Dear PAO,

X issued post-dated checks (PDCs) in my favor, amounting to P4 million, as payment for a certain investment into which we have entered. Subsequently, X asked me not to deposit those PDCs. Instead, P3 million were paid to me in cash on various dates. To my dismay, though, the balance of P1 million still remains unpaid to this day. I tried to deposit four of the PDCs and was informed by the bank that the account has long been closed. So, to me, there was deceit on the part of X. Can I file a complaint for violation of BP 22?

Anonymous

Dear Anonymous,

Batas Pambansa 22 (BP 22) penalizes “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 xxx,” as well as “xxx 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.” (Section 1, BP 22)

Taking the foregoing provision into consideration, if you wish to file a complaint for violation of BP 22 against X, it is essential for you to establish the following elements: (1) the making, drawing, and issuance of X of checks to apply on account or for value; (2) the knowledge of X that at the time of issue of said checks, he or she does not have sufficient funds in or credit with the drawee bank for the payment of the checks in full upon its presentment; and (3) the subsequent dishonor of the checks by the drawee bank due to insufficiency of funds or credit or dishonor for the same reason had not X, without any valid cause, ordered the bank to stop payment.

Additionally, to substantiate the second element abovementioned, you must be able to establish that a notice of dishonor has been sent to X, that said notice was in fact received by him/her, and that he/she failed to pay the amount of the check/s or to make arrangement for its payment within five days from receipt of the notice. This requirement is pursuant to Section 2 of BP 22, which provides that:

“Section 2. Evidence of knowledge of insufficient funds. – The making, drawing and issuance of a check payment of which is refused by the drawee because of insufficient funds in or credit with such bank, when presented within ninety (90) days from the date of the check, shall be prima facie evidence of knowledge of such insufficiency of funds or credit unless such maker or drawer pays the holder thereof the amount due thereon, or makes arrangements for payment in full by the drawee of such check within (5) banking days after receiving notice that such check has not been paid by the drawee.”

As explained by the Supreme Court in the case of Jesusa T. Dela Cruz v. People of the Philippines (GR 163494, Aug. 3, 2016), through former Associate Justice Bienvenido Reyes:

“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 Yu Oh v. CA, 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, x x x

“Based on this section, the presumption that the issuer had knowledge of the insufficiency of funds 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 arrangement for its payment. The presumption or prima facie evidence as provided in this section cannot arise, if such notice of non-payment 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.

“Further, the Court held:

“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. x x x”

We hope that we were able to answer your queries. This advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to [email protected]