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BP 22

May the absence of notice of dishonor acquit the offender?


YES. A notice of dishonor received by the maker or drawer of the check is thus
indispensable before a conviction can ensue. The lack of a written notice is fatal for the
prosecution. (Resterio vs. People, G.R. No. 177438. September 24, 2012, BERSAMIN,
J., First Division).
May a check drawn against insufficient funds hold the person liable for BP 22 or
estafa?
BP 22. In BP Blg. 22, the facts that the payee had knowledge that he had insufficient
funds at the time he issued the check is immaterial as deceit is not an essential element
of the offense under this law. The gravamen of the offense under BP Blg. 22 is the
issuance of a bad check; hence, malice and intent in the issuance thereof are
inconsequential (Rigor vs. People, G.R. No. 144887, November 17, 2004).

BP 22
May the absence of notice of dishonor acquit the offender?
YES. A notice of dishonor received by the maker or drawer of the check is thus
indispensable before a conviction can ensue. The notice of dishonor may be sent by the
offended party or the drawee bank. The notice must be in writing. A mere oral notice to
pay a dishonored check will not suffice. The lack of a written notice is fatal for the
prosecution.
The giving of the written notice of dishonor does not only supply the proof for the second
element arising from the presumption of knowledge the law puts up but also affords the
offender due process. The law thereby allows the offender to avoid prosecution if she
pays the holder of the check the amount due thereon, or makes arrangements for the
payment in full of the check by the drawee within five banking days from receipt of the
written notice that the check had not been paid. The Court cannot permit a deprivation of
the offender of this statutory right by not giving the proper notice of dishonor.
The verbal notices of dishonor were not effective because it is already settled that a notice
of dishonor must be in writing (Resterio vs. People, G.R. No. 177438. September 24,
2012, BERSAMIN, J., First Division).
Under the Negotiable Instruments Law, notice of dishonor is not required where the
drawer has no right to expect that the bank will honor the check. Since bank account of
accused was already closed even before the issuance of the subject check, he had no
right to expect the drawee bank to honor his check. Hence, he is not entitled to be given
a notice of dishonor (Lopez vs. People, G.R. No. 166810, June 26, 2008, LEONARDO-
DE CASTRO, J.First Division).The crime involved in Lopez vs. People is estafa through
issuance of bouncing check. However, it is submitted the Lopez principle can be applied
to violation of BP 22.

May a check drawn against insufficient funds hold the person liable for BP 22 or
estafa?
BP 22. When the payee was informed that the checks are not covered by adequate funds,
bad faith or estafa shall not arise (People vs. Villanueva, G.R. No. 163662, February 25,
2015, BERSAMIN, J.). In BP Blg. 22, the facts that the payee had knowledge that he had
insufficient funds at the time he issued the check is immaterial as deceit is not an essential
element of the offense under this law. The gravamen of the offense under BP Blg. 22 is
the issuance of a bad check; hence, malice and intent in the issuance thereof are
inconsequential (Rigor vs. People, G.R. No. 144887, November 17, 2004).

BP 22 – Settled is the rule that estafa will not lie when the parties waive the negotiable
character of a check, and instead treat the same as proof of an obligation. For instance,
when there is an agreement between the parties at the time of the issuance and
postdating of the checks that the obligee shall not encash or present the same to the
bank, the obligor cannot be prosecuted for estafa because the element of deceit is lacking
(People vs. Villanueva, G.R. No. 163662, February 25, 2015, Bersamin). In BP Blg. 22,
the fact that the check is not intended to be encashed or deposited in a bank is not a
defense. This check produces the same effect as ordinary check. What the law punishes
is the issuance of a rubber check itself and not the purpose for which the check was
issued nor the terms and conditions relating to its issuance (Cueme vs. People, G.R. No.
133325, June 30, 2000).

b. No account with the bank - According to the accused, she did not own the check that
she issued to complainant as collateral. He merely borrowed it from a friend. What BP
Blg. 22 punished was the mere act of issuing a worthless check. The law did not look
either at the actual ownership of the check. The law penalizes a person who indulges in
the making and issuing of unfunded check on an account belonging to another with the
latter’s consent. Also, that the check was not intended to be deposited was really of no
consequence to her incurring criminal liability under BP 22 (Resterio vs. People, G.R. No.
177438, September 24, 2012, Bersamin).
c. Pre-existing obligation - In order to constitute estafa through issuance of bouncing
check, the postdating or issuing a check must be the efficient cause of the defraudation.
In sum, the offender must be able to obtain property from the offended party by reason of
the issuance of the check (People vs. Reyes, GR No. 157943, September 4, 2013). Thus,
In estafa, the fact that check was issued in payment of pre-existing obligation is a valid
defense (People vs. Reyes, G.R. No. 154159, March 31, 2005). But in BP Blg. 22, it is
not a valid defense (Ngo vs. People, G.R. No. 155815, July 14, 2004). In BP Blg. 22, the
check involved must be issued to apply on account or for value. Deliberations in the
Batasan Pambansa indicate that “account” refers to pre-existing obligations; while “for
value” means an obligation incurred simultaneously with the issuance of the check.

f. Payment - Payment of check before the filing of information is a defense. The spirit of
B.P. Big 22, which is to protect the stability of the banking system, would not be served
by penalizing people who have corrected their mistakes and restituted damages even
before charges have been filed against them. In sum, by making payment of the check
before the filing of the information, the purpose of the law has already been attained.
Payment of check after the filing of information is not a defense. Since there is no showing
of intention to mitigate the bad effects of his issuance of the unfunded check, then there
is no equitable reason to preclude the prosecution of accused. In such a case, the letter
of the law should be applied to its full extent (Lim vs. People, G.R. No. 190834, November
26, 2014). The essence of estafa through issuance of bouncing check is to punish fraud
and not to protect the integrity of the check. Damage and deceit are elements of estafa,
and the check is merely the accused's tool in committing fraud. In such a case, paying
the value of the dishonored check will not free the accused from criminal liability. It will
merely satisfy the civil liability (Lim vs. People, supra).
g. Suspension of payment - Suspension of payment order issued by SEC before the
check was presented for payment is a defense in BP Blg. 22. Considering that there was
a lawful Order from the SEC, the contract is deemed suspended. Thus, the accused has
no obligation to fund the check and the complainant has no right to present it for payment
(Gidwani vs. People, GR No. 195064, January 15, 2014). Suspension of payment order
issued by SEC after three months from receipt of notice of dishonor is not a defense in
BP Blg. 22. The accused has the obligation to make good of the check after he received
the letter prior to the issuance of suspension order (Rosario vs. Co, G.R. No. 133608,
August 26, 2008).