bank. In this case R committed
both Estafa and Violation of BP 22 Law.
Example 2: R purchased goods from P on account. After
one week, R issued a check to P for the purchase
price. The check is later dishonored by Rs bank. R
committed only violation of BP 22 because the debt
for which the check was issued was a pre-existing
one. Deceit was not present at the time of the
transaction because the payee was not induced to
enter into the transaction by reason of the check the
issuance of which took place after sale transaction.