Elements

For a violation of Batas Pambansa Blg. 22, the Prosecution must prove the following essential
elements, namely:

(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 there were no
sufficient funds in or credit with the drawee bank for the payment of such check in full
upon its presentment; and

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

Notice of Dishonor Sent via Registered Mail

The notice of dishonor required by Batas Pambansa Blg. 22 to be given to the drawer, maker or
issuer of a check should be written. If the service of the written notice of dishonor on the maker,
drawer or issuer of the dishonored check is by registered mail, the proof of service consists not
only in the presentation as evidence of the registry return receipt but also of the registry receipt
together with the authenticating affidavit of the person mailing the notice of dishonor. Without
the authenticating affidavit, the proof of giving the notice of dishonor is insufficient unless the
mailer personally testifies in court on the sending by registered mail.

[Resterio vs People, G.R. No. 177438, September 24, 2012]

Evidence of Date of Receipt of Notice of Dishonor

xxx in order to create the prima facie presumption that the issuer knew of the insufficiency of
funds, it must be shown that he or she received a notice of dishonor and, within five banking
days thereafter, failed to satisfy the amount of the check or make arrangement for its payment.

xxx if such notice of non-payment by the drawee bank is not sent to the maker or drawer of the
bum check, or if there is no proof as to when such notice was received by the drawer, then the
presumption or prima facie evidence as provided in Section 2 of B.P. Blg. 22 cannot arise, since
there would simply be no way of reckoning the crucial 5-day period.

[King vs. People, G.R. No. 131540, December 2, 1999]

Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

90 day period

For this presumption to arise, the prosecution must prove the following: (a) the check is presented
within ninety (90) days from the date of the check; (b) the drawer or maker of the check receives notice
that such check has not been paid by the drawee; and (c) the drawer or maker of the check fails to pay
the holder of the check the amount due thereon, or make arrangements for payment in full within five
(5) banking days after receiving notice that such check has not been paid by the drawee. In other words,
the presumption is brought into existence only after it is proved that the issuer had received a notice of
dishonor and that within five days from receipt thereof, he failed to pay the amount of the check or to
make arrangements for its payment. The presumption or prima facie evidence as provided in this
section cannot arise, if such notice of nonpayment by the drawee bank is not sent to the maker or
drawer, or if there is no proof as to when such notice was received by the drawer, since there would
simply be no way of reckoning the crucial 5-day period.

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.

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
xxx

NOVATION OF AGREEMENT

Respondent’s contention that if it be proven that the loan of FWCC had been novated and
restructured then his liability under the dishonored checks would be extinguished, fails to
persuade us. There was no express stipulation in the Restructuring Agreement that respondent is
released from his liability on the issued checks and in fact the letter-agreements between FWCC
and Land Bank expressly provide that respondent’s JSS (Joint and Several Signatures) continue
to secure the loan obligation and the postdated checks issued continue to guaranty the obligation.
In fact, as aptly pointed out by petitioner, out of the nine (9) checks in question, eight (8) checks
were dated June 8 to October 30, 1998 or after the execution of the June 3, 1998 Restructuring
Agreement. If indeed respondent’s liability on the checks had been extinguished upon the
execution of the Restructuring Agreement, then respondent should have demanded the return of
the checks.23 However, there was no proof that he had been released from his obligation. On the
contrary, the Restructuring Agreement contains a proviso which states that "This Agreement
shall not novate or extinguish all previous security, mortgage, and other collateral agreements,
promissory notes, solidary undertaking previously executed by and between the parties and shall
continue in full force and effect modified only by the provisions of this Agreement."24

Moreover, it is well settled that the mere act of issuing a worthless check, even if merely as an
accommodation, is covered by B.P. 22.25 Thus, this Court has held that the agreement
surrounding the issuance of dishonored checks is irrelevant to the prosecution for violation of
B.P. 22.26 The gravamen of the offense punished by B.P. 22 is the act of making and issuing a
worthless check or a check that is dishonored upon its presentment for payment.27 Section 1 of
B.P. 22 enumerates the following elements: (1) the making, drawing, and issuance of any check
to apply on 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. Thus, even if it be
subsequently declared that novation took place between the FWCC and petitioner, respondent is
not exempt from prosecution for violation of B.P. 22 for the dishonored checks.

Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

NOTICE OF DISHONOR

The prosecution failed to prove all the

elements of the offenses charged.

In order to successfully hold an accused liable for violation of BP 22, the following essential
elements must be present: "(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."33 "Of the three (3) elements, the second element
is the hardest to prove as it involves a state of mind. Thus, Section 2 of BP 22 creates a
presumption of knowledge of insufficiency of funds, which, however, arises only after it is
proved that the issuer had received a written notice of dishonor and that within five days from
receipt thereof, he failed to pay the amount of the check or to make arrangements for its
payment.34

In the instant case, what is in dispute is the existence of the second element. Chua asserts that the
absence of the date of his actual receipt on the face of the demand letter dated November 30,
1993 prevented the legal presumption of knowledge of insufficiency of funds from arising. On
the other hand, the MeTC opined that while the date of Chua’s actual receipt of the subject
demand letter is not affixed thereon, it is presumed that he received the same on the date of the
demand letter (November 30, 1993). Moreover, the lower courts banked on the stipulation
entered into by Chua’s counsel as to the existence of the demand letter and of Chua’s signature
thereon. By reason of such stipulation, they all held that Chua could no longer impugn the said
demand letter.

In Danao v. Court of Appeals,35 the Court discussed the importance of proving the date of actual
receipt of the notice of dishonor, viz.:

In King vs. People, this Court, through Justice Artemio V. Panganiban, held: "To hold a person
liable under B.P. Blg. 22, it is not enough to establish that a check issued was subsequently
dishonored. It must be shown further that the person who issued the check knew ‘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.’ Because this element involves a state of mind which is
difficult to establish, Section 2 of the law creates a prima facie presumption of such knowledge,
as follows:

‘SEC 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.

Thus, this Court further ruled in King, "in order to create the prima facie presumption that the
issuer knew of the insufficiency of funds, it must be shown that he or she received a notice of
dishonor and, within five banking days thereafter, failed to satisfy the amount of the check or
make arrangement for its payment."

Indeed, the prima facie presumption in Section 2 of B.P. Blg. 22 "gives the accused an
opportunity to satisfy the amount indicated in the check and thus avert prosecution. This
opportunity, as this Court stated in Lozano vs. Martinez, serves to mitigate the harshness of the
law in its application.

In other words, if such notice of non-payment by the drawee bank is not sent to the maker or
drawer of the bum check, or if there is no proof as to when such notice was received by the
drawer, then the presumption or prima facie evidence as provided in Section 2 of B.P. Blg.
22 cannot arise, since there would simply be no way of reckoning the crucial 5-day period."36
(Italics in the original, emphasis supplied)

Similarly in the present case, there is no way to ascertain when the five-day period under Section
22 of BP 22 would start and end since there is no showing when Chua actually received the
demand letter dated November 30, 1993. The MeTC cannot simply presume that the date of the
demand letter was likewise the date of Chua’s receipt thereof. There is simply no such
presumption provided in our rules on evidence. In addition, from the inception of this case Chua
has consistently denied having received subject demand letter. He maintains that the paper used
for the purported demand letter was still blank when presented to him for signature and that he
signed the same for another purpose. Given Chua’s denial, it behooved upon the prosecution to
present proof of his actual receipt of the November 30, 1993 demand letter. However, all that the
prosecution did was to present it without, however, adducing any evidence as to the date of
Chua’s actual receipt thereof. It must be stressed that ‘[t]he prosecution must also prove actual
receipt of [the notice of dishonor] because the fact of service provided for in the law is reckoned
from receipt of such notice of dishonor by the accused."37 "The burden of proving notice rests
upon the party asserting its existence. Ordinarily, preponderance of evidence is sufficient to
prove notice. In criminal cases, however, the quantum of proof required is proof beyond
reasonable doubt. Hence, for B.P. Blg. 22 cases, there should be clear proof of notice"38 which
the Court finds wanting in this case.

PROOF OF RECEIPT OF THE MAILED NOTICE OF DISHONOR

The mere presentment of the two registry return receipts was not sufficient to establish the fact
that written notices of dishonor had been sent to or served on the petitioner as the issuer of the
check. Considering that the sending of the written notices of dishonor had been done by
registered mail, the registry return receipts by themselves were not proof of the service on the
petitioner without being accompanied by the authenticating affidavit of the person or persons
who had actually mailed the written notices of dishonor, or without the testimony in court of the
mailer or mailers on the fact of mailing. The authentication by affidavit of the mailer or mailers
was necessary in order for the giving of the notices of dishonor by registered mail to be regarded
as clear proof of the giving of the notices of dishonor to predicate the existence of the second
element of the offense.

xxx

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 (58 Am Jur 2d, Notice, § 45). The burden of proving notice
rests upon the party asserting its existence. Now, ordinarily, preponderance of evidence is
sufficient to prove notice. In criminal cases, however, the quantum of proof required is proof
beyond reasonable doubt. Hence, for Batas Pambansa Blg. 22 cases, there should be clear proof
of notice. Moreover, it is a general rule that, when service of a notice is sought to be made by
mail, it should appear that the conditions on which the validity of such service depends had
existence, otherwise the evidence is insufficient to establish the fact of service (C.J.S., Notice, §
18). In the instant case, the prosecution did not present proof that the demand letter was sent
through registered mail, relying as it did only on the registry return receipt. In civil cases, service
made through registered mail is proved by the registry receipt issued by the mailing office and an
affidavit of the person mailing of facts showing compliance with Section 7 of Rule 13 (See
Section 13, Rule 13, 1997 Rules of Civil Procedure). If, in addition to the registry receipt, it is
required in civil cases that an affidavit of mailing as proof of service be presented, then with
more reason should we hold in criminal cases that a registry receipt alone is insufficient as proof
of mailing. In the instant case, the prosecution failed to present the testimony, or at least the
affidavit, of the person mailing that, indeed, the demand letter was sent. xxx

Moreover, petitioners, during the pre-trial, denied having received the demand letter (p. 135,
Rollo). Given petitioners’ denial of receipt of the demand letter, it behooved the prosecution to
present proof that the demand letter was indeed sent through registered mail and that the same
was received by petitioners. This, the prosecution miserably failed to do. Instead, it merely
presented the demand letter and registry return receipt as if mere presentation of the same was
equivalent to proof that some sort of mail matter was received by petitioners. 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 (Central Trust Co. v. City of Des
Moines, 218 NW 580).
[Resterio vs People, G.R. No. 177438, September 24, 2012]

Notice by Mail Must Adduce Proof of Receipt by the Addressee or an Agent

Likewise, for notice by mail, it must appear that the same was served on the addressee or a duly
authorized agent of the addressee. In fact, the registry return receipt itself provides that "[a]
registered article must not be delivered to anyone but the addressee, or upon the addressee’s
written order, in which case the authorized agent must write the addressee’s name on the proper
space and then affix legibly his own signature below it." In the case at bar, no effort was made to
show that the demand letter was received by petitioners or their agent. All that we have on record
is an illegible signature on the registry receipt as evidence that someone received the letter. As to
whether this signature is that of one of the petitioners or of their authorized agent remains a
mystery. From the registry receipt alone, it is possible that petitioners or their authorized agent
did receive the demand letter. Possibilities, however, cannot replace proof beyond reasonable
doubt. There being insufficient proof that petitioners received notice that their checks had been
dishonored, the presumption that they knew of the insufficiency of the funds therefor cannot
arise. [Resterio vs People, G.R. No. 177438, September 24, 2012]

Burden of Proof of Notice of Dishonor is on the Prosecution; Quatum of Proof - Proof

Beyond Reasonable Doubt

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 (58 Am Jur 2d, Notice, § 45). The burden of proving notice
rests upon the party asserting its existence. Now, ordinarily, preponderance of evidence is
sufficient to prove notice. In criminal cases, however, the quantum of proof required is proof
beyond reasonable doubt. Hence, for Batas Pambansa Blg. 22 cases, there should be clear proof
of notice. Moreover, it is a general rule that, when service of a notice is sought to be made by
mail, it should appear that the conditions on which the validity of such service depends had
existence, otherwise the evidence is insufficient to establish the fact of service (C.J.S., Notice, §
18).

[Ting vs. CA, G.R. No. 140665, November 13, 2000]

Proof of Receipt of Registered Mail by the Addressee; Authentication of Signature in

Return Card

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 (Central Trust Co. v. City of Des
Moines, 218 NW 580).

Likewise, for notice by mail, it must appear that the same was served on the addressee or a duly
authorized agent of the addressee. In fact, the registry return receipt itself provides that "[a]
registered article must not be delivered to anyone but the addressee, or upon the addressee's
written order, in which case the authorized agent must write the addressee's name on the proper
space and then affix legibly his own signature below it."
[Ting vs. CA, G.R. No. 140665, November 13, 2000]

Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

Evidence of Receipt of Notice of Dishonor

xxx in order to create the prima facie presumption that the issuer knew of the insufficiency of
funds, it must be shown that he or she received a notice of dishonor and, within five banking
days thereafter, failed to satisfy the amount of the check or make arrangement for its payment.

xxx if such notice of non-payment by the drawee bank is not sent to the maker or drawer of the
bum check, or if there is no proof as to when such notice was received by the drawer, then the
presumption or prima facie evidence as provided in Section 2 of B.P. Blg. 22 cannot arise, since
there would simply be no way of reckoning the crucial 5-day period.

[King vs. People, G.R. No. 131540, December 2, 1999]

NOTICE OF DISHONOR IN WRITING, NOT ORAL

The Notice of Dishonor must be in writing. A mere oral notice to the drawer or maker of a check is not
enough to convict him with violation of BP 22. (Bax v. People, G.R. No. 149858, 5 September 2007)

Notice of Dishonor is Part of Procedural Due Process

procedural due process clearly enjoins that a notice of dishonor be actually served on petitioner.
Petitioner has a right to demand – and the basic postulate 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. [Lao v. Court of Appeals, G.R. No. 119178, June 20, 1997]

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

CHECK ISSUED as EVIDENCE OF DEBT (not intended for encashment)

Meriz v. People of the Philippines,28 we held:

The Court has consistently declared that the cause or reason for the issuance of the check is
inconsequential in determining criminal culpability under BP 22. The Court has since said that a
"check issued as an evidence of debt, although not intended for encashment, has the same effect
like any other check" and must thus be held to be "within the contemplation of BP 22." Once a
check is presented for payment, the drawee bank gives it the usual course whether issued in
payment of an obligation or just as a guaranty of an obligation. BP 22 does not appear to concern
itself with what might actually be envisioned by the parties, its primordial intention being to
instead ensure the stability and commercial value of checks as being virtual substitutes for
currency. It is a policy that can easily be eroded if one has yet to determine the reason for which
checks are issued, or the terms and conditions for their issuance, before an appropriate
application of the legislative enactment can be made. The gravamen of the offense under BP 22
is the act of making or issuing a worthless check or a check that is dishonored upon presentment
for payment. The act effectively declares the offense to be one of malum prohibitum. The only
valid query then is whether the law has been breached, i.e., by the mere act of issuing a bad
check, without so much regard as to the criminal intent of the issuer.29

ACCOMMODATION

In the instant case, there is no doubt that petitioner's four (4) checks were used to collateralize an
accommodation, and not to cover the receipt of an actual "account or credit for value" as this was
absent, and therefore petitioner should not be punished for mere issuance of the checks in
question. Following the aforecited theory, in petitioner's stead the "potential wrongdoer", whose
operation could be a menace to society, should not be glorified by convicting the petitioner.
[(Magno vs. CA, G.R. No. 96132 June 26, 1992)]