How to file a case for violation of Bp 22?
Generally, BP 22 punishes a person for issuing a worthless
check.
The following essential elements must be present in order to
be liable under BP 22:
(1) the person accused of violating the law makes, draws or
issues any check for account or for value;
(2) he has knowledge at the time he issued the check that he
does not have sufficient funds in or credit with the drawee bank for the
payment of the check when presented for payment; and,
(3) the drawee bank dishonors the check because of
insufficiency of funds, or it would have dishonored the check for the same
reason if the issuer did not order the bank to stop payment for no valid
reason.
The law presumes that the issuer knew of the insufficiency
of his funds if the check is dishonored within 90 days from the date of the
check.
This presumption is overcome only if the issuer pays or
makes arrangements for payment of the full amount of the check within five banking
days after receiving a notice of its dishonor.
Furthermore, there must be proof that that the issuer was
notified of the fact of dishonor, and proof that the issuer had received such
notice of dishonor.
What acts are penalized under the law?
A. Drawing a Check Without Sufficient Funds (Sec. 1)
A person makes or draws and issues any check
The check is made or drawn and issued to apply on account or
for value
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 payment of such check in full upon its presentment
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 valid reason, ordered the bank to stop
payment
B. Failing to Keep Sufficient to Cover a Check Issued (Sec.
1, par. 2)
A person has sufficient funds in or credit with the drawee
bank when he makes or draws and issues a check
He fails to keep sufficient funds or maintain a credit to
cover the full amount of the check if presented within 90 days from the date
appearing
The check is dishonored by the drawee bank
Who are liable?
1. The person who issued the check.
2. An accommodation party is one who has signed the check
without receiving value in exchange, and who issues the check for the purpose
of lending his name to some other person.
3. In case a check is issued in behalf of a corporation or
other legal entity, the person who actually signed the bounced check is liable.
When to File a criminal complaint;
Any alleged violation of BP 22 pursued through the filing of
a criminal complaint must be filed within four years from the dishonor of the
check, before the office of the public prosecutor.
If the public prosecutor finds probable cause (i.e.,
determines that a check without sufficient funds was indeed issued, and it was
the respondent who had issued it), an Information will be filed before the
proper Metropolitan Trial Court or Municipal Trial Court. Trial will follow.
What is the penalty?
If the accused is found guilty, BP 22 provides that the
penalty for its violation is imprisonment for at least 30 days but not more
than one year, or a fine of at least double the amount of the check but not to
exceed P200,000.
Under AC 13-2001, the SC clarified that imprisonment under
BP 22 is still possible. A fine is only preferred over an imprisonment sentence
if it would better serve the interests of justice — such as if the accused is a
first time offender, or there is good faith involved.
Even if only a fine is imposed, the accused may still suffer
subsidiary imprisonment if he is unable to pay.
In case the accused is acquitted and the reason for the
acquittal is insufficiency of evidence, the accused may still be held civilly
liable and ordered to pay the value of the bounced check.
It must also be remembered that prosecution under BP 22 is
not a bar for prosecution for Estafa, and the issuer of the check may be held
liable for one or both crimes, singly or simultaneously when the complaints are
filed in separate courts.
The essential elements of estafa under Article 315 (2-d)
are:
(a) a check is postdated or issued in payment of an
obligation contracted at the time the check is issued;
(b) lack or insufficiency of funds to cover the check; and
(c) damage to the payee thereof.
It is the deceit or fraud attendant to the issuance of the
check which is punished.
Prima facie evidence of deceit exists by law upon proof that
the drawer of the check failed to deposit the amount necessary to cover his
check within three days from receipt of the notice of dishonor. The key issue
is whether the complainant would have parted with his money, property or any
other object of the transaction were it not for the issuance of the check,
which turns out to be unfunded.
But the issuer of the check is not left with remedies. Our
Supreme Court has sanctioned numerous defenses which have acquitted individuals
charged with a violation of BP 22. Possible defenses in an indictment include
1) payment of the value of the dishonored check within five banking days from
receipt of the notice of dishonor; 2) payment of the value of the check before
filing of the criminal casein court; 3) failure to serve a written notice of
dishonor of the check to the issuer; 4) novation or change in the underlying
obligation of the parties before the filing of the criminal case in court; 5) a
stop payment order pursuant to a valid reason such as non-delivery of goods or
services; and 6) knowledge by the payee that the check was not supported by sufficient
funds when the issuer issued the check.
The running of the prescriptive period for the prosecution
of a BP 22 offense is interrupted only when the complaint or information is
filed in court, not when the complaint is filed with the prosecutor’s office.
Law on Prescriptive Period re violations of Ordinances and
Special Laws
Applying a vintage law, Act No. 3326 (1926), the
prescriptive period for the violation of BP 22 would be four years. The prescriptive period shall commence to run
from the discovery of the offense or from knowledge by the payee or holder that
the check has been dishonored.
Section 2 of Act No. 3326 states when the running of the
prescriptive period is interrupted:
“Sec. 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.
“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.”
What should the drawee do once the check bounces? (Sec. 3)
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
thereon, or attached thereto, the written, printed, or stamped in plane
language reason for drawee’s dishonor or refusal to pay the same: Provided,
That where there are no insufficient 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 therefor or attached thereto, with the reason therefor as aforesaid,
shall be prima facie evidence of the making or issuance of said check, and the
due presentment to the drawee for payment and the dishonor thereof, and that
the same was properly dishonored for the reason written, stamped or attached by
the drawee on such dishonored check.
Is a notice of dishonor an indispensable requirement in a
prosecution for violation of B.P. 22?
A notice of dishonor is not indispensable as it is not an
element of the offense. However, 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, such that the absence of sufficient proof of receipt thereof
can be fatal in the prosecution’s case. (Jesusa T. Dela Cruz v. People, G.R.
No. 163494, August 3, 2016)
How should a notice of dishonor be served on the drawer?
This may be done personally or by mail. However, note that
when the notice of dishonor is served by mail, it is not enough to simply
present the letter with a registry receipt or return card as evidence that a
notice of dishonor has been served.
What evidence is needed to prove receipt of notice of
dishonor?
It is not enough for the prosecution to prove that a notice
of dishonor was sent to the petitioner. It is also incumbent upon the
prosecution to show “that the drawer of the check received the 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.” (Alferez v. People, et
al., 656 Phil. 116 (2011)
The Court, however, considers Campos’ defense that she
exerted efforts to reach an amicable settlement with her creditor after the
checks which she issued were dishonored by the drawee bank, BPI Family Bank.
Campos categorically declared in her petition that, “[she] has in her favor
evidence to show that she was in good faith and indeed made arrangements for
the payment of her obligations subsequently after the dishonor of the checks.”
Clearly, this statement was a confirmation that she actually received the
required notice of dishonor from FWCC. The evidence referred to in her
statements were receipts dated January 13, 1996, February 29, 1996, April 22,
1998 and May 26, 1998 issued by FWCC to Campos for payments in various amounts
ranging from P2,500.00 to P15,700.00. Campos would not have entered into the
alleged arrangements beginning January 1996 until May 1998 if she had not
received a notice of dishonor from her creditor, and had no knowledge of the
insufficiency of her funds with the bank and the dishonor of her checks.
When should a complaint for violation of B.P. 22 be filed?
The criminal complaint for violation of B.P. 22 must be
filed within four (4) years from the time the checks have been dishonored.
Generally these are the evidence needed in the BP22 case.
1.
Checks issued
2.
Notice of Dishonor by the bank because of closed account or
insufficiency of funds
3.
Letter informing the payor to make good of the
check within 5 days from the receipt of notice of insufficiency of funds or
that the check is being drawn from a closed account.
4.
Proof that the payor received such letter.
5.
Certificate to file action if the partied are
residing at the same barangay.
6.
Text or chat messages about the loan.
7.
Complaint affidavit of the payee and his/her
witnesses.
8.
Police blotter or blotter report extract.
9.
Contract of loan or mortgage or others (if
available).
10.
Proof receipt of payment or acknowledgment receipt.
11.
Promissory note (if available).
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