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BP 22 for newbies

"It is clear that BP 22 cases are treated differently from ordinary offenses."

 

Batas Pambansa (BP) 22 is the law that penalizes the making, drawing and issuance of insufficiently funded checks. A check is a draft drawn upon a bank and payable on demand, signed by the maker or drawer, containing an unconditional promise to pay a certain sum in money to the order of the payee (Barron’s Law Dictionary).

To be liable for a violation of BP 22, the following essential elements, as paraphrased, must be present: (1) the making, drawing, and issuance of any check for value; (2) the knowledge of the maker, drawer, or issuer that at the time of issuance he does not have sufficient funds in or credit with the drawee bank; and (3) the subsequent dishonor of the check by the drawee bank for insufficiency of funds or credit (San Mateo v. People, March 6, 2013, G.R. No. 200090).

Under the law, the prima facie evidence of insufficiency of funds will arise if the drawee bank refuses to pay or honor the check within ninety (90) days from the date of the check, unless the maker pays the holder of the check the amount due, or makes arrangements for payment in full by the drawee bank within five (5) banking days after receiving notice that the check was dishonored (Section 2, BP 22).

If the maker or drawer fails to pay the amount due despite receiving the notice of dishonor, he or she shall be liable for a violation of BP 22. If the check is drawn by a corporation or company, the person or persons who signed for and on behalf of the corporation or company shall be liable (Section 1, BP 22).

When a check becomes stale, or in other words was not presented for payment within a reasonable time, the maker or drawer will not be liable for a violation of BP 22. Nevertheless, the unpaid amount may still be recovered by the obligee or lender through a civil action, or the obligor or debtor may replace the stale check subject to the consent of the obligee or lender.

Before the year 2000, the practice of drawing and issuing bad checks was somehow deterred by the threat of imprisonment of the erring maker, drawer, or issuer under BP 22. The certainty of arrest after determination of probable cause, the rigors of trial, and possibility of conviction were enough reasons to pay or honor the value of the checks.

Further exploiting the fear, lenders required borrowers to issue postdated checks as security for debt obligations. While this may appear to be an advantage for them, they were constrained to shoulder the cost of litigation. To some of them, this was an unnecessary expense which will have an impact on the final amount of their monetary recovery.

To minimize the cost of litigation, lenders and financial lending institutions learned to prepare their own demand letters and affidavit-complaints to be filed with the Office of the Prosecutor. They also learned that hiring private prosecutors was not necessary since BP 22 cases were prosecuted in court by government prosecutors.

The knowledge of the workings of the legal system emboldened these lenders to file countless BP 22 cases which unfortunately resulted in the clogging of the court dockets. This led the Supreme Court to revisit its policy towards BP 22 cases in keeping with the original intent of the law.

In the Revised Rules of Criminal Procedure (as amended December 1, 2000), the filing of BP 22 cases shall include the corresponding civil action. The same Rules also provide that “[U]pon filing of the aforesaid joint criminal and civil actions, the offended party shall pay in full the filing fees based on the amount of the check involved, which shall be considered as the actual damages claimed” (Section 1(b), Rule 111, Revised Rules of Criminal Procedure).

It is clear that BP 22 cases are treated differently from ordinary offenses. In ordinary offenses there are no filing fees for actual damages as a direct result of the commission of the crime. This is to send a clear message that complainants in BP 22 cases will have to think twice before filing cases in court since they will be obliged to pay filing fees based on the value of the check.

If the complaint also seeks to recover liquidated, moral, nominal, temperate or exemplary damages, the offended party shall pay additional filing fees based on the amounts alleged therein. However, if the amounts are not so alleged but are subsequently awarded by the court, the filing fees shall constitute a first lien on the judgment (Section 1(b), Rule 111, Revised Rules of Criminal Procedure).

Another action taken by the Supreme Court was to lay a rule of preference in the application of the penalties provided for in BP 22 but not to remove imprisonment as an alternative penalty. Thus, where the circumstances of both the offense and the offender clearly indicate good faith or a clear mistake of fact without taint of negligence, the imposition of a fine alone should be considered as the more appropriate penalty (Administrative Circular 13-2001).

The determination of whether the circumstances warrant the imposition of a fine alone rests solely upon the Judge. “The Judges concerned may, in the exercise of sound discretion … determine whether the imposition of a fine alone would best serve the interests of justice or whether forbearing to impose imprisonment would depreciate the seriousness of the offense, work violence on the social order…” (Administrative Circular 13-2001).

The Supreme Court in 2003 issued A.M. No. 00-11-01-SC amending the Rules on Summary Procedure to include BP 22 cases. With this amendment, courts can no longer issue warrants of arrest against the accused maker or drawer upon the filing of the criminal information unless there was repeated failure to appear in court despite notice (Section 16, Revised Rules on Summary Procedure).

Jurisprudence also tightened the grip on the requirement of receipt of a notice of dishonor. To hold a person liable under BP 22, it is not enough to establish that a check issued was subsequently dishonored. There must be proof of receipt of a notice of dishonor because it gives the maker, drawer, or issuer an opportunity to satisfy the amount indicated in the check and prevent prosecution (Chua v. People, July 13, 2015, G.R. No. 196853).

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. In other words, if there is no proof as to when such a notice was received by the drawer, then the presumption or prima facie evidence cannot arise, since there would simply be no way of reckoning the crucial 5-day period (Chua v. People, July 13, 2015, G.R. No. 196853).

The service of the notice of dishonor is not always done by personal service but alternatively by registered mail. However, the Supreme Court has consistently ruled “that 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 letters claimed to be a notice of dishonor” (San Mateo v. People, March 6, 2013, G.R. No. 200090).

Obviously, the presentation of the registry card with an unauthenticated signature, does not meet the required proof beyond reasonable doubt that the accused received such notice. It is not enough for the prosecution to prove that a notice of dishonor was sent to the accused. The prosecution must also prove the actual receipt of the said notice (San Mateo v. People, March 6, 2013, G.R. No. 200090).

The treatment of BP 22 cases through the years with regard to filing fees, alternative preference on penalties, jurisdiction on Summary Procedure, and receipts of notices of dishonor are clear indications that the law is dynamic and ready to adjust to the changing times. The Supreme Court has truly performed its Constitutional mandate to “provide a simplified and inexpensive procedure for the speedy disposition of cases.”

Topics: Tranquil G.S. Salvador III , Batas Pambansa , BP 22
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