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5/22/2018 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 deem…

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Applied Philippine Laws I n Brief

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
Posted on April 8, 2011

DECEIT AND DAMAGE AS ELEMENTS OF ESTAFA

Under paragraph 2 (d) of Article 315 of the RPC, as amended by RA 4885,[20] 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.[21] 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.[22] 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:[23]

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.[24] 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.

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5/22/2018 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 deem…

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.[26] “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.”[27]

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[28] 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.”[29]
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.[30]

As held in Lao vs. Court of Appeals:[31]

“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
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5/22/2018 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 deem…

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.

http://sc.judiciary.gov.ph/jurisprudence/2004/jun2004/104238_58.htm

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BP 22 and Notice of Dishonor Elements and Penalty of Estafa by Means of Definition, nature and prerequisited in the
In "Anti Bouncing Check" Deceit issuance of subpoena
In "Estafa" In "Anti Bouncing Check"

About Erineus
Born on December 28, 1965, Surallah, South Cotabato, Southern Mindanao, Philippines.
View all posts by Erineus →

This entry was posted in Anti Bouncing Check, Criminal Law, Estafa and tagged as amended by RA 4885, DECEIT AND DAMAGE AS ELEMENTS OF ESTAFA, Notice of
Dishonor and BP 22 and Estafa, Under paragraph 2 (d) of Article 315 of the RPC. Bookmark the permalink.

4 Responses to 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

cel says:
September 18, 2012 at 5:29 am

I would very much appreciate your expert evaluation.

My father had a joint checking account with a colleague, which they opened for convenience and expediency, since his
colleague is tasked to find an investor to finance their participation in the bidding for 2 projects. My father is the authorized

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5/22/2018 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 deem…

officer of the company that is qualified to bid for these projects. Considering that it’s a joint checking account and they were
pressed for time in complying with the financial requirements in bidding for the projects, my father entrusted to his co-
signatory signed blank joint account checks.

The co-signatory timely found an Investor who released P500,000 (to the co-signatory) for the purchase of bidding
documents, bonds, etc. for the 2 projects.

Months thereafter, my father discovered that his co-signatory issued their joint account checks to this Investor. To his
surprise, it was for the total sum of almost P4M and for a specific date, both of which he did not authorize.

In view of this, my father met with the Investor and his co-signatory to object to the issuance of the checks, the amount, and
the maturity date of the checks. After some discussion, co-signatory and the Investor convinced and assured my father that
the checks were issued (and received by the Investor) merely as guarantee that should the company my father represented
win the contract for the 2 projects and the mobilization fund is released to the company, the Investor will be given the sum
represented by the checks which shall be substantially deductible from the co-signatory’s share (the service fee for finding a
financier), the rest as a return of her P500,000 INVESTMENT (no agreement that this sum is refundable in case they do not
win the bidding), and she will be entitled to sub-contract the projects for a percentage of the contract price for work
accomplished.

Unfortunately, out of the 2 contracts, the company my father represented was awarded with only 1. The Investor, however,
told them that she is not interested if she will be sub-contracting only 1 instead of 2 projects. So their relationship ended (no
animosity as far as my father was concerned; there was just no reason to communicate further).

Years thereafter, when my father attempted to get his NBI clearance, he found out that he and his co-signatory were sued by
the Investor for BP 22 and Estafa by issuing bum checks. Upon finding out, he voluntarily submitted himself to the
jurisdiction of the court (home town of the Investor) and pleaded not guilty.

Per Investor’s testimony in open court (BP 22 and Estafa), my father found out that his co-signatory replaced their joint
account checks with personal checks (of the co-signatory only) the same day the Investor went to the co-signatory’s house to
notify her that the joint account checks bounced. These replacements checks also bounced and 2 years thereafter, Investor
sued my father and the co-signatory as conspirators for the joint account checks AND for the replacement personal checks of
the co-signatory.

With the foregoing, may I seek your opinion on: 1) Whether my father can be convicted with some semblance of regularity
and basis for estafa under Art 315, par. 2(d) of the RPC even though the Investor testified in open court, more than once, that
she released the money (or at least P1M out of the almost P4M) MONTHS BEFORE she received the checks and that she
released a total of almost P4M because my father looked like good person and she knew they were awarded a contract for a
DIFFERENT project (the contract for this other project existed and is not being contested). 2) Despite of the LACK of written
notice of dishonor to my father, can the court rule that there was deceit because of the allegations in the complaint-affidavit
and the assumption/analysis that being a businesswoman, Investor would not have parted with her money if not deceived by
my father. 3) What possible strong legal defenses can my father invoke for the civil liability? 4) Is replacement of the joint
account checks by the co-signatory, which complainant accepted, with her personal checks have any relevance to my father’s
possible civil liability? Investor was asked by the judge during cross examination if she understood, being a businesswoman,
that the replacement of the joint account checks and her acceptance of the personal checks of one of the signatories of the joint
account checks meant that she can only go after the issuing co-signatory and cannot anymore hold my father liable for the
sum in question to which she categorically responded “Yes” in open court.

WOULD APPRECIATE YOUR EXPERT ASSESSMENT OF THE POSSIBILITY OF MY FATHER BEING CONVICTED FOR
ESTAFA UNDER ART. 315, PAR. 2(D), OF THE RPC BASED ON THE ABOVE.

I am concerned because (please note that my father was acquitted in the BP 22 case because of lack of notice of dishonor) the
Judge denied our Demurrer in the Estafa case on the ground that:
1) there is “probably” deceit because the Investor, being a businesswoman, would not have parted with her money if not
deceived by the accused.
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5/22/2018 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 deem…

2) Judge also ignored the testimony on different trial dates of the Investor herself that she released the money months before
she received the checks and ruled that the complaint-affidavit states that Investor parted with her money because of the
checks.

Incidentally, the Information filed by the prosecutor’s office alleged “encashment” of the checks that bounced but the
complaint-affidavit which alleges that Investor received postdated checks. The dates mentioned in both documents are
MONTHS AFTER the date (she invoked and identified a receipt/voucher in open court that is not signed by my father)
mentioned by the Investor as the date when she allegedly released the initial P1M+.
Reply

Erineus says:
October 31, 2012 at 11:21 pm

i am of opinion that as long your father can prove in court that there is no simultaneous transaction involving a
certain consideration he will probably be acquited from criminal accusation. as regards civil liability chances are he
will not escape from such. better consult your family lawyer. this is just an opinion based on the available info and
my perception of the case as presented.
Reply

MyBusinessDied says:
March 31, 2014 at 1:02 pm

Hi. I received a subpoena from MTC because of a BP 22 case. Now, aside from the fact that I didn’t personally receive any
notice of dishonor, (not to mention the fact that some of those checks bounced because my husband intentionally issued an
SPO because of irregularities in the delivery of goods,) we didn’t receive any SUBPOENA from the PROSECUTOR for
preliminary investigation. Can I use this as one of my defense?
Reply

cecille says:
January 21, 2015 at 5:36 am

hi i just want to know if a wife commited an estafa…. is it right that they will file a case to its husband ?
is husband liable to that ?
thank u…hope u reply .
Reply

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