9/30/2015

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.

1
 9/30/2015

• 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.

2
 9/30/2015

Note: There is a presumption of drawer’s 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.

3
 9/30/2015

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)

4
 9/30/2015

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 R’s 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.