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ARTICLE 315

MANUEL NAGRAMPA, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.


DECISION
DAVIDE, JR., C.J.:
In this petition for review on certiorari, petitioner assails his conviction for estafa in Criminal
Case No. Q-90-15797 and for two counts of violation of Batas Pambansa Blg. 22 (Bouncing
Checks Law) in Criminal Cases Nos. Q-90-15798 and Q-90-15799.
The accusatory portion of the information in Criminal Case No. Q-90-15797 for estafa reads
as follows:
That on or about the 28th day of July 1989 in Quezon City, Philippines and within the jurisdiction
of this Honorable Court, the above-named accused, with intent to gain by means of false
pretenses or fraudulent acts executed prior to or simultaneously with the commission of the
fraud, did then and there, wilfully, unlawfully and feloniously defraud FEDCOR TRADING
CORPORATION represented by FEDERICO A. SANTANDER by then and there making,
drawing and issuing in favor of the latter the following checks, to wit:
CHECK NOS.

AMOUNT

POSTDATED

473477

P75,000.00

August 31, 1989

473478

P75,000.00

September 30, 1989

drawn against the SECURITY BANK AND TRUST COMPANY in payment of an obligation,
knowing fully well at the time of issue that he did not have any funds in the bank or his funds
deposited therein was not sufficient to cover the amount of the checks that upon presentation of
said checks to the said bank for payment, the same were dishonored for the reason that the
drawer thereof, accused MANUEL NAGRAMPA did not have any funds therein and despite
notice of dishonor thereof, accused failed and refused and still fails and refuses to redeem or
make good said checks, to the damage and prejudice of the said FEDCOR TRADING
CORPORATION in such amount as may be awarded under the provisions of the Civil Code.
CONTRARY TO LAW.[1]
The accusatory portion of the information in Criminal Case No. Q-90-15798 for violation of
B.P. Blg. 22 reads as follows:
That on or about the 28th day of July, 1989 in Quezon City, Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused, did then and there, willfully, unlawfully and
feloniously make, draw and issue in favor of FEDCOR TRADING CORPORATION represented

by FEDERICO A. SANTANDER a check numbered 473478 drawn against the SECURITY


BANK AND TRUST COMPANY, Escolta Branch, a duly established domestic banking institution,
in the amount of P75,000.00, Philippine Currency, postdated September 30, 1989 in payment of
an obligation, knowing fully well that at the time of issue that she/he did not have ANY funds in
the drawee bank for the payment of such check; that upon presentation of said check to said
bank for payment, the same was dishonored for the reason that the drawee bank of accused
MANUEL NAGRAMPA did not have ANY funds therein and despite notice of dishonor thereof,
accused failed and refused and still fails and refuses to redeem or make good said check, to the
damage and prejudice of the said FEDCOR TRADING CORPORATION in the amount
aforementioned and in such other amount as may be awarded under the provisions of the Civil
Code.
Contrary to law.[2]
The information in Criminal Case No. Q-90-15799 is similarly worded as in Criminal Case
No. Q-90-15798 except as to the date and number of the check.
Upon his arraignment, petitioner entered a plea of not guilty in each case.
At the trial on the merits, the prosecution presented Federico Santander, President of
Fedcor Trading Corporation (hereafter FEDCOR), and Felix Mirano, signature verifier of the
Escolta Branch of the Security Bank and Trust Company.
Federico Santander testified that on 28 July 1989, Corseno Bote, FEDCORs Sales
Manager, brought to FEDCOR petitioner Manuel Nagrampa (hereafter NAGRAMPA), General
Manager of the Nagrampa Asphalt Plant in Montalban, Rizal. NAGRAMPA purchased a Yutani
Poclain Backhoe Excavator Equipment for P200,000 from FEDCOR and paid in cash the down
payment of P50,000. To cover the balance of P150,000, he issued Check No.
473477[3] postdated 31 August 1989 and Check No. 473478 [4] postdated 30 September 1989 in
the amount of P75,000 each. The checks were drawn against the Security Bank and Trust
Company. Upon the assurance of FEDCORs salesman that the checks were good, FEDCOR
delivered to petitioner the equipment.[5]
Santander further testified that FEDCOR presented the checks for payment on 22 February
1990; however, they were dishonored on the ground that petitioners account with the drawee
bank, Security Bank, had already been closed. In a letter[6] dated 19 March 1990, sent through
registered mail, FEDCOR demanded payment from petitioner; but the latter failed to
pay. Hence, the above cases were filed against petitioner with the trial court.[7] During his crossexamination, Santander denied that the equipment was returned to FEDCOR. Ronnie Bote,
son of Corseno Bote, was not an employee of FEDCOR but was merely its sales agent with no
authority to receive returned equipment.[8]
Felix Mirano, the second prosecution witness, testified that he had been a signature verifier
of Security Bank for twelve years. His duty was to verify the signatures of the clients of the
bank. He brought with him the signature card for Account No. 0110-4048-19, petitioners
account against which the subject checks were drawn. He identified the signatures appearing

on Checks Nos. 473477 and 473478 to be those of the petitioner. When asked about the status
of said account, he answered that the account had been closed in May 1985 yet.[9]
For his part, petitioner testified that on 28 July 1989, he bought from Corseno Bote a
backhoe and paid P50,000 cash, as evidenced by an acknowledgment receipt[10] signed by
Corseno Bote. In addition, he issued and handed to Corseno Bote two checks in the amount of
P75,000 each, dated 31 August 1989[11] and 30 September 1989.[12] The agreement with
Corseno Bote was that petitioner would replace the two checks with cash if the backhoe would
be in good running condition. The backhoe was delivered at petitioners jobsite on 29 July
1989. After five to seven days of use, the backhoe broke down. Such fact was reported to
Ronnie Bote, and the backhoe was thus repaired. After one day of using it, the backhoe broke
down again. Petitioner again reported the matter to Ronnie Bote, who told him that the
equipment should be brought to the latters office for repair. As evidence of the return of the
equipment, petitioner presented a letter dated 3 October 1989 [13] addressed to Electrobus
Consolidated, Inc., requesting the release of the backhoe to Ronnie Bote for repair, with the
alleged signature[14] of Ronnie Bote appearing at the bottom thereof to attest to his receipt of the
equipment. After a week, petitioner demanded from Ronnie Bote the return of the backhoe, the
P50,000 cash and the two postdated checks, but to no avail. [15] On cross-examination, he
admitted that during the pendency of the case he paid, upon the advice of his counsel, the
amount of P15,000, which he handed to FEDCORs counsel Atty. Orlando Paray.[16]
On 30 September 1993, the trial court rendered a decision[17] finding petitioner guilty of two
counts of violation of the Bouncing Checks Law and sentencing him to suffer imprisonment for
two years and pay FEDCOR P150,000, with legal interest thereon from 9 October 1990 up to
the time of full payment.
Petitioner appealed the decision to the Court of Appeals. The appeal was docketed as CAG.R. CR. No. 18082. Upon noticing that the 30 September 1993 Decision of the trial court did
not resolve the issue of petitioners liability for estafa, the Court of Appeals issued on 19 May
1998 a resolution[18]ordering the return of the entire records of the case to the trial court for the
latter to decide the estafa case against petitioner.
On 8 February 1999, the trial court rendered a decision [19]finding petitioner guilty beyond
reasonable doubt of estafa and sentencing him to suffer imprisonment of seven years and four
months of prision mayor as minimum to twelve years and six months of reclusion temporal as
maximum. As might be expected, petitioner also appealed said decision to the Court of
Appeals.
On 21 July 2000, the Court of Appeals rendered a decision [20] affirming in toto the decision
of the trial court finding petitioner guilty of estafa and violations of the Bouncing Checks Law. It
also denied petitioners motion for reconsideration of the decision.[21] Hence, this petition.
Petitioner claims that he is not guilty of estafa because no damage was caused to
FEDCOR, considering that the backhoe became unserviceable a few days after delivery and
was eventually returned to FEDCOR through the latters sales agent Ronnie Bote. He also
asserts that he did not violate B.P. Blg. 22 either. The two checks issued by him were presented
for payment only on 22 February 1990, or after more than five months from the date of the

checks. Under Sections 1 and 2 of B.P. Blg. 22 FEDCOR, as payee, had the duty or obligation
to encash or deposit the checks issued in its favor within ninety days from the date of issue.
Since FEDCOR deposited the checks after this period, he cannot be faulted for their
subsequent dishonor.
Alternatively, petitioner prays that in the event that his conviction for violations of
B.P. Blg. 22 is sustained, the rulings in Vaca v. Court of Appeals[22] and Lim v. People[23] should
be given retroactive effect in his favor so that only a fine may be imposed on him as penalty.
In arguing that petitioners conviction for two counts of violation of B.P. Blg. 22 is correct,
the Office of the Solicitor General relies heavily on the testimony of Felix Mirano that the
account of petitioner had been closed way back in May 1985, or four years prior to the issuance
of the subject checks to FEDCOR. The date when the checks were encashed or deposited is
immaterial because there was no more existing bank account against which they were drawn,
and their dishonor was therefore certain even if the checks were presented for payment within
the 90-day period from their issuance. With respect to petitioners plea to impose on him the
penalty of fine in the event that his conviction is affirmed, the OSG maintains that the penalty of
imprisonment is appropriate considering petitioners act of issuing worthless checks which
showed his culpable violation of B.P. Blg. 22.
Petitioners argument that the element of damage to private complainant FEDCOR is
lacking is disputed by the OSG by pointing out petitioners failure to prove the return of the
backhoe to FEDCOR. Ronnie Bote, the person to whom the backhoe was allegedly returned,
was not presented as a witness to corroborate petitioners testimony. But even
grantingarguendo that the backhoe was indeed received by Ronnie Bote, there is no showing
that he acted for, and on behalf of, FEDCOR in doing so considering that he was not an
employee of FEDCOR.
The petition is without merit.
Section 1 of B.P. Blg. 22 provides:
SECTION 1. Checks without sufficient funds. -- 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 or 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.

Two distinct acts are punished under the above-quoted provision:


(1)The making or drawing and issuance of any check to apply on account or for value,
knowing at the time of issue that the drawer does not have sufficient funds in, or
credit with, the drawee bank; and
(2)The failure to keep sufficient funds or to maintain a credit to cover the full amount of
the check if presented within a period of ninety days from the date appearing
thereon, for which reason it is dishonored by the drawee bank.[24]
In the first situation, the drawer knows of the insufficiency of funds to cover the check at the
time of its issuance; while in the second situation, the drawer has sufficient funds at the time of
issuance but fails to keep sufficient funds or maintain credit within ninety days from the date
appearing on the check. The check involved in the first offense is worthless at the time of
issuance, since the drawer has neither sufficient funds in, nor credit with, the drawee bank at
the time; while that involved in the second offense is good when issued, as the drawer has
sufficient funds in, or credit with, the drawee bank when issued. In both instances, the offense is
consummated by the dishonor of the check for insufficiency of funds or credit.[25]
It can be gleaned from the allegations in the information that petitioner is charged with the
first type of offense under B.P.Blg. 22.
The elements of the first type of offense are as follows:
(1) The making, drawing and issuance of any check to apply for account or for value;
(2) The knowledge of the maker, drawer, or issuer that at the time of issue he does not
have sufficient funds in or credit with the drawee bank for the payment of such
check in full upon its presentment; and
(3) The subsequent dishonor of the check by the drawee bank for insufficiency of funds
or credit or dishonor for the same reason had not the drawer, without any valid
cause, ordered the bank to stop payment.[26]
Petitioner admitted that he issued the two postdated checks worth P75,000 each. He did
not deny that the same were dishonored on the ground that the account from which they were to
be drawn was already closed at the time the checks were presented for payment. Neither did he
rebut the prosecutions evidence that the account against which he drew his two postdated
checks had been closed in May 1985 yet, or more than four years prior to the drawing and
delivery of the checks.
The fact that the checks were presented beyond the 90-day period provided in Section 2 of
B.P. Blg. 22 is of no moment. We held in Wong v. Court of Appeals[27] that the 90-day period is
not an element of the offense but merely a condition for theprima facie presumption of
knowledge of the insufficiency of funds; thus:

That the check must be deposited within ninety (90) days is simply one of the conditions for the
prima facie presumption of knowledge of lack of funds to arise. It is not an element of the
offense. Neither does it discharge petitioner from his duty to maintain sufficient funds in the
account within a reasonable time thereof. Under Section 186 of the Negotiable Instruments Law,
a check must be presented for payment within a reasonable time after its issue or the drawer
will be discharged from liability thereon to the extent of the loss caused by the delay. By current
banking practice, a check becomes stale after more than six (6) months, or 180 days.
In Bautista v. Court of Appeals,[28] we ruled that such prima facie presumption is intended to
facilitate proof of knowledge, and not to foreclose admissibility of other evidence that may also
prove such knowledge; thus, the only consequence of the failure to present the check for
payment within the 90-day period is that there arises no prima facie presumption of knowledge
of insufficiency of funds.[29] The prosecution may still prove such knowledge through other
evidence.
In this case, FEDCOR presented the checks for encashment on 22 February 1990, or
within the six-month period from the date of issuance of the checks, and would not therefore
have been considered stale had petitioners account been existing. Although the presumption of
knowledge of insufficiency of funds did not arise, such knowledge was sufficiently proved by the
unrebutted testimony of Mirano to the effect that petitioners account with the Security Bank was
closed as early as May 1985, or more than four years prior to the issuance of the two checks in
question.
Thus, we find no error in the Court of Appeals affirmation of the trial courts decision
convicting petitioner of violations of B.P. Blg. 22.
Petitioners alternative prayer for the modification of penalty by retroactively applying Vaca
v. Court of Appeals[30] and Lim v. People[31] must likewise be denied. We quote Administrative
Circular No. 13-2001 clarifying Administrative Circular No. 12-2000; thus:
The clear tenor and intention of Administrative Circular No. 12-2000 is 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.
In this case, when petitioner issued the subject postdated checks even though he had no
more account with the drawee bank, having closed it more than four years before he drew and

delivered the checks, he manifested utter lack of good faith or wanton bad faith. Hence, he
cannot avail himself of the benefits under Administrative Circular No. 12-2000.
We likewise sustain petitioners conviction for the crime of estafa.
The crime of estafa under paragraph 2(d) of Article 315 of the Revised Penal Code, as
amended, has the following elements: (1) postdating or issuance of a check in payment of an
obligation contracted at the time the check was issued; (2) lack or insufficiency of funds to cover
the check; and (3) damage to the payee thereof.[32]
Settled is the rule that, to constitute estafa, the act of postdating or issuing a check in
payment of an obligation must be the efficient cause of defraudation and, as such, it should be
either prior to, or simultaneous with, the act of fraud. The offender must be able to obtain
money or property from the offended party because of the issuance of the check, or the person
to whom the check was delivered would not have parted with his money or property had there
been no check issued to him. Stated otherwise, the check should have been issued as an
inducement for the surrender by the party deceived of his money or property, and not in
payment of a pre-existing obligation.[33]
The existence of the first two elements in the case at bar is not disputed. Petitioner
maintains that the third element is not present.
Damage as an element of estafa may consist in (1) the offended party being deprived of his
money or property as a result of the defraudation; (2) disturbance in property right; or (3)
temporary prejudice.[34]
In this case, the deprivation of the property of FEDCOR is apparent. Undoubtedly, the
reason why FEDCOR delivered the backhoe to petitioner was that the latter paid the P50,000
down payment and issued two postdated checks in the amount of P75,000 each.
Petitioners claim that he returned the equipment was not duly proved; he never presented
as witness the agent who allegedly received the equipment from him. Moreover, he admitted
that he never wrote FEDCOR about the return of the allegedly defective backhoe to Ronnie
Bote; neither did he go to FEDCOR to claim the return of the equipment or of the cash down
payment and the two checks.[35] Such admissions belie his allegation that he returned the
equipment to FEDCOR. Besides, on cross-examination he admitted that during the pendency of
the case, he paid Santander, through FEDCORs lawyer, on two separate occasions in the total
amount of P15,000 upon the advice of his own lawyer that he had to pay because he was guilty;
thus:
Q

During the pendency of this case you paid Engr. Santander cash, is that correct?

I paid the amount of P10,000.00 and then another P5,000.00 because according to my
first lawyer I have to pay this because I am guilty and this is B.P. case [sic].

You delivered the money to Engr. Federico Santander?

To you Atty. Paray.

And I was the lawyer of Engr. Federico Santander?

Yes, sir.[36]

If indeed petitioner returned the backhoe to Ronnie Bote and yet the latter did not heed his
demands for the return of his cash payment and the checks, he (petitioner) should have, at the
very least, gone to or written FEDCOR itself about the matter. Instead, he again paid FEDCOR
the amount of P15,000 during the pendency of the case. Such payment to FEDCOR negates
his claim that he returned the backhoe; it may even be tantamount to an offer of
compromise. Under Section 27 of Rule 130 of the Rules on Evidence, an offer of compromise
in criminal cases is an implied admission of guilt.
Finally, by appealing his conviction, petitioner has thrown the whole case open for review. It
becomes the duty of this Court to correct any error as may be found in the appealed judgment,
even though it was not made the subject of assignment of errors. [37] This Court finds to be
erroneous the penalty imposed by the trial court for the crime of estafa, as affirmed by the Court
of Appeals, which is seven years and four months of prision mayor as minimum to twelve years
and six months of reclusion temporal as maximum. The penalty for estafa committed by means
of bouncing checks has been increased by Presidential Decree No. 818, which took effect on 22
October 1975. Section 1 thereof provides in part as follows:
SECTION 1. Any person who shall defraud another by means of false pretenses or fraudulent
acts as defined in paragraph 2(d) of Article 315 of the Revised Penal Code, as amended by
Republic Act No. 4885, shall be punished by:
1st. The penalty of reclusion temporal if the amount of the fraud is over 12,000 pesos but does
not exceed 22,000 pesos, and if such amount exceeds the latter sum, the penalty provided in
this paragraph shall be imposed in its maximum period, adding one year for each additional
10,000 pesos but the total penalty which may be imposed shall in no case exceed thirty
years. In such cases, and in connection with the accessory penalties which may be imposed
under the Revised Penal Code, the penalty shall be termed reclusion perpetua.
Petitioner NAGRAMPA defrauded FEDCOR in the amount of P135,000 (P150,000 [value of
the checks] minus P15,000 [payment made by petitioner during the pendency of these
cases]). Applying P.D. No. 818 and the Indeterminate Sentence Law, the maximum penalty
shall be reclusion temporal in its maximum period, plus one year for each additional P10,000 of
the amount of the fraud; and the minimum shall be prision mayor, which is the penalty next
lower to that prescribed for the offense without first considering any modifying circumstances or
the incremental penalty for the amount of fraud in excess of P22,000.[38]
WHEREFORE, the instant petition is DENIED. The decision of the Court of Appeals
upholding the decisions of the Regional Trial Court of Quezon City, Branch 80, in Criminal
Cases Nos. Q-90-15797, Q-90-15798 and Q-90-15799 is hereby AFFIRMED, with the
modification that petitioner Manuel Nagrampa is hereby sentenced to suffer (1) an imprisonment
of one year for each of the two counts of violation of B. P. Blg. 22, and (2) an indeterminate

penalty of eight years and one day ofprision mayor as minimum to twenty-eight years, four
months and one day of reclusion perpetua as maximum for the crime of estafa; and to pay
private complainant Fedcor Trading Corporation the amount of P135,000, plus legal interest
thereon from 9 October 1990 up to the time of full payment.
SO ORDERED.

AZARCON vs. GONZALES (2010)


DECISION

CARPIO MORALES, J.:

On petition for review are the Court of Appeals September 30, 2008 Decision [2] and
January 6, 2009 Resolution[3] affirming with modification the September 15, 2006 Decision of
Branch 224 of the Regional Trial Court (RTC) of Quezon City in Criminal Case Nos. Q-38021202 to 021288 which upheld the November 15, 2005 Decision of Branch 38 of the
Metropolitan Trial Court (MeTC) of Quezon City convicting Lourdes Azarcon (petitioner) of
eighty-four (84) counts of violation of Batas Pambansa (B.P.) Bilang 22, [4] otherwise known as
the Bouncing Checks Law.
Since 1990, petitioner, a businesswoman, had been borrowing money from Marcosa
Gonzales (Marcosa) who was engaged in informal money-lending. Between the months of
August to December 1992, as was usual in the normal course of their transactions, petitioner
issued several Premiere Bank checks payable to Marcosa, dated at ten-day intervals, in
exchange for cash received. Due to business reverses suffered by petitioner, however, the
checks were, on maturity, dishonored for the reason Account Closed.

Marcosa, through counsel, thus demanded, by letter [5] of December 1, 1993 to petitioner,
the settlement of her P749,000.00 obligation for which she issued several Premium Bank
checks, with [the] assurance that all will be honored but that they were all dishonored due to
Account Closed.

Replying, petitioner, by letter[6] of December 17, 1993, sought a reconciliation of her


accountability since [she] has also some receipt payments covering the checks she has

issued. She,

in

the

same

letter, expressed

willingness

to

settle

her

outstanding

account. Petitioners husband, Manuel Azarcon (Manuel), later paid on February 15, 1994 the
amount of P200,000.00 representing initial payment on the account of [petitioner] with the
undertaking to settle the balance within one year via monthly installments.[7]

More than two and a half years later, as petitioner had not settled her outstanding
obligation, Marcosa filed onSeptember 4, 1996 a complaint[8] for violation of B.P. 22 before the
Quezon City Prosecutors Office against her involving 120 dishonored checks amounting
toP746,250.00, 87 of which were made the basis of 87 Informations filed against her.
Except for the numbers, dates and amounts (ranging from P1,500.00 to P6,250.00) of
the checks[9] issued by petitioner subject of the 87 Informations filed against her, each
Information uniformly charged as follows:

That on or about the _______________ in Quezon City, Philippines, the


said accused, did then and there willfully, unlawfully and feloniously make or
draw and issue to MARCOSA GONZALES to apply on account or for value
PREMIERE BANK check no. 000367 dated ______________ payable to the
order of MARCOSA GONZALES in the amount of _________________
Philippine Currency, said accused well knowing that at the time of issue she did
not have sufficient funds in or credit with the drawee bank for the payment of
such check in full upon its presentment which check when presented for payment
was subsequently dishonored by the drawee bank for insufficiency of
funds/Account Closed and despite receipt of notice of such dishonor, said
accused failed to pay said MARCOSA GONZALES the amount of said check or
to make arrangement for full payment of the same within five (5) banking days
after receiving said notice.
CONTRARY TO LAW.

Petitioner maintained that her obligations under the various checks had been released,
superseded and novated by her husbands assumption of her liabilities.[10] Brushing this
position aside, the trial court convicted petitioner. It, however, deducted from the total amount of
the face value of the 87 checks the sum of P11,000.00 representing the face value of three
checks[11] which

the

prosecution

failed

to

offer

in

evidence,

and

another

sum

ofP20,000.00 claimed to have been paid to Marcosa which she failed to dispute.
Thus, the trial court, by Decision[12] of November 15, 2005, disposed:
WHEREFORE, premises considered, this Court finds accused LOURDES
AZARCON guilty, beyond reasonable doubt, of eighty-four (84) counts of violation
of the Batas Pambansa Blg. 22 in Criminal Case Nos. 21202 to 21247, 21249 to
21261, 21263 to 21277 and 21279 to 21288, and hereby sentences her to suffer
a penalty of SIX (6) MONTHS IMPRISONMENT for each count of violation; to
restitute to the private complainant the amount of TWO HUNDRED NINETY FIVE
THOUSAND TWO HUNDRED FIFTY PESOS (P295,250.00) representing the
value of the checks less the payment of P20,000.00 plus 12% per annum interest
from the date of final demand until said amount is fully paid. The accused is also
ordered to pay the complainant the reasonable sum of P20,000.00 as attorneys
fees.
Further, pursuant to Sec. 34, Rule 132 of the Revised Rules on Criminal
Procedure which provides that the court shall consider no evidence which has
not been formally offered, Criminal Cases Nos. 21248, 21262 and 21278 are
hereby DISMISSED, for insufficiency of evidence.
SO ORDERED.

On appeal, the Quezon City RTC, Br. 224[13]affirmed the trial courts judgment by
Decision[14] ofSeptember 15, 2006.
At the Court of Appeals before which petitioner appealed, she questioned 1) the lack of
prior demand for the settlement of the checks after their dishonor, the December 1, 1993
demand letter[15] for the payment of her outstanding balance having failed to mention or
enumerate any particular check involved therein, and (2) the lower courts failure to appreciate
that novation had taken place with respect to her civil liability.[16]
By the challenged decision, the appellate court affirmed the appellants conviction but
found the imposition of the penalty of imprisonment (six months for each of the 84 checks) too

harsh, citing SC Administrative Circular 12-2000 [17] and Lim v. People.[18] It thus modified the
RTC decision, disposing as follows:
WHEREFORE, premises considered, the assailed Judgment of the
Regional Trial Court of Quezon City is hereby modified, to wit: This Court finds
Petitioner Lourdes Azarcon guilty of having violated the provisions of Batas
Pambansa Bilang 22 and hereby sentences her to pay a fine double the amount
stated on each of the 84 checks, to suffer subsidiary imprisonment in case of
non-payment or insolvency
and to restitute to the Private Respondent the
amount of TWO HUNDRED NINETY FIVE THOUSAND TWO HUNDRED FIFTY
PESOS (P295,250.00) representing the value of the checks less the payment
of P20,000.00, plus 12% per annum interest from the date of final demand until
said amount is fully paid. The accused is also ordered to pay the complainant the
reasonable sum of P20,000.00 as attorneys fees.
SO ORDERED. (emphasis supplied; underscoring in the original)

Reconsideration having been denied by Resolution ofJanuary 6, 2009, petitioner echoes


before this Court substantially the same issues proffered before the appellate court.
Petitioners conviction stands.
Liability for violation of B.P. 22 attaches when the prosecution establishes proof beyond
reasonable doubt of the existence of the following elements:
1. The accused makes, draws or issues any check to apply to account or for value;
2. The accused knows at the time of the issuance that he or she does not have sufficient
funds in, or credit with, the drawee bank for the payment of the check in full upon its
presentment; and
3. 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.[19]
The evidence clearly demonstrates the presence of all three elements. It is not the
function of this Court to undertake a review of the factual findings of the trial court, which were
sustained by the RTC and the Court of Appeals.

Petitioner argues, however, that acquittal is in order as the second element of the crime
is wanting, citing lack of knowledge of the insufficiency of her credit due to Marcosas failure to
specify

or

enumerate

the

dishonored

checks

in

her December

1,

1993 demand

letter. Petitioners argument fails.

What constitutes proof of knowledge of insufficiency of funds, Dico v. Court of


Appeals[20] enlightens:
xxxx
This knowledge of insufficiency of funds or credit at the time of the
issuance of the check . . .involves a state of mind of the person making, drawing
or issuing the check which is difficult to prove. [Thus] Section 2 of B.P. Blg. 22
creates a prima faciepresumption of such knowledge. Said section reads:
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 facieevidence 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 within five (5) banking days
after receiving notice that such check has not been paid by the drawee.
x x x In other words, the presumption is brought into existence only after
it is proved that the issuer had received a notice of dishonor and that within
five days from receipt thereof, he failed to pay the amount of the check or to
make arrangements for its payment. The presumption or prima facie evidence as
provided in this section cannot arise, if such notice of nonpayment by the drawee
bank is not sent to the maker or drawer, or if there is no proof as to when such
notice was received by the drawer, since there would simply be no way of
reckoning the crucial 5-day period.
A notice of dishonor received by the maker or drawer of the check is thus
indispensable before a conviction can ensue. The notice of dishonor may be
sent by the offended party or the drawee bank. The notice must be in
writing. A mere oral notice to pay a dishonored check will not suffice. The lack
of a written notice is fatal for the prosecution.
The requirement of notice, its sending to, and its actual receipt by, the
drawer or maker of the check gives the latter the option to prevent criminal
prosecution if he pays the holder of the check the amount due thereon, or makes
arrangements for payment in full by the drawee of such check within five (5)

banking days after receiving notice that the check has not been paid. (emphasis
and underscoring supplied)

All that the Bouncing Checks Law thus requires is that the accused must be notified in
writing of the fact of dishonor.[21]

Petitioner admittedly received the December 1, 1993demand letter of Marcosa. In fact,


in her reply letter ofDecember 17, 1993, petitioner sought a reconciliation of accounts and
expressed willingness to settle - an indication of her awareness of what checks Marcosa was
referring to in the December 1, 1993 letter.

As for petitioners assertion that novation of her civil liability occurred, it is likewise
unavailing.
Iloilo Traders Finance, Inc. v. Heirs of Oscar Soriano, Jr.[22] on novation teaches:
Novation may either be extinctive or modificatory, much being dependent
on the nature of the change and the intention of the parties. Extinctive novation
is never presumed; there must be an express intention to novate; in
cases where it is implied, the acts of the parties must clearly demonstrate their
intent to dissolve the old obligation as the moving consideration for the
emergence of the new one.Implied novation necessitates that the incompatibility
between the old and new obligation be total on every point such that the old
obligation is completely superseded by the new one. The test of incompatibility
is whether they can stand together, each one having an independent existence; if
they cannot and are irreconciliable, the subsequent obligation would also
extinguish the first.
An extinctive novation would thus have the twin effects of, first,
extinguishing an existing obligation and, second, creating a new one in its
stead.This kind of novation presupposes a confluence of four essential
requisites: (1) a previous valid obligation; (2) an agreement of all parties
concerned to a new contract; (3) the extinguishment of the old obligation; and (4)
the birth of a valid new obligation. Novation is merely modificatory where the
change brought about by any subsequent agreement is merely incidental to the
main obligation (e.g., a change in interest rates or an extension of time to pay); in
this instance, the new agreement will not have the effect of extinguishing the first
but would merely supplement it or supplant some but not all of its provisions.
(emphasis and underscoring supplied)

The novation which petitioner suggests as having taken place, whereby Manuel was
supposed to assume her obligations as debtor, is neither express nor implied. There is no
showing of Marcosa explicitly agreeing to such a substitution, nor of any act of her from which
an inference may be drawn that she had agreed to absolve petitioner from her financial
obligations and to instead hold Manuel fully accountable.

It bears pointing out that the February 15, 1994receipt[23] acknowledging payment
of P200,000, apparently that given by Manuel, reads:

February 15, 1994


Received the sum of TWO HUNDRED THOUSAND PESOS only
(P200,000.00) covered by two separate checks BPI Check No. 390971
datedFebruary 15, 1994 and BPI Check No. 390970 dated March 15,
1994 representing initial payment on the account of Mrs. Lourdes N. Azarcon
with Mrs. Marcosa Gonzales. The balance of Mrs. Azarcons account shall be
payable in one year through monthly payments until her indebtedness is fully
settled. This is without prejudice to whatever legal action Mrs. Marcosa
Gonzales may undertake in case of failure of the spouses Manuel and Lourdes
Azarcon to settle in full their obligation, as provided above.
x x x x (underscoring supplied)

Finally, practically all the other receipts[24] thereafter issued by Marcosa acknowledging
installment payments invariably disclose that they were either made by petitioner herself, or
received for the account of Mrs. Lourdes Azarcon.
WHEREFORE, the petition is DENIED.
SO ORDERED.
BEN B. RICO, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.
DECISION

QUISUMBING, J.:
For review on certiorari is the decision [1] dated June 15, 1998 of the Court of Appeals in CAG.R. CR No. 19764, affirming the judgment[2] of the Regional Trial Court of Laoag City which
found the petitioner guilty of five counts of violation of Batas Pambansa Blg. 22 (the Bouncing
Checks Law), and the resolution[3] dated January 7, 1999 denying petitioners motion for
reconsideration.
Petitioner Ben Rico was a pakyaw contractor who used to purchase construction materials
on credit from private complainant Ever Lucky Commercial (ELC), represented by Victor Chan,
Manager. Petitioner made payments either in cash or by postdated checks. On several
occasions, he issued checks to ELC, which were dishonored by the bank upon presentment for
payment for insufficiency of funds or closed account, as follows:
CHECK NO.
04142
1759806
1759808
1759810
1759812
1759811
TOTAL

DATE
Nov. 5, 1990
Apr. 19, 1990
Apr. 20, 1990
Apr. 11, 1990
Apr. 11, 1990
May 2, 1990

DATE
OFDISHONOR
Nov. 13, 1990
Apr. 20, 1990
Apr. 23, 1990
Apr. 16, 1990
Apr. 16, 1990
May 3, 1990

REASON
FORDISHONOR
Insufficient funds
Insufficient funds
Account Closed
Insufficient funds
Insufficient funds
Account Closed

AMOUNT
P 81,800.00
25,000.00
4,834.00
39,000.00
15,250.00
12,550.00
P178,434.00

Consequently, petitioner was charged under several informations docketed as Criminal


Cases Nos. 5796, 5797, 5798, 5799 and 5800 for violation of Batas Pambansa Blg. 22. The
information in Criminal Case No. 5796 reads:
That on or about the 27th day of October, 1990, in the City of Laoag, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused did then and there wilfully,
unlawfully and feloniously draw and issue Check No. 04142 in the amount of Eighty One
Thousand Eight Hundred Pesos (P81,800.00), dated November 5, 1990, drawn against the
Philippine Commercial and International Bank, Laoag City Branch, in favor of the Ever Lucky
Commercial, as payee, in payment of construction materials which he purchased on credit from
the said Ever Lucky Commercial, located at Brgy. No. 12, Gen. Segundo Ave., Laoag City, of
which Mr. Victor Chan is the Gen. Manager, knowing fully well that he had no sufficient funds
deposited with the drawee bank to cover the payment thereof, as in fact it was dishonored when
presented for payment to the drawee bank on November 13, 1990, on the ground that it was
drawn against insufficient funds, and the accused, despite due notice to him of the dishonor of
said check had not paid the amount thereof nor had he made arrangements for its payment in
full by the drawee bank within five (5) banking days from receipt of the notice of dishonor, to the
damage and prejudice of the Ever Lucky Commercial in the amount ofP81,800.00, Philippine
Currency.
CONTRARY TO LAW.[4]
The other informations are similarly worded, except for the check number and their
amounts and the dates of issue which are hereunder itemized as follows:
CRIMINAL CASE
NO.
5797

CHECK NO.
1759806

DATE

AMOUNT

Apr. 19, 1990

P 25,000.00

5798
5799
5800

1759808
1759810
1759812
1759811

Apr. 20, 1990


Apr. 11, 1990
Apr. 11, 1990
May 2, 1990

P 4,834.00
P 39,000.00
P 15,250.00
P 12,550.00

The five informations were consolidated by the lower court. Upon arraignment, petitioner
pleaded not guilty to all the charges, and trial on the merits ensued.
The prosecution established that petitioner, who used to purchase construction materials on
credit from ELC, issued the above-cited checks as payment for the materials and that they were
dishonored upon presentment for payment to the bank either for insufficient funds or account
closed. After the checks were dishonored, ELC demanded payments from petitioner, who
failed to make good his undertaking to replace the checks. No formal written demand letter or
notice of dishonor, however, was sent to the petitioner. It was also established by the
prosecution that ELC, through its manager, issued several receipts covering several payments
in various amounts made by petitioner as replacement of some dishonored but returned checks
as well as for payment of materials purchased. No official receipts covering the materials
purchased, however, were presented in court as evidence.[5]
In his defense, petitioner did not deny that he issued the subject checks and that they were
dishonored upon presentment for payment with the drawee bank. He claimed, however, that he
already paid the amounts covered by the checks, totalling P284,340.50, including interest. In
support thereof, he submitted as evidence the following official receipts issued by ELC[6]
OFFICIAL RECEIPT NO.
3290
3298
3411
3683
3866
TOTAL

DATE
Apr. 24, 1990
Apr. 27, 1990
May 3, 1990
Sept. 4, 1990
Jan. 5, 1991

AMOUNT
P 65,000.00
90,733.50
10,000.00
68,607.00
50,000.00
P284,340.50

According to petitioner, the difference between the total amount as reflected in the receipts
and the total amount covered by the subject checks represented interest. [7] He also admitted
that he did not retrieve the dishonored checks as they were not yet fully paid.[8]
On March 13, 1996, the trial court rendered its judgment as follows:
(1) In Criminal Case No. 5796, the accused is hereby found guilty beyond reasonable doubt of
the violation of BP Bilang 22. He is sentenced to suffer the straight penalty of ONE (1) YEAR
imprisonment and to indemnify the offended party in the amount of P81,800.00;
(2) In Criminal Case No. 5797, the accused is hereby found guilty beyond reasonable doubt of
the violation of BP Bilang 22. He is sentenced to suffer the straight penalty of SIX (6) MONTHS
imprisonment and to indemnify the offended party in the amount of P25,000.00;
(3) In Criminal Case No. 5798, the accused is hereby found guilty beyond reasonable doubt of
the violation of BP Bilang 22. He is sentenced to suffer the straight penalty of THREE (3)
MONTHS imprisonment and to indemnify the offended party in the amount of P4,834.00;
(4) In Criminal Case No. 5799, the accused is hereby found guilty beyond reasonable doubt of
the violation of BP Bilang 22. He is sentenced to suffer the straight penalty of ONE (1) YEAR
Imprisonment and to indemnify the offended party in the amount of P54,250.00; and

(5) In Criminal Case No. 5800, the accused is hereby found guilty beyond reasonable doubt of
the violation of BP Bilang 22. He is sentenced to suffer the straight penalty of SIX (6) MONTHS
imprisonment and to indemnify the offended party in the amount of P12,550.00.
Costs against the accused.
SO ORDERED.[9]
In convicting petitioner, the trial court noted that petitioner had admitted the issuance and
dishonor of the subject checks, and he could not escape criminal liability as it found his defense
of payment off-tangent.[10] It ruled that the alleged payments do not apply to the subject checks
but for the other materials purchased, and granting they were applicable, they could only affect
his civil liability.[11] Further, the trial court concluded that a mathematical computation of the
payments made by the petitioner vis-a-vis the subject checks did not give credence to the
stance of petitioner. The trial court found it illogical for petitioner to have paid more than the
amounts covered by the subject checks without a single alleged payment matching any of the
amounts written in the subject checks, and with petitioner paying more than his outstanding
liabilities at some point.[12]
Aggrieved, petitioner filed an appeal before the Court of Appeals, which affirmed the trial
courts decision. The Court of Appeals found petitioners defense of payment untenable and not
proven by clear and convincing evidence. It further stated that even if there were payment,
petitioner failed to prove that it was made within five days from receipt of notice of dishonor. [13]In
relation thereto, it ruled that the testimonial evidence of private complainant declaring that
immediate demands to pay were made on petitioner is in themselves notices of dishonor.
[14]
Petitioners motion for reconsideration was denied in a resolution dated January 7, 1999.
Hence, this petition raising issues based on the alleged errors of the appellate court.
MAIN ISSUE:
THE APPELLATE COURT COMMITTED A GRAVE MISTAKE IN AFFIRMING THE TRIAL
COURTS FINDING THAT THE PETITIONER IN THE FIVE (5) CRIMINAL CASES IS GUILTY
BEYOND REASONABLE DOUBT OF THE VIOLATION OF BP BILANG 22 AND SENTENCING
HIM TO SUFFER THE PENALTY IMPOSED THEREIN.
SUB-ISSUES
I
THE APPELLATE COURT ERRED IN SHIFTING UNTO THE PETITIONER THE BURDEN OF
PROVING HIS OWN INNOCENCE INSTEAD OF LAYING THE BURDEN UPON THE
PROSECUTION TO PROVE THE GUILT OF PETITIONER BEYOND REASONABLE DOUBT.
II
THE APPELLATE COURT ERRED IN FINDING THAT DEFENSE OF PAYMENT BY
PETITIONER DID NOT OVERTHROW THE PRIMA FACIE EVIDENCE OF KNOWLEDGE OF
THE INSUFFICIENCY OF FUNDS AT THE TIME OF ISSUANCE OF THE CHECKS AND THAT
THE DEMANDS FOR PAYMENT MADE TO PETITIONER ARE IN THEMSELVES NOTICES OF
DISHONOR.

III
THE APPELLATE COURT ERRED IN AFFIRMING THE TRIAL COURTS FINDING THAT THE
PAYMENTS MADE BY THE PETITIONER TO THE EVER LUCKY COMMERCIAL (ELC) AS
EVIDENCED BY OFFICIAL RECEIPT ISSUED BY ELC REFER TO OTHER TRANSACTIONS
BETWEEN THE PETITIONER AND ELC AND NOT TO THE DISHONORED CHECKS.
IV
THE APPELLATE COURT ERRED IN AFFIRMING THE TRIAL COURTS ANALYSIS
DEBUNKING PETITIONERS DEFENSE OF PAYMENTS.[15]
In our view, the principal issue for our resolution is whether or not petitioners guilt has been
established beyond reasonable doubt.
Petitioner contends that he should be acquitted of all charges because he already paid his
obligations to Ever Lucky Commercial. He likewise avers that the prosecution failed to establish
all the elements of the crime, particularly that he had knowledge of the insufficiency of his funds
in the bank at the time he issued the checks. This failure, according to petitioner, can be traced
to the prosecutions inability to prove that notices of dishonor were sent to him.
The Office of the Solicitor General (OSG), for appellee, argues that the payments made by
petitioner refer to different transactions and not to those covered by the checks subject matter of
this case. The OSG also avers that the verbal demands made by private complainant are more
than enough to prove that petitioner had knowledge of the insufficiency of his funds in the bank
at the time he issued the checks.
At the outset, we must stress that as a general rule, the factual findings of the trial court,
when affirmed by the Court of Appeals, are accorded respect and finality, unless tainted with
arbitrariness or palpable error,[16] or when the trial court failed to appreciate certain facts and
circumstances which, if taken into account, would materially affect the result of the case. [17] We
find that the exceptions rather than the general rule apply in this case. We also find the petition
meritorious.
The law enumerates the elements of violation of B.P. 22, namely (1) the making, drawing
and issuance of any check to apply for account or for value; (2) the knowledge of the maker,
drawer, or issuer that at the time of issue he does not have sufficient funds in or credit with the
drawee bank for the payment of the check in full upon its presentment; and (3) the subsequent
dishonor of the check by the drawee bank for insufficiency of funds or credit or dishonor for the
same reason had not the drawer, without any valid cause, ordered the bank to stop payment.[18]
The first and third elements of the offense are present and proved in these consolidated
cases. But we find that the second element was not sufficiently established.
Knowledge of 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. [19] In several cases,[20] we have
ruled that to hold a person liable under B.P. 22, it is not enough to establish that a check was
dishonored upon presentment. It must be shown further that the person who issued the check
knew 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. Because this element involves a
state of mind which is difficult to establish, Section 2 of the law creates a prima
facie presumption of such knowledge.

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 or credit with
such bank, when presented within ninety (90) days from the date of the check, shall beprima
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 within five (5) banking days after receiving
notice that such check has not been paid by the drawee. (Italics and underscoring
supplied)
In King vs. People,[21] we held:
The prima facie presumption arises when a check is issued. But the law also provides that
the presumption does not arise when the issuer pays the amount of the check or makes
arrangement for its payment within five banking days after receiving notice that such check has
not been paid by the drawee.
Thus, the presumption that the issuer had knowledge of the insufficiency of funds is brought
into existence only after it is proved that the issuer had received a notice of dishonor and that,
within five days from receipt thereof, he failed to pay the amount of the check or to make
arrangement for its payment.[22]
Here, both the Court of Appeals and the trial court relied solely on the testimony of
prosecution witness Danilo Cac to the effect that private complainant immediately demanded
payment of the value of the checks after they were dishonored. Aside from this self-serving
testimony, no other evidence was presented to prove the giving and receiving of such
notice. The nature and content of said demands were not clarified. Even the date when and
the manner by which these alleged demands were made upon and received by petitioner were
not specified. Worse, the records do not show that formal and written demand letters or notices
of dishonor were ever sent to petitioner.
Where the presumption of knowledge of insufficiency of funds does not arise due to the
absence of notice of dishonor of the check, the accused should not be held liable for the offense
defined under the first paragraph of Section 1 of B.P. 22.[23]
As held in the case of Lao vs. Court of Appeals[24] a notice of dishonor personally sent to
and received by the accused is necessary before one can be held liable under B.P. 22. In that
case, we stated thus:
Because no notice of dishonor was actually sent to and received by the petitioner, the prima
facie presumption that she knew about the insufficiency of funds cannot apply. Section 2 of BP
Blg. 22 clearly provides that this presumption arises not from the mere fact of drawing, making,
and issuing a bum check; there must also be a showing that, within five banking days from
receipt of the notice of dishonor, such maker or drawer failed to pay the holder of the check the
amount due thereon or to make arrangement for its payment in full by the drawee of such
check.
It has been observed that the State, under this statute, actually offers the violator a
compromise by allowing him to perform some act which operates to preempt the criminal action,
and if he opts to perform it the action is abated. xx xx The absence of a notice of dishonor
necessarily deprives an accused an opportunity to preclude a criminal prosecution. Accordingly,
procedural due process clearly enjoins that a notice of dishonor be actually served on

petitioner. Petitioner has a right to demand - and the basic postulates of fairness require - that
the notice of dishonor be actually sent to and received by her to afford her the opportunity to
avert prosecution under BP Blg. 22. (Underscoring supplied.)
In other words, if such notice of non-payment by the drawee bank is not sent to the maker
or drawer of the bum check, or if there is no proof as to when such notice was received by the
drawer, then the presumption of knowledge as provided in Section 2 of B.P. 22 cannot arise,
since there would simply beno way of reckoning the crucial five-day period.[25]
As stated earlier, the prosecution not only failed to prove the receipt by petitioner of any
notice of dishonor, the records are also bereft of any indication that written formal demand
letters or notice of dishonor were actually sent to petitioner. In recent cases, we had the
occasion to emphasize that not only must there be a written notice of dishonor or demand
letters actually received by the drawer of a dishonored check, but there must also be proof of
receipt thereof that is properly authenticated, and not mere registered receipt and/or return
receipt.
Thus, as held in Domagsang vs. Court of Appeals,[26] while Section 2 of B.P. 22 indeed does
not state that the notice of dishonor be in writing, this must be taken in conjunction 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. In our
view, both the spirit and the letter of the Bouncing Checks Law require for the act to be punished
thereunder not only that the accused issued a check that is dishonored, but also that the
accused has actually been notified in writing of the fact of dishonor. The consistent rule is that
penal statutes must be construed strictly against the State and liberally in favor of the
accused. In Victor Ting vs. Court of Appeals,[27] we stated that when service of a notice is
sought to be made by mail, it should appear that conditions exist on which the validity of such
service depends. Otherwise, the evidence is insufficient to establish the fact of
service. Receipts for registered letters and return receipts do not by themselves prove receipt;
they must be properly authenticated to serve as proof of receipt of the letters.
In fine, the failure of the prosecution to prove the existence and receipt by petitioner of the
requisite written notice of dishonor and that he was given at least five banking days within which
to settle his account constitutes sufficient ground for his acquittal.
However, while petitioner is acquitted for violation of B.P. 22, he should be ordered to pay
the face value of the five dishonored checks plus legal interest in accordance with our ruling
in Domagsang vs. Court of Appeals.[28] There, the prosecution failed to sufficiently establish a
case to warrant conviction, but clearly proved petitioners failure to pay a just debt owing to the
private complainant. Thus, petitioner was ordered to pay the face value of the check with 12
percent legal interest per annum, reckoned from the filing of the information until the finality of
the decision. It is well settled that an acquittal based on reasonable doubt does not preclude
the award of civil damages. The judgment of acquittal extinguishes the liability of the accused
for damages only when it includes a declaration that the facts from which the civil liability might
arise did not exist. Thus, the civil liability is not extinguished by acquittal where the acquittal is
based on lack of proof beyond reasonable doubt, since only preponderance of evidence is
required in civil cases. There appears to be no sound reason to require that a separate civil
action be still filed considering that the facts to be proved in the civil case have already been
established in the criminal proceedings where the accused was acquitted. To require a
separate civil action would mean needless clogging of court dockets and unnecessary

duplication of litigation with all its attendant loss of time, effort, and money on the part of all
concerned.[29]
Finally, we agree that petitioners alleged prior payment is untenable. As found by the trial
court and by the Court of Appeals, it is unnatural and illogical for petitioner to have paid more
than his outstanding obligations. It is also unlikely that he would pay substantial amounts of
interest when nothing had been agreed upon on this matter. It is quite striking how he could
have generously paid more than what was due from him when he could hardly pay private
complainant in cash, and had to issue post-dated checks. Moreover, he could have asked for
the return of the checks as a matter of sound business practice and procedure if indeed he
already paid all the dishonored checks. The fact that these checks remained in the possession
of private complainant contradicts petitioners allegation of payment.[30]
WHEREFORE, the decision of the Court of Appeals in CA-G.R. CR No. 19764 is
MODIFIED. Petitioner BEN RICO is ACQUITTED of the charge for violation of B.P. 22 on the
ground of reasonable doubt. However, he is ordered to pay private complainant the face value
of the checks in the total amount of P178,434.00, with 12 percent interest per annum, from the
filing of the informations until the amount due is fully paid.
No pronouncement as to costs.
SO ORDERED.
EVANGELINE CABRERA, petitioner, vs.
GO,respondents.

PEOPLE

OF

THE PHILIPPINES

and

LUIS

DECISION
CALLEJO, SR., J.:
This is a petition for review of the Decision[1] dated January 25, 2001, and the October 9,
2001 Resolution of the Court of Appeals in CA-G.R. CR No. 17715 affirming the Decision [2]dated
January 17, 1993 of the Regional Trial Court (RTC) of Davao City, Branch 17, which found the
petitioner Evangeline Cabrera guilty beyond reasonable doubt of three counts of violation
of Batas Pambansa Bilang 22 (B.P. Blg. 22), otherwise known as the Bouncing Checks Law.
On August 2, 1993, three Informations were filed charging Evangeline Cabrera with
violation of B.P. Blg. 22, the accusatory portion of which respectively reads as follows:
That sometime in April 1992 in the City of Davao, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, knowing fully well that she had no sufficient funds
in the drawee bank, willfully, unlawfully and feloniously issued and/or made out a Prudential
Bank Check No. 665332 in the amount of P50,907.70 postdated July 11, 1992 in favor of Luis
Go, in payment of an obligation; but when said check was presented to the drawee bank for
encashment, the same was dishonored for the reason 'Account Closed' and despite notice of
dishonor and demands made upon said accused to make good the check, the same refused
and failed to make payment, to the damage and prejudice of the herein complainant in the
aforesaid amount of P50,907.70.
Contrary to law.[3]

--That sometime in April 1992 in the City of Davao, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, knowing fully well that she had no sufficient funds
in the drawee bank, willfully, unlawfully and feloniously issued and/or made out a Prudential
Bank Check No. 658049 in the amount of P72,311.75 postdated June 12, 1992 in favor of Luis
Go, in payment of an obligation; but when said check was presented to the drawee bank for
encashment, the same was dishonored for the reason 'Account Closed' and despite notice of
dishonor and demands made upon said accused to make good the check, the same refused
and failed to make payment, to the damage and prejudice of the herein complainant in the
aforesaid amount of P72, 311.75.
Contrary to law.[4]
--That sometime in April 1992 in the City of Davao, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, knowing fully well that she had no sufficient funds
in the drawee bank, willfully, unlawfully and feloniously issued and/or made out a Prudential
Bank Check No. 658034 in the amount of P67,956.00 postdated May 2, 1992 in favor of Luis
Go, in payment of an obligation; but when said check was presented to the drawee bank for
encashment, the same was dishonored for the reason 'Account Closed' and despite notice of
dishonor and demands made upon said accused to make good the check, the same refused
and failed to make payment, to the damage and prejudice of the herein complainant in the
aforesaid amount of P67,956.00.
Contrary to law.[5]
The accused, now the petitioner in this case, was duly arraigned, assisted by counsel de
oficio and entered a plea of not guilty to all the charges. Joint trial thereafter ensued.
The Case for the Prosecution
Luis Go was the sole proprietor of the Davao Mindanao Pioneer Hardware & Company
(DMPH Co.), located at No. 63 Ramon Magsaysay Boulevard, Davao City. One of his
customers was Boni Co, a travelling salesman. The two had agreed that Go would sell lumber
materials and merchandise to Co on a thirty to forty-day credit basis. Go, however, required Co
to issue postdated checks in payment for his purchases. Since Co had no checking account
with any bank, he offered to pay for his purchases with postdated checks drawn and issued by
the petitioner. Co assured Go that he and the petitioner had a business arrangement. Go made
inquiries at the bank and was told that the petitioner handled her checks well. Since Go also
believed that Co was a good businessman, he finally agreed to accept the postdated checks
issued by the petitioner. Go and Co also agreed that on the due date of the checks, Co would
either pay the amount thereof in cash by way of replacement for the same, or Go would
negotiate, or deposit the checks in his account and/or the account of DMPH Co.

Co purchased merchandise from Go and delivered postdated checks drawn against the
petitioners checking account with the Davao City Branch of Prudential Bank, bearing the
following particulars:
Check Number

Amount

Date

658034

P67,956.00

May 02, 1992

658049
665332

P72,311.75
P50,907.70

June 12, 1992

July 12, 1992

When Co failed to pay for his purchases, Go deposited the three postdated checks in his
account with the Far East Bank & Trust Company (FEBTC) on August 3, 1992. As of July 31,
1999, the petitioner had P700.00 in her account. When the checks were deposited, the
petitioners account with the bank had a balance of only P100.04. The bank had closed the
petitioners account on August 4, 1992 after applying the said amount to the payment of bank
charges. The drawee bank thus dishonored the petitioners postdated checks, and duly stamped
Account Closed on the front and dorsal portions of each check. The drawee bank returned the
checks to the FEBTC with the corresponding check return slips. Nevertheless, Go continued
selling merchandise to Co, who likewise continued to draw and issue postdated checks; this
time drawn against his personal account. Go accepted Cos personal checks, hoping that he
would eventually be paid. Cos personal checks were all dishonored by the drawee bank.
Go notified the petitioner that her three checks were dishonored by the drawee bank. She
saw Go in his office and confirmed that she and Co had a business arrangement. She asked Go
to give Co more time to redeem the postdated checks with cash. Go agreed. However, Co again
failed to redeem the checks. The petitioner likewise failed to pay the amounts of the checks
despite Gos repeated demands.
The Petitioners Evidence
Boni Co testified that he was engaged in the business of buying and selling merchandise
from DMPH Co. Go had agreed that Co would pay for his purchases on a thirty to forty-day
credit basis to be guaranteed by postdated checks. Since Co had no checking account, Go
agreed to accept blank checks drawn against the petitioners checking account with the
Prudential Bank. Go also agreed to the arrangement that Co would pay for his purchases after
the merchandise was sold and the latter had collected from his customers. Co had paid Go the
amount of P120,000.00 for his purchases, but Go did not issue any receipt therefor because of
mutual trust and confidence. Go, however, failed to return the three postdated checks issued by
the petitioner.
The petitioner admitted that she was the drawer of the three postdated checks, but averred
that she did not receive any valuable consideration when she issued the same. She merely
affixed her signature on the said checks without filling up the names of the payees, the amounts
and the corresponding dates therefor. She and Co had agreed that the checks would not be
encashed or deposited, but would merely serve as guarantee for the payment of the stocks

purchased by Co. Evidently, the petitioner acted in good faith when she issued the checks and
delivered them to Co, and as such should not be held guilty of violating B.P. Blg. 22.
The petitioner also admitted that she spoke to Go but denied having received any notice of
dishonor, or any demand letter from the latter or from the DMPH Co., informing her of the
dishonor of the checks and demanding payment of the amounts thereof. She only learned that
the checks were dishonored when she received a subpoena pertaining to the same.[6]
On January 17, 1993, the trial court rendered a decision finding the petitioner guilty beyond
reasonable doubt of three counts of violation of B.P. Blg. 22, the dispositive portion of which
reads:
WHEREFORE, finding the evidence of the prosecution more than sufficient, to prove beyond
reasonable doubt, the guilt of accused, Evangeline Cabrera, for Violation of Batas Pambansa
Blg. 22, pursuant to Section 1 of BP Blg. 22, accused EVANGELINE CABRERA, is sentenced to
pay a FINE of P50,907.70, in favor of the government under Crim. Case 30,806-93; under Crim.
Case 30,807-93 a FINE of P72,311.75; and under Crim. Case 30,808-93, to pay a FINE
of P67,956.00 in favor of the government, with costs.
Moreover, pursuant to Art. 100 in relation to Art. 104 of the Revised Penal Code, governing civil
indemnity, accused is furthermore ordered, to pay the amount of:
In Criminal Case 30,806-93, the amount of P50,907.70;
In Criminal Case 30,807-93, the amount of P72,311.75; and
In Criminal Case 30,808-93, the amount of P67.956.00, in favor of Luis Go, with subsidiary
imprisonment in case of insolvency, in accordance with the provisions of Art. 39, of the Revised
Penal Code, as amended by Republic Act No. 5455, approved on April 21, 1969.[7]
The trial court ruled that the evidence on record showed that the petitioner voluntarily
issued the checks in question. Notwithstanding her claim that the said checks were issued
merely to accommodate Co and to guarantee the latters obligations, she is guilty of violation of
B.P. Blg. 22 which prohibits and penalizes the mere issuance of a bouncing check. The trial
court did not rule on the petitioners claim that she did not receive any notice of dishonor from
the drawee bank or from the private complainant, or any letter of demand notifying her of such
dishonor and demanding payment of the amounts of the checks.
Aggrieved, the petitioner interposed an appeal before the Court of Appeals (CA). Therein,
she asserted that:
THE TRIAL COURT ERRED IN HOLDING THAT THERE WAS A VALID ISSUANCE OF THE
CHECKS IN QUESTION;
THE TRIAL COURT ERRED IN NOT CONSIDERING THE EVIDENCE THAT THE CHECKS IN
QUESTION WERE NOT ISSUED FOR A VALID CONSIDERATION IN SO FAR AS THE
ACCUSED IS CONCERNED;

THE TRIAL COURT ERRED IN NOT CONSIDERING THAT THE PROSECUTION HAD NOT
ESTABLISHED THE ELEMENT OF FRAUD OR DECEIT;
THE TRIAL COURT ERRED IN HOLDING THE ACCUSED LIABLE TO PAY A FINE
EQUIVALENT TO THE AMOUNT OF THE CHECKS IN QUESTION; AND
THE TRIAL COURT ERRED IN HOLDING THE ACCUSED LIABLE TO PAY THE
COMPLAINANT THE TOTAL SUM OF P191,175.45 NOTWITHSTANDING THE EVIDENCE
THAT SHE DID NOT RECEIVE ANY MERCHANDISE.[8]
The petitioner argued in her brief that the prosecution failed to prove that she received any
notice of dishonor of the subject checks:
In fact under the law, a drawer of a check is entitled to a notice of dishonor and only if said
drawer fails to make good the same within five (5) banking days from receipt of said notice that
bad faith or fraud is prima facie presumed to exist.
In the case at bar, no such notice of dishonor was afforded the accused. Hence, for lack of bad
faith or fraudulent intent, the accused may not be convicted of the offense charged.
Moreover, the accused may not be said to have knowledge[d] that she has no funds in the bank
at the time of issuance because when subject checks were borrowed from her, the obligation of
Boni Co and its maturity was not yet fixed.[9]
On January 25, 2001, the CA rendered a decision affirming the decision of the trial court.
WHEREFORE, in the light of the foregoing consideration, the assailed decision is hereby
AFFIRMED in toto. Without pronouncement as to costs.[10]
The CA ruled that the petitioner voluntarily and validly issued the blank checks. Thus, the
presumption is that the checks were issued for valuable consideration, notwithstanding the
claim that they were issued merely as a form of deposit or guaranty.
The CA stressed that the failure of the prosecution to prove that the petitioner was
motivated by fraud or deceit in issuing the said checks was of no moment since fraud is not an
element of violation of B.P. Blg. 22. The CA emphasized that the act of issuing a worthless
check is malum prohibitum; hence, fraud is not an essential element of the crime. However, the
CA failed to resolve the petitioners plea of acquittal for failure of the prosecution to prove that
she received any notices of dishonor of the subject checks from the private respondent or from
the drawee bank.
Dissatisfied, the petitioner filed a motion for reconsideration of the decision, but the CA
resolved on October 9, 2001 to deny the same.[11]
In the petition at bar, the petitioner ascribes several errors to the CA. However, this Court
believes that the threshold issue to be resolved is whether or not the petitioner is liable for
violation of B.P. Blg. 22, on her plea that:

In fact under the law, a drawer of a check is entitled to a notice of dishonor and only if said
drawer fails to make good the same within five (5) banking days from receipt of said notice that
bad faith or fraud is prima facie presumed to exist.
In the case at bar, no such notice of dishonor was afforded the accused. Hence, for lack of bad
faith or fraudulent intent, the accused may not be convicted of the offense charged.
Moreover, the accused may not be said to have knowledge that she has no funds in the bank at
the time of issuance because when subject checks were borrowed from her, the obligation of
Boni Co and its maturity was not fixed.
Under the foregoing facts and circumstances, it is unjust for the accused to be fined the total
sum of P191,175.45 as a penalty for alleged violation of Batas Pambansa Blg. 22.[12]
The petition is impressed with merit.
Section 1 of B.P. Blg. No. 22 provides that:
SECTION 1. Checks without sufficient funds.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
actually signed the check in behalf of such drawer shall be liable under this Act.
The law enumerates the elements of the offense penalized under B.P. Blg. 22 as follows:
(1) the drawing, making and issuance of any check to apply to account or for value; (b) the
knowledge of the maker, drawer or issuer that at the time of issue he does not have sufficient
funds in or credit with the drawee bank for the payment of such check in full upon its
presentment; and (3) subsequent dishonor of the check by the drawee bank for insufficiency of
funds or credit or dishonor for the same reason had not the drawer, without any valid cause,
ordered the bank to stop payment. The barefaced fact that the petitioner was the signatory to
the checks that were subsequently dishonored merely gave rise to a prima faciepresumption
that she knew of the insufficiency of funds; it did not render her automatically liable for violating

B.P. Blg. 22. The prosecution is burdened to prove all the elements of the crime beyond
reasonable doubt. [13]
To prove the first and third elements of the crime, Section 3 of the law provides that the
introduction in evidence of the unpaid or dishonored check, having the drawees refusal to pay
stamped or written thereon, or attached thereto, with the reason therefor as aforesaid shall
be prima facie evidence of the making or issuing of the said checks 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 thereto by the drawee on such dishonored checks.
[14]
It is difficult for the prosecution to prove the second element because knowledge involves a
state of mind.[15] Hence, Section 2 of the law provides that:
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 beprima
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 within five (5) banking days after receiving notice that such
check has not been paid by the drawee.[16]
In order to create the prima facie presumption, that the issuer knew of the insufficiency of
funds, it must be shown that he or she received a notice of dishonor and within five banking
days thereafter, failed to satisfy the amount of the check or shall arrange for its payment. [17] The
prosecution is burdened to prove the acts that gave rise to the prima facie presumption. On the
other hand, the drawer has the right to adduce evidence to rebut the same. It is important to
stress that this presumption is not conclusive, or one that forecloses or precludes the
presentation of evidence to the contrary.[18] Thus, the drawer of the check can still overturn
the prima facie presumption by proving that the holder thereof was paid the amount due
thereon, or that arrangements were made for payment in full by the drawee of the check within
five banking days after receipt of notice that such check has not been paid by the drawee bank.
In Lao vs. Court of Appeals,[19] this Court ruled that the full payment of the amount of the
check within five banking days from receipt of notice of dishonor is a complete defense. Hence,
the absence of a notice of dishonor necessarily deprives the drawer of the check the opportunity
to preclude criminal prosecution:
It has been observed that the State, under this statute, actually offers the violator a
compromise by allowing him to perform some act which operates to preempt the criminal action,
and if he opts to perform it the action is abated. This was also compared to certain laws
allowing illegal possessors of firearms a certain period of time to surrender the illegally
possessed firearms to the Government, without incurring any criminal liability. In this light, the
full payment of the amount appearing in the check within five banking days from notice of
dishonor is a complete defense. The absence of a notice of dishonor necessarily deprives an
accused an opportunity to preclude a criminal prosecution. Accordingly, procedural due process
clearly enjoins that a notice of dishonor be actually served on petitioner. Petitioner has a right to
demandand the basic postulates of fairness requirethat the notice of dishonor be actually

sent to and received by her to afford her the opportunity to avert prosecution under B.P. Blg. 22.
[20]

In Domagsang vs. Court of Appeals,[21] this Court held that a mere oral notice or demand to
pay is insufficient compliance with the requirements of the law:
Petitioner counters that the lack of a written notice of dishonor is fatal. The Court agrees.
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.
Evidently, the appellate court did not give weight and credence to the assertion that a demand
letter was sent by a counsel of the complainant because of the failure of the prosecution to
formally offer it in evidence. Courts are bound to consider as part of the evidence only those
which are formally offered for judges must base their findings strictly on the evidence submitted
by the parties at the trial. Without the written notice of dishonor, there can be no basis,
considering what has heretofore been said, for establishing the presence of actual knowledge
of insufficiency of funds.[22]
It is not enough for the prosecution to prove that a notice of dishonor was sent to the
drawee of the check. It must also 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.
As adverted to earlier, it is necessary in cases for violation of Batas Pambansa Blg. 22, that the
prosecution prove that the issuer had received a notice of dishonor. It is a general rule that
when service of notice is an issue, the person alleging that the notice was served must prove
the fact of service. (58 Am. Jur. 2d, Notice 45). The burden of proving notice rests upon the
party asserting its existence. Now, ordinarily, preponderance of evidence is sufficient to prove
notice. In criminal cases, however, the quantum of proof required is proof beyond reasonable
doubt. Hence, for Batas Pambansa Blg. 22 cases, there should be clear proof of
notice. Moreover, it is a general rule that, when service of a notice is sought to be made by
mail, it should appear that the conditions on which the validity of such service depends had
existence, otherwise the evidence is insufficient to establish the fact of service (C.J.S., Notice,
18). In the instant case, the prosecution did not present proof that the demand letter was sent
through registered mail, relying as it did only on the registry return receipt. In civil cases,
service made through registered mail is proved by the registry receipt issued by the mailing
office and an affidavit of the person mailing of facts showing compliance with Section 7 of Rule
13 (See Section 13, Rule 13, 1997 Rules of Civil Procedure). If, in addition to the registry
receipt, it is required in civil cases that an affidavit of mailing as proof of service be presented,

then with more reason should we hold in criminal cases that a registry receipt alone is
insufficient as proof of mailing. In the instant case, the prosecution failed to present the
testimony, or at least the affidavit, of the person mailing that, indeed, the demand letter was
sent.[23]
In this case, the prosecution failed to adduce in evidence any notice of dishonor of the three
postdated checks or any letter of demand sent to and received by the petitioner. The bare
testimony of Luis Go that he sent letters of demand to the petitioner notifying her of the dishonor
of her checks is utterly insufficient.
For failure of the prosecution to show that notices of dishonor of the three postdated checks
were served on the petitioner, or at the very least, that she was sent a demand letter notifying
her of the said dishonor, the prima faciepresumption under Section 2 of B.P. Blg. 22 that she
knew of the insufficiency of funds cannot arise. Thus, there can be no basis for establishing the
presence of actual knowledge of insufficiency of funds.
In light of such failure, we find and so declare that the prosecution failed to prove beyond
reasonable doubt all the elements of violation of B.P. Blg. 22. Hence, the need to reverse and
set aside the decisions of both the Court of Appeals and the trial court convicting the petitioner
of the crime of violation of B.P. Blg. 22.
However, we uphold the decision of the CA affirming the trial courts decision ordering the
petitioner to pay to the private respondent the total face value of the checks in the amount
ofP209,175.45. We stress that a check is an evidence of debt against the drawer, and although
may not be intended to be presented, has the same effect as an ordinary check, and if passed
upon to a third person, will be valid in his hands like any other check. [24] Hence, the petitioner is
obliged to pay to the private respondent Luis Go the said amount of P209,175.45 with 12% legal
interest per annum, from the filing of the information until the finality of this decision, the sum of
which, inclusive of interest, shall be subject thereafter to 12% per annum interest until the
amount due is fully paid, conformably to our ruling that when an obligation is breached, and it
consists in the payment of a sum of money, i.e. a loan or forbearance of money, the interest due
should be that which may have been stipulated in writing. In the absence of such stipulation, the
rate shall be 12% per annum computed from default, i.e. judicial or extrajudicial demand. [25] In
this case, the rate of interest was not stipulated in writing by the petitioner, the private
respondent and Boni Co. Thus, the applicable interest rate is 12% per annum.
WHEREFORE, the assailed January 25, 2001 Decision and October 9, 2001 Resolution of
the Court of Appeals in C.A-G.R. CR No. 17715 affirming the January 17, 1993 Decision of the
Regional Trial Court of Davao City, Branch 17, in Criminal Cases Nos. 30,806-93, 30,807-93
and 30,808-93 convicting the petitioner of violation of B.P. Blg. 22 are hereby REVERSED and
SET ASIDE. Petitioner Evangeline Cabrera is ACQUITTED of violations of B.P. Blg. 22 on the
ground that her guilt for the said crimes has not been proved beyond reasonable doubt. The
petitioner is hereby directed to pay to the private respondent the total amount of P209,175.45 at
12% interest per annum from the filing of the Informations until the finality of this Decision, the
sum of which, inclusive of the interest, shall be subject thereafter to 12% per annum interest
until the amount due is fully paid. Costs de oficio.

SO ORDERED.
RICARDO SUAREZ, petitioner,
vs.
PEOPLE OF THE PHILIPPINES and A.H. SHOPPERS MART, INC., respondents.
DECISION
PUNO, C.J.:
This Petition for Review on Certiorari assails the Decision1 and Resolution2 of the Court of
Appeals, dated November 21, 2005 and April 10, 2006 respectively, in CA-G.R. SP No. 00284.
The Court of Appeals set aside the Regional Trial Courts (RTCs) Omnibus Decision3 dated
August 30, 2004 and Order4 dated September 13, 2004, and reinstated the Municipal Trial Court
in Cities (MTCCs) Joint Decision5 dated April 23, 2004 in Criminal Case Nos. 14988 and
14989. The MTCC found petitioner Ricardo Suarez guilty of two (2) counts of violation of Batas
Pambansa (B.P.) Blg. 22.
Petitioner is Ricardo Suarez, the owner of a grocery store, Suarez Commercial. Respondent
A.H. Shoppers Mart, Inc. (Shoppers Mart) is a business establishment engaged in operating a
grocery and department store.
Petitioner opened a credit line to purchase goods with Shoppers Mart.6 As payment for the
goods, petitioner issued two postdated checks payable to the order of Shoppers Mart: (1)
Development Bank of the Philippines (DBP) Check No. 0008784 dated September 18, 1998 for
the amount of PhP 82,812.00; and (2) DBP Check No. 0008777 dated September 26, 1998 for
the amount of PhP 75,000.00.7 Shoppers Mart deposited the checks. However, DBP
dishonored the checks for having been drawn against a closed account.8 Shoppers Mart sent
the petitioner a demand letter dated March 22, 2002 to pay for the value of the checks, but the
petitioner failed to make payment.9
Two informations for violation of B.P. Blg. 22 were filed against the petitioner before the
MTCC.10 Both informations are similarly worded except with respect to the check number,
amount involved, and date corresponding to the checks issuance. The information in Criminal
Case No. 14988 reads as follows:
That, on or about the 18th day of September, 1998, in the City of Tagbilaran, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused, knowing
fully and well that he did not have sufficient funds deposited with the bank, did, then and
there feloniously make out and issue Development Bank of the Philippines Check No.
0008784 in the amount of EIGHTY TWO THOUSAND AND EIGHT H/UNDRED
TWELVE PESOS (P 82,812.00), Philippine Currency, drawn against Development Bank
of the Philippines (DBP) Tagbilaran City Branch, Tagbilaran City, and to pay Shoppers
Mart, and thereafter, did, then and there willfully, unlawfully and feloniously pass on, give
and deliver the same to Shoppers Mart, in payment of a certain obligation; however,
upon presentment of the check to the drawee bank for encashment or payment within a
period of ninety (90) days from the date appearing thereon, the same was dishonored

and refused payment for the reason "ACCOUNT CLOSED" and the accused neither paid
nor made arrangement with the drawee bank within five (5) banking days from receipt of
notice of non-payment, to the damage and prejudice of said Shoppers Mart, in the
amount to be proved during the trial of the case.
Acts committed contrary to the provisions of Batas Pambansa Blg. 22.11
Criminal Case Nos. 14988 and 14989 were consolidated and jointly tried. When arraigned,
petitioner pleaded not guilty to the charges against him.12 During trial, the prosecution presented
one witness, Dolores Huan Agbayani, the Collection Manager of Shoppers Mart.13 Petitioner
filed a Demurrer to Evidence without leave of court, on the ground that no notice of dishonor
had been sent to and received by him.14 On January 26, 2004, the MTCC denied the
Demurrer.15
On April 23, 2004, the MTCC found petitioner guilty of violating B.P. Blg. 22 in both cases. The
dispositive portion of its Joint Decision states:
WHEREFORE, the Court finds accused Ricardo Suarez GUILTY beyond reasonable
doubt in each of the two (2) counts of Violation of Batas Pambansa Bilang 22 as charged
in the two (2) informations and hereby imposes a penalty of FINE of:
1. EIGHTY FIVE THOUSAND PESOS (P 85,000.00) in Crim. Case No. 14988;
2. SEVENTY FIVE THOUSAND PESOS (P 75,000.00) in Crim. Case No. 14989,
with subsidiary imprisonment in case of insolvency and to pay costs in each case.
Accused is likewise ordered to pay complainant the total amount of P157,812.00
representing the total face value of the two (2) dishonored checks plus legal interest of
six (6%) percent per annum from the filing of these cases on July 12, 2002 until finality of
this judgment and twelve (12%) percent per annum from finality of this judgment until full
payment and the sum of P5,000.00 as attorneys fees and litigation expenses.
SO ORDERED.16
Petitioner appealed to the RTC, which ruled that the provision in B.P. Blg. 22 regarding criminal
liability runs counter to the constitutional provision against imprisonment for nonpayment of a
debt. The RTC modified the MTCC decision, viz:
WHEREFORE, in view of all the foregoing, the assailed Decision is modified and
another judgment is hereby entered absolving herein accused Ricardo Suarez from
criminal liability under BP Blg. 22. However, the civil liability imposed upon him in the
Decision is hereby affirmed.17
On November 9, 2004, respondents assailed the RTC decision before the Court of
Appeals.18 The Court of Appeals set aside the RTC decision and reinstated the MTCC decision,

holding that the RTC decision is void for absolving the petitioner of criminal liability despite a
finding that he violated B.P. Blg. 22.19
Petitioner filed a Motion for Reconsideration before the Court of Appeals, reiterating the
argument that the prosecution failed to prove that he had been sent and received a notice of
dishonor, which is essential to support a conviction of B.P. Blg. 22.20 The Court of Appeals
denied the motion.21
Petitioner insists on the same argument before this Court. The Solicitor General supports the
petitioners argument and recommends the petitioners acquittal for violation of B.P. Blg.
22.22 Thus, the sole issue for resolution is whether the prosecution proved the element of
knowledge of insufficiency of funds to hold the petitioner liable for violation of B.P. Blg. 22.
To commit a violation of B.P. Blg. 22,23 the following elements must be present and proved:
1. the making, drawing and issuance of any check to apply for account or for value;
2. the knowledge of the maker, drawer, or issuer that at the time of issue he does not
have sufficient funds in or credit with the drawee bank for the payment of such check in
full upon its presentment; and
3. the subsequent dishonor of the check by the drawee bank for insufficiency of funds or
credit or dishonor for the same reason had not the drawer, without any valid cause,
ordered the bank to stop payment.24
B.P. Blg. 22 creates a presumption of knowledge of insufficiency of funds under the following
circumstances:
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 or credit with such bank, when presented within ninety 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 within five (5) banking
days after receiving notice that such check has not been paid by the drawee.25
The presumption arises when it is proved that the issuer had received this notice, and that
within five banking days from its receipt, he failed to pay the amount of the check or to make
arrangements for its payment.26 The full payment of the amount appearing in the check within
five banking days from notice of dishonor is a complete defense.27 Accordingly, procedural due
process requires that a notice of dishonor be sent to and received by the petitioner to afford the
opportunity to avert prosecution under B.P. Blg. 22.28
The evidence shows that the prosecution proved that a notice of dishonor was sent to petitioner
through registered mail. The prosecution presented a copy of the demand letter and properly
authenticated the registry return receipt.29However, 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."30
A review of the records shows that the prosecution did not prove that the petitioner received the
notice of dishonor. Registry return cards must be authenticated to serve as proof of receipt of
letters sent through registered mail. Thus, we held:
it must appear that the same was served on the addressee or a duly authorized agent
of the addressee. In fact, the registry return receipt itself provides that [a] registered
article must not be delivered to anyone but the addressee, or upon the addressees
written order, in which case the authorized agent must write the addressees name on
the proper space and then affix legibly his own signature below it.31
The failure of the prosecution to properly authenticate and identify the signature on the registry
return card as that of the petitioner is evident from the testimony of its sole witness, the
Collection Manager of Shoppers Mart:
Q: The return card evidencing actual receipt by the defendant, it is also included in
Branch 2, City Court?
A:

Yes, sir.

Q:

I show you a return receipt, is this the return receipt you are referring to?

A:

Yes, sir.32

The presentation of the registry card, with an unauthenticated signature, does not meet the
required proof beyond reasonable doubt that the petitioner received such notice, especially
considering that he denied receiving it.33 As there is insufficient proof that the petitioner received
notice of dishonor, the presumption that he had knowledge of insufficiency of funds cannot
arise.
IN VIEW WHEREOF, the assailed November 21, 2005 Decision and April 10, 2006 Resolution
of the Court of Appeals in CA-G.R. SP No. 00284, reinstating the April 23, 2004 Joint Decision
of the MTCC in Tagbilaran City, Branch 1, in Criminal Case Nos. 14988 and 14989 convicting
the petitioner of two (2) counts of violation of B.P. Blg. 22, are MODIFIED. Petitioner is
ACQUITTED on reasonable doubt. However, the civil liability imposed on petitioner in the Joint
Decision of the MTCC is AFFIRMED.
SO ORDERED.
JOSEPHINE DOMAGSANG, petitioner, vs. THE HONORABLE COURT OF APPEALS and
PEOPLE OF THE PHILIPPINES, respondents.
DECISION
VITUG, J.:

Petitioner was convicted by the Regional Trial Court of Makati, Branch 63, of having
violated Batas Pambansa ("B.P.")Blg. 22 (Anti-Bouncing Check Law), on eighteen (18) counts,
and sentenced to "suffer the penalty of One (1) Year imprisonment for each count (eighteen [18]
counts)." Petitioner was likewise ordered to pay the private complainant the amount of
P573,800.00.[1] The judgment, when appealed to the Court of Appeals (CA-G.R. CR No.
18497), was affirmed in totoby the appellate court.
It would appear that petitioner approached complainant Ignacio Garcia, an Assistant Vice
President of METROBANK, to ask for financial assistance. Garcia accommodated petitioner
and gave the latter a loan in the sum of P573,800.00. In exchange, petitioner issued and
delivered to the complainant 18 postdated checks for the repayment of the loan. When the
checks were, in time, deposited, the instruments were all dishonored by the drawee bank for
this reason: Account closed. The complainant demanded payment allegedly by calling up
petitioner at her office. Failing to receive any payment for the value of the dishonored checks,
the complainant referred the matter to his lawyer who supposedly wrote petitioner a letter of
demand but that the latter ignored the demand.
On 08 May 1992, Criminal Case No. 92-4465 was lodged against petitioner before the
Regional Trial Court ("RTC") of Makati. The Information read:
"That on or about the 24th day of June, 1991, in the Municipality of Makati, Metro Manila,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did
then and there willfully, unlawfully and feloniously make out, draw and issue to complainant
Ignacio H. Garcia, Jr., to apply on account or for value the dated check/described below:
"Check No.

149900

Drawn Against

Traders Royal Bank

In the Amount of

P50,000.00

Dated/Postdated

June 24, 1991

Payable to

Ignacio H. Garcia, Jr.

"said accused well knowing that at the time of issue thereof, she did not have sufficient
funds in or credit with the drawee bank for the payment in full of the face amount of such
check upon its presentment, which check when presented for payment within ninety (90)
days from the date thereof was subsequently dishonored by the drawee bank for the
reason `ACCOUNT CLOSED' and despite receipt of notice of such dishonor, the accused
failed to pay said payee the face amount of said check or to make arrangement for full
payment thereof within five (5) banking days after receiving notice.
"CONTRARY TO LAW."[2]

Subsequent Informations, docketed Criminal Cases No. 92-4466 to No. 92-4482, inclusive,
similarly worded as in Criminal Case No. 92-4465 except as to the dates, the number, and the
amounts of the checks hereunder itemized "Check Number

Dated/Postdated

Amount

TRB No. 161181

July 18, 1991

P6,000.00

TRB No. 149906

July 24, 1991

3,000.00

No. 182074

July 30, 1991

29,700.00

No. 182084

August 30, 1991

No. 182078

September 15, 1991

6,000.00

No. 161183

September 18, 1991

6,000.00

No. 161177

September 18, 1991

100,000.00

No. 182085

September 30, 1991

9,000.00

No. 182079

October 15, 1991

6,000.00

No. 182086

October 30, 1991

10,500.00

No. 182080

November 15, 1991

6,000.00

No. 182087

November 30, 1991

11,400.00

No. 182081

December 15, 1991

6,000.00

No. 182082

December 15, 1991

100,000.00

No. 182088

December 30, 1991

12,000.00

No. 182089

December 30, 1991

100,000.00

No. 182090

December 30, 1991

100,000.00"[3]

9,300.00

were also filed against petitioner. The cases were later consolidated and jointly tried following
the "not guilty" plea of petitioner when arraigned on 02 November 1992.
On 07 September 1993, petitioner filed a demurrer to the evidence, with leave of court,
premised on the absence of a demand letter and that the checks were not issued as payment
but as evidence of indebtedness of petitioner or as collaterals of the loans obtained by
petitioner. Opposed by the prosecution, the demurrer was denied by the trial court. In the

hearing of 17 February 1994, petitioner, through counsel, waived her right to present evidence
in her defense. Relying solely then on the evidence submitted by the prosecution, the lower
court rendered judgment convicting petitioner. The decision, as heretofore stated, was affirmed
by the Court of Appeals in its decision of 15 February 1999. Reconsideration was also denied in
the resolution, dated 09 July 1999, of the appellate court.
Hence, the instant petition where petitioner raised the following issues for resolution by the
Court "1. Whether or not an alleged verbal demand to pay sufficient to convict herein petitioner for the
crime of violation of B.P. Blg. 22;
"2. Whether or not the Honorable Court of Appeals committed reversible error when it affirmed
the judgment of conviction rendered by the trial court, on the ground that a written notice of
dishonor is not necessary in a prosecution for violation of B.P. Blg. 22, contrary to the
pronouncement of the Supreme Court in the case of Lao vs. Court of Appeals, 274 SCRA 572;
(and)
"3. Whether or not the Honorable Court of Appeals erred in considering the alleged written
demand letter, despite failure of the prosecution to formally offer the same."[4]
The pertinent provisions of B.P. Blg. 22 "Bouncing Checks Law," provide:
"SECTION 1. Checks without sufficient funds. 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 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
actually signed the check in behalf of such drawer shall be liable under this Act.
"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 within five (5) banking days after receiving notice that such
check has not been paid by the drawee.
"SEC. 3. Duty of drawee; rules of evidence. 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 written,
printed or stamped in plain language thereon, or attached thereto, the reason for drawee's
dishonor or refusal to pay the same: Provided, 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. 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 thereon, 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.
"Notwithstanding receipt of an order to stop payment, the drawee shall state in the notice that
there were no sufficient funds in or credit with such bank for the payment in full of such check, if
such be the fact."[5] (Underscoring supplied.)
The law enumerates the elements of the crime to be (1) the making, drawing and issuance
of any check to apply for account or for value; (2) the knowledge of the maker, drawer, or issuer
that at the time of issue he does not have sufficient funds in or credit with the drawee bank for
the payment of the check in full upon its presentment; and (3) the subsequent dishonor of the
check by the drawee bank for insufficiency of funds or credit or dishonor for the same reason
had not the drawer, without any valid cause, ordered the bank to stop payment.[6]
There is deemed to be a prima facie evidence of knowledge on the part of the maker,
drawer or issuer of insufficiency of funds in or credit with the drawee bank of the check issued if
the dishonored check is presented within 90 days from the date of the check and the maker or
drawer fails to pay thereon or to make arrangement with the drawee bank for that purpose. The
statute has created the prima facie presumption evidently because "knowledge" which involves
a state of mind would be difficult to establish. [7] The presumption does not hold, however, when
the maker, drawer or issuer of the check pays the holder thereof the amount due thereon or
makes arrangement for payment in full by the drawee bank of such check within 5 banking
days after receiving notice that such check has not been paid by the drawee bank.
In Lao vs. Court of Appeals,[8] this Court explained:
x x x. Section 2 of B.P. Blg. 22 clearly provides that this presumption arises not from the mere
fact of drawing, making and issuing a bum check; there must also be a showing that, within five
banking days from receipt of the notice of dishonor, such maker or drawer failed to pay the
holder of the check the amount due thereon or to make arrangement for its payment in full by
the drawee of such check.
It has been observed that the State, under this statute, actually offers the violator `a
compromise by allowing him to perform some act which operates to preempt the criminal action,
and if he opts to perform it the action is abated. This was also compared `to certain laws

allowing illegal possessors of firearms a certain period of time to surrender the illegally
possessed firearms to the Government, without incurring any criminal liability. In this light, the
full payment of the amount appearing in the check within five banking days from notice of
dishonor is a `complete defense. The absence of a notice of dishonor necessarily deprives an
accused an opportunity to preclude a criminal prosecution. Accordingly, procedural due process
clearly enjoins that a notice of dishonor be actually served on petitioner. Petitioner has a right to
demand and the basic postulates of fairness require that the notice of dishonor be actually
sent to and received by her to afford her the opportunity to avert prosecution under B.P. Blg.
22.[9]
In the assailed decision, the Court of Appeals predicated the conviction of petitioner on the
supposed fact that petitioner was informed of the dishonor of the checks through verbal notice
when the complainant had called her up by telephone informing her of the dishonor of the
checks and demanding payment therefor. The appellate court said:
"The maker's knowledge of the insufficiency of his funds is legally presumed from the dishonor
of his check (People vs. Laggui, 171 Phil. 305). The law does not require a written notice of the
dishonor of such check.
"In the instant case, appellant had knowledge that her checks were dishonored by the bank
when complainant Garcia made several oral demands upon her to pay the value of the checks
in the amount of P573,800.00. Despite said demands, appellant failed and refused to pay the
same. Moreover, complaining witness further testified that his lawyer made a written demand
upon appellant but the latter ignored said demand (tsn., May 27, 1993, pp. 13-14). In this
connection, appellant waived her right to present evidence or rebut complainant's testimony that
he made oral demands upon appellant to make good the dishonored checks and his lawyer
wrote her a demand letter.
"Likewise, appellant did not object to the admission of the complainant's testimony with regard
to the written demand by moving that it be stricken off the record for being hearsay, hence, the
same is admissible evidence. In the case of People vs. Garcia, 89 SCRA 440, the Supreme
court ruled:
"`x x x (It) must be noted that neither the defendant nor his counsel below objected to the
admission of the testimonies which are now being assailed as hearsay. This is fatal to
defendant-appellant's present posture since the failure to object to hearsay evidence constitutes
a waiver of the x x right to cross-examine the actual witness to the occurrence, rendering the
evidence admissible.'"[10]
Petitioner counters that the lack of a written notice of dishonor is fatal. The Court agrees.
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 factshall always be explicitly stated
in the notice of dishonor or refusal,"[11] 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.[12] The consistent rule is that penal statutes have to be
construed strictly against the State and liberally in favor of the accused.[13]
Evidently, the appellate court did not give weight and credence to the assertion that a
demand letter was sent by a counsel of the complainant because of the failure of the
prosecution to formally offer it in evidence. Courts are bound to consider as part of the
evidence only those which are formally offered[14]for judges must base their findings strictly on
the evidence submitted by the parties at the trial. [15] Without the written notice of dishonor, there
can be no basis, considering what has heretofore been said, for establishing the presence of
"actual knowledge of insufficiency of funds."[16]
The prosecution may have failed to sufficiently establish a case to warrant conviction,
however, it has clearly proved petitioner's failure to pay a just debt owing to the private
complainant. The total face value of the dishonored checks, to witCheck Number

Dated/Postdated

Amount

TRB No. 149900

June 24, 1991

P50,000.00

TRB No. 161181

July 18, 1991

6,000.00

TRB No. 149906

July 24, 1991

3,000.00

No. 182074

July 30, 1991

29,700.00

No. 182084

August 30, 1991

1,300.00

No. 182078

September 15, 1991

6,000.00

No. 161183

September 18, 1991

6,000.00

No. 161171

September 18, 1991

100,000.00

No. 182085

September 30, 1991

9,900.00

No. 182079

October 15, 1991

6,000.00

No. 182086

October 30, 1991

10,500.00

No. 182080

November 15, 1991

6,000.00

No. 182087

November 30, 1991

11,400.00

No. 182081

December 15, 1991

6,000.00

No. 182082

December 15, 1991

100,000.00

No. 182088

December 30, 1991

12,000.00

No. 182089

December 30, 1991

100,000.00

No. 182090

December 30, 1991

100,000.00"[17]

or the sum of P563,800, has yet to be made good by petitioner. This amount, with 12% legal
interest per annum from the filing of the information until the finality of this decision, must be
forthwith settled.
WHEREFORE, the decision of the Court of Appeals is MODIFIED. Petitioner Josephine
Domagsang is acquitted of the crime charged on reasonable doubt. She is ordered, however, to
pay to the offended party the face value of the checks in the total amount of P563,800.00 with
12% legal interest, per annum, from the filing of the informations until the finality of this decision,
the sum of which, inclusive of the interest, shall be subject thereafter to 12%, per annum,
interest until the due amount is paid. Costs against petitioner.
SO ORDERED.

POSSIBLE DEFENSES
SUAREZ vs. PEOPLE, TAN vs. PCIB
CARINO vs. DE CASTRO (2008)
DECISION
YNARES-SANTIAGO, J.:

This petition for review on certiorari seeks to annul and set aside the August 18, 2006
Decision[1] of the Court of Appeals in CA-G.R. CR No. 29523 dismissing the petition as well as
the December 29, 2006 Resolution[2]denying the Motion for Reconsideration.
Petitioner Carmencita G. Cario filed a complaint-affidavit for violation of Batas
Pambansa Blg. 22 (BP 22) against respondent Merlin de Castro before the Office of the City
Prosecutor of Manila. After conducting preliminary investigation, Assistant City Prosecutor
Manuel B. Sta. Cruz, Jr., issued a Resolution finding prima facie evidence and recommending
respondents indictment. Accordingly, respondent was charged with five (5) counts of violation
of BP 22 before the Metropolitan Trial Court of Manila, Branch 13.
During arraignment, respondent manifested her intention to file a Motion for Preliminary
Determination of Existence of Probable Cause which was granted. Accordingly, respondents

arraignment was deferred. Petitioner was required to file comment on the Motion for Preliminary
Determination of Existence of Probable Cause. However, instead of a comment, petitioner filed
a motion for extension which was denied for being a prohibited pleading under the Rule on
Summary Procedure.
In an Order[3] dated August 30, 2004, the Metropolitan Trial Court of Manila, Branch 13
found that the checks were issued by respondent without valuable consideration; that petitioner
was not authorized to collect rental payments from respondent; and that consequently,
respondent can legally refuse payment on the ground that said checks were issued without
valuable and legal consideration. The dispositive portion of the Order reads:
WHEREFORE, finding no probable cause against the accused for
violation of Batas Pambansa Bilang 22, the instant cases are DISMISSED.
IT IS SO ORDERED.[4]
Petitioner appealed to the Regional Trial Court. In a Decision[5] dated February 28,
2005, the Regional Trial Court of Manila, Branch 40, affirmed the Decision of the court a
quo and dismissed the appeal for lack of merit. It held that petitioner failed to controvert the
Joint-Affidavit executed by the owners of the property that they did not authorize petitioner to
lease their property and to collect rentals thereon. Hence, the checks were issued for a nonexisting account or without legal and valuable consideration.
Petitioner filed a motion for reconsideration but it was denied by the Regional Trial Court
in an Order[6] datedAugust 15, 2005.
Thereafter, petitioner, through counsel and with the conformity of Asst. City Prosecutor,
Sawadjaan Issan, filed a petition for review before the Court of Appeals. However, in the
assailed Decision dated August 18, 2006, the Court of Appeals dismissed the petition because it
was filed only by the private prosecutor and not by the Office of the Solicitor General as
mandated by law. The appellate court ruled thus:
We note that the instant petition for review suffers from a basic infirmity of
having been filed merely by the private prosecutor or counsel of the private
complainant, though with the conformity of the Assistant City Prosecutor, and not
by the authorized representative of the People of the Philippines the Solicitor
General. Hence, it is dismissible on said ground alone.

We emphasize that the authority to represent the State in appeals of


criminal cases before the Court of Appeals and the Supreme Court is solely
vested in the Office of the Solicitor General. Section 35(1), Chapter 12, Title III of
Book IV of the 1987 Administrative Code explicitly provides, viz.:
SEC. 35. Powers and Functions. The Office of the
Solicitor General shall represent the Government of
the Philippines, its agencies and instrumentalities and its officials
and agents in any litigation, proceeding, investigation or matter
requiring the services of lawyers. x x x It shall have the following
specific powers and functions:
(1)
Represent the Government in the Supreme Court
and the Court of Appeals in all criminal proceedings; represent the
Government and its officers in the Supreme Court and Court of
Appeals, and all other courts or tribunals in all civil actions and
special proceedings in which the Government or any officer
thereof in his official capacity is a party.
Jurisprudence has been consistent on this point so much so that in
the City Fiscal of Tacloban vs. Espina, it was held:
Under Section 5, Rule 110 of the Rules of Court all
criminal actions commenced by complaint or information shall be
prosecuted under the direction and control of the fiscal. The fiscal
represents the People of the Philippinesin the prosecution of
offenses before the trial courts at the metropolitan trial courts,
municipal trial courts, municipal circuit trial courts and the regional
trial courts. However, when such criminal actions are brought to
the Court of Appeals or (to) this Court, it is the Solicitor General
who must represent the People of the Philippines not the fiscal.
As succinctly observed by the Solicitor General, petitioner
has no authority to file the petition in this Court. It is only the
Solicitor General who can bring or defend such actions on behalf
of the Republic of the Philippinesor the People of
the Philippines. And such actions not initiated by the Solicitor
General should be summarily dismissed.[7]
Petitioner filed a Motion for Reconsideration. OnOctober 3, 2006, the Court of Appeals
required the Office of the Solicitor General (OSG) to file comment.[8]
In its Comment,[9] the OSG noted thus:
1.
A thorough examination of petitioners Motion for Reconsideration
and an assiduous re-evaluation of the records and the applicable laws and
jurisprudence reveal that there is no basis, in fact or in law, there being no new
and substantial matter not already considered and ruled upon by this Honorable

Court is pleaded that would warrant a re-examination, much less, the


modification or reversal of the Decision dated August 18, 2006 of this Honorable
Court which dismissed petitioners petition for review dated August 31,
2005. Said petition was filed merely by the private prosecutor, and not by the
authorized representative of the People of the Philippines the Office of the
Solicitor General which is solely vested with the authority to represent the People
in appeals of criminal cases before the Court of Appeals and the Supreme Court,
pursuant to Section 35(1), Chapter 12, Title III of Book IV of the 1987
Administrative Code.
2.
Petitioners Motion for Reconsideration is just a reiteration and
rehash of the errors assigned and discussed in the petition for review
dated August 31, 2005, which were already resolved in the Decision sought to be
reconsidered. It would be a useless ritual of this Honorable Court to reiterate
itself.
3.
Considering that this Honorable Court had carefully scrutinized
and studied the records as well as weighed and assessed the arguments of both
parties before rendering the assailed Decision, petitioners motion has no leg to
stand on. Hence, this Honorable Court is correct in dismissing the petition.[10]
On December 29, 2006, the Court of Appeals denied the Motion for Reconsideration;
hence, the instant petition raising the following issues:
I.
THE COURT OF APPEALS ERRED IN ISSUING THE DECISION
PROMULGATED
ON AUGUST
18,
2006 AND
THE
RESOLUTION
PROMULGATED ON DECEMBER 29, 2006 IN NOT RECTIFYING THE ERROR
OF LAW COMMITTED BY THE BRANCH 40 REGIONAL TRIAL
OF MANILA AND BRANCH 13 OF THE METROPOLITAN TRIAL COURT OF
MANILA.
II.
THE ABOVE-MENTIONED DECISION AND RESOLUTION OF THE COURT OF
APPEALS ARE NOT IN ACCORD WITH LAW AND APPLICABLE
JURISPRUDENCE OF THIS MOST HONORABLE COURT.[11]

The petition lacks merit.


In criminal proceedings on appeal in the Court of Appeals or in the Supreme Court, the
authority to represent the People is vested solely in the Solicitor General. Under Presidential
Decree No. 478, among the specific powers and functions of the OSG was to represent the
government in the Supreme Court and the Court of Appeals in all criminal proceedings. This
provision has been carried over to the Revised Administrative Code particularly in Book IV, Title

III, Chapter 12 thereof.[12] Without doubt, the OSG is the appellate counsel of the People of
the Philippines in all criminal cases.[13]
Although the petition for review before the Court of Appeals was filed with the conformity
of the Assistant City Prosecutor, such conformity is insufficient, as the rules and jurisprudence
mandate that the same should be filed by the Solicitor General.
While a private prosecutor may be allowed to intervene in criminal proceedings on
appeal in the Court of Appeals or the Supreme Court, his participation is subordinate to the
interest of the People, hence, he cannot be permitted to adopt a position contrary to that of the
Solicitor General. To do so would be tantamount to giving the private prosecutor the direction
and control of the criminal proceeding, contrary to the provisions of law.[14]
In the instant case, the Solicitor General opined that petitioner had no legal standing to
file the petition for review and that the Court of Appeals correctly dismissed the petition. As
such, the Assistant City Prosecutor or the private prosecutor cannot take a contrary view.
We are cognizant of our ruling in the cases of Perez v. Hagonoy,[15] Mobilia Products,
Inc. v. Umezawa,[16]People v. Santiago,[17] and Narciso v. Sta. Romana-Cruz,[18] where we held
that only the OSG can bring or defend actions on behalf of the Republic or represent the People
or state in criminal proceedings pending in the Supreme Court and the Court of Appeals. At the
same time, we acknowledged in those cases that a private offended party, in the interest of
substantial justice, and where there appears to be a grave error committed by the judge, or
where there is lack of due process, may allow and give due course to the petition
filed. However, the special circumstances prevailing in the abovementioned cases are not
present in the instant case. In those cases, the petitioners availed of petition for certiorari under
Rule 65. In the instant case, the petition was filed under Rule 45. Moreover, both the
Metropolitan Trial Court and the Regional Trial Court found that petitioner was not duly
authorized by the owner of the subject property to collect and receive rentals thereon. Thus, not
only were the checks without valuable consideration; they were also issued for a non-existing
account. With these undisputed findings, we cannot reconcile petitioners allegation that she is
the aggrieved party. Finally, petitioner cannot validly claim that she was denied due process
considering that she availed of every opportunity to present her case. Thus, we find no grave
abuse of discretion on the part of the lower courts in dismissing the complaints.

WHEREFORE, the petition for review is DENIED. The Decision of the Court of Appeals
dated August 18, 2006 dismissing the petition as well as the Resolution datedDecember 29,
2006 denying the motion for reconsideration, are AFFIRMED.
SO ORDERED.