GEMPESAW v. COURT OF APPEALS c.
Although the respondent drawee Bank notified her of all checks
February 9, 1993 | Campos, Jr., J. | Forgery
PETITIONER: NATIVIDAD GEMPESAW
RESPONDENT: THE HONORABLE COURT OF APPEALS and
PHILIPPINE BANK OF COMMUNICATIONS
SUMMARY: In conducting her business, Gempesaw entrusts to her bookeeper
the issuance and delivery of her checks to her suppliers (payees). She signs each
check without verifying the accuracy of the checks and whether they are
actually delivered to the payees. She found out that 82 checks she issued in the
course of 2 years were forged, charged against her account, and deposited to 2
different accounts instead of her suppliers. Gempesaw filed a complaint against
respondent drawee bank to recover the value of the 82 checks. The RTC, CA
and SC ruled against her on the ground that her gross negligence is the
proximate cause of the loss. Under the NIL, she is precluded from setting up the
forgery. However, she still has other remedies available under the CC to recover
damages.
DOCTRINE:
If the drawer (depositor) learns that a check drawn by him has been paid under a
forged indorsement, the drawer is under duty promptly to report such fact to the
drawer bank.
For his negligence or failure either to discover or to report promptly the fact of
such forgery to the drawee, the drawer loses his right against the drawee who
has debited his account under the forged indorsement (= precluded from using
forgery as a basis for his claim for recrediting his account)
FACTS:
1. Gempesaw owns and operates 4 grocery stores. She maintaines a checking
account with the Caloocan City Branch of the respondent drawee Bank. To
facilitate payment of debts to her suppliers, petitioner draws checks against
her checking account with the respondent bank as drawee.
2. This is her customary practice: The checks were prepared and filled up as to
all material particulars by her trusted bookkeeper, Alicia Galang (employee
for more than 8 yrs) à the completed checks were submitted to the
petitioner for her signature, together with the corresponding invoice receipts
which indicate the correct obligations due and payable to her supplier à
Gempesaw signed each and every check without bothering to verify the
accuracy of the checks against the corresponding invoices because she
reposed full and implicit trust and confidence on her bookkeeper.
a. The issuance and delivery of the checks to the payees named
therein were left to the bookkeeper.
b. Petitioner admitted that she did not make any verification as to
whether or not the checks were actually delivered to their
respective payees.
presented to and paid by the bank, petitioner did not verify the
correctness of the returned checks or if the payees received the
checks in payment for the supplies she received.
3. In the course of her business ops for 2 years, she issued 82 checks in favor
of several suppliers. These checks were all presented by the indorsees as
holders thereof to, and honored by, the respondent drawee Bank.
4. It was only after the lapse of more than 2 years that petitioner found out
about the fraudulent manipulations of her bookkeeper.
5. All the 82 checks with forged signatures of the payees were brought to
Ernest L. Boon, Chief Accountant of respondent drawee Bank, who,
without authority therefor, accepted them all for deposit at the Buendia
branch to the credit and/or in the accounts of lfredo Y. Romero and Benito
Lam.
6. Gempesaw demanded that respondent drawee bank to credit to her account
the money value of the 82 checks (worth P1,208,606,89) for having been
wrongfully charges against her account. the latter refused.
7. Gempesaw filed a complaint against the Philippine Bank of
Communications (respondent drawee Bank) for recovery of the money
value of 82 checks charged against her account.
8. RTC dismissed the complaint. CA affirmed this on two grounds: (1) that the
plaintiffs (petitioner herein) gross negligence in issuing the checks was the
proximate cause of the loss and (2) assuming that the bank was also
negligent, the loss must nevertheless be borne by the party whose
negligence was he proximate cause of the loss.
ISSUE/s: WoN Gempesaw is precluded from setting up the forgery due to her gross
negligence – YES
RULING: the case is hereby ordered REMANDED to the trial court for the
reception of evidence to determine the exact amount of loss suffered by the
petitioner, considering that she partly benefited from the issuance of the questioned
checks since the obligation for which she issued them were apparently extinguished,
such that only the excess amount over and above the total of these actual obligations
must be considered as loss of which one half must be paid by respondent drawee
bank to herein petitioner.
RATIO:
1. Problems arising from forged indorsements of checks may generally be
broken into two types of cases: (1) where forgery was accomplished by a
person not associated with the drawer; and (2) where the indorsement was
forged by an agent of the drawer. This difference in situations would
determine the effect of the drawer's negligence with respect to forged
indorsements.
2. A depositor is under a duty to set up an accounting system and a business 9. Under Section 23 of the NIL, she is now precluded from using the
procedure as are reasonably calculated to prevent or render difficult the forgery to prevent the bank's debiting on her account by reason of her
forgery of indorsements, particularly by the depositor's own employees. gross negligence.
And if the drawer (depositor) learns that a check drawn by him has been a. But under Section 196 of the NIL, any case not provided for in the
paid under a forged indorsement, the drawer is under duty promptly to Act shall be governed by the provisions of existing legislation.
report such fact to the drawer bank. For his negligence or failure either to Under Art. 1170 of the Civil Code, respondent drawee bank may
discover or to report promptly the fact of such forgery to the drawee, the be held liable for damages.
drawer loses his right against the drawee who has debited his account under b. Respondent drawee Bank is adjudged liable to share the loss with
the forged indorsement = precluded from using forgery as a basis for his the petitioner on a fifty-fifty ratio in accordance with Article 1172
claim for recrediting his account. which provides: "Responsibility arising from negligence in the
3. Every contract on a negotiable instrument is incomplete and revocable until performance of every kind of obligation is also demandable, but
delivery of the instrument to the payee for the purpose of giving effect such liability may be regulated by the courts, according to the
thereto. The first delivery of the instrument, complete in form, to the payee circumstances."
who takes it as a holder, is called issuance of the instrument. Without the
initial delivery of the instrument from the drawer of the check to the payee,
there can be no valid and binding contract and no liability on the
instrument.
4. Petitioner admitted that the checks were filled up and completed by her
trusted employee, Alicia Galang, and were later given to her for her
signature. Her signing the checks made the negotiable instrument complete.
Prior to signing the checks, there was no valid contract yet.
5. As a rule, a drawee bank who has paid a check on which an indorsement
has been forged cannot charge the drawer's account for the amount of said
check. An exception to this rule is where the drawer is guilty of such
negligence which causes the bank to honor such a check or checks. (based
on failure of the depositor to act as a prudent businessman would under the
circumstances)
6. In the case at bar, the petitioner relied implicitly upon the honesty and
loyalty of her bookkeeper, and did not even verify the accuracy of the
amounts of the checks she signed against the invoices attached thereto.
Furthermore, although she regularly received her bank statements, she
apparently did not carefully examine the same nor the check stubs and the
returned checks, and did not compare them with the sales invoices.
Otherwise, she could have easily discovered the discrepancies between the
checks and the documents serving as bases for the checks.
7. It is highly improbable that in a period of two years, not one of petitioner's
suppliers complained of non-payment. Assuming that even one single
complaint had been made, petitioner would have been duty-bound, as far as
the respondent drawee Bank was concerned, to make an adequate
investigation on the matter. Petitioner's failure to make such adequate
inquiry constituted negligence which resulted in the bank's honoring of the
subsequent checks with forged indorsements.
8. Petitioner's negligence was the proximate cause of her loss. She cannot
now complain should the bank refuse to recredit her account with the
amount of such checks is now precluded from using the forgery to
prevent the bank's debiting on her account.