Case Brief: Manguerra vs. Risos

CONCEPCION CUENCO VDA. DE MANGUERRA and THE HON. RAMON C. CODILLA, JR., Presiding Judge of the Regional Trial Court of Cebu City, Branch 19, Petitioners,

– versus –

RAUL RISOS, SUSANA YONGCO, LEAH ABARQUEZ and ATTY. GAMALIEL D.B. BONJE, Respondents.

G.R. No. 152643, August 28, 2008.

Facts:
On November 4, 1999, respondents (Risos, et. al.) were charged with Estafa Through Falsification of Public Document before the RTC of Cebu City, Branch 19, through a criminal information dated October 27, 1999, which was subsequently amended on November 18, 1999. The case, arose from the falsification of a deed of real estate mortgage allegedly committed by respondents where they made it appear that petitioner (Concepcion De Manguerra), the owner of the mortgaged property known as the Gorordo property, affixed her signature to the document. Concepcion who was a resident of Cebu City, while on vacation in Manila, was unexpectedly confined at the Makati Medical Center due to upper gastro-intestinal bleeding; and was advised to stay in Manila for further treatment.
The counsel of Concepcion filed a motion to take the latter’s deposition due to her weak physical condition and old age, which limited her freedom of mobility. The RTC of Cebu granted the motion and directed that Concepcions deposition be taken before the Clerk of Court of Makati City. After several motions for change of venue of the deposition-taking, Concepcion’s deposition was finally taken on March 9, 2001 at her residence.

 

Issue:
Whether or not Rule 23 of Rules of Court is applicable in the case of Concepcion. Thus, her deposition in her residence is valid?

 

Held:
No. Undoubtedly, the procedure set forth in Rule 119 applies to the case at bar. It is thus required that the conditional examination be made before the court where the case is pending. It is also necessary that the accused be notified, so that he can attend the examination, subject to his right to waive the same after reasonable notice. As to the manner of examination, the Rules mandate that it be conducted in the same manner as an examination during trial, that is, through question and answer.
Unlike an examination of a defense witness which, pursuant to Section 13, Rule 119 of the present Revised Rules of Criminal Procedure, may be taken before any judge, or, if not practicable, a member of the Bar in good standing so designated by the judge in the order, or, if the order be made by a court of superior jurisdiction, before an inferior court to be designated therein, the examination of a witness for the prosecution under Section 15 of the Revised Rules of Criminal Procedure (December 1, 2000) may be done only before the court where the case is pending.

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Case Brief: Llamas vs. CA et. al.

G.R. No. 149588 August 16, 2010
FRANCISCO R. LLAMAS and CARMELITA C. LLAMAS, Petitioners,
vs.
THE HONORABLE COURT OF APPEALS, BRANCH 66 OF THE REGIONAL TRIAL COURT IN MAKATI CITY and THE PEOPLE OF THE PHILIPPINES, Respondents.

FACTS:

Petitioners are assailing the decision of the Regional Trial Court (RTC) of Makati City convicting them of the offense “Other Forms of Swindling” punishable under Article 316, paragraph 2, of the Revised Penal Code (RPC).

The trial court found that the accused spouses, well-knowing that their parcel of land was mortgaged to the Bank, sold the said land to one Avila, falsely representing the same to be free from all liens and encumbrances whatsoever, and said Conrado P. Avila bought the aforementioned property. After trial on the merits, the RTC rendered its Decision, finding petitioners guilty beyond reasonable doubt of the crime charged.

On appeal, the Court of Appeals, affirmed the decision of the trial court, and subsequently denied the motion for reconsideration of the petitioners.

Assailing the aforesaid issuances of the appellate court, petitioners filed before the Supreme Court, their petition for review. The Court, however,denied the same for petitioners failure to state the material dates. Since it subsequently denied petitioners motion for reconsideration, the judgment of conviction became final and executory. Thereafter, apprehension of the spouses ensued through a warrant and only Carmelita was arrested.

In 2001, petitioner Francisco moved for the lifting or recall of the warrant of arrest, raising for the first time the issue that the trial court had no jurisdiction over the offense charged. There being no action taken by the trial court on the said motion, petitioners instituted,the instant proceedings for the annulment of the trial and the appellate courts decisions.

In 2009 decision of the Court, it held that, following the ruling in People v. Bitanga, the remedy of annulment of judgment cannot be availed of in criminal cases. The Court likewise rejected petitioners contention that the trial court had no jurisdiction over the case. However, the petitioners still seek another recourse to the Court for the reversal of the 2009 Decision and, consequently, the annulment of their conviction by the trial court.

ISSUE:

Whether the Llamas spouses may avail of the remedy of the annulment of judgment.

HELD:

Yes. The spouses can avail of the annulment of judgment.

In People v. Bitanga, the Court explained that the remedy of annulment of judgment cannot be availed of in criminal cases.

In the interest of justice and for humanitarian reasons, the Court deems it necessary to re-examine this case. xxx This Court has, on occasion, suspended the application of technical rules of procedure where matters of life, liberty, honor or property, among other instances, are at stake.  It has allowed some meritorious cases to proceed despite inherent procedural defects and lapses on the principle that rules of procedure are mere tools designed to facilitate the attainment of justice. The strict and rigid application of rules that tend to frustrate rather than promote substantial justice must always be avoided. It is far better and more prudent for the court to excuse a technical lapse and afford the parties a review of the case to attain the ends of justice, rather than dispose of the case on technicality and cause grave injustice to the parties.

SC noted that the case was allowed to run its course as a petition for certiorari, such that in its April 12, 2004 Resolution, it said “Considering the allegations, issues and arguments adduced in the petition for review on certiorari x x x.”

Likewise, in its February 10, 2003 Resolution, SC said, “It appearing that Atty. Francisco R. Llamas, in his own behalf and as counsel for petitioners, has failed to file their reply to the Solicitor Generals comment on the petition for review on certiorari within the extended period x x x.””

Thus, the SC, at the first instance, had recognized that the petition, although captioned differently, was indeed one for certiorari.

Since SC resolved to treat the petition as one for certiorari, the doctrine in People v. Bitanga no longer finds application in this case.

(As to the criminal aspect of the case, the court acquitted the petitioners on the ground that their guilt was not proven beyond reasonable doubt.)

 

Case Brief: Dela Cruz vs. People

G.R. No. 150439,     July 29, 2005
AMELITA DELA CRUZ, petitioner,
vs.
PEOPLE OF THE PHILIPPINES, respondent.

Facts:
An information was filed against petitioner Dela Cruz for defrauding the Great Mandarin Villa Seafoods Village Inc and Hock Wan Restaurant Corporation. The corporations alleged that Dela Cruz was working as a payroll clerk of said corporation. She received from the said corporation a total sum of P471,166.11 representing the excess amount paid to the employees of said corporations as salaries, and failed to turn over the said excess; that, after possessing such amount, she went into hiding, and refused to return the same. It was the duty of the accused to compute the payroll based on the time card, request the treasurer for the issuance and encashment of the corresponding checks, placed the money on the pay slip and afterwards distribute the same to the employees.
Petitioner, on the other hand, pleaded not guilty of the crime charged. She contested that the amount she has always received was the exact amount for the salary of the employees every 15th and 30th of the month, which she computed beforehand and submitted to the treasurer thereafter. The treasurer has always given the exact amount to her, but she does not know the amount actually withdrawn by the former. She also alleged that there was no excess money in the first place, and that there were no complaints of short payments or reports of overpayment; and that the reason why she failed to report to work afterwards was because her brother-in-law died and she became ill.
The lower courts held that, applying the provisions of Article 315, paragraph 1(b) of the Revised Penal Code, as amended, particularly, that with the trust given to her, she really defrauded her employer by over-computing the payroll and converting or misappropriating the excess (amount) to her own personal use to the prejudice and damage of the private complainants; that she alone was entrusted with the money for the payroll and had complete access to it; that she had to erase the data in the computer to destroy the evidence against her; that she conveniently disappeared from the scene at the time of the discovery of the anomaly, and; she maintained a lifestyle beyond her financial means.
Petitioner claimed that the lower courts erred in their decisions on the grounds that the evidence presented is not sufficient to convict her beyond reasonable doubt.

Issue:
Whether or not petitioner Dela Cruz committed the crime of estafa.

Held:
No, petitioner Dela Cruz did not commit the crime.
Accused-petitioner was charged with the crime of estafa through misappropriation or conversion as defined in and penalized under Article 315, paragraph 1(b), of the Revised Penal Code. The elements of the said crime are: 1) that money, goods or other personal property is received by the offender in trust, or on commission or for administration, or under any other obligation involving the duty to make delivery of, or to return, the same; 2) that there be misappropriation or conversion of such money or property by the offender or denial on his part of such receipt; 3) that such misappropriation or conversion or denial is to the prejudice of another; and 4) that there is a demand made by the offended party on the offender.
The lower courts relied heavily on circumstantial evidence to convict the accused-petitioner. Under the Rules of Court, the requirements for circumstantial facts to be able to withstand the tribulation of a conviction of guilt beyond reasonable doubt, are: (1) there is more than one circumstance; (2) the facts from which the inferences are derived are proven; and (3) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.
After thoroughly reviewing the records of this case and weighing the testimonial evidence on the scale of creditworthiness and materiality, however, SC found that circumstantial evidence present in the case at bar are grossly insufficient to sustain a conviction. Petitioner had no hand in the actual issuance of the checks, and, more importantly, with the withdrawal of the money from the bank. Her only participation revolved around the computation of the payroll and the actual distribution of the salaries to the employees of the restaurants. While it was the accused-petitioner who computed the payroll of the employees, nevertheless, she was not the only person who had access to the money; that she was not the only computer-literate in their office as her general manager usually verifies the diskettes containing the payroll information; that if indeed she was culpable, she should have left long rather than reporting back to work for two more payroll periods after the alleged fraud,
In totality, only the checks and acknowledged payroll slips were presented to show the culpability of the accused-petitioner, and, sadly, said documentary evidence were the only basis for the theory that there was an over-computation of the payrolls.

WHEREFORE, premises considered, the Decision of the Court of Appeals is RECONSIDERED and SET ASIDE. The questioned decision is hereby REVERSED. Accused-petitioner Amelita dela Cruz is ACQUITTED of the crime of estafa defined under Article 315, paragraph 1(b), of the Revised Penal Code on the ground of reasonable doubt.

Case Brief: Gonzaludo vs. People

G.R. No. 150910 February 6, 2006
BIENVENIDO GONZALUDO, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.

Facts:
Before his death in 1992, one Ulysses Villaflor married Anita Manlangit. Eventually, the two had to live separately due to the nature of their jobs. Ulysses was re-assigned to Bacolod City. And in December 1978, he was able to buy a small house located in Bacolod City.
Then, in 1985, Ulysses took one Rosemarie Gelogo as his mistress and brought her into the house. In time, improvements were made on the house. What used to be a small house, which Ulysses bought for only P1,500.00, was thus transformed into a 2-storey structure partially made of concrete hollow blocks and with galvanized iron roofing which thereby enhanced its value to P200,000.00.
After Ulysses’s demise, his mistress Rosemarie Gelogo offered to sell the 2-storey house forP80,000.00 to herein petitioner Bienvenido Gonzaludo. He did not buy the house, but he convinced the spouses Gregg Canlas and Melba Canlas, to whom he is related by affinity, to buy the same.
Rosemarie Gelogo and Gregg Canlas executed a Deed of Sale, witnessed by petitioner. In that deed, Rosemarie Gelogo signed as Rosemarie G. Villaflor and represented herself to be the lawful owner of the 2-storey house.
Later, Ulysses’s widow Anita Manlangit filed an information charging Rosemarie Gelogo, alias Rosemarie Villaflor, the spouses Gregg Canlas and Melba Canlas and petitioner with the crime of Estafa thru Falsification of Public Document. While Gelogo remained at large and spouses Canlas were acquitted, petitioner Gonzaludo was convicted of such crime.
Petitioner alleged that he should not be convicted of the crime of Estafa thru Falsification of Public Document because not all elements of the crime are present.

Issue:
Whether petitioner Gonzaludo committed the crime of Estafa thru Falsification of Public Document.

Held:
Gonzaldo did not commit the crime of estafa, but he did commit the crime of falsification of public document.
To secure conviction for estafa under Article 315, paragraph 2(a) of the Revised Penal Code, the following requisites must concur: (1) that the accused made false pretenses or fraudulent representations as to his power, influence, qualifications, property, credit, agency, business or imaginary transactions; (2) that such false pretenses or fraudulent representations were made prior to or simultaneous with the commission of the fraud; (3) that such false pretenses or fraudulent representations constitute the very cause which induced the offended party to part with his money or property; and (4) that as a result thereof, the offended party suffered damage.
There is no question that the first, second and fourth elements are present. It is petitioner’s thesis, however, that there is here an absence of the third element, i.e., “that such false pretenses or fraudulent representations constitute the very cause which induced the offended party to part with his money or property,” contending that private complainant Anita Manlangit, who was the offended party in this case, was never induced to part with any money or property by means of fraud, committed simultaneously with the false pretense or fraudulent representation by Rosemarie.
While it may be said that there was fraud or deceit committed by Rosemarie in this case, when she used the surname “Villaflor” to give her semblance of authority to sell the subject 2-storey house, such fraud or deceit was employed upon the Canlas spouses who were the ones who parted with their money when they bought the house. However, the Information charging Rosemarie of estafa in the present case, alleged damage or injury not upon the Canlas spouses, but upon private complainant, Anita Manlangit. Since the deceit or fraud was not the efficient cause and did not induce Anita Manlangit to part with her property in this case, Rosemarie cannot be held liable for estafa. With all the more reason must this be for herein petitioner Gonzaludo.
The lack of criminal liability for estafa, however, will not necessarily absolve petitioner from criminal liability arising from the charge of falsification of public document
As correctly found by the trial court, petitioner conspired with Rosemarie to falsify, by declaring Rosemarie to be the owner of the house subject of such sale and signing as “Rosemarie Villaflor” instead of her real name, Rosemarie Gelogo, in order to sell the same to the Canlas spouses. It is established by evidence beyond reasonable doubt that Rosemarie committed the crime of falsification of public document. Likewise, proof beyond reasonable doubt has been duly adduced to establish conspiracy between Rosemarie and petitioner Gonzalugo.

WHEREFORE, the assailed decision and resolution of the Court of Appeals are hereby MODIFIED. Petitioner is hereby ACQUITTED of the complex crime of Estafa through Falsification of Public Document, but found GUILTY of the crime of Falsification of Public Document.

Case Brief: Recuerdo vs. People

G.R. No. 168217 June 27, 2006
JOY LEE RECUERDO, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.

Facts:
Petitioner Recuerdo, a dentist, was charged with the crime of Estafa under Art. 315 of Revised Penal Code for, with intent to gain and by means of deceit, false pretenses and fraudulent manifestations, and pretending to have sufficient funds with the Unitrust Makati Commercial Center Branch, PCI Bank Makati-De La Rosa Branch, and Prudential Bank Legaspi Village Branch, did willfully, unlawfully and feloniously prepare, draw, make and issue checks amounting to P132,000, P78,000, and P600,000, to complaining witness Yolanda G. Floro, who is engaged in the business of buying and selling of jewelry, as payment for jewelry she obtained from the said complainant, knowing fully well at the time the checks were issued that her representations were false for she had no sufficient funds in the said bank, so much that upon presentment of the said checks with the said bank for encashment, the same were dishonored and refused payment for having been drawn against an “Account Closed”, and in spite of repeated demands to deposit with the said bank, the said accused failed and refused to do so.
Recuerdo argued that her act of issuing the dishonored checks does not constitute the offense of Estafa considering that the subject checks were not issued and delivered to Floro simultaneous to the purchase of the pieces of jewelry, but only several days thereafter, when she had already thoroughly examined the jewelry and is fully satisfied of its fine quality; that out of the 17 subject checks, nine were honored by the drawee banks; that she made partial payments of the amounts of the subject checks while the case was pending in the CA, contrary to the findings of the courts that she acted with deceit when she drew and delivered the checks.

Issue:
Whether or not petitioner Recuerdo committed the crime of estafa.

Held:
Yes, Recuerdo committed the crime of estafa.
Estafa through false pretense or fraudulent act under Paragraph 2(d) of Article 315 of the Revised Penal Code, as amended by Republic Act No. 4885, is committed as follows:
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. 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 or insufficiency of funds shall be prima facie evidence of deceit constituting false pretense or fraudulent act.
The essential elements of the felony are: (1) a check is postdated or issued in payment of an obligation contracted at the time it is issued; (2) lack or insufficiency of funds to cover the check; and (3) damage to the payee thereof. It is criminal fraud or deceit in the issuance of a check which is made punishable under the Revised Penal Code, and not the non-payment of a debt. Deceit is the false representation of a matter of fact whether by words or conduct by false or misleading allegations or by concealment of that which should have been disclosed which deceives or is intended to deceive another so that he shall act upon it to his legal injury. Concealment which the law denotes as fraudulent implies a purpose or design to hide facts which the other party ought to have. The postdating or issuing of a check in payment of an obligation when the offender had no funds in the bank or his funds deposited therein are not sufficient to cover the amount of the check is a false pretense or a fraudulent act.
Petitioner’s defense of good faith is even belied by the evidence of the prosecution and her own evidence. When the postdated checks issued by petitioner were dishonored by the drawee banks and the private complainant made demands for her to pay the amounts of the checks, she intransigently refused to pay; she insisted that she issued and delivered the postdated checks to the private complainant after the subject pieces of jewelry had been delivered to her. Petitioner never offered to pay the amounts of the checks after she was informed by the private complainant that they had been dishonored by the drawee banks. It was after the CA promulgated its decision affirming the decision of the trial court, that petitioner made several payments to the private complainant; however, there is no showing as to which checks they were made in payment for. In fine, it was the spectre of a long prison term which jolted petitioner into making remittances to the private complainant, after the CA affirmed the decision of the trial court and increased the penalty meted on her, and not because she had acted in good faith in her transactions with the private complainant. To reiterate, petitioner rejected the demands of the private complainant to pay the amounts of the dishonored checks.
While it is true that nine of the 17 postdated checks petitioner issued and delivered to the private complainant were honored by the drawee banks, such a circumstance is not a justification for her acquittal of the charges relative to the dishonored checks. The reimbursement or restitution to the offended party of the sums swindled by the petitioner does not extinguish the criminal liability of the latter. Estafa is a public offense which must be prosecuted and punished by the State on its own motion even though complete reparation had been made for the loss or damage suffered by the offended party. The consent of the private complainant to petitioner’s payment of her civil liability pendente lite does not entitle the latter to an acquittal. Subsequent payments does not obliterate the criminal liability already incurred. Criminal liability for estafa is not affected by a compromise between petitioner and the private complainant on the former’s civil liability.

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED. The Decision and Resolution of the Court of Appeals are AFFIRMED. No costs.

Case Brief: Torres vs. CA

G.R. No. 134559   December 9, 1999

ANTONIA TORRES, assisted by her husband, ANGELO TORRES; and EMETERIA BARING, petitioners,

vs.

COURT OF APPEALS and MANUEL TORRES, respondents.

Facts:

Petitioners Torres and Baring entered into a “joint venture agreement” with Respondent Torres for the development of a parcel of land into a subdivision. They executed a Deed of Sale covering the said parcel of land in favor of respondent Manual Torres, who then had it registered in his name. By mortgaging the property, respondent Manuel Torres obtained from Equitable Bank a loan of P40,000, which was supposed to be used for the development of subdivision as per the JVA. However, the project did not push through and the land was subsequently foreclosed by the bank.

Petitioners Antonia Torres alleged that it was due to respondent’s lack of funds/skills that caused the project to fail, and that respondent use the loan in the furtherance of his own company. On the otherhand, respondent Manuel Torres alleged that he used the loan to implement the JVA – surveying and subdivision of lots, approval of the project, advertisement, and construction of roads and the likes, and that he did all of these for a total of P85,000.

Petitioners filed a case for estafa against respondent but failed. They then instituted a civil case. CA held that the two parties formed a partnership for the development of subdivision and as such, they must bear the loss suffered by the partnership in the same proportion as their share in profits. Hence, the petition.

Issue #1:

Whether or not the transaction between petitioner and respondent was that of joint venture/partnership.

Held:

Yes. There formed a partnership between the two on the basis of joint-venture agreement and deed of sale. A reading of the terms of agreement shows the existence of partnership pursuant to Art 1767 of Civil Code, which states “By the contract of partnership two or more persons bind themselves to contribute money, property, or industry to a common fund, with the intention of dividing the profits among themselves.” In the agreement, petitioners would contribute property to the partnership in the form of land which was to be developed into a subdivision; while respondent would give, in addition to his industry, the amount needed for general expenses and other costs. Furthermore, the income from the said project would be divided according to the stipulated percentage. Clearly, the contract manifested the intention of the parties to form a partnership.

Issue #2:

Whether or not the deed of sale between the two was valid.

Held:

No. Petitioners were wrong in contending that the JVA is void under Article 1422[14] of the Civil Code, because it is the direct result of an earlier illegal contract, which was for the sale of the land without valid consideration.

The Joint Venture Agreement clearly states that the consideration for the sale was the expectation of profits from the subdivision project. Its first stipulation states that petitioners did not actually receive payment for the parcel of land sold to respondent. Consideration, more properly denominated as cause, can take different forms, such as the prestation or promise of a thing or service by another.

In this case, the cause of the contract of sale consisted not in the stated peso value of the land, but in the expectation of profits from the subdivision project, for which the land was intended to be used. As explained by the trial court, the land was in effect given to the partnership as petitioners participation therein. There was therefore a consideration for the sale, the petitioners acting in the expectation that, should the venture come into fruition, they would get sixty percent of the net profits.

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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