Check presented after 90 days

Bautista v. CA, G.R. No. 143375, July 6, 2001

Petitioner is accused of violation of BP 22 the substantive portion of which reads -

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 in full upon 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 (30) 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 x x x x (italics supplied).

An analysis of Sec. 1 shows that The Bouncing Checks Law penalizes two (2) distinct acts: First,
making or drawing and issuing 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, second,
having sufficient funds in or credit with the drawee bank 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.

In the first paragraph, the drawer knows that he does not have sufficient funds to cover the check at
the time of its issuance, while in the second paragraph, the drawer has sufficient funds at the time of
issuance but fails to keep sufficient funds or maintain credit within ninety (90) days from the date
appearing on the check. In both instances, the offense is consummated by the dishonor of the check
for insufficiency of funds or credit.

The check involved in the first offense is worthless at the time of issuance since the drawer had
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 drawer had sufficient funds in or credit with the drawee bank
when issued. Under the first offense, the ninety (90)-day presentment period is not expressly
provided, while such period is an express element of the second offense.

From the allegations of the complaint, it is clear that petitioner is being prosecuted for violation of
the first paragraph of the offense.

Petitioner asserts that she could not be prosecuted for violation of BP 22 on the simple ground that
the subject check was presented 166 days after the date stated thereon. She cites Sec. 2 of BP 22
which reads - xxx

Petitioner interprets this provision to mean that the ninety (90)-day presentment period is an
element of the offenses punished in BP 22. She asseverates that "for a maker or issuer of a check to
be covered by B.P. 22, the check issued by him/her is one that is dishonored when presented for
payment within ninety (90) days from date of the check. If the dishonor occurred after presentment
for payment beyond the ninety (90)-day period, no criminal liability attaches; only a civil case for
collection of sum of money may be filed, if warranted." xxx

The elements of the offense under BP 22 are (a) the making, drawing and issuance of any check to
apply to account or for value; (b) the maker, drawer or issuer knows 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; and, (c) the check is subsequently dishonored by the drawee bank for
insufficiency of funds or credit or would have been dishonored for the same reason had not the
drawer, without any valid reason, ordered the bank to stop payment.

The ninety (90)-day period is not among these elements. Section 2 of BP 22 is clear that a
dishonored check presented within the ninety (90)-day period creates a prima facie presumption of
knowledge of insufficiency of funds, which is an essential element of the offense. Since knowledge
involves a state of mind difficult to establish, the statute itself creates a prima facie presumption of
the existence of this element from the fact of drawing, issuing or making a check, the payment of
which was subsequently refused for insufficiency of funds. The term prima facie evidence denotes
evidence which, if unexplained or uncontradicted, is sufficient to sustain the proposition it supports
or to establish the facts, or to counterbalance the presumption of innocence to warrant a conviction.

The presumption in Sec. 2 is not a conclusive presumption that forecloses or precludes the
presentation of evidence to the contrary. Neither does the term prima facie evidence preclude the
presentation of other evidence that may sufficiently prove the existence or knowledge of
insufficiency of funds or lack of credit. Surely, the law is not so circumscribed as to limit proof of
knowledge exclusively to the dishonor of the subject check when presented within the prescribed
ninety (90) day period.

xxx

Thus, the only consequence of the failure to present the check for payment within ninety (90) days
from the date stated is that there arises no prima facie presumption of knowledge of insufficiency
of funds. But the prosecution may still prove such knowledge through other evidence. Whether
such evidence is sufficient to sustain probable cause to file the information is addressed to the sound
discretion of the City Prosecutor and is a matter not controllable by certiorari. Certainly, petitioner is
not left in a lurch as the prosecution must prove knowledge without the benefit of the presumption,
and she may present whatever defenses are available to her in the course of the trial.

The distinction between the elements of the offense and the evidence of these elements is
analogous or akin to the difference between ultimate facts and evidentiary facts in civil cases.
Ultimate facts are the essential and substantial facts which either form the basis of the primary right
and duty or which directly make up the wrongful acts or omissions of the defendant, while
evidentiary facts are those which tend to prove or establish said ultimate facts. Applying this analogy
to the case at bar, knowledge of insufficiency of funds is the ultimate fact, or element of the
offense that needs to be proved, while dishonor of the check presented within ninety (90) days is
merely the evidentiary fact of such knowledge.
Nagrampa vs. People, G.R. No. 146211, August 6, 2002

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 that the 90-day period is not an element
of the offense but merely a condition for the prima 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, 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 petitioner’s 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 petitioner’s 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.