Вы находитесь на странице: 1из 13

Antecedents of Bouncing Check Law

Before the enactment of Batas Pambansa Blg. 22 on April 3, 1979, provisions already
existed penalizing the issuance of bouncing or rubber checks. Article 315 of the Revised Penal
Code punishes a person who shall defraud another by postdating a check or issuing a check in
payment of an obligation, the offender knowing that at the time he had no funds in the banks, or
the funds deposited by him are not sufficient to cover the amount of the check without informing
the payee of such circumstances. This provision was construed to exclude checks issued in
payment of pre-existing obligations, the rationale being that in estafa, the deceit causing the
defraudation must be prior to or simultaneous with the commission of the deceit. In solving the
problem of how to bring checks issued on payment pre-existing obligations within the ambit of
Art. 315, the legislature amended the law by enacting Republic Act No. 4885, which reads:

However, the Supreme Court construed said amendment as excluding checks issued in payment
of pre-existing obligations. This prompted the Interim Batasang Pambansa to enact Batas
Pambansa Blg.22, otherwise known as the Bouncing Check Law, and considered the issuance of
a bouncing check malum prohibitum, with the purpose of curbing the practice of issuing checks
which are worthless, irrespective of whether or not the check is in payment of pre-existing
obligations and the gravemen of which being proscribing the act of making and issuing a
worthless check and not the non-payment of an obligation. The constitutionality of the Bouncing
Check Law was challenged in Lozano v. Martines. The Court upheld its constitutionality.
In the issuance of a check, there is criminal liability:

A. For Estafa

Estafa under Article 315, 2 (d) of the Revised Penal Code is committed by postdating a check,
or issuing a check in payment of an obligation when the offender had no funds in the bank, or his
funds deposited therein were not sufficient to cover the amount of the check. The failure of the
drawer of the check to deposit the amount necessary to cover the check within three (3) days
from receipt of notice from the bank and/or the payee or holder that said check has been
dishonored for lack or insufficiency of funds shall be prima facie evidence of deceit constituting
false pretense or fraudulent act.

The elements of estafa under Art. 315, 2 (d), Revised Penal Code, are the following:

1. Postdating or issuing checks in payment of an obligation contracted at the time the checks
were issued;
2. Lack or insufficiency of funds to cover said checks;
3. Damage capable of pecuniary estimation to the payee therof.1

In People v. Holzer,2 the Court held that in view of the amendment of Article 315 (2) (d) of the
Revised Penal Code by Republic Act No. 4885, the following are no longer elements of estafa:
1. Knowledge of the drawer that he has no funds in the bank or that the funds deposited by
him are not sufficient; and
2. Failure to inform the payee of such circumstance.

However, where the complainant knew that the check was not funded at the time it was issued,
the element of deceit is absent, entitling the accused to acquittal.3

1 People v. Gullion, 349 SCRA 610 (2001)

2 336 SCRA 319 (2000)

3 Pacheco v. CA, 319 SCRA 595 (1999)


B. For B.P. 22
Under the 1st paragraph of Section 1 of B.P. 22, a violation is committed by a person who issues
any check to apply on account or for value knowing at the time of issue that he/she does not have
sufficient funds in or credit with the drawee bank for the payment of the 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 issuer, without
any valid reason, ordered the bank to stop payment.
The elements or requisites of the crime under Par. 1 of B.P. 22 are:
(1) issuance of any check;
(2) on account or for value;
(3) the issuer knows that at the time of issue, he/she does not have sufficient funds in or credit
with the drawee bank for the payment of the check in full upon its presentation;
(4) the check is thereafter dishonored for insufficiency of funds or credit or would have been
dishonored for the same reason, had the issuer, without valid reason, stopped its payment and
(5) conformably to Section 2 of the statute, the check is presented within ninety (90) days from
its date.

In this offense, the check is worthless at the very moment that it is issued since the issuer
had no sufficient funds in or credit with the drawee bank at that time. The issuer or drawer of the
check new of such circumstance so that the law directs him to deposit sufficient funds in or
arrange enough credit with the drawee bank to cover the full value of the check when encashed.

On the other hand, the 2nd paragraph of section 1 of B.P. 22, punishes a person who has
sufficient funds or credit when issuing the check, but fails to keep sufficient funds in or credit
with the bank to cover its full amount when presented for payment within (90) days from the
date appearing on the check, for which reason, the check is dishonored by the drawee bank.
The elements of the crime under Par. 2 of B.P. 22 are:
(1) the drawer of the check has sufficient funds in or credit with the drawee bank;
(2) he/she makes and issues a check;
(3) but fails to keep sufficient funds in or credit with the drawee bank to cover the full amount of
the check causing its dishonor and
(4) when presented within ninety (90) days from the date appearing thereon.4

4 Notes and Comments on the Bouncing Checks Law, Judge David G. Nitafan
In Baustista v. CA, the Court compared the two acts or ways of committing violation of BP 22,
as follows

All of the foregoing requisites must concur to bring about the conviction of the accused drawer
of the check.

Elements of first way of committing the offense

The first element refers to the making, drawing or issuance of a check. A drawer of a
check is the person who issues it. As defined by Section 191 of the Negotiable Instruments Law,
in relation to BP 22, issue means the first delivery of a check, complete in form, to a person
who takes it as a holder, and who is a payee in possession thereof. Delivery of a check signifies
transfer of possession, whether actual or constructive, from one person to another with intent to
transfer title thereto.5 Section 185 of the NIL defines a check as a bill of exchange drawn on a
bank payable on demand. This means that the application of BP 22 always involves the
participation of a bank as drawee of the check and the law imposes a duty of what it should state
in the notice of dishonor.

It has been held that the payee of a check need not be the oblige of the obligation in
consideration for which the check has been issued in favor of a person who used it to pay his
obligation to another person, to hold the drawer liable for the dishonor of the check.6

The check is issued to apply on account or for value. Generally, account includes debt,
transaction, claim or demand growing out of contract, and obligation to pay. 7 The phrase value
refers to any consideration sufficient to support a simple contract, as well as an antecedent or
pre-existing debt8 and Section 24 of the NIL presumes that the check is issued for a
consideration.

The second element is that the drawer knows that at the time he issued the check he does not
have sufficient funds in or credit with the drawee bank for the payment of such check in full
upon its presentment. Section 186 of the NIL provides that 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. 9 A stale check is valueless and,

5 Lim v. CA, 251 SCRA 408 (1995)

6 Ngo v. People, 434 SCRA 522 (2004)

7 Ynchausti & Co. v. Wright, 47 Phil. 866 (1947)

8 Section 15, NIL

9 Wong v. CA, 351 SCRA 100 (2001)


therefore, should not be paid.10 If the payee does not present the check to the bank for payment
within said 180-day period, the drawer can no longer be prosecuted for violation of BP 22, as the
check would have become stale by then.

10 International Corporate Bank v. Gueco, 351 SCRA 516 (2001)


The second element requires that there must be evidence that the drawer knows that he
has no sufficient funds or bank credit at the time he issued the check. This involves a state of
mind of the drawer and is difficult to prove. For this reason, and to aid in the prosecution of the
offense, Section 2 of BP 22 creates a presumption that the drawer has knowledge of the
insufficiency of his funds at the time of issue, where its requirements are shown, namely: (1) the
check is presented for payment within 90 days from issue; (2) the check is dishonored for
insufficiency of funds or credit; (3) the drawer is given written notice of the dishonor of the
check; and (4) the drawer fails, within five days from receipt of such notice, to pay the full value
of the check or to make arrangement with the bank for its full payment. 11 In other words if the
check is not presented for payment within 90 days from its issue but was presented only after the
90 day period, there will be no presumption or prima facie evidence of insufficiency of funds or
credit. There will be no presumption if the notice of non-payment by the drawee bank is not sent
to the drawer of the bum check, or if there is no proof as to when such notice was received by the
drawer, since there would be no way of reckoning the crucial five-day period for the drawer to
make good the check.12

The third element is the dishonor of the check for insufficiency of funds or credit with the bank.
If the drawer has sufficient funds or credit with the bank at the time he issued the check, and the
check is dishonored for some other reason or reasons, the third element is lacking and the
accused may be entitled to acquittal. 13 But he may still be convicted under the second way of
committing the crime, if he fails to maintain sufficient funds or credit within the 90 days from
the date of issue of the check, as the reason for the dishonor thereof.14

11 King v. People, 319 SCRA 654 (1999)

12 Danao v. CA, 358 SCRA 450 (2001)

13 Tan v. People, 349 SCRA 777 (2001)

14 Wong v. CA, 351 SCRA 100 (2001)


The fourth element is a requirement of due process and is intended to give the drawer the
opportunity to prevent prosecution by paying the face value of the check within five (5) days
from receipt of the notice of dishonor of the check.

In Caras v. CA it has been held that th

Payment of the value of the check either by the drawer or by the drawee bank within five
banking days from notice of the dishonor given to the drawer is a complete defense. The prima
facie presumption that the drawer had knowledge of the insufficiency of his funds or credit at the
time of the issuance and on its presentment for payment is rebutted by such payment. This
defense lies regardless of the strength of the evidence offered by the prosecution to prove the
elements of the offense.15

Elements of second way of committing the offense

The second paragraph of Section 1 provides:

In the second situation, the 90-day period to present the check for payment to the drawee
bank from its date of issue is an element of the offense. Hence, if he has maintained sufficient
funds, leaving no funds or insufficient amount to cover the value of the check, the presentment
for payment after the 90-day period from its issue and its subsequent dishonor may not render the
drawer liable under the second way of committing the offense.16

The check involved in the second situation is good when issued, as the drawer has sufficient
funds in, or credit with, the drawee bank when he issued the check, but he fails to maintain
sufficient funds or credit within 90 days from the date of issue of the check, as the reason for the
dishonor of the check. The dishonor makes the drawer liable.17 If the check is postdated, it
requires of the drawer to fund the check on the date appearing on said check, otherwise it cannot
said that the check is not good.18

If a drawer

15 Navarro v CA, 234 SCRA 639 (1994)

16 Negotiable Instruments Law, Ruben E. Agpalo (2005)

17 Wong v. CA, 351 SCRA 100 (2001)

18 Sycip, Jr. v. CA, 328 SCRA 447 (2000)


Section 2 of B.P. 22 reads.
Purpose of giving notice of dishonor
Liability of corporate officer for checks of corporation
Is an indorser liable under B.P 22?
Distinction between violations of Batas Pambasa Blg. 22 and Estafa
There is no double jeopardy for violation of BP 22 and Estafa