BP 22 Discussion

8/10/2019 BP 22 Discussion

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Bouncing checks law (Batas Pambansa Blg. 22)

Statutory Basis:

The issuance of bouncing checks is an offense punishable under Batas Pambansa Bilang 22 (BP 22)

also known as the "Bouncing Checks Law" which provides that:

Any person who makes or draws and issues any check to apply on account or for value, knowing at the

time of issue that he does not have sufficient funds in or credit with the drawee bank for the payment of

such check in full upon its presentment, which check is subsequently dishonored by the drawee bank for

insufficiency of funds or credit or would have been dishonored for the same reason had not the drawer,

without any valid reason, ordered the bank to stop payment, shall be punished by imprisonment of not

less than thirty days but not more than one (1) year or by a fine of not less than but not more than double

the amount of the check which fine shall in no case exceed Two Hundred Thousand Pesos, or both such

fine and imprisonment at the discretion of the court.

The same penalty shall be imposed upon any person who, having sufficient funds in or credit with the

drawee bank when he makes or draws and issues a check, shall fail to keep sufficient funds or to

maintain a credit to cover the full amount of the check if presented within a period of ninety (90) days

from the date appearing thereon, for which reason it is dishonored by the drawee bank.

Where the check is drawn by a corporation, company or entity, the person or persons who actuallysigned the check in behalf of such drawer shall be liable under this Act. [Sec 1, BP 22]

Offense against Public Order

BP 22 or the Bouncing Checks Law was enacted for the specific purpose of addressing the problem of

the continued issuance and circulation of unfunded checks by irresponsible persons. To stem the harm

caused by these bouncing checks to the community, BP 22 considers the mere act of issuing an

unfunded check as an offense not only against property but also against public order. [Mitra vs People,G.R. No. 191404, July 5, 2010]

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 thousandfold, can very well pollute the channels

of trade and commerce, injure the banking system and eventually hurt the welfare of society and the

public interest. [Lozano vs. Martinez, G.R. No. L-63419, December 18, 1986]

Act punished is the issuance of a worthless check

The act sought to be prevented by the law is the act of making and issuing a check with the knowledge
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that, at the time of issue, the drawer issuing the check does not have sufficient funds in or credit with the

bank for payment and the check was subsequently dishonored upon presentment. What the law

punishes is the issuance of a worthless check and not the purpose for which such check was issued nor

the terms or conditions relating to its issuance. The thrust of the law is to prohibit, under pain of penal

sanctions, the making of worthless checks and putting them in circulation. The crime is one against

public order and is malum prohibitum. The law is intended to safeguard the interests of the banking

system and the legitimate checking account user. It is not intended nor designed to coerce a debtor to

pay his debt, nor to favor or encourage those who seek to enrich themselves through manipulation and

circumvention of the purpose of the law. [Sia vs. People, G.R. No. 149695, April 28, 2004]

Malum prohibitum

B.P. 22 covers any check which bounces. It does not matter then that the subject check belongs to the

accused or another person. xxx The mere act of issuing a worthless check, either as a deposit, as a

guarantee, or even as an evidence of a pre-existing debt or as a mode of payment is covered by B.P. 22.

It is a crime classified as malum prohibitum. The law is broad enough to include, within its coverage, the

making and issuing of a check by one who has no account with a bank, or where such account was

already closed when the check was presented for payment. [Ruiz vs. People, G.R. No. 160893,

November 18, 2005]

Signatory of check is liable

In the case ofLlamado v. Court of Appeals,[G.R. No. 99032, March 26, 1997]the Court ruled that the

accused was liable on the unfunded corporate check which he signed as treasurer of the corporation. He

could not invoke his lack of involvement in the negotiation for the transaction as a defense because BP22 punishes the mere issuance of a bouncing check, not the purpose for which the check was issued or

in consideration of the terms and conditions relating to its issuance. [Mitra vs People, G.R. No. 191404,

July 5, 2010]

Elements of the offense

In criminal cases involving violations of Section 1, B.P. Blg. 22, the prosecution is burdened to prove

beyond reasonable doubt the following elements:

1. The accused makes, draws or issues any check to apply to account or for value.

2. The check is subsequently dishonored by the drawee bank for insufficiency of funds or credit; or it

would have been dishonored for the same reason had not the drawer, without any valid reason, ordered

the bank to stop payment.

3. The accused knows at the time of the issuance that he or she does not have sufficient funds in, or

credit with, drawee bank for the payment of the check in full upon its presentment.


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[Sia vs. People, G.R. No. 149695, April 28, 2004; Bayani vs People, G.R. No. 154947, August 11,

2004; Rico vs. People, G.R. No. 137191, November 18, 2002; Mitra vs People, G.R. No. 191404,

July 5, 2010; Ongson vs People, G.R. No. 156169, August 12, 2005]

Dishonored check must be properly desccribed in the Information to sustain a conviction

The first element, i.e., making, drawing, and issuance of any check, requires that the check be properly

described in the Information to inform the accused of the nature and cause of the accusation against him.

Without a sufficient identification of the dishonored check in the Information, the conviction of the

accused should be set aside for being violative of the constitutional requirement of due process.

[Ongson vs People, G.R. No. 156169, August 12, 2005]

BP 22 applies to foreign checks

Under the Bouncing Checks Law, foreign checks, provided they are either drawn and issued in the

Philippines though payable outside thereof . . . are within the coverage of said law. [De Villa vs Court of

Appeals, G.R. No. 87416, April 8, 1991]

Presumption of knowledge of insufficiency of funds

Knowledge on the part of the drawer or maker of the insufficiency of funds or credit in the drawee bank

for the payment of a check upon its presentment is an essential element of the offense. This elementinvolves a state of the mind of the drawer or maker of the check which is difficult for the prosecution to

prove. To ease the burden of the prosecution, Section 2 of B.P. Blg. 22 created a prima facie

presumption of knowledge on the part of the drawer or maker of the check of the insufficiency of his fund

in the drawee bank, thus:

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

However, for the presumption to arise, the prosecution must adduce evidence to prove the factual basis

for its onset, namely, (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 drawer; and,

(c) the drawer or maker of the check fails to pay the holder of the check the amount due thereon, or

makes arrangements for payment in full within five (5) banking days after receiving notice that such

check has not been paid by the drawer. With the onset of the presumption, the burden of evidence is

shifted on the drawer/maker of the check to prove that, when he issued the subject check, he had no

knowledge that he had insufficient funds in the drawee bank to answer for the amount due. The notice ofdishonor may be sent to the drawer or maker by the drawee bank, the holder of the check, or the

offended party, either by personal delivery or by registered mail. The drawer or maker of a check has a

right, under the law, to demand that a written notice of dishonor be sent to and received by him to enable


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him to avoid indictment for violation of B.P. Blg. 22. [Sia vs. People, G.R. No. 149695, April 28, 2004;

Mitra vs People, G.R. No. 191404, July 5, 2010]

(a) Notice of dishonor of check must be in writing

The service of the notice of dishonor gives the drawer the opportunity to make good the check within

those five days to avert his prosecution for violating BP 22. [Mitra vs People, G.R. No. 191404, July 5,

2010]

The notice of dishonor of a check to the maker must be in writing. A mere oral notice to the drawer or

maker of the dishonor of his check is not enough. xxx While, indeed, Section 2 of B.P. Blg. 22 does not

state that the notice of dishonor be in writing, taken in conjunction, however, with Section 3 of the law.

i.e., "that where there are no sufficient funds in or credit with such drawee bank, such fact shall always

be explicitly stated in the notice of dishonor or refusal," a mere oral notice or demand to pay would

appear to be insufficient for conviction under the law. The Court is convinced that both the spirit and

letter of the Bouncing Checks Law would require for the act to be punished thereunder not only that the

accused issued a check that is dishonored, but that likewise the accused has actually been notified in

writing of the fact of dishonor. The consistent rule is that penal statutes have to be construed strictly

against the State and liberally in favor of the accused. [Sia vs. People, G.R. No. 149695, April 28, 2004

citing Domagsang v. Court of Appeals, G.R. No. 139292, December 5, 2000]

Unless and until the drawer or maker of the check receives a written notice of dishonor of the check, or

where there is no proof as to when such notice of dishonor was received by the drawer or maker, the

five-day period within which the drawer or maker has to pay the amount due or made arrangements withthe drawee bank for the payment of the check, cannot be determined. In such case, the prima facie

presumption cannot arise. [Sia vs. People, G.R. No. 149695, April 28, 2004]

(b) Proof of receipt of notice of dishonor

Under Batas Pambansa Blg. 22 (BP 22), the prosecution must prove not only that the accused issued a

check that was subsequently dishonored. It must also establish that the accused was actually notified

that the check was dishonored, and that he or she failed, within five banking days from receipt of the

notice, to pay the holder of the check the amount due thereon or to make arrangement for its payment.

Absent proof that the accused received such notice, a prosecution for violation of the Bouncing ChecksLaw cannot prosper.[Danao vs. Court of Appeals, G.R. No. 122353, June 6, 2001]

Estafa distinguished from BP 22; Estafa by issuance of bouncing check

Article 315(2)(d) of the Revised Penal Code states as follows:

Art. 315. Swindling (estafa). Any person who shall defraud another by any of the means mentioned

herein below . . .


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xxx xxx xxx

2. By means of any of the following false pretenses or fraudulent acts, executed prior to or

simultaneously with the commission of the fraud;

xxx xxx xxx

(d) By postdating a check or issuing a check in payment of an obligation when the offender had no funds

in the bank, or his funds deposited therein were not sufficient to cover the amount of the check.

[D]eceit and damage are essential elements in Article 315 (2-d) Revised Penal Code, but are not

required in Batas Pambansa Bilang 22. Under the latter law, mere issuance of a check that is dishonored

gives rise to the presumption of knowledge on the part of the drawer that he issued the same without

sufficient funds and hence punishable which is not so under the Penal Code. Other differences between

the two also include the following:

(1) a drawer of a dishonored check may be convicted under Batas Pambansa Bilang 22 even if he had

issued the same for a pre-existing obligation, while under Article 315 (2-d) of the Revised Penal Code

such circumstance negates criminal liability;

(2) specific and different penalties are imposed in each of the two offenses;

(3) estafa is essentially a crime against property, while violation of Batas Pambansa Bilang 22 is

principally a crime against public interest as it does injury to the entire banking system;

(4) violations of Article 315 of the Revised Penal Code are mala in se, while those of Batas Pambansa

Bilang 22 are mala prohibita.

[Nierras vs Dacuycuy, G.R. Nos. 59568-76, January 11, 1990]

Pre-existing obligation

The issuance of a bouncing check in payment of a pre-existing obligation does not constitute estafa--

In the issuance of a check as payment for a pre-existing debt, the drawer derives no material benefit in

return as its consideration had long been delivered to him before the check was issued. In short, the

issuance of the check was not a means to obtain a valuable consideration from the payee. Deceit, toconstitute estafa should be the efficient cause of the defraudation. Since an obligation has already been

contracted, it cannot be said that the payee parted with his property or that the drawer has obtained

something of value as a result of the postdating or issuance of the bad check in payment of a


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pre-existing obligation.[People vs Sabio, G.R. No. L-45490, November 20, 1978]

A check issued in payment of a pre-existing obligation does not constitute estafa even if there is no fund

in the bank to cover the amount of the check. xxx There is no estafa through bouncing checks when it is

shown that private complainant knew that the drawer did not have sufficient funds in the bank at the time

the check was issued to him. Such knowledge negates the element of deceit and constitutes a defense

in estafa through bouncing checks. [People vs. Reyes, G.R. No. 154159, March 31, 2005; see also

Pacheco v. Court of Appeals]

Criminal Action

BP 22 is a continuing crime-- Venue of criminal action

Violations of B.P. 22 are categorized as transitory or continuing crimes. A suit on the check can be filed

in any of the places where any of the elements of the offense occurred, that is, where the check is drawn,

issued, delivered or dishonored. [Rigor vs. People, G.R. No. 144887, November 17, 2004]

On the matter of venue for violation of Batas Pambansa Bilang 22, the venue of the offense lies at the

place where the check was executed and delivered. The place where the check was written, signed or

dated does not necessarily fix the place where it was executed, as what is of decisive importance is the

delivery thereof which is the final act essential to its consummation as an obligation. [De Villa vs Court

of Appeals, G.R. No. 87416, April 8, 1991, referencing Memorandum Circular No. 4 dated

December 15, 1981]

Prohibits separate civil action

Section 1 (b), Rule 111 of the 2000 Revised Rules on Criminal Procedure states -

Section 1. Institution of criminal and civil actions. -

x x x

(b) The criminal action for violation of Batas Pambansa Blg. 22 shall be deemed to include the

corresponding civil action. No reservation to file such civil action separately shall be allowed.

Upon filing of the joint criminal and civil actions, the offended party shall pay in full the filing fees basedon the amount of the check involved, which shall be considered as the actual damages claimed. Where

the complaint or information also seeks to recover liquidated, moral, nominal, temperate or exemplary

damages, the offended party shall pay the filing fees based on the amounts alleged therein. If the


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amounts are not so alleged but any of these damages [is] subsequently awarded by the court, the filing

fees based on the amount awarded shall constitute a first lien on the judgment.

Where the civil action has been filed separately and trial thereof has not yet commenced, it may be

consolidated with the criminal action upon application with the court trying the latter case. If the

application is granted, the trial of both actions shall proceed in accordance with section 2 of this Rule

governing consolidation of the civil and criminal actions. [Anita Cheng vs. Spouses William and

Tessie Sy, G.R. No. 174238, July 7, 2009]

Penalty- preference for fine only, but judge may still impose imprisonment

As clarified inAdministrative Circular No. 13-2001:

The clear tenor and intention ofAdministrative Circular No. 12-2000is not to remove imprisonment as

an alternative penalty, but to lay down a rule of preference in the application of the penalties provided for

in B.P. Blg. 22.

The pursuit of this purpose clearly does not foreclose the possibility of imprisonment for violators of B.P.

Blg. 22. Neither does it defeat the legislative intent behind the law.

Thus, Administrative Circular No. 12-2000 establishes a rule of preference in the application of the penal

provisions of B.P. Blg. 22 such that where the circumstances of both the offense and the offender clearly

indicate good faith or a clear mistake of fact without taint of negligence, the imposition of a fine alone

should be considered as the more appropriate penalty. Needless to say, the determination of whether

the circumstances warrant the imposition of a fine alone rests solely upon the Judge. Should the Judge

decide that imprisonment is the more appropriate penalty, Administrative Circular No. 12-2000 ought not

be deemed a hindrance.

[Lim vs People, G.R. No. 143231, October 26, 2001; see also Magdayao vs. People, G.R. No.

152881, August 17, 2004, Lee vs Court of Appeals, G.R. No. 145498, January 17, 2005]

In Vaca vs Court of Appeals, [G.R. No. 131714, November 16, 1998],the court, in deeming the

penalty of fine as more appropriate for the accused who were first-time offenders, held that: "It would

best serve the ends of criminal justice if in fixing the penalty within the range of discretion allowed by [BP

22], the same philosophy underlying the Indeterminate Sentence Law is observed, namely, that of

redeeming valuable human material and preventing unnecessary deprivation of personal liberty and

economic usefulness with due regard to the protection of the social order."

Prescriptive Period to File Action


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Section 1 of Act No. 3326 states that the prescriptive period for filing a complaint for violation of BP 22 is

four (4) years from the day of the commission of the violation of the law, or if not known at that time, from

the discovery thereof.

Subsidiary imprisonment applicable

The Court clarified in Administrative Circular No. 13-2001 dated February 14, 2001 that there is no legal

obstacle to the application of the RPC provisions on subsidiary imprisonment should only a fine be

imposed and the accused be unable to pay the fine.

[Narte vs Court of Appeals, G.R. No. 132552, July 14, 2004; Jao Yu vs People, G.R. No. 134172,

September 20, 2004]

Documents

BP 22 Discussion