Estafa By Means of Deceit vis-a-vis Bouncing Checks Law

ESTAFA

Elements in General:

  1. The accused defrauded another by abuse of confidence of by means of deceit; and
  2. That damage or prejudice capable of pecuniary estimation is caused to the offended party or third persons

 

ESTAFA BY MEANS OF DECEIT (Article 315, No. 2 RPC)
Elements:

  1. There must be false pretense, fraudulent act or fraudulent means;
  2. Such false pretense, act or fraudulent means must be made or executed prior to or simultaneously with the commission of the fraud;
  3. The offended party must have relied on the false pretense, fraudulent act or fraudulent means, that is, he was induced to part with his money or property because of the false pretense; and
  4. That as result thereof, the offended party suffered damage.

 

Article 315, No. 2 RPC
(d) By post-dating a check, or issuing a check in payment of an obligation when the offender therein were not sufficient to cover the amount of the check. The failure of the drawer of the check to deposit the amount necessary to cover his check within three (3) days from receipt of notice from the bank and/or the payee or holder that said check has been dishonored for lack of insufficiency of funds shall be prima facie evidence of deceit constituting false pretense or fraudulent act. (As amended by R.A. 4885, approved June 17, 1967.)

ELEMENTS:

  1. That the offender postdated a check, OR issued a check in payment of an obligation; and
  2. That such postdating or issuing a check was done when the offender had no funds in the bank, or his funds deposited therein were not sufficient to cover the amount of the check

The issuance by the offender of the check (whether postdated or not), prior to or simultaneous with the transaction, must be for the purpose of contracting the obligation, otherwise if the check is issued in payment of a preexisting obligation, no estafa is committed, only a civil liability.

If the check was issued by the debtor only for security of the creditor, as in the nature of promissory notes but not to be encashed, no estafa will be involved.

Good faith is a defense in a charge of estafa by postdating or issuing a check (People vs Villapando, 56 Phil 31)

Estafa by issuing a bad check is a continuing offense

There is prima facie evidence of deceit when the drawer fails to pay or make arrangement for payment three (3) days after receiving notice of dishonor.

The payee or person receiving the check must be damaged or prejudiced

 

BOUNCING CHECKS LAW (B.P. Blg. 22)

Offenses Punished under BP22:

1. Making or Drawing and issuing a check knowing at the time of issue that he does not have sufficient funds

Elements:

  1. That a person makes or draws and issues any check to apply on account or for value;
  2. That the person knows that at the time of issue he does not have sufficient funds or credit with the drawee bank for the payment of such check upon its presentment; and
  3. That 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 any valid reason, ordered the bank to stop payment

Requisites for Criminal Liability under BP 22

  1. A person makes, draws or issues a check as payment for account or for value;
  2. That the check was dishonored by the bank due to a lack of funds, insufficiency of funds or account already closed;
  3. The payee or holder of such check gives written notice of dishonor and demand for payment; and
  4. That the maker, drawer or issuer, after receiving such notice and demand, refuses or fails to pay the value of the check within FIVE BANKING DAYS
  • It is not the making, drawing, or issuance nor the dishonor of the check which gives rise to a violation of BP 22, but rather the failure to make good the check within FIVE BANKING DAYS from receipt of the Notice of Dishonor and Demand for Payment
  • While the written notice of dishonor and demand is not an element in the violation of BP 22, the failure to give such notice to the maker, drawer or issuer of the bouncing check is FATAL to an action to hold the latter criminally liable.
  • The full payment of the amount appearing in the check within five banking days from notice of dishonor is a complete defense against BP 22. The absence of a notice of dishonor necessarily deprives an accused an opportunity to preclude criminal prosecution. Accordingly, procedural due process clearly enjoins that a notice of dishonor be actually served on the maker, drawer or issuer of the check. He has a right to demand that the notice of dishonor be actually sent to and received by him to afford him the opportunity to avert prosecution under BP 22. (Lina Lim Lao vs People GR No. 117178 June 20, 1997)

 

2. Failing to keep sufficient funds to cover the full amount of the check

Elements:

  1. That a person has sufficient funds with the drawee bank when he makes or draws and issues a check;
  2. That he fails to keep sufficient funds or to maintain a credit to cover the full amount if presented within a period of 90 days from the date of appearing thereon; and
  3. That the check is dishonored by the drawee bank.
  • The 90- day period stated is NOT an element of the violation of BP 22 by failing to keep sufficient funds. As such, the maker, drawer or issuer of the check is not discharged from his duty to maintain a sufficient balance on his account for a reasonable time even BEYOND the 90-day period. A “reasonable time” according to current banking practice is 6 months or 180 days, after which the check becomes stale.
  • Thus, where a check is presented beyond the 90-day period but within 180 days from the date of failure to maintain a sufficient balance, the maker, drawer or issuer shall still be liable for violation of BP 22 (Wong vs C.A. GR No. 117857, February 2, 2001)
  • Gravamen of BP 22 is the issuance of a worthless or bum check

 

Evidence of Knowledge of Insufficient Funds

         – Refusal of drawee bank to pay the check due to insufficiency of funds when presented within 90 days from the date of the check shall be prima facie knowledge of insufficiency of funds, unless the drawer or maker pays the holder the amount due thereon or makes arrangements for the payment thereof by the drawee within five (5) banking days after receipt of notice that the check was dishonored.

BP 22

ESTAFA (RPC)

The maker or drawer and issuer knows at the time of issue that he does not have sufficient fund in or credit with the drawee bank for the payment of the check in full Not necessary that the drawer should know at the time that he issued the check that the funds deposited in the bank were not sufficient to cover the amount of the check
Mere issuance of a check that is dishonored gives rise to the presumption of knowledge of insufficiency of funds No presumption of knowledge arises

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