Presumption of insufficiency of funds.- “Section 2 of B.P. 22 creates the presumption that the issuer of the check was aware of the insufficiency of funds when he issued a check and bank dishonored it. This presumption, however, arises only after if it is proved that the issuer had received a written 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.”[1]
Notice of dishonor must be in writing. – “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 fuds 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 bouncing 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.“ [2](Citations omitted)
Rationale for requiring a written notice of dishonor to the drawer, maker or issuer of the dishonored check. – “To establish the existence of the second element, the State should present the giving of a written notice of dishonor to the drawer, maker or issuer of the dishonored check. The rationale for this requirement is rendered in Dico v. Court of Appeals, to wit:
To hold a person liable under B.P. 22, the prosecution must not only establish that a check
was issued and that the same was subsequently dishonored, it must further be shown that the accused knew at the time of the issuance of the check that he did not have sufficient funds or credit with the drawee bank for the payment of such check in full upon presentment.
This knowledge of insufficiency f funds or credit at the time of the issuance of the check is the second element of the offense. Inasmuch as this element involved a state of mind of the person making, drawing or issuing the check which is difficult to prove, Section 2 of B.P. Blg. 22 creates a prima facie presumption of said 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 such 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.
For this presumption to arise, the prosecution must prove the following” (a) the check is presented within ninety (90) days from the date of the check; (b) the drawer or maker of the check receives notice that such check has not been paid by the drawee; and ( c ) the drawer or maker of the check fails to pay the holder of the check the amount due thereon, or make arrangements for payment in full within five (5) banking days after receiving notice that such check has not been paid by the drawee. 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 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, since there would simply be no way of reckoning the crucial 5-day period.
A notice of dishonor received by the maker or drawer 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. X x x
The giving of the written notice of dishonor does not only supply the proof for the second element arising from the presumption of knowledge the law puts up but also affords the offender due process.
The law thereby allows the offender to avoid prosecution of she pays the holder of the check the amount due thereon, or makes arrangements for the payment in full of the check by the drawee within five banking days from receipt of the written notice that the check had not been paid. The Court cannot permit a deprivation of the offender of this statutory right by not giving the proper notice of dishonor. X x x (Additional emphasis and underscoring supplied)[3]
Notice of dishonor must be received personally by the offender. – “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 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.”[4](Citations omitted)
“In order to create a prima facie presumption that the issuer knew of the insufficiency of the 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 make arrangements for its payment”[5]
Registered mail- “Receipts for registered letters, including return receipts do not themselves prove receipt; they must be properly authenticated to serve as proof of receipt of the letter.[6] Even if the registry receipt covering the notice of dishonor and demand to the accused, was presented in court, where there is no proof that the accused or his duly authorized representative received the same, the accused must be acquitted.[7] The lack of authentication or identification of the signature on the registry return card, and the fact that the signature on the return card is illegible, making it a mystery whether or not petitioner received the notice of dishonor, is also fatal to the prosecution.[8] Where no witness testified to authenticate the registry return card and the signature appearing thereon, which do not belong to the accused but of another person who was not proved to be accused’s authorized agent for the purpose of receiving the correspondence, the second element of BP 22 was not proven.[9]
[1] Moster v. People, G.R. No. 167461, February 19, 2008; San Mateo v. People, G.R. No. 200090, March 6, 2013
[2] Domagsang v. CA, G.R. No. 139292, December 5, 2000
[3] Mandagan v. Jose M. Valero Corporation, G.R. No. 215118, June 19, 2019, citing Resterio v. People, 695 Phil. 693 (2012) Dico v. Court of Appeals,
[4] Lao v. CA, 274 SCRA 572
[5] King v. People, G.R. No. 131540, December 2, 1999; San Mateo v. People, G.R. no. 20090, March 6, 2013
[6] Ting and Chan-Azajar v People, G.R. No. 140665, November 13, 2000
[7] Svendesen v People, G.R. No. 175381, February 26, 2008
[8] Moster v. People, G.R. No. 167461, February 19, 2008
[9] Dela Cruz v. People, G.R. No. 164494, August 3, 2016