Republic of the Philippines

OFFICE OF THE CITY PROSECUTOR

San Fernando City, La Union

MARCH T. NOBLE,
                         Complainant,

-versus- I.S. No. _____________________

For: Estafa and Violation of B.P. Blg. 22

MARLYN N. FLORENDO,
                         Respondent.
X- - - - - - - - - - - - - - - - - - - - - X

COMPLAINT-AFFIDAVIT

            THE UNDERSIGNED COMPLAINANT respectfully alleges:

That she is a Filipino citizen, of legal age, single and resident of and with
postal address at Capitol View Subdivision, Brgy. Poro, San Fernando City, La
Union;

That the respondent is also a Filipino citizen, of legal age, single and
resident of and with postal address at Namnama Village, Brgy. Parian, San
Fernando City, La Union, where she may be served with summons;

That this is a criminal complaint for ESTAFA and for violation of B.P. Blg.

22 involving the sum of One hundred twenty-six thousand pesos (Php
126,000.00) arising from two (2) checks issued by the respondent to the
complainant;

That the respondent had obtained on credit from herein complainant sixty
(60) cavans of rice worth ONE HUNDRED TWENTY-SIX THOUSAND PESOS
(Php 126,000.00) sometime in 2016; that in the payment thereof, said respondent
had issued to the complainant two (2) checks at Php 41,000.00 and Php 85,000.00,
respectively, but when encashed sometime in December 2016, both bounced due
to insufficiency of funds, copies of which are attached hereof as ANNEXES “A”
and “B”, respectively;

That the respondent was guilty of fraud in contracting the debt or incurring
the obligation upon which the action is brought, as she represented herself as a
credible businesswoman and financially capable of paying her obligation, when in
truth and in fact, she is not, and the fraudulent scheme becoming more evident
when she issued two (2) bouncing checks in payment of her obligation despite
knowing at the time of issue that she does not have sufficient funds in or credit
with the drawee bank for the full payment of the check upon its presentment and

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despite demands, she failed and refused to settle without justifiable ground her just
and demandable obligation to herein complainant, thus causing prejudice and
damage to the latter;

For the record, and to form part hereof, by incorporation and reference,
attached hereto are copies of the following supporting documents, to wit:

1. BPI Check No. 0000004203 dated September 30, 2016, in the amount
of Php 41,000.00 and marked as ANNEX “A”;

2. BPI Check No. 0000004201 dated September 30, 2016, in the amount
of Php 85,000.00 and marked as ANNEX “B”); and

3. Demand Letter by the private complainant to the respondent dated

November 10, 2017 and marked as ANNEX “C”.

DISCUSSION

APPLICABLE LAWS

Article 315 of the Revised Penal Code on deceit/swindling (estfa) provides

any person who shall defraud another by any of the means mentioned therein shall
be punished by the penalty of prision correccional in its maximum period to
prision mayor in its minimum period, if the amount of the fraud is over 12,000
pesos but does not exceed 22,000 pesos, and if such amount exceeds the latter
sum, the penalty provided in this paragraph shall be imposed in its maximum
period, adding one year for each additional 10,000 pesos; but the total penalty
which may be imposed shall not exceed twenty years; provided that the fraud be
committed by any of the following means:

1. With unfaithfulness or abuse of confidence, namely:

X x x.
(b) By misappropriating or converting, to the prejudice of
another, money, goods, or any other personal property received by the
offender in trust or on commission, or for administration, or under any
other obligation involving the duty to make delivery of or to return the
same, even though such obligation be totally or partially guaranteed by a
bond; or by denying having received such money, goods, or other property.

2. By means of any of the following false pretenses or fraudulent acts

executed prior to or simultaneously with the commission of the fraud:

(a) By using fictitious name, or falsely pretending to possess power,

influence, qualifications, property, credit, agency, business or imaginary
transactions, or by means of other similar deceits.

X x x.

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 (d) By post-dating 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 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 the payee or holder that said check has been dishonored for lack of
insufficiency of funds shall be prima facie evidence of deceit constituting
false pretense or fraudulent act. (As amended by Republic Act No. 4885,
approved June 17, 1967).

Further, B.P. Blg. 22 (Bouncing Checks Law) provides:

         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 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.

         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.

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

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

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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."

BP Blg. 22 enumerates the elements of the crime to be:

(1) the making, drawing and issuance of any check to apply for account or
for value;

(2) the knowledge of the maker, drawer, or issuer that at the time of issue he
does not have sufficient funds in or credit with the drawee bank for the payment of
the check in full upon its presentment; and

(3) the subsequent dishonor of the check by the drawee bank for
insufficiency of funds or credit or dishonor for the same reason had not the drawer,
without any valid cause, ordered the bank to stop payment.

There is deemed to be a prima facie evidence of knowledge on the part of

the maker, drawer or issuer of insufficiency of funds in or credit with the drawee
bank of the check issued if the dishonored check is presented within 90 days from
the date of the check and the maker or drawer fails to pay thereon or to make
arrangement with the drawee bank for that purpose. The statute has created
the prima facie presumption evidently because "knowledge" which involves a state
of mind would be difficult to establish. The presumption does not hold, however,
when the maker, drawer or issuer of the check pays the holder thereof the amount
due thereon or makes arrangement for payment in full by the drawee bank of such
check within 5 banking days after receiving notice that such check has not been
paid by the drawee bank.

Section 2 of B.P. Blg. 22 clearly provides that this presumption arises not
from the mere fact of drawing, making and issuing a bum check; there must also
be a showing that, within five banking days from receipt of the notice of dishonor,
such maker or drawer failed to pay the holder of the check the amount due thereon
or to make arrangement for its payment in full by the drawee of such check.

LATEST APPLICABLE JURISPRUDENCE: ESTAFA

In PEOPLE OF THE PHILIPPINES vs. VIRGINIA BABY P.

MONTANER, G.R. No.  184053, August 31, 2011, the accused was convicted
for the crime of Estafa as defined and penalized under paragraph 2(d), Article 315
of the Revised Penal Code. The Information alleged that on or about May 17, 1996
in the Municipality of San Pedro, Province of Laguna and within the jurisdiction
of this Honorable Court accused Virginia (Baby) P. Montaner did then and there
willfully, unlawfully and feloniously defraud one Reynaldo Solis in the following

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manner: said accused by means of false pretenses and fraudulent acts that her
checks are fully funded draw, make and issue in favor of one Reynaldo Solis ten
(10) Prudential Bank Checks, all having a total value of FIFTY THOUSAND
PESOS (Php 50,000.00) and all aforesaid checks were postdated June 17, 1996 in
exchange for cash knowing fully well that she has no funds in the drawee bank and
when the said checks were presented for payment the same were dishonored by the
drawee bank on reason of “ACCOUNT CLOSED” and despite demand accused
failed and refused to pay the value thereof to the damage and prejudice of
Reynaldo Solis in the aforementioned total amount of Php 50,000.00.

To exculpate herself from criminal liability, accused Virginia Baby P.

Montaner denied the allegations that she issued ten (10) checks in private
complainant’s favor claiming that the ten (10) checks were borrowed from her by
one Marlyn Galope because the latter needed money. She gave the ten checks to
Galope, signed the same albeit the space for the date, amount and payee were left
blank so that the checks cannot be used for any negotiation. She further told
Galope that the checks were not funded. When she learned that a case was filed
against her for estafa, she confronted Marlyn Galope and the latter told her that
money will not be given to her if she will not issue the said checks. She has no
knowledge of the notice of dishonor sent to her by private complainant and
claimed that her husband, who supposedly received the notice of dishonor left for
abroad in July 1996 and returned only after a year, that is, in 1997.

In a Decision dated April 8, 2003, the trial court convicted appellant for the
crime of estafa as defined and penalized under paragraph 2(d), Article 315 of the
Revised Penal Code and sentenced her to suffer an indeterminate penalty of
imprisonment from twelve (12) years of prision mayor as minimum to twenty-two
(22) years of reclusion perpetua as maximum and to indemnify complainant
Reynaldo Solis in the amount of Php50,000.00.

Appellant elevated the case to the Court of Appeals but the adverse ruling
was merely affirmed by the appellate court in its Decision dated February 12,
2008.

Hence, appellant interposed an appeal before the Supreme Court and put
forth a single assignment of error: THE TRIAL COURT GRAVELY ERRED IN
FINDING THE ACCUSED–APPELLANT GUILTY BEYOND REASONABLE
DOUBT OF THE CRIME OF ESTAFA UNDER ARTICLE 315, PAR. 2 (D) OF
THE REVISED PENAL CODE.

Appellant maintains that she entrusted the subject checks, purportedly

signed in blank, to Marilyn Galope (Galope) out of pity in order for the latter to
secure a loan.  Thus, there is purportedly no certainty beyond reasonable doubt
that she issued the checks purposely to defraud Reynaldo Solis (Solis) into lending
her money.  She further claims that no transaction had ever transpired between her
and Solis.  Admitting that she may have been imprudent, she nonetheless insists
that her simple imprudence does not translate to criminal liability.

The Supreme Court was not persuaded and cited Paragraph 2(d), Article 315
of the Revised Penal Code provides:

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 ART. 315. Swindling (estafa). – Any person who shall defraud another by
any of the means mentioned herein below x x x:
Xxx.

2. By means of any of the following false pretenses or fraudulent acts

executed prior to or simultaneously with the commission of the fraud:

Xxx.

(d) 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 the 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.

According to the Court, the elements of estafa under paragraph 2(d), Article
315 of the Revised Penal Code are: (1) the postdating or issuance of a check in
payment of an obligation contracted at the time the check was issued; (2) lack of
sufficiency of funds to cover the check; and (3) damage to the payee.

In the said case, the prosecution sufficiently established appellant’s guilt

beyond reasonable doubt for estafa under paragraph 2(d), Article 315 of the
Revised Penal Code.  According to Solis’s clear and categorical testimony,
appellant issued to him the 10 postdated Prudential Bank checks, each in the
amount of Php5,000.00 or a total of Php50,000.00, in his house in exchange for
their cash equivalent. 

From the circumstances, the Court held that it was evident that Solis would
not have given Php50,000.00 cash to appellant had it not been for her issuance of
the 10 Prudential Bank checks.  These postdated checks were undoubtedly issued
by appellant to induce Solis to part with his cash. However, when Solis attempted
to encash them, they were all dishonored by the bank because the account was
already closed.

Solis wrote appellant a demand letter dated October 13, 1996 which was
received by appellant’s husband to inform appellant that her postdated checks had
bounced and that she must settle her obligation or else face legal action from
Solis. Appellant did not comply with the demand nor did she deposit the amount
necessary to cover the checks within three days from receipt of notice.  This gave
rise to a prima facie evidence of deceit, which is an element of the crime of estafa,
constituting false pretense or fraudulent act as stated in the second sentence of
paragraph 2(d), Article 315 of the Revised Penal Code.

As for appellant’s claims that  she merely entrusted to Galope the blank but
signed checks imprudently, without knowing that Galope would give them as a
guarantee for a loan, the Court viewed such statements with the same incredulity
as the lower courts.

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 Evidence, to be believed, must not only proceed from the mouth of a
credible witness, but it must be credible in itself – such as the common experience
and observation of mankind can approve as probable under the
circumstances.  The Court has no test of the truth of human testimony, except its
conformity to our knowledge, observation and experience. Whatever is repugnant
to these belongs to the miraculous and is outside judicial cognizance. Appellant
wished to impress upon the Court that she voluntarily parted with her blank but
signed checks not knowing or even having any hint of suspicion that the same may
be used to defraud anyone who may rely on them.  Verily, appellant’s assertion
defies ordinary common sense and human experience, the Court stated.

Moreover, the Court added, it is elementary that denial, if unsubstantiated

by clear and convincing evidence, is negative and self-serving evidence which has
far less evidentiary value than the testimony of credible witnesses who testify on
affirmative matters.  It agreed with the lower courts that appellant’s bare denial
cannot be accorded credence for lack of evidentiary support.  As aptly noted by the
trial court, appellant’s failure to produce Galope as a witness to corroborate her
story is fatal to her cause.  In all, the Court of Appeals committed no error in
upholding the conviction of appellant for estafa. Hence, the Supreme Court
AFFIRMED the two decisions of both the trial court and the appellate court.

LATEST APPLICABLE JURISPRUDENCE: B.P. BLG. 22

In EUMELIA R. MITRA vs. PEOPLE OF THE PHILIPPINES and

FELICISIMO S. TARCELO, G.R. NO. 191404, July 5, 2010, the petitioner
Eumelia R. Mitra(Mitra) was the Treasurer, and Florencio L. Cabrera (deceased),
Jr. was the President, of Lucky Nine Credit Corporation (LNCC), a corporation
engaged in money lending activities.  Between 1996 and 1999, private respondent
Felicisimo S. Tarcelo (Tarcelo) invested money in LNCC.  As the usual practice in
money placement transactions, Tarcelo was issued checks equivalent to the
amounts he invested plus the interest on his investments by Mitra and Cabrera,
were issued by LNCC to Tarcelo.

When Tarcelo presented these checks for payment, they were dishonored for
the reason “account closed.”  Tarcelo made several oral demands on LNCC for the
payment of these checks but he was frustrated. Constrained, in 2002, he caused the
filing of seven informations for violation of Batas Pambansa Blg. 22 (BP 22) in
the total amount of Php 925,000.00 with the MTCC in Batangas City. 

After trial on the merits, the MTCC found Mitra and Cabrera guilty of the
charges and ordered them to respectively pay the mandated fines for each
violation and with subsidiary imprisonment in all cases, in case of insolvency and
it further adjudged them civilly liable and ordered them to pay, in solidum, private
complainant Felicisimo S. Tarcelo the amount of NINE HUNDRED TWENTY
FIVE THOUSAND PESOS (Php925,000.000).

Mitra and Cabrera appealed to the Batangas RTC contending that: they
signed the seven checks in blank with no name of the payee, no amount stated and

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no date of maturity; they did not know when and to whom those checks would be
issued; the seven checks were only among those in one or two booklets of checks
they were made to sign at that time; and that they signed the checks so as not to
delay the transactions of LNCC because they did not regularly hold office
there.  The RTC affirmed the MTCC decision.

 Meanwhile, Cabrera died. Mitra alone filed a petition for review with the
Court of Appeals claiming, among others, that there was no proper service of the
notice of dishonor on her.  The Court of Appeals dismissed her petition for lack of
merit. 

Mitra went up to the Supreme Court on a petition for review and submitted
the issues: WHETHER OR NOT THE ELEMENTS OF VIOLATION OF
BATAS PAMBANSA BILANG 22 MUST BE PROVED BEYOND
REASONABLE DOUBT AS AGAINST THE CORPORATION WHO
OWNS THE CURRENT ACCOUNT WHERE THE SUBJECT CHECKS
WERE DRAWN BEFORE LIABILITY ATTACHES TO THE
SIGNATORIES; and WHETHER OR NOT THERE IS PROPER SERVICE
OF NOTICE OF DISHONOR AND DEMAND TO PAY TO THE
PETITIONER AND THE LATE FLORENCIO CABRERA, JR.

          The Supreme Court denied the petition and held that a check is a negotiable
instrument that serves as a substitute for money and as a convenient form of
payment in financial transactions and obligations.  The use of checks as payment
allows commercial and banking transactions to proceed without the actual
handling of money, thus, doing away with the need to physically count bills and
coins whenever payment is made.  It permits commercial and banking transactions
to be carried out quickly and efficiently. But the convenience afforded by checks is
damaged by unfunded checks that adversely affect confidence in our commercial
and banking activities, and ultimately injure public interest. 

BP 22 or the Bouncing Checks Law was enacted for the specific purpose of
addressing the problem of the continued issuance and circulation of unfunded
checks by irresponsible persons. To stem the harm caused by these bouncing
checks to the community, BP 22 considers the mere act of issuing an unfunded
check as an offense not only against property but also against public order.  The
purpose of BP 22 in declaring the mere issuance of a bouncing check as malum
prohibitum is to punish the offender in order to deter him and others from
committing the offense, to isolate him from society, to reform and rehabilitate him,
and to maintain social order.  The penalty is stiff. BP 22 imposes the penalty of
imprisonment for at least 30 days or a fine of up to double the amount of the check
or both imprisonment and fine. 

Specifically, BP 22 provides:
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

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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.

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

Mitra posited in the petition that before the signatory to a bouncing

corporate check can be held liable, all the elements of the crime of violation of BP
22 must first be proven against the corporation. The corporation must first be
declared to have committed the violation before the liability attaches to the
signatories of the checks. 

The Court stated that it found itself unable to agree with Mitra’s posture.
The third paragraph of Section 1 of BP 22 reads: "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."  This provision
recognizes the reality that a corporation can only act through its officers. Hence,
its wording is unequivocal and mandatory – that the person who actually
signed the corporate check shall be held liable for a violation of BP 22. This
provision does not contain any condition, qualification or limitation.

The Court cited the case of Llamado v. Court of Appeals,[6] where it ruled

that the accused was liable on the unfunded corporate check which he signed as
treasurer of the corporation. He could not invoke his lack of involvement in the
negotiation for the transaction as a defense because BP 22 punishes the mere
issuance of a bouncing check, not the purpose for which the check was issued or in
consideration of the terms and conditions relating to its issuance. In this case,
Mitra signed the LNCC checks as treasurer. FollowingLlamado, she must then be
held liable for violating BP 22.   

Another essential element of a violation of BP 22 is the drawer’s knowledge

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that he has insufficient funds or credit with the drawee bank to cover his check.
Because this involves a state of mind that is difficult to establish, BP 22 creates
theprima facie presumption that once the check is dishonored, the drawer of the
check gains knowledge of the insufficiency, unless within five banking days from
receipt of the notice of dishonor, the drawer pays the holder of the check or makes
arrangements with the drawee bank for the payment of the check. The service of
the notice of dishonor gives the drawer the opportunity to make good the check
within those five days to avert his prosecution for violating BP 22.

To reiterate the elements of a violation of BP 22 as contained in the above-

quoted provision, the Court said, a violation exists where:

1. a person makes or draws and issues a check to apply on account or for

value;
2. the person who makes or draws and issues the check knows at the time of
issue that he does not have sufficient funds in or credit with the drawee bank for
the full payment of the check upon its presentment; and

3. 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 Court added that there was no dispute that Mitra signed the checks and
that the bank dishonored the checks because the account had been closed. Notice
of dishonor was properly given, but Mitra failed to pay the checks or make
arrangements for their payment within five days from notice. With all the above
elements duly proven, Mitra cannot escape the civil and criminal liabilities that BP
22 imposes for its breach.

PRAYER.

WHEREFORE, premises considered, it is respectfully prayed that after

notice and hearing the respondent be indicted for ESTAFA and VIOLATION OF
B.P. BLG. 22 to protect/preserve the right/interest of the complainant to recover
her claim of One hundred twenty-six thousand pesos(Php126,000.00), plus
exemplary damages of Php 100,000.00, moral damages of Php 100,000.00,
attorney’s fees of Php25,000.00 plus 5% of the recoverable amounts, and costs
of suit.

            San Fernando City, La Union, September 20, 2018.

MARCH T. NOBLE
Complainant

                                                              
Assisted By:

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MOSUELA-GONZALES LAW OFFICE
Counsel for the   Complainant
Nortesurlu Bldg., Purok, Sevilla
San Fernando City, La Union 2500

JAIME C. GONZALES, JR.

IBP Roll No. 68552; O.R. NO. 2548591, 01/03/2018
PTR No. 1068453, December 18, 2017 (SFLU)
TIN No. 102052434; MCLE Compliance(New Lawyer)

SUBSCRIBED AND SWORN TO before me in San Fernando City, La

Union this 21st day of September 2018, affiant/complainant showing her SSS ID
No. 01-1422611-0.

__________________________
Administering Officer

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