D ESARROLLO PRÁCTICO Y EXPLOTACIÓN DE RESULTADOS

It is well-established in jurisprudence that a person may be charged and convicted for both illegal recruitment and estafa. The reason therefor is not hard to discern: illegal recruitment is malum prohibitum, while estafa is mala in se. In the first, the criminal intent of the accused is not necessary for conviction. In the second, such intent is imperative (People vs.

Chua, G. R. No. 187052, September 13, 2012).

BP BLG. 22

What Batas Pambansa Blg. 22 punished was the mere act of issuing a worthless check.

The law did not look either at the actual ownership of the check or of the account against which it was made, drawn, or issued, or at the intention of the drawee, maker or issuer. Also, that the check was not intended to be deposited was really of no consequence to her incurring criminal liability under Batas Pambansa Blg. 22 (Resterio vs. People, G.R. No.

177438. September 24, 2012).

The giving of the written notice of dishonor does not only supply the proof for the second element arising from the presumption of knowledge the law puts up but also affords the offender due process. The law thereby allows the offender to avoid prosecution if she pays the

holder of the check the amount due thereon, or makes arrangements for the payment in full of the check by the drawee within five banking days from receipt of the written notice that the check had not been paid. The Court cannot permit a deprivation of the offender of this statutory right by not giving the proper notice of dishonor (Resterio vs. People, G.R. No.

177438. September 24, 2012).

Where the check is drawn by a corporation, company or entity, the person or persons who actually signed the check in behalf of such drawer shall be liable under this Act." This provision recognizes the reality that a corporation can only act through its officers. Hence, its wording is unequivocal and mandatory – that the person who actually signed the corporate check shall be held liable for a violation of BP 22. This provision does not contain any condition, qualification or limitation (Mitra Vs. People and Tarcelo, G.R. No. 191404. July 5, 2010)

NOTICE OF DISHONOR IN ESTAFA CASE - 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 RPC, and not the non-payment of a debt. 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. However deceit is presumed if the drawer of the check fails to deposit the amount needed to cover his check within three days from receipt of notice of dishonor.

a. No notice of dishonor - If there is no notice of dishonor, the prosecution can still prove the existence of deceit such as in a case where the accused knows that his checking account is closed. The receipt by the drawer of the notice of dishonor is not an element of the estafa through bouncing check.

b. With notice of dishonor - If there is notice of dishonor, the presumption of deceit can still be rebutted by: (1) proof that the check is issued in payment of a pre-existing obligation or (1) evidence of good faith, a defense in estafa by postdating a check. Good faith may be demonstrated, for instance, by a debtor’s offer to arrange a payment scheme with his creditor or making full payment of the entire amount of the dishonored checks. However, simply empty promise to pay complainant the value of the bum checks issued in order to induce her to part with her property in favor of accused is not an evidence of good faith that will rebut the presumption of deceit. (See: People vs. Ojeda, G.R. Nos. 104238-58, June 3, 2004, Corona; Lopez vs. People, G.R. No. 166810, June 26, 2008, De Castro; Recuerdo vs.

People, G.R. No. 168217, June 27, 2006, )

NOTICE OF DISHONOR IN BP BLG. 22 - Notice of dishonor of a check to the maker in BP Blg. 22 must be in writing. A mere oral notice to the drawer or maker of the dishonor of his check is not enough. If the maker or drawer pays, or makes arrangements with the drawee bank for the payment of the amount due within the five-day period from notice of the dishonor given to the drawer, it is a complete defense; the accused may no longer be indicted for violation of Section 1, B.P. Blg. 22. If he is so indicted, he may set up the payment of the amount due as a complete defense. Assuming that the accused had knowledge that he had insufficient funds in the drawee bank when he issued the questioned checks, he could still have paid the checks or made arrangements with the drawee bank for the payment of the said checks if he had been duly notified of their dishonor. In not sending a notice or letter of dishonor to the petitioner as required by law, the complaint deprived the accused of his right to avoid prosecution for violation of B.P. Blg. 22 (Sia vs. G.R. No. 149695, April 28, 2004).

In San Mateo vs. People, G.R. No. 200090, March 6, 2013 - Complainant tried to serve the notice of dishonor to the accused two times. On the first occasion, complainant’s counsel

sent a demand letter to accused’s residence at Greenhills, San Juan which the security guard refused to accept. Thus, the liaison officer left the letter with the security guard with the instruction to hand it to accused. But the prosecution failed to show that the letter ever reached accused. On the second occasion, counsel sent a demand letter to accused by registered mail which was returned with the notation "N/S Party Out 12/12/05" and that accused did not claim it despite three notices to her. Since there is insufficient proof that accused actually received the notice of dishonor, the presumption that she knew of the insufficiency of her funds cannot arise. For this reason, the Court cannot convict her with moral certainty of violation of B.P. 22.

Nevertheless, accused’s acquittal does not entail the extinguishment of her civil liability for the dishonored checks. An acquittal based on lack of proof beyond reasonable doubt does not preclude the award of civil damages. For this reason, the trial court’s directive for San Mateo to pay the civil liability in the amount representing the total value of the checks plus 12% interest per annum from the time the said sum became due and demandable until fully paid, stands.

In Campos vs. People. G.R. No. 187401, September 17, 2014 - Exerting efforts to reach an amicable settlement with her creditor after the checks which she issued were dishonored by the drawee bank is a circumstantial evidence of receipt of notice of dishonor. Accused would not have entered into the alleged arrangements 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.

Lopez vs. People, G.R. No. 166810, June 26, 2008, Justice De Castro -Under Section 114(d) of the Negotiable Instruments Law, notice of dishonor is not required to be given to the drawer in either of the following cases where the drawer has no right to expect or require that the drawee or acceptor will honor the check. Since petitioner's bank account was already closed even before the issuance of the subject check, he had no right to expect or require the drawee bank to honor his check. By virtue of the aforequoted provision of law, petitioner is not entitled to be given a notice of dishonor.

The crime involved in Lopez vs. People is estafa through issuance of bouncing check.

However, it is submitted the Lopez principle can be applied to violation of BP 22.

PAYMENT - In Lim vs. People, G.R. No. 190834, November 26, 2014 - The fact that the issuer of the check had already paid the value of the dishonored check after having received the subpoena from the Office of the Prosecutor should have forestalled the filing of the Information in court. The spirit of the law which, for B.P. Big. 22, is the protection of the credibility and stability of the banking system, would not be served by penalizing people who have evidently made amends for their mistakes and made restitution for damages even before charges have been filed against them. In effect, the payment of the checks before the filing of the informations has already attained the purpose of the law.

It should be emphasized as well that payment of the value of the bounced check after the information has been filed in court would no longer have the effect of exonerating the accused from possible conviction for violation of B.P. Big. 22. Since from the commencement of the criminal proceedings in court, there is no circumstance whatsoever to show that the accused had every intention to mitigate or totally alleviate the ill effects of his issuance of the unfunded check, then there is no equitable and compelling reason to preclude his prosecution.

In such a case, the letter of the law should be applied to its full extent.

Furthermore, to avoid any confusion, the Court's ruling in this case should be well differentiated from cases where the accused is charged with estafa under Article 315, par. 2(d) of the Revised Penal Code, where the fraud is perpetuated 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. In said case of estafa, damage and deceit are the essential elements of the offense, and the check is merely the accused's tool in committing fraud. In such a case, paying the value of the dishonored check will not free the accused from criminal liability. It will merely satisfy the civil liability of the crime but not the criminal liability.

SUSPENSION OF PAYMENT - X in his capacity as officer of Z corporation issued a corporate check in favor of A. The check bounced due to DAIF. Notice of dishonor was received by X. After three months, SEC issued order creating the Management Committee and ordering the suspension of all pending actions for claims against Z corporation. (a) Is X liable for violation of BP Blg. 22?

Answer: Yes. X was formally notified of the dishonor of the checks. Yet, it was only more than three months after, that the SEC issued order for the suspension of all pending actions for claims against Z corporation. Thus, X was not precluded from making good the checks during that three-month gap when he received the letter and when the SEC issued the order (Tiong Rosario vs. Co, G.R. No. 133608, August 26, 2008)

(b) Would your answer be the same if the order of suspension was issued before the presentment for payment of the check when the drawee bank and the sending of notice of dishonor?

Answer: No. X is not liable for violation of BP Blg. 22. Considering that there was a lawful Order from the SEC, the contract is deemed suspended. When a contract is suspended, it temporarily ceases to be operative; and it again becomes operative when a condition occurs -or a situation arises - warranting the termination of the suspension of the contract. When a contract is subject to a suspensive condition, its birth takes place or its effectivity commences only if and when the event that constitutes the condition happens or is fulfilled. Thus, at the time A presented the check for encashment, it had no right to do so, as there was yet no obligation due from X (Gidwani vs. People, GR No. 195064, January 15, 2014).