CASE QUESTION ANSWER

§ Elenita C. Fajardo vs. People, G.R. No. 190889, January 10, i. What proof is Mere speculations and probabilities cannot substitute for proof required to establish the
2011 required to prove guilt of an accused beyond reasonable doubt. The rule is the same whether the offenses
guilt of the accused are punishable under the Revised Penal Code, which are mala in se, or in crimes, which
The CA correctly convicted Valerio with illegal possession in offenses are malum prohibitum by virtue of special law. The quantum of proof required by law was
of part of a firearm. punishable by not adequately met in this case in so far as petitioner is concerned.
special penal laws?
When the crime is punished by a special law, as a rule, intent to commit the crime is
not necessary. It is sufficient that the offender has the intent to perpetrate the act
prohibited by the special law.

Intent to commit the crime and intent to perpetrate the act must be distinguished.

A person may not have consciously intended to commit a crime; but he did intend
to commit an act, and that act is, by the very nature of things, the crime itself. In the
first (intent to commit the crime), there must be criminal intent; in the second (intent to
perpetrate the act) it is enough that the prohibited act is done freely and consciously.

In the present case, a distinction should be made between criminal intent and intent to
possess. While mere possession, without criminal intent, is sufficient to convict a
person for illegal possession of a firearm, it must still be shown that there
was animus possidendi or an intent to possess on the part of the accused. Such
intent to possess is, however, without regard to any other criminal or felonious intent which
the accused may have harbored in possessing the firearm. Criminal intent here refers
to the intention of the accused to commit an offense with the use of an unlicensed
firearm. This is not important in convicting a person under Presidential Decree No. 1866.

Hence, in order that one may be found guilty of a violation of the decree, it is
sufficient that the accused had no authority or license to possess a firearm, and
that he intended to possess the same, even if such possession was made in good
faith and without criminal intent.

Concomitantly, a temporary, incidental, casual, or harmless possession or control of a

§ Dunlao, Sr. v. Court of Appeals, G.R. No. 111343, August
22, 1996
firearm cannot be considered a violation of a statute prohibiting the possession of this kind
of weapon, such as Presidential Decree No. 1866. Thus, although there is physical or
constructive possession, for as long as the animus possidendi is absent, there is
no offense committed.
i. What are crimes The law has long divided crimes into acts wrong in themselves called "acts mala in se,"
mala prohibita? How and acts which would not be wrong but for the fact that positive law forbids them, called
are they "acts mala prohibita." This distinction is important with reference to the intent with which
distinguished from
a wrongful act is done. The rule on the subject is that in acts mala in se, the intent governs,
crimes mala in se?
but in acts mala prohibita, the only inquiry is, has the law been violated? When an act is
illegal, the intent of the offender is immaterial.

§ Estrada v Sandiganbayan, G.R. No. 148560 November 19,
2001
PREMISES CONSIDERED, this Court holds that RA 7080
otherwise known as the Plunder Law, as amended by RA
7659, is CONSTITUTIONAL. Consequently, the petition to
declare the law unconstitutional is DISMISSED for lack of
merit.
§ Mendoza y Esguerra v. People, G.R. No. 234196,
November 21, 2018
The petitioner was indicted of the crime of illegal possession
of firearms, as defined and penalized by P.D. No. 1866, as
amended by R.A. No. 8294.
The elements for the prosecution of which crime are:
(1) the existence of subject firearm; and
(2) the fact that the accused who possessed or owned the
same does not have the corresponding license for it.
At any rate, dolo (deceit) is not required in crimes punished by a special stature like the
Anti-Fencing Law of 1979 because it is the act alone, irrespective of the motives which
constitutes the offense
i. Is Plunder an The legislative declaration in R.A. No. 7659 that plunder is a heinous offense implies
offense mala in se or that it is a malum in se.
mala prohibita?
For when the acts punished are inherently immoral or inherently wrong, they
are mala in se and it does not matter that such acts are punished in a special law,
especially since in the case of plunder the predicate crimes are mainly mala in se. Indeed,
it would be absurd to treat prosecutions for plunder as though they are mere prosecutions
for violations of the Bouncing Check Law (B.P. Blg. 22) or of an ordinance against
jaywalking, without regard to the inherent wrongness of the acts.
Our nation has been racked by scandals of corruption and obscene profligacy of officials
in high places which have shaken its very foundation. The anatomy of graft and
corruption has become more elaborate in the corridors of time as unscrupulous people
relentlessly contrive more and more ingenious ways to bilk the coffers of the government.
Drastic and radical measures are imperative to fight the increasingly sophisticated,
extraordinarily methodical and economically catastrophic looting of the national treasury.
Such is the Plunder Law, especially designed to disentangle those ghastly tissues of
grand-scale corruption which, if left unchecked, will spread like a malignant tumor and
ultimately consume the moral and institutional fiber of our nation. The Plunder Law,
indeed, is a living testament to the will of the legislature to ultimately eradicate this scourge
and thus secure society against the avarice and other venalities in public office.
These are times that try men's souls. In the checkered history of this nation, few issues
of national importance can equal the amount of interest and passion generated by
petitioner's ignominious fall from the highest office, and his eventual prosecution and trial
under a virginal statute. This continuing saga has driven a wedge of dissension among
our people that may linger for a long time. Only by responding to the clarion call for
patriotism, to rise above factionalism and prejudices, shall we emerge triumphant in the
midst of ferment.
i. What is animus Animus possidendi is a concept that eludes specific standards to indicate its existence.
possidendi? Being a state of mind, animus possidendi is determined on a case to case basis, taking
into consideration the prior and contemporaneous acts of the accused and the surrounding
circumstances. "What exists in the realm of thought is often disclosed in a range of action."
Knowledge is an essential component of intent. Without awareness or knowledge
of the existence of the subject firearm and ammunitions, it cannot be said that the
petitioner has the intent to possess.
Verily, ownership is not an essential element of the crime of illegal possession of
firearms.
How is it relevant to What is merely required is either actual or constructive possession coupled
the offense of illegal with animus possidendi or intent to possess for a person to be convicted of illegal
possession of possession of firearm.
firearm?
In this controversy, while the existence of the firearm and the absence by the
petitioner of the license to own the same may be conceded, the absence on the part
of the petitioner of animus possidendi is sufficient to cause his acquittal.

In the case of People v. De Gracia, the Court held that while mere possession, without
criminal intent, is sufficient to convict a person for illegal possession of a firearm,
it must still be shown that there was animus possidendi or an intent to possess on
the part of the accused.
Otherwise stated, to be convicted of illegal possession of firearms it is sufficient that the
accused had no authority or license to possess a firearm, and that he intended to possess
the same, even if such possession was made in good faith and without criminal
intent. Thus, the Court continued:

[A] temporary, incidental, casual, or harmless possession or control of a firearm cannot be

considered a violation of a statute prohibiting the possession of this kind of weapon, such
as Presidential Decree No. 1866. Thus, although there is physical or constructive
possession, for as long as the animus possidendi is absent, there is no offense
committed.
§ People v. Quijano y Sanding, G.R. No. 247558, February i. Who has the
19, 2020 burden of proof to
prove intent to
possess in offenses
for possession of
illegal drugs?

It is necessary to
remember that in all
criminal
prosecutions, the
burden of proof is
on the prosecution
to establish the
guilt of the accused
beyond reasonable
It is upon the prosecution or the party who asserts the doubt. It has the duty
commission of the crime to prove the intent to possess in to prove each and
offenses for possession of illegal drugs. This is because every element of
possession of drugs constitutes a prima facie evidence of the crime charged
knowledge or animus possidendi sufficient to convict an in the information to
accused in the absence of a satisfactory explanation. warrant a finding of
Consequently, the burden of evidence is shifted to the accused guilt for the said
to explain the absence of knowledge or animus possidendi. crime. Furthermore,
the information must
correctly reflect the
charges against the
accused before any
conviction may be
made.

§People v. Pangilinan, G.R. No. 152662, June 13, 2012 i. What is the Indeed, Act No. 3326 entitled "An Act to Establish Prescription for Violations of Special
prescriptive period Acts and Municipal Ordinances and to Provide When Prescription Shall Begin," as
The key issue raised in this petition is whether the filing of the for special penal amended, is the law applicable to BP Blg. 22 cases. Appositely, Section 1 and 2 of the
affidavit-complaint for estafa and violation of BP Blg. 22 laws? law provides the rules on the period of
against respondent with the Office of the City Prosecutor Respondent’s
of Quezon City on 16 September 1997 interrupted the contention that a Since BP Blg. 22 is a special law that imposes a penalty of imprisonment of not less
period of prescription of such offense. different rule should than thirty (30) days but not more than one year or by a fine for its violation, it
be applied to cases therefor prescribes in four (4) years in accordance with the aforecited law.
involving special
We find merit in this petition. With regard to the main issue of laws is bereft of
the petition, we find that the CA reversively erred in ruling merit. There is no The running of the prescriptive period, however, should be tolled upon the institution
that the offense committed by respondent had already more distinction of proceedings against the guilty person.
prescribed. between cases
under the RPC and WHEN IS PRESCRIPTIVE PERIOD SUSPENDED?
**SECTION 1. Violations penalized by special acts shall, unless those covered by
otherwise provided in such acts, prescribe in accordance with special laws with In the old but oft-cited case of People v. Olarte, this Court ruled that the filing of the
the following rules: (a) xxx; (b) after four years for those respect to the complaint in the Municipal Court even if it be merely for purposes of preliminary
interruption of the
 punished by imprisonment for more than one month, but less
than two years; (c) xxx.
SECTION 2. Prescription shall begin to run from the day of the
commission of the violation of the law, and if the same be not
known at the time, from the discovery thereof and the institution
of judicial proceedings for its investigation and punishment.
period of examination or investigation, should, and thus, interrupt the period of prescription of
prescription. the criminal responsibility, even if the court where the complaint or information is filed
cannot try the case on the merits.
This ruling was broadened by the Court in the case of Francisco, et.al. v. Court of Appeals,
et. al. when it held that the filing of the complaint with the Fiscal’s Office also
suspends the running of the prescriptive period of a criminal offense.

The prescription shall be interrupted when proceedings are
instituted against the guilty person, and shall begin to run again
if the proceedings are dismissed for reasons not constituting
jeopardy.
In cases involving special laws, this Court held that the institution of proceedings for
preliminary investigation against the accused interrupts the period of prescription.
In Securities and Exchange Commission v. Interport Resources Corporation, et. al., the
Court even ruled that investigations conducted by the Securities and Exchange
Commission for violations of the Revised Securities Act and the Securities
Regulations Code effectively interrupts the prescription period because it is equivalent to
the preliminary investigation conducted by the DOJ in criminal cases.

There must be corroboration by evidence of corpus delicti to sustain a finding of guilt. Corpus delicti means the "body or substance of the crime, and, in its primary sense, refers to
the fact that the crime has been actually committed."

ANTI-FENCING LAW- P. D. No. 1612 was enacted to "impose heavy penalties on persons who profit by the effects of the crimes of robbery and theft."

CASE QUESTION ANSWER

§ Dizon-Pamintuan v. People, G.R. 1. What are the elements of The elements of the crime of fencing are:
No. 111426, July 11, 1994 fencing? 1. A crime of robbery of theft has been committed;

In 1988, Norma Pamintuan, the said
accused, with intent of gain for
herself or for another, did then and
there wilfully, unlawfully and
knowingly buy and keep in her
possession and/or sell or
dispose of the following jewelries,
to wit:
-one (1) set of earings,
-a ring studded with diamond sin a
triangular style,
-one (1) set of earrings (diamond
studded)
-one (1) diamond-studded crucifix,
or all valued at P105,000.00, which
she knew or should have known
to have been derived from the
Knowledge and intent to gain are
proven by the fact that these
jewelries were found in possession
of appellant and they were
displayed for sale in a showcase
being tended by her in a stall along
Florentino Street, Sta. Cruz, Manila.
.
2. The accused, who is not a principal or accomplice in the commission of the crime of robbery or
theft, buys, receives, possesses, keeps, acquires, conceals, sells or disposes, or buys and
sells, or in any manner deals in any article, item, object or anything of value, which has been
derived from the proceeds of the said crime;
3. The accused knows or should have known that the said article, item, object or anything of
value has been derived from the proceeds of the crime of robbery or theft; and
4. There is, on the part of the accused, intent to gain for himself or for another.
In the instant case, there is no doubt that the first, second, and fourth elements were duly
established.
whether the prosecution proved the existence of the third element: that the accused know or should
have known that the items recovered from here were the proceeds of the crime of robbery of theft.
One is deemed to know a particular fact if he has the cognizance, consciousness or awareness
proceeds of the crime of robbery
committed by Joselito Sacdalan
Salinas against the owner Teodoro
and Luzviminda Encarnacion.
§ Dunlao vs. People, G.R. No.
111343, August 22, 1996
In 1986, in the City of Davao,
Dunlao, with intent to gain for
himself, purchased and received
dismantled farrowing crates
made of GI pipes, valued at
P20,000.00, knowing the same to
be the subject of thievery, thereby
committing an act of "fencing," in
violation of the Anti-Fencing Law of
1979, to the damage and
prejudice of the owner thereof
Lourdes Farms, Inc., represented
by Lourdes Du.
Dumlao argues that the
prosecution failed to establish
the fact that, in receiving and
possessing the subject items, he
was motivated by gain or that he
purchased the said articles.
§ Tan vs. People, G.R. No. 134298,
August 26, 1999
During the last week of February
1991, Tan knowingly received, kept,
acquired and possessed several
spare parts and items for fishing
boats all valued at P48,130.00
belonging to Rosita Lim, which he
knew or should have known to have
been derived from the proceeds of
the crime of theft.
2. When is there intent to sell
stolen articles?
3. When is robbery or theft
deemed committed?
"Robbery is the taking of personal
property belonging to another, with
intent to gain, by means of violence
against or intimidation of any person,
or using force upon things."
The crime of theft is committed if the
taking is without violence against or
intimidation of persons nor force
upon things.
"The law on fencing does not
require the accused to have
participated in the criminal design
to commit, or to have been in any
thereof, of is aware of the existence of something, or has the acquaintance with facts, or if he has
something within the mind's grasp with certitude and clarity. When knowledge of the existence of a
particular fact is an element of an offense, such knowledge is established if a person is aware of a
high probability of its existence unless he actually believes that it does not exist.
On the other hand, the words "should know" denote the fact that a person of reasonable prudence
and intelligence would ascertain the fact in performance of his duty to another or would
govern his conduct upon assumption that such fact exists.
The law does not require proof of purchase of the stolen articles by petitioner, as mere possession
thereof is enough to give rise to a presumption of fencing.
The Court notes that the stolen articles were found displayed on petitioner's shelves inside his
compound. If petitioner were merely keeping the farrowing crates and G.I. pipes for the men aboard
the jeep, why did he display them? When a storeowner displays articles, it is assumed that he
is doing so with the intention of selling them.
**
Intent to gain need not be proved in crimes punishable by a special law such as P.D. 1612.
There is no question that the farrowing crates and assorted lengths of G.I. pipes were found in the
premises of petitioner. The positive identification by Fortunato Mariquit, an employee of Lourdes
Farms, Inc., that these items were previously owned by it gave rise to a presumption of fencing
under the law.
In this case, what was the evidence of the commission of theft independently of fencing?
Complainant Rosita Lim testified that she lost certain items and Manuelito Mendez confessed that
he stole those items and sold them to the accused. However, Rosita Lim never reported the theft
or even loss to the police. She admitted that after Manuelito Mendez, her former employee,
confessed to the unlawful taking of the items, she forgave him, and did not prosecute him.
Theft is a public crime. It can be prosecuted de oficio, or even without a private complainant, but it
cannot be without a victim. As complainant Rosita Lim reported no loss, we cannot hold for
certain that there was committed a crime of theft. Thus, the first element of the crime of fencing is
absent, that is, crime of robbery or theft has been committed.
There was no sufficient proof of the unlawful taking of another's property. True, witness
Mendez admitted in an extra-judicial confession that he sold the boat parts he had pilfered from
complainant to petitioner. However, an admission or confession acknowledging guilt of an offense
may be given in evidence only against the person admitting or confessing.
There must be corroboration by evidence of corpus delicti to sustain a finding of guilt.

§ Capili vs. CA, G.R. No. 139250,
August 15, 2000
Gabriel Capili together with his wife
Ferma were charged with violation of
Presidential Decree 1612, for
willfully and knowingly receive,
possess, keep, acquire and sell or
dispose of the following, to wit:
-Assorted pieces of jewelry
-Several pieces of old coins (U.S.
dollar)
all valued at P3,000,000.00, which
they knew or should have known to
have been derived from the
proceeds of a (sic) crime of theft.
§ Francisco vs. People, G.R. No.
146584, July 12, 2004
The petitioner was charged of
violating P.D. No. 1612. On
November 1991, in Meycauayan,
Bulacan, Ernesto buy, receive,
possess and acquire from one
Pacita Linghon, not the owner,
several pieces of jewelry, to wit:
-One (1) pair of earrings (Heart
Shape)---P 400,000.00
-One (1) White Gold Bracelet ----
150,000.00
-One (1) Diamond Ring --
100,000.00
-One (1) Ring with Diamond ----
5,000.00
with the total value of P655,000.00,
belonging to Jovita Rodriguez,
which he knows, or should be
known to him, to have been derived
wise involved in the commission
of, the crime of robbery or theft."
4. What gives rise to the
presumption of fencing?
All these elements are present in
the case at bench.
5. Can fencing still be proven if
the stolen item can no longer be
found? Briefly explain.
Fencing is malum prohibitum, and
P.D. No. 1612 creates a prima facie
presumption of fencing from
evidence of possession by the
accused of any good, article, item,
object or anything of value which
has been the subject of robbery or
theft, and prescribes a higher
penalty based on the value of the
property.
Corpus delicti means the "body or substance of the crime, and, in its primary sense, refers to the
fact that the crime has been actually committed."
In theft, corpus delicti has two elements, namely: (1) that the property was lost by the owner,
and (2) that it was lost by felonious taking. In this case, the theft was not proved because
complainant Rosita Lim did not complain to the public authorities of the felonious taking of her
property. She sought out her former employee Manuelito Mendez, who confessed that he stole
certain articles from the warehouse of the complainant and sold them to petitioner. Such confession
is insufficient to convict, without evidence of corpus delicti.
Since Section 5 of P.D. No. 1612 expressly provides that "[m]ere possession of any good, article,
item, object, or anything of value which has been the subject of robbery or thievery shall be prima
facie evidence of fencing," it follows that the petitioner is presumed to have knowledge of the fact
that the items found in her possession were the proceeds of robbery or theft. The presumption
is reasonable for no other natural or logical inference can arise from the established fact of her
possession of the proceeds of the crime of robbery or theft. This presumption does not offend the
presumption of innocence enshrined in the fundamental law.
At any rate, the law does not require proof of purchase of the stolen articles by the accused as
mere possession thereof is enough to give rise to a presumption of fencing. GABRIEL, who
was in possession of at least two of the stolen items, has not rebutted this presumption.
YES. Fencing can still be proven if the stolen item can no longer be found. The stolen property
subject of the charge is not indispensable to prove fencing. It is merely corroborative of the
testimonies and other evidence adduced by the prosecution to prove the crime of fencing.
In fine, the only evidence of the prosecution to prove that the petitioner purchased the jewelry from
Macario and Pacita are the following: the testimony and affidavit of PO1 Roldan, Jr.; and, the
testimony of Macario during the preliminary investigation and trial in the court a quo.
Although the well-entrenched rule is that the testimony of a single witness is sufficient on
which to anchor a judgment of conviction, it is required that such testimony must be credible
and reliable. In this case, the testimony of Macario to be dubious; hence, barren of probative weight.
from the proceeds of the crime of
robbery or theft.
§ Lim vs. People, G.R. No. 211977,
October 12, 2016
In 1997, Lim, being then the
proprietor of Basco· Metal Supply
located at Matina, Davao City,
feloniously purchased and received
for P400,000.00 one (1) unit
Komatsu Road Grader with
Chassis Model and Serial No. GD-
51R-100049 and bearing an (sic)
Engine Serial Number 60951-55845
owned by Second Rural Road
Improvement Project (SRRIP)
PMODPWH of Isulan, Sultan
Kudarat, being lodged for repair at
the Facoma Compound of
Poblacion Norala, South Cotabato,
and possessed the same, knowing
that said Komatsu Road Grader
was stolen.
In the case at bar, the prosecution
failed to prove the first and third
essential elements of the crime
charged in the information. Thus,
petitioner should be acquitted due
to insufficiency of evidence and
reasonable doubt.
§ Cahulogan v. People, G.R. No.
225695, March 21, 2018
On January 14, 2011, at about 4:00
o'clock [sic] in the afternoon, at
Bugo, Cagayan de Oro City,
Cahulogan, without the knowledge
and consent of the owner thereof,
did then and there wilfully,
unlawfully and feloniously buy,
receive, possess, keep, acquire,
conceal, sell or dispose of, or in any
manner deal, Two Hundred Ten
(210) cases of Coca Cola
products worth Php52,476.00
owned by and belonging to the
offended party Johnson
6. Is conviction in the crime of theft
necessary to be found guilty of
fencing?
7. What is the effect of R.A. 10951
to the application of penalty in
fencing?
Notably, while the crime of Fencing
is defined and penalized by a
special penal law, the penalty
provided therein is taken from the
nomenclature in the Revised Penal
Code (RPC).
NO. In this case, while the CA correctly ruled that conviction of the principal in the crime of theft is
not necessary for an accused to be found guilty of the crime of fencing.
Elsewise stated, the crimes of robbery and theft, on the one hand, and fencing, on the other,
are separate and distinct offenses.
The state may thus choose to prosecute him either under the Revised Penal Code or P.D. No.
1612, although the preference for the latter would seem inevitable considering that fencing is a
malum prohibitum, and P.D. No. 1612 creates a presumption of fencing and prescribes a higher
penalty based on the value of the property.
While one who is in possession of the proceeds of robbery or theft is presumed to have knowledge
of the fact that said items were Stolen or (sic) PD 1612 provides a safeguard or a protection for a
would-be buyer of second hand articles. The aforequoted section simply means that a person who
is engaged in the buying and selling of an item from an unlicensed dealer or supplier shall, before
offering the same for sale to the public[,] secure the necessary clearance or permit from the station
commander of the Integrated National Police in the town or city where such establishment or entity
is located and any person who fails to secure the clearance or permit required by |his section, shall
upon conviction be punished as a fence .
Clearly, the clearance stated in Sec. 6 of PD 1612 is only required if several conditions, are met: first,
that the person, store, establishment or entity is in the business of buying and selling of any good,
articles item object, or anything of value; second, that such thing of value was obtained from an
unlicensed dealer or supplier thereof; and third, that such thing of value is to be offered for sale to the
public.
In the present case, the first and third requisites were not met. Nowhere was it established that
petitioner was engaged in the business of buy and sell. Neither was the prosecution able to
establish that petitioner intended to sell or was actually selling the subject grader to the
public.
Meanwhile, Sec. 1 of Act No. 4103, otherwise known as the Indeterminate Sentence Law (ISL),
provides that if the offense is ostensibly punished under a special law, the minimum and maximum
prison term of the indeterminate sentence shall not be beyond what the special law prescribed. Be
that as it may, the Court had clarified in the landmark ruling of People v. Simon that the situation is
different where although the offense is defined in a special law, the penalty therefor is taken from
the technical nomenclature in the RPC. Under such circumstance, the legal effects under the
system of penalties native to the Code would also necessarily apply to the special law
Otherwise stated, if the special penal law adopts the nomenclature of the penalties under the
RPC, the ascertainment of the indeterminate sentence will be based on the rules applied for
those crimes punishable under the RPC.
While PD 1612 penalizes those who acquire properties which are proceeds of Robbery or Theft, its
prescribed penalties are similar to the latter crime in that they are largely dependent on the value of
the said properties.
However, with the recent enactment of Republic Act No. 10951, which adjusted the values of the
property and damage on which various penalties are based, taking into consideration the present
 Tan which accused know, or should value of money, as opposed to its archaic values when the RPC was enacted in 1932, the
be known to him, to have been graduation of values in Article 309 was substantially amended, without any concomitant adjustment
derived from the proceeds of the for PD 1612. This development would then result in instances where a Fence, which is
crime of Theft, to the damage and theoretically a mere accessory to the crime of Robbery/Theft, will be punished more severely
prejudice of said owner in the than the principal of such latter crimes. This incongruence in penalties therefore, impels an
aforesaid sum of Php52,476.00. adjustment of penalties.

P.D. No. 1612 was enacted to "impose heavy penalties on persons who profit by the effects of
the crimes of robbery and theft." Evidently, the accessory in the crimes of robbery and theft could
be prosecuted as such under the Revised Penal Code or under P.D. No. 1612. However, in the
latter case, he ceases to be a mere accessory but becomes a principal in the crime of fencing.
Elsewise stated, the crimes of robbery and theft, on the one hand, and fencing, on the other,
are separate and distinct offenses. The state may thus choose to prosecute him either under the
Revised Penal Code or P.D. No. 1612, although the preference for the latter would seem inevitable
considering that fencing is a malum prohibitum, and P.D. No. 1612 creates a presumption of fencing
and prescribes a higher penalty based on the value of the property.

BP 22 punishes a person "who makes or draws and issues any check 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 said check in full upon 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." The penalty prescribed
for the offense is imprisonment of not less than 30 days nor more than one year or a fine or not less than the amount of the check nor more than double said amount, but in no case
to exceed P200,000.00, or both such fine and imprisonment at the discretion of the court. 3

The statute likewise imposes the same penalty on "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.

An essential element of the offense is "knowledge" on the part of the maker or drawer of the check of the insufficiency of his funds in or credit with the bank to cover the check
upon its presentment. Since this involves a state of mind difficult to establish, the statute itself creates a prima facie presumption of such knowledge where payment of the check
"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.

To mitigate the harshness of the law in its application, the statute provides that such presumption shall not arise if within five (5) banking days from receipt of the notice of
dishonor, the maker or drawer makes arrangements for payment of the check by the bank or pays the holder the amount of the check.

The presumptions being merely prima facie, it is open to the accused of course to present proof to the contrary to overcome the said presumptions.

The question now arises: Is B P 22 a valid law?

The reach and scope of this constitutional safeguard have been the subject of judicial definition, both by our Supreme Court and by American State courts. Mr. Justice Malcolm
speaking for the Supreme Court in Ganaway vs. Queen, stated: "The 'debt' intended to be covered by the constitutional guaranty has a well-defined meaning. Organic provisions
relieving from imprisonment for debt, were intended to prevent commitment of debtors to prison for liabilities arising from actions ex contractu The inhibition was never meant to include
damages arising in actions ex delicto, for the reason that damages recoverable therein do not arise from any contract entered into between the parties but are imposed upon the
defendant for the wrong he has done and are considered as punishment, nor to fines and penalties imposed by the courts in criminal proceedings as punishments for crime."
***** The scope of paragraph 2 (d), however, was deemed to exclude checks issued in payment of pre-existing obligations. The rationale of this interpretation is that in estafa, the
deceit causing the defraudation must be prior to or simultaneous with the commission of the fraud. In issuing a check as payment for a pre-existing debt, the drawer does not derive
any material benefit in return or as consideration for its issuance. On the part of the payee, he had already parted with his money or property before the check is issued to him hence,
he is not defrauded by means of any "prior" or "simultaneous" deceit perpetrated on him by the drawer of the check.

With the intention of remedying the situation and solving the problem of how to bring checks issued in payment of pre-existing debts within the ambit of Art. 315, an amendment was
introduced by the Congress of the Philippines in 1967, 11 which was enacted into law as Republic Act No. 4885,

Since statistically it had been shown that the greater bulk of dishonored checks consisted of those issued in payment of pre-existing debts, 13 the amended provision evidently failed
to cope with the real problem and to deal effectively with the evil that it was intended to eliminate or minimize.

*** Unlike a promissory note, a check is not a mere undertaking to pay an amount of money. It is an order addressed to a bank and partakes of a representation that the drawer has
funds on deposit against which the check is drawn, sufficient to ensure payment upon its presentation to the bank. There is therefore an element of certainty or assurance that the
instrument wig be paid upon presentation. For this reason, checks have become widely accepted as a medium of payment in trade and commerce. Although not legal tender, checks
have come to be perceived as convenient substitutes for currency in commercial and financial transactions. The basis or foundation of such perception is confidence. If such
confidence is shakes the usefulness of checks as currency substitutes would be greatly diminished or may become nit Any practice therefore tending to destroy that
confidence should be deterred for the proliferation of worthless checks can only create havoc in trade circles and the banking community

CASE QUESTION ANSWER

i. Lozano vs. Martinez, L-63419, December 18, 1986
BP 22 does not conflict with the constitutional inhibition
against imprisonment for debt
We find no valid ground to sustain the contention that BP
22 impairs freedom of contract. The freedom of contract
which is constitutionally protected is freedom to enter into
"lawful" contracts. Contracts which contravene public
policy are not lawful. 33 Besides, we must bear in mind that
checks can not be categorized as mere contracts. It is a
commercial instrument which, in this modem day and age,
has become a convenient substitute for money; it forms
part of the banking system and therefore not entirely free
from the regulatory power of the state.
a. Nature of offense:
The basis or foundation of such perception is
confidence. If such confidence is shakes the
usefulness of checks as currency substitutes would
be greatly diminished or may become nit. Any practice
therefore tending to destroy that confidence should
be deterred for the proliferation of worthless checks
can only create havoc in trade circles and the banking
community.
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 wen pollute the channels of
trade and commerce, injure the banking system and
eventually hurt the welfare of society and the public
interest.
The Batasan decided to enact a law dealing with the
problem of bouncing or worthless checks, without
attaching the law's umbilical cord to the existing penal
provisions on estafa. BP 22 addresses the problem
directly and frontally and makes the act of issuing a
worthless check malum prohibitum.
The gravamen of the offense punished by BP 22 is the
act of making and issuing a worthless check or a
check that is dishonored upon its presentation for
payment. It is not the non-payment of an obligation
which the law punishes. The law is not intended or
designed to coerce a debtor to pay his debt. The thrust of
the law is to prohibit, under pain of penal sanctions, the
making of worthless checks and putting them in
circulation.
Because of its deleterious effects on the public
interest, the practice is proscribed by the law. The law
punishes the act not as an offense against property, but
an offense against public order.

It may be constitutionally impermissible for the legislature

In sum, we find the enactment of BP 22 a valid
to penalize a person for non-payment of a debt ex
exercise of the police power and is not repugnant to
contractu BUT certainly it is within the prerogative of the
the constitutional inhibition against imprisonment for
lawmaking body to proscribe certain acts deemed
debt.
pernicious and inimical to public welfare. Acts mala in se

ii. King v. People, G.R. No. 131540, December 2, 1999
Thus, 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.
In this light, the full payment of the amount appearing
in the check within five banking days from notice of
dishonor is a "complete defense." The absence of a
notice of dishonor necessarily deprives an accused an
opportunity to preclude a criminal prosecution.
Accordingly, procedural due process clearly enjoins that a
notice of dishonor be actually served on petitioner.
Petitioner has a right to demand — and the basic
postulates 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
BP 22.
We must stress that BP 22, like all penal statutes, is
construed strictly against the State and liberally in favor of
the accused. Likewise, the prosecution has the burden to
prove beyond reasonable doubt each element of the
crime. Hence, the prosecution's case must rise or fall on
the strength of its own evidence, never on the weakness
or even absence of that of the defense.
iii. Alburo v. People, G.R. No. 196289, August 15, 2016
There is no dispute that the first and the third
elements are present in this case.
b. Elements:
For 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.
It is necessary in cases for violation of Batas Pambansa
Blg. 22, that the prosecution prove that the issuer had
received a notice of dishonor.
are not the only acts which the law can punish. An act may
not be considered by society as inherently wrong, hence,
not malum in se but because of the harm that it inflicts
on the community, it can be outlawed and criminally
punished as malum prohibitum. The state can do this in
the exercise of its police power.
The enactment of BP 22 is a declaration by the legislature
that, as a matter of public policy, the making and issuance
of a worthless check is deemed public nuisance to be
abated by the imposition of penal sanctions.
Knowledge of Insufficiency of Funds
To hold a person liable under BP 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.
In other words, the prima facie presumption arises
when a check is issued. But the law also provides that
the presumption does not arise when the issuer pays
the amount of the check or makes arrangement for its
payment "within five banking days after receiving
notice that such check has not been paid by the
drawee."
Verily, BP 22 gives the accused an opportunity to
satisfy the amount indicated in the check and thus
avert prosecution. As the Court held in Lozano
v. Martinez, the aforecited provision serves to "mitigate
the harshness of the law in its application." This
opportunity, however, can be used only upon receipt
by the accused of a notice of dishonor.
The remaining issue is whether or not the second
element is present.
It was proven that petitioner issued the subject Landbank
checks in favor of Aurelio Tapang as payment for the
balance of the purchase of the house and lot owned by
Elsa Alburo-Walter and when presented for payment, the
same checks were dishonored for the reason of being
drawn against insufficient funds.
A close reading of the above findings, however, would
show that the RTC failed to mention that petitioner
received any notice of dishonor and simply stated that
a representative of Landbank, Dau, Mabalacat,
Pampanga Branch testified that notices of dishonor were
issued.
iv. Ongkingco v. Sugiyama, G.R. No. 217787, September
18, 2019
The prosecution was able to establish beyond
reasonable doubt the presence of the second element
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.
The burden of proving notice rests upon the party
asserting its existence.
A perusal of the records of the case, likewise shows the
absence of any indication that petitioner received the
notices of dishonor allegedly sent by Landbank.
The absence of proof that petitioner received any notice
informing her of the fact that her checks were dishonored
and giving her five banking days within which to make
arrangements for payment of the said checks prevents the
application of the disputable presumption that she had
knowledge of the insufficiency of her funds at the time she
issued the checks.
Absent such presumption, the burden shifts to the
prosecution to prove that petitioner had knowledge of
the insufficiency of her funds when she issued the
said checks, otherwise, she cannot be held liable
under the law.
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.
The presence of the first and third elements is
undisputed. However, while the prosecution
established the second element, i.e., receipt of the
To establish the existence of the second element, the
State should present the giving of a written notice of
the dishonor to the drawer, maker or issuer of the
dishonored check.
The rationale for this requirement is rendered in Dico v.
Court of Appeals,20 to wit:
To hold a person liable under B.P. Blg. 22, the prosecution
must not only establish that a check was issued and that
the same was subsequently dishonored, it must further
be shown that accused knew at the time of the
issuance of the check that he did not have sufficient
funds or credit with the drawee bank for the payment
of such check in full upon its presentment.
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 giving of the written notice of dishonor does not
only supply 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. Thus, the
absence of a notice of dishonor is a deprivation of
petitioner's statutory right.
41 Failure of the prosecution to prove that the person who
issued the check was given the requisite notice of dishonor
is a clear ground for acquittal. It bears emphasis that the
giving of the written notice of dishonor does not only
supply proof for the element arising from the presumption
with respect to petitioner Socorro, who received the
notice of dishonor through her secretary. Prosecution
witness Marilou La Serna, a legal staff of Sugiyama's
private counsel, testified that the letter dated March 5,
2002 demanding payment of the dishonored checks was
received by the secretary of petitioner Socorro, as shown
by the handwritten signature on the face of the said letter.
La Serna clarified on direct examination that (1) it was
petitioner Socorro's secretary who acknowledged receipt
of the said demand letter with the permission of Socorro,
who was in another room of her office; and (2) that there
were several calls in the office of Socorro, as well as a time
when she went to the law office of Sugiyama's counsel, to
inform that she acknowledged receipt of that demand
letter:
When service of notice is an issue, the person alleging that
notice was served must prove the fact of service, and the
burden of proving notice rests upon the party asserting its
existence.
v. Yu Oh vs. Court of Appeals, G.R. No. 125297, June 6,
2003
notice of dishonor, with respect to petitioner Socorro,
it failed to do so in the case of petitioner Marie Paz.
After reviewing the records and applying the foregoing
principles to this case, the Court rules that the prosecution
has proven beyond reasonable doubt that petitioner
Socorro received a notice of dishonor of the four (4)
subject checks, but failed to do so in the case of petitioner
Marie Paz. Perforce, petitioner Socorro should be
convicted of the four (4) charges for violation of B.P. 22,
but petitioner Marie Paz should be acquitted of the said
charges.
c. Notice of Dishonor:
Simply worded, the issues of this case may be stated as
follows
(2) whether or not notice of dishonor is dispensable in
this case; and
(3) whether or not the appellate court erred in construing
B.P. Blg. 22.
In Yu Oh v. CA,46 the Court explained that since the
second element involves a state of mind which is difficult
to establish, Section 2 of B.P. Blg. 22 created a prima
facie presumption of such knowledge
Indeed, this requirement [on proof of receipt of notice
of dishonor] cannot be taken lightly because Section
2 provides for an opportunity for the drawer to effect
full payment of the amount appearing on the check,
within five banking days from notice of dishonor. The
absence of said notice therefore deprives an accused
of an opportunity to preclude criminal prosecution. In
other words, procedural due process demands that a
notice of dishonor be actually served on petitioner. In
the case at bar, appellant has a right to demand and the
basic postulate of fairness requires - that the notice of
of knowledge the law puts up, but also affords the offender
due process.42 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.43 Thus, the absence of a notice
of dishonor is a deprivation of petitioner's statutory right.44
As a general rule, when a corporate officer issues a
worthless check in the corporate's name, he or she
may be held personally liable for violating a penal statute,
i.e., Section 1 of B.P. 22. However, a corporate officer
who issues a bouncing corporate check can only be held
civilly liable when he or she is convicted.
Conversely, once acquitted of the offense of violating
B.P. 22, a corporate officer is discharged of any civil
liability arising from the issuance of the worthless
check in the name of the corporation he or she represents.
This is without regard as to whether his acquittal was
based on reasonable doubt or that there was a
pronouncement by the trial court that the act or omission
from which the civil liability might arise did not exist.
Anent the second issue: whether or not notice of dishonor
is dispensable in the case at bar. Petitioner failed to show
any cogent reason for us to disturb the findings of the RTC
and the Court of Appeals.
For liability to attach under B.P. Blg. 22, it is not enough
that the prosecution establishes that checks were issued
and that the same were subsequently dishonored. The
prosecution must also prove that the issuer, at the
time of the check's issuance, had knowledge that he
did not have enough funds or credit in the bank of
payment thereof upon its presentment.
In cases for violation of B.P. Blg. 22, it is necessary that
the prosecution prove that the issuer had received a
notice of dishonor. Since service of notice is an issue,
the person alleging that the notice was served must
prove the fact of service. Basic also is the doctrine that
in criminal cases, the quantum of proof required is proof
beyond reasonable doubt. Hence, for cases of B.P. Blg.
22 there should be clear proof of notice.47Indeed, this
requirement cannot be taken lightly because Section 2
provides for an opportunity for the drawer to effect full
payment of the amount appearing on the check, within five

vi. Dela Cruz v. People, G.R. No. 163494, August 3, 2016
Similarly, in the instant case, the prosecution failed to
sufficiently prove the actual receipt by the petitioner of
the demand letter sent by Tan.
dishonor be actually sent to and received by her to afford
her the opportunity to aver prosecution under B.P. Blg. 22.
The Court now explains why the petitioner's acquittal is
warranted.
As between the parties to this case, the dispute only
pertains to the presence or absence of the second
banking days from notice of dishonor. The absence of
said notice therefore deprives an accused of an
opportunity to preclude criminal prosecution. In other
words, procedural due process demands that a notice
of dishonor be actually served on petitioner. In the
case at bar, appellant has a right to demand – and the
basic postulate of fairness requires – that the notice
of dishonor be actually sent to and received by her to
afford her to opportunity to aver prosecution under
B.P. Blg. 22.
Third issue – Whether or not the Court of Appeals
erroneously construed B.P. Blg. 22.
Petitioner insists that: penal statutes must be strictly
construed and where there is any reasonable doubt, it
must always be resolved in favor of the accused; the Court
of Appeals, in construing that B.P. Blg. 22 embraces cases
of "no funds" or "closed accounts" when the express
language of B.P. Blg. 22 penalizes only the issuance of
checks that are subsequently dishonored by the drawee
bank for "insufficiency" of funds or credit, has enlarged by
implication the meaning of the statute which amounts to
judicial legislation;23 a postdated check, not being drawn
payable on demand, is technically not a special kind of a
bill of exchange, called check, but an ordinary bill of
exchange payable at a fixed date, which is the date
indicated on the face of the postdated check, hence, the
instrument is still valid and the obligation covered thereby,
but only civilly and not criminally
The gravamen of the offense punished by B.P. Blg. 22 is
the act of making and issuing a worthless check or a check
that is dishonored upon its presentation for payment …
The language of B.P. Blg. 22 is broad enough to cover
all kinds of checks, whether present dated or postdated,
or whether issued in payment of pre-existing obligations or
given in mutual or simultaneous exchange for something
of value.
A review of the records shows that the prosecution did not
prove that the petitioner received the notice of dishonor.
Registry return cards must be authenticated to serve as
proof of receipt of letters sent through registered mail.
Clearly, the prosecution failed to establish the presence of
all the elements of violation of B.P. Blg. 22. The petitioner
is acquitted from the 23 counts of the offense charged. The
failure of the prosecution to prove the receipt by the
petitioner of the requisite written notice of dishonor and
that she was given at least five banking days within which
to settle her account constitutes sufficient ground for her
acquittal.
element. In order to support her plea for an acquittal, the
petitioner particularly insists that she failed to receive any
notice of dishonor on the subject checks, which rendered
absent the element of knowledge of insufficient funds.
Although a notice of dishonor is not an indispensable
requirement in a prosecution for violation of B.P. Blg. 22
as it is not an element of the offense, evidence that a
notice of dishonor has been sent to and received by the
accused is actually sought as a means to prove the
second element.
Jurisprudence is replete with cases that underscore the
value of a notice of dishonor in B.P. Blg. 22 cases, and
how the absence of sufficient proof of receipt thereof can
be fatal in the prosecution's case.
In this case, the prosecution merely presented a copy of
the demand letter, together with the registry receipt and
the return card, allegedly sent to petitioner. However,
there was no attempt to authenticate or identify the
signature on the registry return card.
Receipts for registered letters and return receipts do not
by themselves prove receipt; they must be properly
authenticated to serve as proof of receipt of the letter,
claimed to be a notice of dishonor. To be sure, the
presentation of the registry card with an
unauthenticated signature, does not meet the
required proof beyond reasonable doubt that
petitioner received such notice.
It is not enough for the prosecution to prove that a notice
of dishonor was sent to the drawee of the check. The
prosecution must also prove actual receipt of said notice,
because the fact of service provided for in the law is
reckoned from receipt of such notice of dishonor by the
drawee of the check. 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. Moreover, for
notice by mail, it must appear that the same was served
on the addressee or a duly authorized agent of the
addressee. From the registry receipt alone, it is
possible that petitioner or his authorized agent did
receive the demand letter. Possibilities, however,
cannot replace proof beyond reasonable doubt.
The consistent rule is that penal statutes have to be
construed strictly against the State and liberally in favor of
the accused. The absence of a notice of dishonor
necessarily deprives the accused an opportunity to
preclude a criminal prosecution. As there is insufficient
proof that petitioner received the notice of dishonor, the
presumption that he had knowledge of insufficiency of
funds cannot arise.