“At this juncture, the Court takes the opportunity to clarify and refine its jurisprudence regarding the service of the notice of dishonor in Batas Pambansa Blg. 22 cases. While earlier decisions may have allowed acquittal based on alleged non-receipt of notice, the Court now underscores the need to supplement existing rules with clear and standardized procedures in establishing the second element of the offense, i.e, that the drawer, at the time of issuance, had knowledge that he or she did not have enough funds or credit in the bank for payment thereof upon its presentment. Now, therefore, the Court hereby adopts and p[promulgates the following guidelines to further refine and standardize the rules governing the service of notice of dishonor in Batas Pambansa Blg. 22 cases.
In considering how service of notice operates within the criminal proceedings under Batas Pambansa Blg. 22, the Court finds instructive the analogies from other areas of law where service of notice is likewise indispensable to the case.
Rule 70, Section 2 of the Amended Rules of Court, and jurisprudence on ejectment proceedings underscore the necessity of prior notice as a jurisdictional requisite, without which the case cannot validly prosper. As early as the Court’s ruling in Co Keng Kian v. IAC (Fourth Special Cases Div.), it has been settled that service of notice through registered mail constitutes valid and proper compliance with the Rules. The Court stressed therein that notice to vacate the leased premises, required to be served upon the person occupying the same, may be efffected by registered mail. The Court therein cited Nunlist v. Motter, and Gehring v. Swoll, where it was emphasized that service by registered mail cannot be avoided by the mere expediency of declining to accept delivery after notification thereof.
In labor cases where a return-to-work notice is required, service by registered mail would have sufficed were it not for the absence of the required signatures on the registry return cards. In Lusaka v. Super K Drug Corporation, the respondent company failed to prove the fact of receipt of the notice, as the registry return cards lack the signatures of the petitioners or their required representatives, which would have constituted as acknowledgment of receipt of the notices.
Similarly, in cases involving Batas Pambansa Blg. 22, the service of notice of dishonor is likewise material, as it proves an element of the offense. Specifically, it establishes that the drawer of the check had knowledge of insufficient funds or credit in the bank to cover the amount upon presentment. Given its significance, the notice of dishonor must be served in a manner that ensures its receipts and eventual admissibility in court.
To that end, the Court finds it proper to apply to the service of notice of dishonor, as relevant herein, the same modes of service recognized in analogous cases where notice or demand is a condition precedent to legal action. Accordingly, service shall primarily be made personally. If personal service is not practicable, service may be effected by registered mail. Significantly, service through electronic means may likewise be undertaken, either as a primary mode or a as a form of substituted service, in recognition of the evolving modes of communication and in line with the Court’s Strategic Plan for Judicial Innovations 2022-2027. The applicable rules and requisites for each mode of service are set forth below.
First, personal service may be effected by delivering a copy of the notice of dishonor directly to the drawer. However, when the drawer transacts or issues the check through a company or uses the company to act on their behalf in the usual commercial course of business, service may be made at the company’s office by delivering the notice of dishonor to a clerk or a person in charge of the usual receipt of documents.
If no person is found at the office, or if the office is unknown or nonexistent, the notice may be left at the residence, if known, between the hours of eight in the morning and six in the evening, with a person of sufficient age and discretion then residing therein.
In all such cases of personal service, the person effecting service must execute an affidavit under oath, narrating with particularity the circumstances under which service was made, including the date, time, place and manner thereof, as well as the conduct of the recipient upon tender of of the notice.
To reinforce the affidavit, service must, whenever feasible, be documented through photographs and/or video recording contemporaneous with the act of service and be presented during trial for proper authentication under the Amended Rules of Court and Rules on Electronic Service. Its probative value lies in its authentication by the affidavit or other competent witnesses who can credibly attest that the same was made at the very time and place of service of the notice.
Second, if personal service is not practicable, the notice of dishonor may be served by registered mail. The notice shall be deposited in the post office in a sealed envelope, plainly addressed to the drawer, with postage fully prepaid, and with instructions to the postmaster to return the mail to the sender after 10 days if undelivered. If no registry service is available in the locality of either the sender or the addressee, service may be done by ordinary mail. Said service shall constitute as the final notice that such check has not been paid for purpose of reckoning the five-days banking period.
In such case, the person effecting service shall execute an affidavit under oath, stating with particularity the circumstances under which service was made, including the date of mailing, the post office where the notice was deposited, the name and address of the drawer, and the registry number. The affidavit shall also state the reason why personal service was not practicable, A copy of the registry receipt and the return card shall be attached to the affidavit as supporting evidence. However, receipts for registered letters and return receipts do not by themselves prove receipt; therefore, they must be properly authenticated to serve as proof of receipt of the notice of dishonor. Accordingly, the signature on the registry return must be positively identified and authenticated as that of the drawer or of any person who received such notice of dishonor on his or her behalf.
Third, service by electronic means may also be resorted to (a) as a primary mode of service if the email of issuer of the check had been made available to the payee in official communications; or (b) as a substituted service, through other electronic means, when there is a clear showing that the personal service is not practicable, including, but not limited to, instances where the drawer deliberately evades services, refuses receipt, unreasonably delays acknowledgment of the notice of dishonor, and/or causes the notice to be received by a person not duly authorized to accept the notice on his or her behalf.
Whether primary or substituted, electronic means of service, including, but not limited to, email and messaging applications (such as Viber, Facebook Messenger, or other comparable digital channels), may be resorted to, provided that the recipient’s electronic contact details (i.e., email address, account, or number) must be known and reasonably verified, and swoon to be attributable to, and actively used, by the driver or his or her authorized representative, where applicable. For this purposes attribution and reasonable verification shall be established through official communications, which include: (1) prior message exchanges with the sender regarding the same transaction; (2) the drawer’s prior written or electronic confirmation of the email address, account, or number; (3) the drawer’s use of the same email address, account, or number to send instructions, acknowledgment, or confirmations to the sender’ and/or (4) other analogous circumstances. The email address, account, or number appearing in the drawer’s check issuance records; loan or contract documents, or other records attributable to the drawer and made known to the payee shall likewise be sufficient proof of attribution and reasonable verification.
Where electronic means are resorted to in effecting substituted service, the electronic communication transmitting the notice of dishonor shall attach or enclose the notice of dishonor, and shall also briefly state: (1) the dates and details of the sender’s prior attempts at personal service; and (2) that due to such failure or frustrated attempts, the sender is resorting to electronic service. To ensure prompt notice, service by electronic means must be made within 24 hours from the final attempt at personal service. Said service shall constitute as the final notice that such check has not been paid for purposes of reckoning the five-day banking period.
In addition, an affidavit must be executed, clearly stating the circumstance rendering service through personal delivery impracticable, and detail the diligent efforts made to effect service through such mode. It shall likewise include the details and supporting attachments, proving the date, time, place and the conduct of the recipient upon the personal tender of the notice.
In both instances of primary and substituted services, the person effecting service by electronic means must execute an affidavit under oath, together with supporting documentation, narrating the details of the service, including, among others: (1) the date and time the electronic communication was sent; (2) the email or message attaching the notice of dishonor; (3) the email address, account, or number used; (4) any indications of successful transmission, such as delivery or read receipts, if available; and (5) where the platform allows, an exported conversation file or download of chat history reflecting the same content.
Clearly, regardless of the mode of service employed, the requirement for an affidavit of service of notice of dishonor is now mandatory. This requirement ensures clear and reliable evidence of service, thereby preventing unfounded claims of non-receipt and ensuring that the adjudication of cases under Batas
Pambansa Blg. 22 ins not unduly hindered by mere denials of service of notice of dishonor.
Additionally, in instances where the drawee bank notifies the drawer of the dishonor of the check through a text message and/or email address on record, such notification may be presented to corroborate the fact of service, subject to proper authentication under the Rules of Court and Rules on Electronic Evidence. However, this shall serve only as sporting evidence and does not dispense with the requirement of proper service laid down herein.
On the part of the drawer, it must be shown, as in other criminal prosecutions, that it was physically impossible for them to have received the notice of dishonor. Thus, for the defense of denial to prosper, the drawer must prove that it was physically impossible for them to be present at the place and at the time when service of the notice of dishonor was effected. Absent such clear and convincing proof of impossibility, a mere denial of receipt cannot overcome affirmative evidence of service.”