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22
An Act Penalizing the Making or Drawing
and Issuance of a Check Without Sufficient
Funds or Credit and for other Purposes
Reported by:
To be held liable under BP Blg. 22, the offender must either “makes and
issues” or “draws and issues” a check.
– One who “draws and issues” a worthless check
– One who “makes and issues” a check belonging to or under the account of
another person, if he has no account with the drawee bank.
“ISSUE A CHECK” – refers to the first delivery of the instrument complete in form
to a person who takes it as holder (Negotiable Instrument Law)
– Issuance of the check is essential ingredient of the offenses (1st and 2nd kind)
Ingredients of ISSUANCE:
1. The check must be complete in form;
2. Drawer delivered the check;
3. The person, to whom the check was delivered, took it as a holder.
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1. The check must be complete in form;
– The signature of the drawer must appear on the check. Without the
signature of the accused, it could not be said that he issued a check, as
the signature of the drawer gives birth and life to the check.
Ex. In case a corporate check where more than one officer are required to
sign the check, proof that less than all the required signatories have
signed the check is a defense. The corporation did not issue the check
despite the same was delivered to the payee. The check was not
complete in form considering that not all of the required signatories
signed it.
The check must be complete in form;
__________________
In Umali vs IAC, G.R. No. 63198, June 21, 1990 – What respondents
complained of in criminal case is that the checks issued by Petitioners in
their favor were dishonored for lack of funds upon due presentment to the
drawee bank. Undeniably, at the time of said dishonour, petitioner’s
obligations to pay private respondent pursuant to the deed of sale, continue
to subsist. And because petitioners check were dishonored for lack of
funds, petitioners are answerable under the law for the consequences of
their acts.. And even if the civil case was to be finally adjudged to the
effect that the said deed of sale should be annulled, such declaration would
be of no material importance in the determination of the guilt of innocence
of petitioners in criminal case.
However, if the contract is annulled by final judgment
prior to the dishonour of the check- such annulment is a valid
defense in BP Blg. 22. Since the contract is not anymore
binding to the parties, the check could not have said to have
been issued for valuable consideration.
Requisites:
1. The accused at the time of issuance of the check does not have
sufficient funds in, or credit with, the drawee bank for the
payment thereof in full upon its presentment; and
2. The accused knows such insufficiency.
1st Requisite:
If the check was funded at the time of the issuance, offender could
not be held liable for offense under 1st Par. of Section 1 of BP Blg. 22,
because the 2nd element is not present.
However, he could be held liable for offense under the 2nd Par. of
Section1 of BP Blg. 22 if he failed to maintain the sufficiency of fun within
90 days from its issuance and the check was dishonored by reason thereof.
2nd Requisite:
To hold a person liable under BP Blg. 22, it is not enough to
establish that a check issued was subsequently dishonored. 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. However, since this requisite under the 2nd element
involves a state of mind, which is difficult to establish, Sec. 2 of the law
creates a prima facie presumption of knowledge of insufficient fund.
Prima facie knowledge of insufficiency of funds or credit, the
prosecution must show that:
1. The first and third elements of the Offense are present;
2. The check was presented within 90 days from the date of
maturity;
3. The offender received a notice of dishonour; and
4. Despite the lapse of five banking days after receiving the
notice, the check has not been paid by the drawee.
Two requisites:
1. The check is presented for payment; and
2. The drawee bank dishonours the check for insufficiency of
funds or credit; or that the drawee bank would have
dishonored the check for insufficiency of funds or credit if the
offender without valid reason did not order the bank to stop
payment.
Even though the funds of the drawer are insufficient to cover the
check, if there is valid reason to make a stop payment order, he is not
liable for violation of BP Blg. 22.
Ex. Mistake in naming the payee of the check.
Stop payment ordered in the exercise of right of suspension of payment
is a valid defense.
Ex. Countermanding the check is proper where payee failed to
deliver the goods that he was supposed to deliver.
In Lim vs CA, G.R. No. 107898, December 19, 1995 – The notice of
dishonour issue by the drawee bank, indicates not only that payment of
the check was stopped but also the reason for such order was that the
maker or drawer did not have sufficient funds with which to cover the
checks. Xxx Thus the third element is present.
In Tan vs People, G.R. No. 141466, January 19, 2001 – Check was
dishonored due to stop payment order. The bank representative
testified that petitioner’s account at the time of the presentment of the
check she issued was funded, as she had a credit line to the extent of
Php25 million, much more than the amount of the check issued.
Accused was acquitted of the crime of violation of BP Blg. 22.
ELEMENTS OF OFFENSE DEFINED IN PAR. 2, SEC. 1
(FAILURE TO MAINTAIN THE SUFFICIENCY OF FUND)
Criminal Extinguishment
Payment or making arrangement for payment within five
days from receipt of written notice of dishonour is a mode of
extinguishing criminal liability. Applicable only to Par. 1, Sec.
1 of BP Blg. 22 and not Par. 2, Sec. 1.
PAYMENT- as a mode of extinguishing obligation consists in
the normal and voluntary fulfilment of obligation by realization
of purposes for which it was constituted. It is a mode of
extinguishing civil liability but is not a mode of extinction of
criminal liability under the RPC. However, offender can avert
criminal action for violation of BP Blg. 22 if payment is made
within five banking days from receipt of written notice of
dishonour.
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. (For the 1st and 2nd kind of Offense)
Imprisonment
• The penalty for imprisonment for violation of BP Blg. 22 has
minimum and maximum limits. Its minimum limit is thirty (3)
days; its maximum one (1) year. The court must imposed a straight
penalty. The indeterminate sentence law is not applicable.
Subsidiary Imprisonment
• If the convict has no property with which to meet the penalty of
fine, he shall be subject to a subsidiary personal liability at the rate of
one day for eight pesos
Sec. 3 Duty of drawee; rules of evidence.
Drawee bank may dishonour check presented for payment for the
following reasons:
1. Account closed;
2. No account;
3. Under garnishment;
4. Spurious check;
5. Unauthorized signature;
6. Documentary stamps missing (for foreign checks only);
Drawee bank may dishonour check presented for payment for the following
reasons:
7. Post-dated;
8. Stale-dated;
9. Validity restricted;
10. Miscleared item;
11. Deceased depositor;
12. Violation of clearing rules and/or procedures; and
13. Lost by presenting bank while in transit to clearing.