Bp 22 Cases 5z1l

G.R. NO. 139292. December 5, 2000 JOSEPHINE DOMAGSANG vs. THE HONORABLE COURT OF APPEALS and PEOPLE OF THE PHILIPPINES VITUG, J.: Petitioner was convicted by the Regional Trial Court of Makati, Branch 63, of having violated Batas Pambansa ("B.P.") Blg. 22 (Anti-Bouncing Check Law), on eighteen (18) counts, and sentenced to "suffer the penalty of One (1) Year imprisonment for each count (eighteen [18] counts)." Petitioner was likewise “ordered to pay the private complainant the amount of P573,800.00.” The judgment, when appealed to the Court of Appeals (CA-G.R. CR No. 18497), was affirmed in toto by the appellate court. It would appear that petitioner approached complainant Ignacio Garcia, an Assistant Vice President of METROBANK, to ask for financial assistance. Garcia accommodated petitioner and gave the latter a loan in the sum of P573,800.00. In exchange, petitioner issued and delivered to the complainant 18 postdated checks for the repayment of the loan. When the checks were, in time, deposited, the instruments were all dishonored by the drawee bank for this reason: “ closed.” The complainant demanded payment allegedly by calling up petitioner at her office. Failing to receive any payment for the value of the dishonored checks, the complainant referred the matter to his lawyer who supposedly wrote petitioner a letter of demand but that the latter ignored the demand. On 08 May 1992, Criminal Case No. 92-4465 was lodged against petitioner before the Regional Trial Court ("RTC") of Makati. The Information read: "That on or about the 24th day of June, 1991, in the Municipality of Makati, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, did then and there willfully, unlawfully and feloniously make out, draw and issue to complainant Ignacio H. Garcia, Jr., to apply on or for value the dated check/described below: "Check No.

:

149900

Drawn Against

:

Traders Royal Bank

In the Amount of

:

P50,000.00

Dated/Postdated

:

June 24, 1991

Payable to

:

Ignacio H. Garcia, Jr.

"said accused well knowing that at the time of issue thereof, she did not have sufficient funds in or credit with the drawee bank for the payment in full of the face amount of such check upon its presentment, which check when presented for payment within ninety (90) days from the date thereof was subsequently dishonored by the drawee bank for the reason ` CLOSED' and despite receipt of notice of such dishonor, the accused failed to pay said payee the face amount of said check or to make arrangement for full payment thereof within five (5) banking days after receiving notice. "CONTRARY TO LAW." Subsequent Informations, docketed Criminal Cases No. 92-4466 to No. 92-4482,

inclusive, similarly worded as in Criminal Case No. 92-4465 except as to the dates, the number, and the amounts of the checks hereunder itemized "Check Number

Dated/Postdated

Amount

TRB – No. 161181

July 18, 1991

P6,000.00

TRB – No. 149906

July 24, 1991

3,000.00

No. 182074

July 30, 1991

29,700.00

No. 182084

August 30, 1991

9,300.00

No. 182078

September 15, 1991

6,000.00

No. 161183

September 18, 1991

6,000.00

No. 161177

September 18, 1991

100,000.00

No. 182085

September 30, 1991

9,000.00

No. 182079

October 15, 1991

6,000.00

No. 182086

October 30, 1991

10,500.00

No. 182080

November 15, 1991

6,000.00

No. 182087

November 30, 1991

11,400.00

No. 182081

December 15, 1991

6,000.00

No. 182082

December 15, 1991

100,000.00

No. 182088

December 30, 1991

12,000.00

No. 182089

December 30, 1991

100,000.00

No. 182090

December 30, 1991

100,000.00"

were also filed against petitioner. The cases were later consolidated and tly tried following the "not guilty" plea of petitioner when arraigned on 02 November 1992. On 07 September 1993, petitioner filed a demurrer to the evidence, with leave of court, premised on the absence of a demand letter and that the checks were not issued as payment but as evidence of indebtedness of petitioner or as collaterals of the loans obtained by petitioner. Opposed by the prosecution, the demurrer was denied by the trial court. In the hearing of 17 February 1994, petitioner, through counsel, waived her right to present evidence in her defense. Relying solely then on the evidence submitted by the prosecution, the lower court rendered judgment convicting petitioner. The decision, as heretofore stated, was affirmed by the Court of Appeals in its decision of 15 February 1999. Reconsideration was also denied in the resolution, dated 09 July 1999, of the appellate court. Hence, the instant petition where petitioner raised the following issues for resolution by the Court -

"1. Whether or not an alleged verbal demand to pay sufficient to convict herein petitioner for the crime of violation of B.P. Blg. 22; "2. Whether or not the Honorable Court of Appeals committed reversible error when it affirmed the judgment of conviction rendered by the trial court, on the ground that a written notice of dishonor is not necessary in a prosecution for violation of B.P. Blg. 22, contrary to the pronouncement of the Supreme Court in the case of Lao vs. Court of Appeals, 274 SCRA 572; (and) "3. Whether or not the Honorable Court of Appeals erred in considering the alleged written demand letter, despite failure of the prosecution to formally offer the same." The pertinent provisions of B.P. Blg. 22 "Bouncing Checks Law," provide: "SECTION 1. Checks without sufficient funds. – Any person who makes or draws and issues any check to apply on 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 check in full upon its 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 days but not more than one (1) year or by 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. "Where the check is drawn by a corporation, company or entity, the person or persons who actually signed the check in behalf of such drawer shall be liable under this Act. "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 the 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. "SEC. 3. Duty of drawee; rules of evidence. – It shall be the duty of the drawee of any check, when refusing to pay the same to the holder thereof upon presentment, to cause to be written, printed or stamped in plain language thereon, or attached thereto, the reason for drawee's dishonor or refusal to pay the same: Provided, That where there are no sufficient funds in or credit with such drawee bank, such fact shall always be explicitly stated in the notice of dishonor or refusal. In all prosecutions under this Act, the introduction in evidence of any unpaid and dishonored check, having the drawee's refusal to pay stamped or written thereon, or attached thereto, with the reason therefor as aforesaid, shall be prima facie evidence of the making or

issuance of said check, and the due presentment to the drawee for payment and the dishonor thereof, and that the same was properly dishonored for the reason written, stamped or attached by the drawee on such dishonored check. "Notwithstanding receipt of an order to stop payment, the drawee shall state in the notice that there were no sufficient funds in or credit with such bank for the payment in full of such check, if such be the fact." (Underscoring supplied.) The law enumerates the elements of the crime to be (1) the making, drawing and issuance of any check to apply for or for value; (2) the knowledge of the maker, drawer, or issuer that at the time of issue he does not have sufficient funds in or credit with the drawee bank for the payment of the check in full upon its presentment; and (3) the subsequent dishonor of the check by the drawee bank for insufficiency of funds or credit or dishonor for the same reason had not the drawer, without any valid cause, ordered the bank to stop payment. There is deemed to be a prima facie evidence of knowledge on the part of the maker, drawer or issuer of insufficiency of funds in or credit with the drawee bank of the check issued if the dishonored check is presented within 90 days from the date of the check and the maker or drawer fails to pay thereon or to make arrangement with the drawee bank for that purpose. The statute has created the prima facie presumption evidently because "knowledge" which involves a state of mind would be difficult to establish. The presumption does not hold, however, when the maker, drawer or issuer of the check pays the holder thereof the amount due thereon or makes arrangement for payment in full by the drawee bank of such check within 5 banking days after receiving notice that such check has not been paid by the drawee bank. In Lao vs. Court of Appeals, this Court explained: “x x x. 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 ens 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.” In the assailed decision, the Court of Appeals predicated the conviction of petitioner on the supposed fact that petitioner was informed of the dishonor of the checks through verbal notice when the complainant had called her up by telephone informing her of the dishonor of the checks and demanding payment therefor. The appellate court said:

"The maker's knowledge of the insufficiency of his funds is legally presumed from the dishonor of his check (People vs. Laggui, 171 Phil. 305). The law does not require a written notice of the dishonor of such check. "In the instant case, appellant had knowledge that her checks were dishonored by the bank when complainant Garcia made several oral demands upon her to pay the value of the checks in the amount of P573,800.00. Despite said demands, appellant failed and refused to pay the same. Moreover, complaining witness further testified that his lawyer made a written demand upon appellant but the latter ignored said demand (tsn., May 27, 1993, pp. 13-14). In this connection, appellant waived her right to present evidence or rebut complainant's testimony that he made oral demands upon appellant to make good the dishonored checks and his lawyer wrote her a demand letter. "Likewise, appellant did not object to the ission of the complainant's testimony with regard to the written demand by moving that it be stricken off the record for being hearsay, hence, the same is issible evidence. In the case of People vs. Garcia, 89 SCRA 440, the Supreme court ruled: "`x x x (It) must be noted that neither the defendant nor his counsel below objected to the ission of the testimonies which are now being assailed as hearsay. This is fatal to defendant-appellant's present posture since the failure to object to hearsay evidence constitutes a waiver of the x x right to cross-examine the actual witness to the occurrence, rendering the evidence issible.'" Petitioner counters that the lack of a written notice of dishonor is fatal. The Court agrees. While, indeed, Section 2 of B.P. Blg. 22 does not state that the notice of dishonor be in writing, taken in conjunction, however, with Section 3 of the law, i.e., "that where there are no sufficient funds 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 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. Evidently, the appellate court did not give weight and credence to the assertion that a demand letter was sent by a counsel of the complainant because of the failure of the prosecution to formally offer it in evidence. Courts are bound to consider as part of the evidence only those which are formally offered[14]for judges must base their findings strictly on the evidence submitted by the parties at the trial.[15] Without the written notice of dishonor, there can be no basis, considering what has heretofore been said, for establishing the presence of "actual knowledge of insufficiency of funds." The prosecution may have failed to sufficiently establish a case to warrant conviction, however, it has clearly proved petitioner's failure to pay a just debt owing to the private complainant. The total face value of the dishonored checks, to witCheck Number TRB – No. 149900

Dated/Postdated June 24, 1991

Amount P50,000.00

TRB – No. 161181

July 18, 1991

6,000.00

TRB – No. 149906

July 24, 1991

3,000.00

No. 182074

July 30, 1991

29,700.00

No. 182084

August 30, 1991

1,300.00

No. 182078

September 15, 1991

6,000.00

No. 161183

September 18, 1991

6,000.00

No. 161171

September 18, 1991

100,000.00

No. 182085

September 30, 1991

9,900.00

No. 182079

October 15, 1991

6,000.00

No. 182086

October 30, 1991

10,500.00

No. 182080

November 15, 1991

6,000.00

No. 182087

November 30, 1991

11,400.00

No. 182081

December 15, 1991

6,000.00

No. 182082

December 15, 1991

100,000.00

No. 182088

December 30, 1991

12,000.00

No. 182089

December 30, 1991

100,000.00

No. 182090

December 30, 1991

100,000.00"

or the sum of P563,800, has yet to be made good by petitioner. This amount, with 12% legal interest per annum from the filing of the information until the finality of this decision, must be forthwith settled. WHEREFORE, the decision of the Court of Appeals is MODIFIED. Petitioner Josephine Domagsang is acquitted of the crime charged on reasonable doubt. She is ordered, however, to pay to the offended party the face value of the checks in the total amount of P563,800.00 with 12% legal interest, per annum, from the filing of the informations until the finality of this decision, the sum of which, inclusive of the interest, shall be subject thereafter to 12%, per annum, interest until the due amount is paid. Costs against petitioner. SO ORDERED. VICTOR TING "SENG DEE" and EMILY CHAN-AZAJAR, petitioners, vs. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.2000 November 133rd DivisionG.R. No. 140665 MELO, J.:

Before us is a petition for certiorari under Rule 45 seeking the reversal of the February 12, 1999 decision of the Court of Appeals which affirmed that of the Regional Trial Court of the National Capital Judicial Region (Manila, Branch 45) finding petitioners guilty of seven (7) counts of violation of Batas Pambansa Blg. 22. Petitioners’ version of the background events is as follows: From 1991 to 1992, Juliet Ting "Chan Sioc Hiu" obtained loans, in the aggregate amount of P2,750,000.00, from private complainant Josefina K. Tagle for use in Juliet’s furniture business. As payment thereof, Juliet issued eleven (11) post-dated checks which, upon maturity, were dishonored for reasons of "Closed " or "Drawn Against Insufficient Funds." Juliet was subsequently prosecuted for violation of Batas Pambansa Blg. 22. Due to her financial difficulties, Juliet requested her husband Victor Ting "Seng Dee" and her sister Emily Chan-Azajar (petitioners herein) to take over her furniture business, including the obligations appurtenant thereto. Agreeing to Juliet’s request, petitioners issued nineteen (19) checks in replacement of the eleven (11) checks earlier issued by Juliet. The planned take-over, however, never materialized since the Naga Hope Christian School, petitioner Emily Chan-Azajar’s employer in Naga, refused to let her resign to attend to her sister’s business. Since the planned takeover did not take place, petitioners requested Juliet to reassume her obligation to private complainant Tagle by replacing the checks they had previously issued to the latter. Thus, Juliet replaced the nineteen (19) checks issued by petitioners with twenty-three (23) Far East Bank checks in favor of Tagle. Petitioners then requested private complainant Tagle to return the nineteen (19) checks they had issued to her. Instead of returning the checks, Tagle deposited seven of the checks with MetroBank where they were dishonored for being "Drawn Against Insufficient Funds." On the other hand, private complainant Tagle alleged that sometime in April 1993, petitioners obtained a loan of P950,000.00 from her, issuing several post-dated checks in payment thereof. When the checks were deposited by Tagle with MetroBank, they were dishonored for having been drawn against insufficient funds. Tagle alleged that despite verbal and written demands, petitioners failed to pay her the value of the dishonored checks. Consequently, seven informations for violation of Batas Pambansa Blg. 22 were filed against petitioners. Said informations are similarly worded except with respect to the check number, the amount involved, and the date the check was issued. The information in Criminal Case No. 94-131945 (the other cases are Criminal Case No. 94-131946, Criminal Case No. 94-131947, Criminal Case No. 94-131948, Criminal Case No. 94-131949, Criminal Case No. 94-131950, and Criminal Case No. 94131951) charged: That sometime prior to May 27, 1993, in the City of Manila, Philippines, the said accused, conspiring and confederating together and mutually helping each other, did then and there wilfully, unlawfully and feloniously make or draw and issue to JOSEPHINE K. TAGLE, to apply on or for value Producers Bank of the Philippines, Check No. 946072 dated May 27, 1993 payable to CASH in the amount of P250,000.00 said accused well knowing that at the time of issue they did not have sufficient funds in or credit with the drawee bank for payment of such check in full upon its presentment, which check when presented for payment within ninety (90) days from the date thereof, was subsequently dishonored by the drawee bank for Drawn Against Insufficient Funds and despite receipt of notice of such dishonor, said accused failed to pay said JOSEFINA K. TAGLE the amount of the check or to make

arrangements for full payment of the same within five (5) banking days after receiving said notice. (p. 2, Original Records.) Criminal Cases No. 94-131945 to 94-131951 were consolidated and tly tried. When arraigned, petitioners, assisted by counsel, pleaded not guilty. During trial, the prosecution presented only one witness, the private complainant, the testimony of Producer’s Bank representative Ferdinand Lazo being dispensed with after counsel for petitioners itted the dishonor of the checks subject matter of the action. On March 16, 1995, the trial court found petitioners guilty of violating Batas Pambansa Blg. 22 in each of the seven cases, disposing as follows: WHEREFORE, in view of the foregoing, accused VICTOR TING and EMILY CHAN AZAJAR are hereby found "GUILTY" beyond reasonable doubt of all the charges contained in Criminal Case Nos. 94-131945; 94-131946; 94-131947; 94-131948; 94-131949; 94131950 and 94-131951 and for each count, they are hereby sentenced to suffer the penalty of one (1) year imprisonment; to pay Josefina K. Tagle the total amount of P950,000.00; and to pay the cost. (p. 294, Rollo.) Aggrieved, petitioners filed an appeal with the Court of Appeals which was docketed therein as C.A.-G.R. No. 18054. However, the appellate court, on February 12, 1999, affirmed. Petitioners’ motion for reconsideration was, likewise, denied for lack of merit. Hence, the instant petition. Petitioners claim that the Court of Appeals erred in affirming the decision of the trial court, given the absence of proof beyond reasonable doubt or in the presence of facts creating reasonable doubt. The petition has merit. Section 1 of Batas Pambansa Blg. 22, otherwise known as the Bouncing Checks Law, provides: Section 1. Checks without sufficient funds. Any person who makes or draws and issues any check to apply on 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 check in full upon its 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 days but not more than one (1) year or by a fine of not less than but not more 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. Where the check is drawn by a corporation, company or entity, the person or persons

who actually signed the check in behalf of such drawer shall be liable under this Act. For a violation of Batas Pambansa Blg. 22 to be committed, the following elements must be present: (1) the making, drawing, and issuance of any check to apply for or for value; (2) the knowledge of the maker, drawer, or issuer that at the time of issue there are no sufficient funds in or credit with the drawee bank for the payment of such check in full upon is presentment; and (3) the subsequent dishonor of the check by the drawee bank for insufficiency of funds or credit or dishonor for the same reason had not the drawer, without any valid cause, ordered the bank to stop payment (Sycip, Jr. vs. CA, G.R. No. 125059, March 17, 2000). An analysis of the evidence presented, however, shows that not all the aforementioned elements have been established by the prosecution beyond reasonable doubt. That the seven checks in question were issued by petitioners is beyond dispute. Not only were the dishonored checks presented in court, but petitioners even itted g the checks and issuing them to private complainant. From the evidence on record, it is clear that petitioners signed and issued the seven checks in question. That the checks were dishonored is also clearly established. Section 3 of Batas Pambansa Blg. 22 provides that "the introduction in evidence of any unpaid and dishonored check, having the drawee’s refusal to pay stamped or written thereon, or attached thereto, with the reason therefor as aforesaid, shall be prima facie evidence of the making or issuance of said check, and the due presentment to the drawee for payment and the dishonor thereof, and that the same was properly dishonored for the reason written, stamped, or attached by the drawee on such dishonored check." In the instant case, the fact of the checks’ dishonor is sufficiently shown by the return slips issued by MetroBank, the depository bank, stating that the checks had been returned for the reason "DAIF - Drawn Against Insufficient Funds." Not only are these check return slips prima facie evidence that the drawee bank dishonored the checks, but the defense did not present any evidence to rebut these documents. In fact, counsel for petitioners even itted the fact of the checks’ dishonor, agreeing to dispense with the presentation of the bank representative who was supposed to prove the fact of dishonor of said checks (p. 162, Rollo.). However, for liability to attach under Batas Pambansa Blg. 22, it is not enough that the prosecution establishes that a check was issued and that the same was subsequently dishonored. The prosecution must also prove the second element, that is, it must further show that the issuer, at the time of the check’s issuance, had knowledge that he did not have enough funds or credit in the bank for payment thereof upon its presentment. Since the second element involves a state of mind which is difficult to , Section 2 of Batas Pambansa Blg. 22 creates a presumption juris tantum that the second element prima facie exists when the first and third elements of the offense are present (Magno v. People, 210 SCRA 471 [1992]). Section 2 provides: Section 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 or credit with such bank, when presented within ninety days from

the date of the 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. In truth, this Court declared in King v. People (G.R. No. 131540, December 2, 1999) that "the prima facie presumption arises when the check is issued. But the law also provides that the presumption does not arise when the issuer pays the amount of the check or makes arrangement for its payment ‘within five banking days after receiving notice that such check has not been paid by the drawee.’ Verily, BP 22 gives the accused an opportunity to satisfy the amount indicated in the check and thus avert prosecution" This opportunity, however, can be used only upon receipt by the accused of a notice of dishonor. Thus, the presumption that the issuer had knowledge of the insufficiency of funds is brought into existence only after it is proved that the issuer had received a notice of dishonor and that, within five days from receipt thereof, he failed to pay the amount of the check or to make arrangement for its payment. King v. People, decided by this Division, involves a set of facts similar to the case at bar. In said case, the accused therein was proven to have issued eleven checks, all of which were duly filled up and signed by her. It was also clearly established that these eleven checks were dishonored, as shown by the checks themselves which were stamped " CLOSED" and further ed by the return tickets issued by PCI Bank stating that the checks had been dishonored. Yet, even if the prosecution had already established the issuance of the checks and their subsequent dishonor, this Court still required the prosecution to show that the issuer knew of the insufficiency of funds by proving 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 arrangement for its payment. Moreover, in Lina Lim Lao v. CA (274 SCRA 572 [1997]), we emphasized that "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 ens that a notice of dishonor be actually served on petitioner. Petitioner has a right to demand - and the basic postulate 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 BP 22." To prove that petitioners received a notice of dishonor, the prosecution presented a copy of the demand letter allegedly sent to petitioners through ed mail and its corresponding registry receipt. Private complainant Josefina Tagle, the sole witness for the prosecution, testified thus: Q: Now, when these seven (7) checks bounced for insufficiency of funds, what step did you take? A:

I demanded the return of my money from them.

Q:

Now, what was the reply of the two accused?

A: They kept on promising that they will pay but up to now they have not paid any single centavo.

Q:

What other step did you take?

A:

I requested my lawyer to write a demand letter.

Q:

And that demand letter was sent to the accused?

A:

Yes, Sir.

Q:

In what manner?

A:

By ed mail.

Q:

Now, was that demand letter received by the two accused?

A:

Yes, Sir.

Q:

What is your evidence?

A:

The return card.

Q: If you are shown anew the copy of the demand letter which is already marked as Exhibit B, would you be able to recognize the same? A:

Yes, Sir.

Q:

Is that the one that you are referring to?

A:

Yes, Sir.

Q:

How about the return card, is that correct?

A:

Yes, Sir, this is the one.

Q: Now, upon receipt of this letter by the two accused, did the two accused pay the amount of the said check? A:

No, Sir.

Q:

So what did you do next?

A:

I told my lawyer to file charges against them.

Q:

You mean the present charge?

A:

Yes, Sir.

Atty. Acuesta: That is all, Your Honor. (TSN, Aug. 24, 1994, p. 8-9.) Aside from the above testimony, no other reference was made to the demand letter by the prosecution. As can be noticed from the above exchange, the prosecution alleged that the demand letter had been sent by mail. To prove mailing, it presented

a copy of the demand letter as well as the registry return receipt. However, no attempt was made to show that the demand letter was indeed sent through ed mail nor was the signature on the registry return receipt authenticated or identified. It cannot even be gleaned from the testimony of private complainant as to who sent the demand letter and when the same was sent. In fact, the prosecution seems to have presumed that the registry return receipt was proof enough that the demand letter was sent through ed mail and that the same was actually received by petitioners or their agents. As adverted to earlier, it is necessary in cases for violation of Batas Pambansa Blg. 22, that the prosecution prove that the issuer had received a notice of dishonor. It is a general rule that when service of notice is an issue, the person alleging that the notice was served must prove the fact of service (58 Am Jur 2d, Notice, § 45). The burden of proving notice rests upon the party asserting its existence. Now, ordinarily, preponderance of evidence is sufficient to prove notice. In criminal cases, however, the quantum of proof required is proof beyond reasonable doubt. Hence, for Batas Pambansa Blg. 22 cases, there should be clear proof of notice. Moreover, it is a general rule that, when service of a notice is sought to be made by mail, it should appear that the conditions on which the validity of such service depends had existence, otherwise the evidence is insufficient to establish the fact of service (C.J.S., Notice, § 18). In the instant case, the prosecution did not present proof that the demand letter was sent through ed mail, relying as it did only on the registry return receipt. In civil cases, service made through ed mail is proved by the registry receipt issued by the mailing office and an affidavit of the person mailing of facts showing compliance with Section 7 of Rule 13 (See Section 13, Rule 13, 1997 Rules of Civil Procedure). If, in addition to the registry receipt, it is required in civil cases that an affidavit of mailing as proof of service be presented, then with more reason should we hold in criminal cases that a registry receipt alone is insufficient as proof of mailing. In the instant case, the prosecution failed to present the testimony, or at least the affidavit, of the person mailing that, indeed, the demand letter was sent. Moreover, petitioners, during the pre-trial, denied having received the demand letter (p. 135, Rollo.). Given petitioners’ denial of receipt of the demand letter, it behooved the prosecution to present proof that the demand letter was indeed sent through ed mail and that the same was received by petitioners. This, the prosecution miserably failed to do. Instead, it merely presented the demand letter and registry return receipt as if mere presentation of the same was equivalent to proof that some sort of mail matter was received by petitioners. Receipts for ed letters and return receipts do not prove themselves; they must be properly authenticated in order to serve as proof of receipt of the letters (Central Trust Co. v. City of Des Moines, 218 NW 580). Likewise, for notice by mail, it must appear that the same was served on the addressee or a duly authorized agent of the addressee. In fact, the registry return receipt itself provides that "[a] ed article must not be delivered to anyone but the addressee, or upon the addressee’s written order, in which case the authorized agent must write the addressee’s name on the proper space and then affix legibly his own signature below it." In the case at bar, no effort was made to show that the demand letter was received by petitioners or their agent. All that we have on record is an illegible signature on the registry receipt as evidence that someone received the letter. As to whether this signature is that of one of the petitioners or of their authorized agent remains a mystery. From the registry receipt alone, it is possible that petitioners or their authorized agent did receive the demand letter. Possibilities, however, cannot replace proof beyond reasonable doubt. There being insufficient

proof that petitioners received notice that their checks had been dishonored, the presumption that they knew of the insufficiency of the funds therefor cannot arise. As we stated in Savage v. Taypin (G.R. No. 134217, May 11, 2000), "penal statutes must be strictly construed against the State and liberally in favor of the accused." Likewise, the prosecution may not rely on the weakness of the evidence for the defense to make up for its own blunders in prosecuting an offense. Having failed to prove all the elements of the offense, petitioners may not thus be convicted for violation of Batas Pambansa Blg. 22. That petitioners are civilly liable to private complainant is also doubtful. Private complainant claims that petitioners borrowed Nine Hundred Fifty Thousand (P950,000.00) Pesos from her on or about the end of April 1993, in payment of which petitioners issued several post-dated checks in her favor. The seven checks issued by petitioners as payment for the amount borrowed add up to P950,000.00. If private complainant is the businesswoman that she claims to be, she should be collecting interest on the loan she granted to petitioners. In other words, the amount to be repaid by petitioners should be more than P950,000.00, to for interest on the loan. The checks issued by petitioners, however, do not provide for interest. It is thus more credible that the seven checks involved in this case form part of nineteen checks issued to replace the checks issued by Juliet Ting to private complainant. This conclusion is bolstered by private complainant’s ission in her reply-affidavit that more than seven checks were issued by petitioners (p. 11, Original Records). In said reply-affidavit, private complainant states that "respondents issued and delivered to me in Manila several checks, which partially include their seven (7) bouncing checks herein. I say ‘partially’ because I will have to file additional bouncing check cases against them, as these other checks likewise bounced." Furthermore, in the same reply-affidavit, private complainant claims that the checks in question were not replaced, allegedly because the replacement checks must first be cleared, which did not happen in this case. By implication, had the 23 Far East Bank checks issued by Juliet Ting to replace the nineteen checks issued by petitioners been cleared, then private complainant would have considered the checks in question as having been replaced. This only s our conclusion that it was Juliet Ting who owed money to private complainant, not petitioners. Moreover, the original debtor Juliet Ting was convicted by the Regional Trial Court of Manila in Criminal Cases 93-126581-91 for eleven counts of violation of Batas Pambansa Blg. 22. These eleven bouncing check cases involved the same obligation being sued upon by private complainant Tagle herein. The trial court expressly acknowledged in said cases that nineteen (19) checks were issued by petitioners as payment for Juliet Ting’s obligation. In its August 7, 1997 decision convicting Juliet Ting for violation of Batas Pambansa Blg. 22, the trial court declared that "to cover the additional loans, accused (Juliet Ting) delivered 19 post-dated checks issued by Victor Ting and Emily Azajar (p. 55, Rollo.)." The trial court’s decision further provides: Since she could not fund the other checks (Exhs. B to K), she replaced the same with 19 post-dated checks of her husband Victor Ting and her sister Emily Azajar totaling P2,450,000.00. They issued the checks as they would take over her furniture business. The intended partnership of Victor and Emily was aborted as the latter was not allowed to resign from her teaching post in Naga City. She then replaced the checks issued by Victor and Emily with her own checks - 23 FEB post-dated checks per list (Exh. 9) prepared by Suzanne Azajar. Despite receipt of the replacement checks, complainant refused to return the checks of Victor and Emily and even filed cases against them.

(p. 56, Rollo.) Not having borrowed the amount of Nine Hundred Fifty Thousand (P950,000.00) from private complainant, petitioners may not thus be held liable therefor. WHEREFORE, premises considered, the instant petition is GRANTED and the assailed decision of the Court of Appeals dated February 12, 1999 REVERSED and SET ASIDE. Petitioners Victor Ting “Seng Dee” and Emily Chan-Azajar are hereby ACQUITTED of the charges against them for violation of Batas Pambansa Blg. 22, for lack of sufficient evidence to prove the offenses charged beyond reasonable doubt. No special pronouncement is made as to costs. SO ORDERED. MANUEL NAGRAMPA, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.2002 August 61st DivisionG.R. No. 146211 DAVIDE, JR., C.J.: In this petition for review on certiorari, petitioner assails his conviction for estafa in Criminal Case No. Q-90-15797 and for two counts of violation of Batas Pambansa Blg. 22 (Bouncing Checks Law) in Criminal Cases Nos. Q-90-15798 and Q-90-15799. The accusatory portion of the information in Criminal Case No. Q-90-15797 for estafa reads as follows: That on or about the 28th day of July 1989 in Quezon City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent to gain by means of false pretenses or fraudulent acts executed prior to or simultaneously with the commission of the fraud, did then and there, wilfully, unlawfully and feloniously defraud FEDCOR TRADING CORPORATION represented by FEDERICO A. SANTANDER by then and there making, drawing and issuing in favor of the latter the following checks, to wit: CHECK NOS. AMOUNT POSTDATED 473477 P75,000.00 August 31, 1989 473478 P75,000.00 September 30, 1989 drawn against the SECURITY BANK AND TRUST COMPANY in payment of an obligation, knowing fully well at the time of issue that he did not have any funds in the bank or his funds deposited therein was not sufficient to cover the amount of the checks that upon presentation of said checks to the said bank for payment, the same were dishonored for the reason that the drawer thereof, accused MANUEL NAGRAMPA did not have any funds therein and despite notice of dishonor thereof, accused failed and refused and still fails and refuses to redeem or make good said checks, to the damage and prejudice of the said FEDCOR TRADING CORPORATION in such amount as may be awarded under the provisions of the Civil Code. CONTRARY TO LAW.[1] The accusatory portion of the information in Criminal Case No. Q-90-15798 for violation of B.P. Blg. 22 reads as follows:

That on or about the 28th day of July, 1989 in Quezon City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there, willfully, unlawfully and feloniously make, draw and issue in favor of FEDCOR TRADING CORPORATION represented by FEDERICO A. SANTANDER a check numbered 473478 drawn against the SECURITY BANK AND TRUST COMPANY, Escolta Branch, a duly established domestic banking institution, in the amount of P75,000.00, Philippine Currency, postdated September 30, 1989 in payment of an obligation, knowing fully well that at the time of issue that she/he did not have ANY funds in the drawee bank for the payment of such check; that upon presentation of said check to said bank for payment, the same was dishonored for the reason that the drawee bank of accused MANUEL NAGRAMPA did not have ANY funds therein and despite notice of dishonor thereof, accused failed and refused and still fails and refuses to redeem or make good said check, to the damage and prejudice of the said FEDCOR TRADING CORPORATION in the amount aforementioned and in such other amount as may be awarded under the provisions of the Civil Code. Contrary to law.[2] The information in Criminal Case No. Q-90-15799 is similarly worded as in Criminal Case No. Q-90-15798 except as to the date and number of the check. Upon his arraignment, petitioner entered a plea of not guilty in each case. At the trial on the merits, the prosecution presented Federico Santander, President of Fedcor Trading Corporation (hereafter FEDCOR), and Felix Mirano, signature verifier of the Escolta Branch of the Security Bank and Trust Company. Federico Santander testified that on 28 July 1989, Corseno Bote, FEDCOR’s Sales Manager, brought to FEDCOR petitioner Manuel Nagrampa (hereafter NAGRAMPA), General Manager of the Nagrampa Asphalt Plant in Montalban, Rizal. NAGRAMPA purchased a Yutani Poclain Backhoe Excavator Equipment for P200,000 from FEDCOR and paid in cash the down payment of P50,000. To cover the balance of P150,000, he issued Check No. 473477[3] postdated 31 August 1989 and Check No. 473478[4] postdated 30 September 1989 in the amount of P75,000 each. The checks were drawn against the Security Bank and Trust Company. Upon the assurance of FEDCOR’s salesman that the checks were good, FEDCOR delivered to petitioner the equipment.[5] Santander further testified that FEDCOR presented the checks for payment on 22 February 1990; however, they were dishonored on the ground that petitioner’s with the drawee bank, Security Bank, had already been closed. In a letter[6] dated 19 March 1990, sent through ed mail, FEDCOR demanded payment from petitioner; but the latter failed to pay. Hence, the above cases were filed against petitioner with the trial court.[7] During his cross-examination, Santander denied that the equipment was returned to FEDCOR. Ronnie Bote, son of Corseno Bote, was not an employee of FEDCOR but was merely its sales agent with no authority to receive returned equipment.[8] Felix Mirano, the second prosecution witness, testified that he had been a signature verifier of Security Bank for twelve years. His duty was to the signatures of the clients of the bank. He brought with him the signature card for No. 01104048-19, petitioner’s against which the subject checks were drawn. He identified the signatures appearing on Checks Nos. 473477 and 473478 to be those of the petitioner. When asked about the status of said , he answered that the

had been closed in May 1985 yet.[9] For his part, petitioner testified that on 28 July 1989, he bought from Corseno Bote a backhoe and paid P50,000 cash, as evidenced by an acknowledgment receipt[10] signed by Corseno Bote. In addition, he issued and handed to Corseno Bote two checks in the amount of P75,000 each, dated 31 August 1989[11] and 30 September 1989.[12] The agreement with Corseno Bote was that petitioner would replace the two checks with cash if the backhoe would be in good running condition. The backhoe was delivered at petitioner’s jobsite on 29 July 1989. After five to seven days of use, the backhoe broke down. Such fact was reported to Ronnie Bote, and the backhoe was thus repaired. After one day of using it, the backhoe broke down again. Petitioner again reported the matter to Ronnie Bote, who told him that the equipment should be brought to the latter’s office for repair. As evidence of the return of the equipment, petitioner presented a letter dated 3 October 1989[13] addressed to Electrobus Consolidated, Inc., requesting the release of the backhoe to Ronnie Bote for repair, with the alleged signature[14] of Ronnie Bote appearing at the bottom thereof to attest to his receipt of the equipment. After a week, petitioner demanded from Ronnie Bote the return of the backhoe, the P50,000 cash and the two postdated checks, but to no avail.[15] On cross-examination, he itted that during the pendency of the case he paid, upon the advice of his counsel, the amount of P15,000, which he handed to FEDCOR’s counsel Atty. Orlando Paray.[16] On 30 September 1993, the trial court rendered a decision[17] finding petitioner guilty of two counts of violation of the Bouncing Checks Law and sentencing him to suffer imprisonment for two years and pay FEDCOR P150,000, with legal interest thereon from 9 October 1990 up to the time of full payment. Petitioner appealed the decision to the Court of Appeals. The appeal was docketed as CA-G.R. CR. No. 18082. Upon noticing that the 30 September 1993 Decision of the trial court did not resolve the issue of petitioner’s liability for estafa, the Court of Appeals issued on 19 May 1998 a resolution[18] ordering the return of the entire records of the case to the trial court for the latter to decide the estafa case against petitioner. On 8 February 1999, the trial court rendered a decision[19] finding petitioner guilty beyond reasonable doubt of estafa and sentencing him to suffer imprisonment of seven years and four months of prision mayor as minimum to twelve years and six months of reclusion temporal as maximum. As might be expected, petitioner also appealed said decision to the Court of Appeals. On 21 July 2000, the Court of Appeals rendered a decision[20] affirming in toto the decision of the trial court finding petitioner guilty of estafa and violations of the Bouncing Checks Law. It also denied petitioner’s motion for reconsideration of the decision.[21] Hence, this petition. Petitioner claims that he is not guilty of estafa because no damage was caused to FEDCOR, considering that the backhoe became unserviceable a few days after delivery and was eventually returned to FEDCOR through the latter’s sales agent Ronnie Bote. He also asserts that he did not violate B.P. Blg. 22 either. The two checks issued by him were presented for payment only on 22 February 1990, or after more than five months from the date of the checks. Under Sections 1 and 2 of B.P. Blg. 22 FEDCOR, as payee, had the duty or obligation to encash or deposit the checks issued in its favor within ninety days from the date of issue. Since FEDCOR deposited the checks after this period, he cannot be faulted for their subsequent dishonor.

Alternatively, petitioner prays that in the event that his conviction for violations of B.P. Blg. 22 is sustained, the rulings in Vaca v. Court of Appeals[22] and Lim v. People[23] should be given retroactive effect in his favor so that only a fine may be imposed on him as penalty. In arguing that petitioner’s conviction for two counts of violation of B.P. Blg. 22 is correct, the Office of the Solicitor General relies heavily on the testimony of Felix Mirano that the of petitioner had been closed way back in May 1985, or four years prior to the issuance of the subject checks to FEDCOR. The date when the checks were encashed or deposited is immaterial because there was no more existing bank against which they were drawn, and their dishonor was therefore certain even if the checks were presented for payment within the 90-day period from their issuance. With respect to petitioner’s plea to impose on him the penalty of fine in the event that his conviction is affirmed, the OSG maintains that the penalty of imprisonment is appropriate considering petitioner’s act of issuing worthless checks which showed his culpable violation of B.P. Blg. 22. Petitioner’s argument that the element of damage to private complainant FEDCOR is lacking is disputed by the OSG by pointing out petitioner’s failure to prove the return of the backhoe to FEDCOR. Ronnie Bote, the person to whom the backhoe was allegedly returned, was not presented as a witness to corroborate petitioner’s testimony. But even granting arguendo that the backhoe was indeed received by Ronnie Bote, there is no showing that he acted for, and on behalf of, FEDCOR in doing so considering that he was not an employee of FEDCOR. The petition is without merit. Section 1 of B.P. Blg. 22 provides: SECTION 1. Checks without sufficient funds. -- Any person who makes or draws and issues any check to apply on 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 check in full upon its 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 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 or 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. Two distinct acts are punished under the above-quoted provision: (1)The making or drawing and issuance of any check to apply on 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 (2)The failure to keep sufficient funds or to maintain a credit to cover the full amount of the check if presented within a period of ninety days from the date appearing

thereon, for which reason it is dishonored by the drawee bank.[24] In the first situation, the drawer knows of the insufficiency of funds to cover the check at the time of its issuance; while in the second situation, the drawer has sufficient funds at the time of issuance but fails to keep sufficient funds or maintain credit within ninety days from the date appearing on the check. The check involved in the first offense is worthless at the time of issuance, since the drawer has 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 the drawer has sufficient funds in, or credit with, the drawee bank when issued. In both instances, the offense is consummated by the dishonor of the check for insufficiency of funds or credit.[25] It can be gleaned from the allegations in the information that petitioner is charged with the first type of offense under B.P. Blg. 22. The elements of the first type of offense are as follows: (1) The making, drawing and issuance of any check to apply for or for value; (2) The knowledge of the maker, drawer, or issuer that at the time of issue 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 (3) The subsequent dishonor of the check by the drawee bank for insufficiency of funds or credit or dishonor for the same reason had not the drawer, without any valid cause, ordered the bank to stop payment.[26] Petitioner itted that he issued the two postdated checks worth P75,000 each. He did not deny that the same were dishonored on the ground that the from which they were to be drawn was already closed at the time the checks were presented for payment. Neither did he rebut the prosecution’s evidence that the against which he drew his two postdated checks had been closed in May 1985 yet, or more than four years prior to the drawing and delivery of the checks. 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[27] 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 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,[28] we ruled that such prima facie presumption is intended to facilitate proof of knowledge, and not to foreclose issibility 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 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 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. Thus, we find no error in the Court of Appeals’ affirmation of the trial court’s decision convicting petitioner of violations of B.P. Blg. 22. Petitioner’s alternative prayer for the modification of penalty by retroactively applying Vaca v. Court of Appeals[30] and Lim v. People[31] must likewise be denied. We quote istrative Circular No. 13-2001 clarifying istrative Circular No. 12-2000; thus: The clear tenor and intention of istrative Circular No. 12-2000 is not to remove imprisonment as an alternative penalty, but to lay down a rule of preference in the application of the penalties provided for in B.P. Blg. 22. The pursuit of this purpose clearly does not foreclose the possibility of imprisonment for violators of B.P. Blg. 22. Neither does it defeat the legislative intent behind the law. Thus, istrative Circular No. 12-2000 establishes a rule of preference in the application of the penal provisions of B.P. Blg. 22 such that 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. Needless to say, the determination of whether the circumstances warrant the imposition of a fine alone rests solely upon the Judge. Should the Judge decide that imprisonment is the more appropriate penalty, istrative Circular No. 12-2000 ought not be deemed a hindrance. In this case, when petitioner issued the subject postdated checks even though he had no more with the drawee bank, having closed it more than four years before he drew and delivered the checks, he manifested utter lack of good faith or wanton bad faith. Hence, he cannot avail himself of the benefits under istrative Circular No. 12-2000. We likewise sustain petitioner’s conviction for the crime of estafa. The crime of estafa under paragraph 2(d) of Article 315 of the Revised Penal Code, as amended, has the following elements: (1) postdating or issuance of a check in payment of an obligation contracted at the time the check was issued; (2) lack or insufficiency of funds to cover the check; and (3) damage to the payee thereof.[32] Settled is the rule that, to constitute estafa, the act of postdating or issuing a check in payment of an obligation must be the efficient cause of defraudation and, as such, it should be either prior to, or simultaneous with, the act of fraud. The offender must be able to obtain money or property from the offended party because of the issuance of the check, or the person to whom the check was delivered would not have parted with his money or property had there been no check issued to him. Stated otherwise, the check should have been issued as an inducement for the surrender by the party deceived of his money or property, and not in payment of a pre-existing obligation. [33] The existence of the first two elements in the case at bar is not disputed. Petitioner

maintains that the third element is not present. Damage as an element of estafa may consist in (1) the offended party being deprived of his money or property as a result of the defraudation; (2) disturbance in property right; or (3) temporary prejudice.[34] In this case, the deprivation of the property of FEDCOR is apparent. Undoubtedly, the reason why FEDCOR delivered the backhoe to petitioner was that the latter paid the P50,000 down payment and issued two postdated checks in the amount of P75,000 each. Petitioner’s claim that he returned the equipment was not duly proved; he never presented as witness the agent who allegedly received the equipment from him. Moreover, he itted that he never wrote FEDCOR about the return of the allegedly defective backhoe to Ronnie Bote; neither did he go to FEDCOR to claim the return of the equipment or of the cash down payment and the two checks.[35] Such issions belie his allegation that he returned the equipment to FEDCOR. Besides, on cross-examination he itted that during the pendency of the case, he paid Santander, through FEDCOR’s lawyer, on two separate occasions in the total amount of P15,000 upon the advice of his own lawyer that he had to pay because he was guilty; thus: Q During the pendency of this case you paid Engr. Santander cash, is that correct? A I paid the amount of P10,000.00 and then another P5,000.00 because according to my first lawyer I have to pay this because I am guilty and this is B.P. case [sic]. Q You delivered the money to Engr. Federico Santander? A To you Atty. Paray. Q And I was the lawyer of Engr. Federico Santander? A Yes, sir.[36] If indeed petitioner returned the backhoe to Ronnie Bote and yet the latter did not heed his demands for the return of his cash payment and the checks, he (petitioner) should have, at the very least, gone to or written FEDCOR itself about the matter. Instead, he again paid FEDCOR the amount of P15,000 during the pendency of the case. Such payment to FEDCOR negates his claim that he returned the backhoe; it may even be tantamount to an offer of compromise. Under Section 27 of Rule 130 of the Rules on Evidence, an offer of compromise in criminal cases is an implied ission of guilt. Finally, by appealing his conviction, petitioner has thrown the whole case open for review. It becomes the duty of this Court to correct any error as may be found in the appealed judgment, even though it was not made the subject of assignment of errors.[37] This Court finds to be erroneous the penalty imposed by the trial court for the crime of estafa, as affirmed by the Court of Appeals, which is seven years and four months of prision mayor as minimum to twelve years and six months of reclusion temporal as maximum. The penalty for estafa committed by means of bouncing checks has been increased by Presidential Decree No. 818, which took effect on 22 October 1975. Section 1 thereof provides in part as follows: SECTION 1. Any person who shall defraud another by means of false pretenses or fraudulent acts as defined in paragraph 2(d) of Article 315 of the Revised Penal Code, as amended by Republic Act No. 4885, shall be punished by:

1st. The penalty of reclusion temporal if the amount of the fraud is over 12,000 pesos but does not exceed 22,000 pesos, and if such amount exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its maximum period, adding one year for each additional 10,000 pesos but the total penalty which may be imposed shall in no case exceed thirty years. In such cases, and in connection with the accessory penalties which may be imposed under the Revised Penal Code, the penalty shall be termed reclusion perpetua. Petitioner NAGRAMPA defrauded FEDCOR in the amount of P135,000 (P150,000 [value of the checks] minus P15,000 [payment made by petitioner during the pendency of these cases]). Applying P.D. No. 818 and the Indeterminate Sentence Law, the maximum penalty shall be reclusion temporal in its maximum period, plus one year for each additional P10,000 of the amount of the fraud; and the minimum shall be prision mayor, which is the penalty next lower to that prescribed for the offense without first considering any modifying circumstances or the incremental penalty for the amount of fraud in excess of P22,000.[38] WHEREFORE, the instant petition is DENIED. The decision of the Court of Appeals upholding the decisions of the Regional Trial Court of Quezon City, Branch 80, in Criminal Cases Nos. Q-90-15797, Q-90-15798 and Q-90-15799 is hereby AFFIRMED, with the modification that petitioner Manuel Nagrampa is hereby sentenced to suffer (1) an imprisonment of one year for each of the two counts of violation of B. P. Blg. 22, and (2) an indeterminate penalty of eight years and one day of prision mayor as minimum to twenty-eight years, four months and one day of reclusion perpetua as maximum for the crime of estafa; and to pay private complainant Fedcor Trading Corporation the amount of P135,000, plus legal interest thereon from 9 October 1990 up to the time of full payment. SO ORDERED. CLARO E. NARTE and WINSTON TOMAS L. CADHIT, petitioners, vs. COURT OF APPEALS, FIRST DIVISION and PEOPLE OF THE PHILIPPINES, respondents.2004 Jul 142nd DivisionG.R. No. 132552 TINGA, J.: This is a petition for review assailing the Decision[1] of the Court of Appeals dated January 28, 1998 which dismissed the petition filed by Claro E. Narte and Winston Tomas L. Cadhit (hereinafter, the petitioners) and affirmed the decision of the Regional Trial Court (RTC)[2] convicting the petitioners of nine (9) counts of violation of Batas Pambansa Blg. 22 (B.P. 22) with subsidiary imprisonment in case of insolvency in each case.[3] The facts are not disputed. As summarized by the MeTC and adopted by the RTC and the Court of Appeals, they are as follows:[4] The evidence for the prosecution shows that Claro Narte is the General Manager of Norphil Transport Corporation while accused Winston Tomas Cadhit is the maintenance and purchasing manager of Norphil Transport Corporation; that spouses Delia and Emilio Cabrera sold three (3) air conditioned buses to Norphil Transport Corporation at 712 Earnshaw St., Sampaloc, Manila, on May 12, 1994 for P2,220,000.00 cash upon delivery by virtue of which a deed of absolute sale was executed; that the buses were delivered; that payment for the buses was made in postdated checks issued by accused Claro Narte and Winston Tomas L. Cadhit, to wit: Check No. 738006 (Exhibit E), Check No. 738007 (Exhibit F), Check No. 738022

(Exhibit G), Check No. 738024 (Exhibit H), Check No. 738025 (Exhibit I), Check No. 738026 (Exhibit J), Check No. 738018 (Exhibit K), Check No. 738019 (Exh. L), Check No. 738020 (Exhibit M), Check No. 738021 (Exhibit N), at their office at 712 Earnshaw St., Sampaloc, Manila, all of which are payable to Emilio Cabrera, that the checks are marked Exhibits E, F, H, J, K, L, were deposited on August 18, 1994 with Solid Bank, Paco Branch; that the checks marked Exhibit G and Exhibit I were presented for payment with PNB on July 5, 1994 and September 2, 1994, respectively; that the checks marked Exhibit M and N were deposited with Solid Bank on August 31, 1994 and September 18, 1994, respectively; that the check marked Exhibit G was dishonored for being drawn against insufficient funds while the rest of the checks marked Exhibits E to F and H to N were dishonored by reason of closed as per corresponding letter advice from the banks concerned; that the spouses accepted check payments upon the request of accused; that they informed accused that the checks had bounced; that the accused promised to pay the bank upon return of their boss who was then in Canada; that the boss arrived without any payment being made; that she consulted a lawyer, Atty. Gaudencio Lagua, who sent demand letters; that despite their promise and receipt of the demand letters, accused failed to settle the obligation. Evidence for the defense shows that in the transaction for the sale of the buses in favor of Norphil Transport Corporation, one Emilio Cabrera, Jr. represented to be the owner of the buses; that upon delivery of the three buses, which was made one after the other, postdated checks were issued and made payable to Emilio Cabrera, referred to as Emilio Cabrera, Jr. and not Emilio Cabrera, Sr., for the agreed total consideration of P2,220,000.00, but no deed of absolute sale was given; that when accused repeatedly requested for the deed of absolute sale so that the corporation could effect transfer of the line and operate the buses, it was discovered that buses were in the name of Delia Cabrera, and not Emilio Cabrera, Jr. to whom the accused issued the checks; that accused requested the return of the checks mistakenly issued to Emilio Cabrera, Jr. for a replacement in the name of Delia Cabrera, but the checks were given to Emilio Cabrera, Sr. who is not the intended payee; and that the name and signature of Emilio Cabrera, Sr. were merely inserted in the deed of absolute sale to make it appear that he was a party to the sale. The MeTC found that the prosecution was able to establish the elements of the offense, namely: that a person makes or draws and issues any check; that the check is made or drawn and issued to apply on or for value; that the person who makes or draws and issues the check knows at the time of issuance 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 that 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.[5] According to the MeTC, “the accused issued and signed the subject checks as payment for the three (3) buses sold to Norphil Transport Corporation and knew that at the time of issuance they did not have sufficient funds in or credit with the drawee bank for the payment in full upon presentment.”[6] Consequently, the MeTC convicted the petitioners of ten (10) counts of violation of B.P. 22 and imposed the penalty of fine for each count with subsidiary imprisonment in case of insolvency. However, only nine (9) of the ten (10) convictions were appealed to the RTC. Correspondingly, only nine (9) convictions were affirmed.[7] The petitioners then appealed to the Court of Appeals by way of a petition for review[8] raising the following issues: (a) that the trial court erred in convicting them

despite the fact that the complainant is not the intended payee of the checks; (b) that the trial court erred in finding that all the elements of the offense have been established; and (c) that the trial court erred in ordering subsidiary imprisonment in case of non-payment of fine. The appellate court dismissed the petition, ruling that all the elements of the offense have been established by the prosecution. Citing the RTC’s decision favorably, the Court of Appeals also held that, pursuant to the Revised Penal Code (RPC), there may be subsidiary imprisonment when the only penalty imposed is fine. Thus, the petitioners filed the instant Petition[9] dated March 27, 1998 which is essentially a replica of the petition they earlier filed with the Court of Appeals. In fact, except for pages 1, 2, 7, 13 and 14 which were purposely amended to reflect the pertinent dates, the instant petition merely reproduced the allegations and assignment of errors already raised before and ed upon by the RTC and the appellate court. The Office of the Solicitor General (OSG) filed its Comment[10] dated September 15, 1998, arguing that the mere issuance of a check which is subsequently dishonored is prohibited. Countering the petitioners’ claim that there was no valid consideration for the issuance of the checks, the OSG points out that the petitioners themselves itted that the checks were issued in payment of the buses purchased from Delia and Emilio Cabrera. Finally, the OSG avers that the RPC has supplementary application to special laws such as B.P. 22. Hence, as the RPC provides for subsidiary imprisonment in case of non-payment of fine, subsidiary imprisonment may be imposed in the instant case. The petitioners filed a Reply[11] dated August 27, 1999 reiterating the arguments in their Petition. Thereupon, the Court gave due course to the petition and required the parties to submit their respective memoranda.[12] In compliance with the Court’s directive, the petitioners filed their Memorandum[13] dated December 27, 1999 on December 28, 1999, while the OSG submitted its Memorandum[14] dated December 18, 1999 on December 24, 1999. Thereafter, the case was considered submitted for decision. As previously intimated, the instant petition presents exactly the same arguments raised by the petitioners in their petition for review with the Court of Appeals. The same issues were raised before and exhaustively ed upon by the RTC and the Court of Appeals, which resulted in the affirmance of the MeTC’s decision finding that all the elements of a violation of B.P. 22 have been established and that subsidiary imprisonment in case of insolvency may be imposed in accordance with the RPC. These issues need no longer be belabored. Well-settled is the rule that the findings of fact and conclusions of the trial court are binding on this Court when ed by substantial evidence on record and carries more weight when affirmed by the Court of Appeals. [15] There are no matters of weight or significance presented in this petition that would impair the correctness and validity of the decision of the MeTC affirmed, as it is, by both the RTC and the Court of Appeals.[16] At any rate, we have pronounced that the clear intention of the framers of B.P. 22 is to make the mere act of issuing a worthless check malum prohibitum. The agreement surrounding the issuance of the checks need not be first looked into since the law itself provides that regardless of the intent of the parties, the mere issuance of any kind of check which is subsequently dishonored makes the person who issued the check liable.[17]

Finally, this Court clarified in istrative Circular No. 13-2001 dated February 14, 2001 that there is no legal obstacle to the application of the RPC provisions on subsidiary imprisonment should only a fine be imposed and the accused be unable to pay the fine. This should finally dispel the petitioners’ importunate claim that the imposition of subsidiary imprisonment in this case is improper. WHEREFORE, finding no reversible error in the Decision of the Court of Appeals dated January 28, 1998, the instant petition for review is DENIED. Costs against petitioners. SO ORDERED. G.R. No. 153451. May 26, 2005 OFELIA MARIGOMEN, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent. CALLEJO, SR., J.: This is a petition for review of the Decision[1] of the Court of Appeals (CA) in CA-G.R. CR No. 20510 affirming the Decision[2] of the Regional Trial Court (RTC) of Bacolod City, Branch 44, in Criminal Case Nos. 13012 to 13014 convicting Ofelia Marigomen and John V. Dalao for violation of Batas Pambansa (B.P.) Blg. 22. The Antecedents Caltex Philippines, Inc. (Caltex) is engaged in the sale of gasoline and oil products to its customers, one of which was the Industrial Sugar Resources, Inc. (INSURECO), with offices at the Bacolod Murcia Milling Corporation Compound in Bacolod City. Caltex had granted a credit line to INSURECO, and the latter purchased gasoline and lubricants from Caltex through its sales representative in Negros Occidental and Bacolod City.[3] The finance officer of INSURECO was Ofelia Marigomen, while John V. Dalao was the assistant to the general manager.[4] They were authorized to draw and sign checks against the of INSURECO at the Far East Bank and Trust Company, Bacolod City Branch. Caltex had agreed for INSURECO to pay its purchases via postdated checks, which were delivered to Caltex upon the release of the purchased oil products.[5] As evidenced by separate delivery receipts, INSURECO bought and took delivery of oil products from Caltex. In payment thereof, the following postdated checks, drawn and signed by Marigomen and Dalao against its with the Far East Bank and Trust Company, Bacolod City Branch, were issued in favor of Caltex: INVOICE NO. DATE OF SALE CHECK NO. AMOUNT BA 87060[6] March 13, 1992 3357283[7] P 44,988.56 BA 87464[8] March 17, 1992 3357348[9]

P148,656.10 BA 87987[10] March 30, 1992 3357543[11] P130,782.70 BA 87988[12] -do-doP28,000.00 BA 88290[13] April 3, 1992 3357619[14] P205,489.50 BA 88291[15] -do-doP 82,193.30 BA 88292[16] -do-do-doOn due dates, Caltex presented the said checks for payment. However, Check Nos. 3357283, 3357348 and 3357619 were dishonored by the drawee bank, for the reason that they were “drawn against insufficient funds.” Check No. 3357543 was, likewise, dishonored with the notation “ closed.”[17] Hence, Caltex, through Dalao, made verbal demands to INSURECO for the replacement of the dishonored checks with either manager’s checks or cash, to no avail.[18] On May 6, 1992, Caltex sent a confirmation telegram informing INSURECO of the dishonor of the said checks, and again demanded their replacement, but received no reply.[19] On July 6, 1992, Caltex filed criminal complaints for violation of B.P. Blg. 22 against Marigomen and Dalao with the Office of the City Prosecutor of Bacolod City.[20] They were, thereafter, charged with three counts of violation of B.P. Blg. 22 in three separate Informations filed with the RTC of Bacolod City, and docketed as Criminal Case Nos. 13012 to 13014. The accusatory portion of the Information in Criminal Case No. 13012 reads: That on or about the 30th day of March 1992, in the City of Bacolod, Philippines, and within the jurisdiction of this Honorable Court, the herein accused being then the Finance Officer and Assistant General Manager, respectively, of Industrial Sugar Resources Company, Inc. (INSURECO) did, then and there, willfully, unlawfully and feloniously make out, issue and deliver Far East Bank and Trust Company, Bacolod Branch, Bacolod, City Check No. 3357348 postdated to April 24, 1992, in the amount of ONE HUNDRED FORTY-EIGHT THOUSAND SIX HUNDRED FIFTY-SIX PESOS and TEN CENTAVOS (P148,656.10), Philippine Currency, in favor of Caltex Philippines, Inc. a corporation duly organized and existing under the Philippine Laws, represented in this case by its Sales Representative, Norman Lee Riego, Jr., in payment of a pre-existing obligation knowing at the time of issue of said check that they did not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its

presentment and which check after presentment, was subsequently dishonored by the drawee bank for reason of insufficient funds; that, despite notice of dishonor and repeated demands, accused failed and refused and still fails and refuses to make good the full value of their check or redeem the same to the damage and prejudice of said Caltex Philippines, Inc., in the aforementioned amount. Contrary to law.[21] Except for the dates of the commission of the crimes charged and the contents of the postdated checks subject matter thereof, the accusatory portions of the two other Informations are similarly worded. When she testified, Marigomen itted to having drawn and signed the postdated checks subject matter of the cases, along with Dalao, and that these were issued in payment for the gasoline and oil products purchased by INSURECO. She declared that she was employed by INSURECO as finance officer on September 15, 1991, and that she resigned on March 31, 1992.[22] As of June 5, 1992 she was residing at No. 40 Malaspina St., Villamonte, Bacolod City.[23] She claimed that she had no participation whatsoever in the purchase of Caltex oil products by INSURECO,[24] which had been granted a credit line with a 30 to 40-day payment term.[25] She had no knowledge that Caltex had sent confirmation telegrams demanding payment from INSURECO, because by then she was no longer employed therein. Moreover, she never received any written notice or telegram from Caltex demanding payment of the amounts of the dishonored checks.[26] It was only when she received a subpoena from the Office of the City Prosecutor of Bacolod City that she discovered that the checks had been dishonored, and that she had been charged in connection therewith. She insisted that she was not aware that the funds of INSURECO in its with the Far East Bank and Trust Company were insufficient at the time she issued the subject checks.[27] On October 21, 1996, the trial court rendered judgment convicting Marigomen and Dalao of the crimes charged. The fallo of the decision reads: WHEREFORE, premises considered, the Court hereby ACQUITS the accused, John Dalao for the crime of Estafa in Crim. Case No.12311 for insufficiency of evidence. The Court, however, finds the accused Ofelia Marigomen and John Dalao GUILTY beyond reasonable doubt for violation of Batas Pambansa Blg. 22 and hereby sentences them as follows: 1. In Crim. Case No. 13012: One (1) year imprisonment and to tly and solidarily pay the complainant, by way of civil indemnity the amount of P148,656.10, representing the value of the check. 2. In Crim. Case No. 13013: One (1) year imprisonment and to tly and solidarily pay the complainant the sum of P124,855.75 by way of civil indemnity. 3. In Crim. Case No. 13014: One (1) year imprisonment and to tly and solidarily pay the complainant the amount of P44,988.55, by way of civil indemnity. …

SO ORDERED.[28] Marigomen appealed the decision to the CA, asserting in her brief, as appellant therein, that the following errors were committed by the trial court: 1 THE TRIAL COURT ERRED IN HOLDING THAT THERE IS A DEMAND MADE TO THE ACCUSED OFELIA MARIGOMEN. 2 THE TRIAL COURT ERRED IN ALLOWING A PRIVATE PROSECUTOR TO CONDUCT THE DIRECT EXAMINATION. 3 THE TRIAL COURT ERRED IN HOLDING THAT THE ACCUSED OFELIA MARIGOMEN IS CIVILLY LIABLE. 4 THE TRIAL COURT ERRED IN HOLDING THAT THERE IS A VALID OFFER OF EXHIBITS MADE BY THE PROSECUTION. 5 THE TRIAL COURT ERRED IN ITTING THE TESTIMONY OF THE WITNESS MR. NORMAN RIEGO WITHOUT REQUIRING HIS AUTHORITY OR BOARD RESOLUTION FROM CALTEX, PHILIPPINES. 6 THE TRIAL COURT ERRED IN TOTALLY DISREGARDING THE FACT THAT THERE IS A CREDIT LINE GRANTED BY CALTEX, PHILIPPINES TO INDUSTRIAL SUGAR RESOURCES, INC. (INSURECO).[29] On April 19, 2001, the CA rendered judgment affirming the decision of the RTC, with the modification that Marigomen and Dalao pay fines, with subsidiary imprisonment in case of insolvency, in lieu of imprisonment. The appellate court ruled that they were civilly liable for the amounts of the checks, conformably with Article 100 of the Revised Penal Code, and the ruling of this Court in Banal v. Tadeo, Jr.[30] It also held that the notices of demand sent by Caltex for INSURECO to pay the amount of the checks were sufficient notice to Marigomen and Dalao. The CA also declared that whether or not Caltex granted a credit line or accommodation to INSURECO was irrelevant to the issue of whether they were criminally liable for violation of B.P. Blg. 22. Upon the denial of her motion for reconsideration of the said decision, Marigomen filed the instant petition for review on certiorari, raising the following issues: 1. WHETHER OR NOT THE HONORABLE COURT OF APPEALS IS RIGHT IN UPHOLDING THE DECISION OF THE REGIONAL TRIAL COURT IN FINDING THE ACCUSED MRS. MARIGOMEN GUILTY FOR VIOLATION OF B.P. 22 INSPITE OF THE FACT THAT NO NOTICE OF DEMAND HAS EVER BEEN SENT TO THE PETITIONER. 2. WHETHER OR NOT THE PARTICIPATION OF THE PRIVATE PROSECUTOR IS PROPER OR NOT. 3. WHETHER OR NOT PETITIONER MAY BE HELD CIVILLY LIABLE IN THE INSTANT CASE. 4. WHETHER OR NOT THERE WAS A VALID OFFER OF EXHIBITS AS AGAINST THE CRIMINAL INFORMATIONS FILED AGAINST ACCUSED MARIGOMEN.[31] The petitioner avers that the prosecution failed to prove a condition sine qua non to

her prosecution and conviction for violation of B.P. Blg. 22, that is, written notice informing her that the subject checks had been dishonored. She alleges that the respondent failed to prove that a copy of the telegram dated May 6, 1992 addressed to INSURECO was sent to and received by her. Thus, even if the telegram had been received by INSURECO, such receipt was not binding on her because she was no longer employed with INSURECO by then. The petitioner insists that she had no participation whatsoever in the purchase of the oil products by her former employer. She maintains that it is shocking to the conscience that she, a mere employee of INSURECO, should be held civilly liable for the said purchases. She asserts that if she had issued the checks in her personal capacity, indubitably, she would be liable for the dishonor of the checks; in this case, however, she drew and signed the checks as a mere employee of INSURECO and did not even receive a single centavo of its proceeds. She cites the ruling of this Court in Banque Generale Belge v. Walter Bull & Co., Inc.[32] The Office of the Solicitor General (OSG), for its part, maintains that the petitioner was notified verbally and in writing of the dishonor of the subject checks, as shown by the aforementioned telegram sent by Caltex via PT&T to INSURECO. The OSG argues that the petitioner cannot feign ignorance of the said telegram since she was the assigned finance officer of INSURECO. The petitioner even failed to prove that March 31, 1992 was the last day of her employment with INSURECO; and even if it were the case, it was unusual that the petitioner still signed checks due and demandable at a time when she would no longer be connected with INSURECO, and that the latter allowed such a situation. The OSG posits that the petitioner cannot even rely on the ruling of this Court in Lao v. Court of Appeals,[33] because the factual backdrop in this case is substantially different. The threshold issue is whether or not the respondent adduced proof beyond reasonable doubt of the guilt of the petitioner for violation of B.P. Blg. 22. The petition is granted. Section 1 of B.P. Blg. 22 provides: Section 1. Checks without sufficient funds. – Any person who makes or draws and issues any check to apply on 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 check in full upon its 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 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 violation of B.P. Blg. 22 to be committed, the prosecution must prove the following essential elements: (1) the making, drawing, and issuance of any check to apply for or for value; (2) the knowledge of the maker, drawer, or issuer that at the time of issue there are no sufficient funds in or credit with the drawee bank for the payment of such

check in full upon its presentment; and (3) the subsequent dishonor of the check by the drawee bank for insufficiency of funds or credit or dishonor for the same reason had not the drawer, without any valid cause, ordered the bank to stop payment.[34] It is difficult for the prosecution to prove the second element of the crime because the knowledge on the part of the maker, drawer or issuer that at the time of issue he does not have sufficient funds or credit with the drawee bank for the payment of such checks in full upon its presentation is a state of the mind. However, Section 2 of B.P. Blg. 22 provides that if the prosecution proves that the making, drawing and issuing of a check, payment of which is refused by the drawee bank because of insufficiency of funds or credit with the said bank within 90 days from the date of the check, such shall be prima facie evidence of the second element of the crime. The drawee or maker of the check may overcome the prima facie evidence, either by paying the amount of the check, or by making arrangements for its payment in full within five banking days after receipt of notice that such check was not paid by the drawee bank.[35] Contrary, to the respondent’s contention, the ruling of the Court in Lao v. Court of Appeals[36] is applicable in this case. In acquitting the petitioner therein, the Court explained: 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 ens 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. Moreover, the notice of dishonor must be in writing; a verbal notice is not enough. The rationale for this was explained by the Court in Domagsang v. Court of Appeals, [37] to wit: Petitioner counters that the lack of a written notice of dishonor is fatal. The Court agrees. While, indeed, Section 2 of B.P. Blg. 22 does not state that the notice of dishonor be in writing, taken in conjunction, however, with Section 3 of the law, i.e., “that where there are no sufficient funds 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 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.

Thus, if the drawer or maker is an officer of a corporation, the notice of dishonor to the said corporation is not notice to the employee or officer who drew or issued the check for and in its behalf. The Court explained in Lao v. Court of Appeals,[38] to wit: In this light, the postulate of Respondent Court of Appeals that “(d)emand on the Corporation constitutes demand on appellant (herein petitioner),” is erroneous. Premiere has no obligation to forward the notice addressed to it to the employee concerned, especially because the corporation itself incurs no criminal liability under B.P. Blg. 22 for the issuance of a bouncing check. Responsibility under B.P. Blg. 22 is personal to the accused; hence, personal knowledge of the notice of dishonor is necessary. Consequently, constructive notice to the corporation is not enough to satisfy due process. Moreover, it is petitioner, as an officer of the corporation, who is the latter’s agent for purposes of receiving notices and other documents, and not the other way around. It is but axiomatic that notice to the corporation, which has a personality distinct and separate from the petitioner, does not constitute notice to the latter. In this case, the prosecution failed to present any employee of the PT&T to prove that the telegrams from the offended party were in fact transmitted to INSURECO and that the latter received the same. Furthermore, there is no evidence on record that the petitioner ever received the said telegrams from INSURECO, or that separate copies thereof were transmitted to and received by the petitioner. In fine, the respondent failed to prove the second element of the crime. Hence, the petitioner should be acquitted of the crimes charged. IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The Decision of the Court of Appeals in CA-G.R. CR No. 20510 dated April 19, 2001 and its Resolution dated April 11, 2002 are REVERSED and SET ASIDE. Petitioner Ofelia Marigomen is ACQUITTED of all the charges. The bonds posted for her provisional liberty are hereby CANCELLED. SO ORDERED. G.R. No. 75954 October 22, 1992 PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. DAVID G. NITAFAN, Presiding Judge, Regional Trial Court, Branch 52, Manila, and K.T. LIM alias MARIANO LIM, respondents. BELLOSILLO, J.: Failing in his argument that B.P. 22, otherwise known as the "Bouncing Check Law", is unconstitutional, 1 private respondent now argues that the check he issued, a memorandum check, is in the nature of a promissory note, hence, outside the purview of the statute. Here, his argument must also fail. The facts are simple. Private respondent K.T. Lim was charged before respondent court with violation of B.P. 22 in an Information alleging –– That on . . . January 10, 1985, in the City of Manila . . . the said accused did then and there wilfully, unlawfully and feloniously make or draw and issue to Fatima Cortez Sasaki . . . Philippine Trust Company Check No. 117383 dated February 9, 1985 . . . in the amount of P143,000.00, . . . well knowing that at the time of issue he . . . did not have sufficient funds in or credit with the drawee bank . . . which check . . . was subsequently dishonored by the drawee bank for insufficiency of funds, and despite

receipt of notice of such dishonor, said accused failed to pay said Fatima Cortez Sasaki the amount of said check or to make arrangement for full payment of the same within five (5) banking days after receiving said notice. 2 On 18 July 1986, private respondent moved to quash the Information of the ground that the facts charged did not constitute a felony as B.P. 22 was unconstitutional and that the check he issued was a memorandum check which was in the nature of a promissory note, perforce, civil in nature. On 1 September 1986, respondent judge, ruling that B.P. 22 on which the Information was based was unconstitutional, issued the questioned Order quashing the Information. Hence, this petition for review on certiorari filed by the Solicitor General in behalf of the government. Since the constitutionality of the "Bouncing Check Law" has already been sustained by this Court in Lozano v. Martinez 3 and the seven (7) other cases decided tly with it, 4 the remaining issue, as aptly stated by private respondent in his Memorandum, is whether a memorandum check issued postdated in partial payment of a pre-existing obligation is within the coverage of B.P. 22. Citing U.S. v. Isham, 5 private respondent contends that although a memorandum check may not differ in form and appearance from an ordinary check, such a check is given by the drawer to the payee more in the nature of memorandum of indebtedness and, should be sued upon in a civil action. We are not persuaded. A memorandum check is in the form of an ordinary check, with the word "memorandum", "memo" or "mem" written across its face, signifying that the maker or drawer engages to pay the bona fide holder absolutely, without any condition concerning its presentment. 6 Such a check is an evidence of debt against the drawer, and although may not be intended to be presented, 7 has the same effect as an ordinary check, 8 and if ed to the third person, will be valid in his hands like any other check. 9 From the above definition, it is clear that a memorandum check, which is in the form of an ordinary check, is still drawn on a bank and should therefore be distinguished from a promissory note, which is but a mere promise to pay. If private respondent seeks to equate memorandum check with promissory note, as he does to skirt the provisions of B.P. 22, he could very well have issued a promissory note, and this would be have exempted him form the coverage of the law. In the business community a promissory note, certainly, has less impact and persuadability than a check. Verily, a memorandum check comes within the meaning of Sec. 185 of the Negotiable Instruments Law which defines a check as "a bill of exchange drawn on a bank payable on demand." A check is also defined as " [a] written order or request to a bank or persons carrying on the business of banking, by a party having money in their hands, desiring them to pay, on presentment, to a person therein named or bearer, or to such person or order, a named sum of money," citing 2 Dan. Neg. Inst. 528; Blair v. Wilson, 28 Gratt. (Va.) 170; Deener v. Brown, 1 MacArth. (D.C.) 350; In re Brown, 2 Sto. 502, Fed. Cas. No. 1,985. See Chapman v. White, 6 N.Y. 412, 57 Am. Dec 464. 10 Another definition of check is that is "[a] draft drawn upon a bank and payable on demand, signed by the maker or drawer, containing an unconditional promise to pay a sum certain in money to the order of the payee," citing State v. Perrigoue, 81 Wash, 2d 640, 503 p. 2d 1063, 1066. 11

A memorandum check must therefore fall within the ambit of B.P. 22 which does not distinguish but merely provides that "[a]ny person who makes or draws and issues any check knowing at the time of issue that he does not have sufficient funds in or credit with the drawee bank . . . which check is subsequently dishonored . . . shall be punished by imprisonment . . ." (Emphasis supplied ). 12 Ubi lex no distinguit nec nos distinguere debemus. But even if We retrace the enactment of the "Bouncing Check Law" to determine the parameters of the concept of "check", We can easily glean that the of the then Batasang Pambansa intended it to be comprehensive as to include all checks drawn against banks. This was particularly the ratiocination of Mar. Estelito P. Mendoza, co-sponsor of Cabinet Bill No. 9 which later became B.P. 22, when in response to the interpellation of Mr. Januario T. Seño, Mr. Mendoza explained that the draft or order must be addressed to a bank or depository, 13 and accepted the proposed amendment of Messrs. Antonio P. Roman and Arturo M. Tolentino that the words "draft or order", and certain which technically meant promissory notes, wherever they were found in the text of the bill, should be deleted since the bill was mainly directed against the pernicious practice of issuing checks with insufficient or no funds, and not to drafts which were not drawn against banks. 14 A memorandum check, upon presentment, is generally accepted by the bank. Hence it does not matter whether the check issued is in the nature of a memorandum as evidence of indebtedness or whether it was issued is partial fulfillment of a preexisting obligation, for what the law punishes is the issuance itself of a bouncing check 15 and not the purpose for which it was issuance. The mere act of issuing a worthless check, whether as a deposit, as a guarantee, or even as an evidence of a pre-existing debt, is malum prohibitum. 16 We are not unaware that a memorandum check may carry with it the understanding that it is not be presented at the bank but will be redeemed by the maker himself when the loan fall due. This understanding may be manifested by writing across the check "Memorandum", "Memo" or "Mem." However, with the promulgation of B.P. 22, such understanding or private arrangement may no longer prevail to exempt it from penal sanction imposed by the law. To require that the agreement surrounding the issuance of check be first looked into and thereafter exempt such issuance from the punitive provision of B.P. 22 on the basis of such agreement or understanding would frustrate the very purpose for which the law was enacted — to stem the proliferation of unfunded checks. After having effectively reduced the incidence of worthless checks changing hands, the country will once again experience the limitless circulation of bouncing checks in the guise of memorandum checks if such checks will be considered exempt from the operation of B.P. 22. It is common practice in commercial transactions to require debtors to issue checks on which creditors must rely as guarantee of payment. To determine the reasons for which checks are issued, or the and conditions for their issuance, will greatly erode the faith the public responses in the stability and commercial value of checks as currency substitutes, and bring about havoc in trade and in banking communities. 17 WHEREFORE, the petition is GRANTED and the Order of respondent Judge of 1 September 1986 is SET ASIDE. Consequently, respondent Judge, or whoever presides over the Regional Trial Court of Manila, Branch 52, is hereby directed forthwith to proceed with the hearing of the case until terminated. SO ORDERED. G.R. No. 175381

February 26, 2008

JAMES SVENDSEN, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent. CARPIO MORALES, J.: Assailed via Petition for Review on Certiorari is the Court of Appeals Decision1 of November 16, 2006 denying petitioner’s appeal from the December 22, 2005 Decision2 of the Regional Trial Court (RTC) of Manila, Branch 14 which affirmed the December 17, 2003 Judgment3 of the Metropolitan Trial Court (MeTC) of Manila, Branch 5, finding James Svendsen (petitioner) guilty of violation of Batas Pambansa Blg. (B.P. Blg.) 22 or the Bouncing Checks Law. In October 1997, Cristina Reyes (Cristina) extended a loan to petitioner in the amount of P200,000, to bear interest at 10% a month. After petitioner had partially paid his obligation, he failed to settle the balance thereof which had reached P380,000 inclusive of interest.4 Cristina thus filed a collection suit against petitioner, which was eventually settled when petitioner paid her P200,0005 and issued in her favor an International Exchange Bank check postdated February 2, 1999 (the check) in the amount of P160,000 representing interest.6 The check was co-signed by one Wilhelm Bolton. When the check was presented for payment on February 9, 1999, it was dishonored for having been Drawn Against Insufficient Funds (DAIF).7 Cristina, through counsel, thus sent a letter to petitioner by ed mail informing him that the check was dishonored by the drawee bank, and demanding that he make it good within five (5) days from receipt thereof.8 No settlement having been made by petitioner, Cristina filed a complaint dated March 1, 1999 against him and his co-signatory to the check, Bolton, for violation of B.P. Blg. 22 before the City Prosecutor’s Office of Manila. No counter-affidavit was submitted by petitioner and his co-respondent. An Information dated April 13, 1999 for violation of B.P. Blg. No. 22 was thus filed on April 29, 1999 before the MeTC of Manila against the two, the accusatory portion of which reads: That sometime in December 1998 the said accused did then and there willfully, unlawfully, and feloniously and tly make or draw and issue to CRISTINA C. REYES to apply on or for value INTERNATIONAL EXCHANGE BANK check no. 0000009118 dated February 2, 1999 payable to CRISTINA REYES in the amount of P160,000.00 said accused well knowing that at the time of issue she/he/they did not have sufficient funds and/or credit with the drawee bank for payment of such check in full upon its presentment, which check after having been deposited in the City of Manila, Philippines, and upon being presented for payment within ninety (90) days from the date thereof was subsequently dishonored by the drawee bank for INSUFFICIENCY OF FUNDS and despite receipt of notice of such dishonor, said accused failed to pay said CRISTINA C. REYES the amount of the check or to make arrangement for full payment of the same within five (5) banking days after receiving said notice. CONTRARY TO LAW.9 Bolton having remained at large, the trial court never acquired jurisdiction over his person.10 By Judgment of December 17, 2003, Branch 5 of the Manila MeTC found petitioner

guilty as charged, disposing as follows: WHEREFORE, this Court finds accused James Robert Svendson [sic] GUILTY beyond reasonable doubt of a violation of Batas Pambansa Blg. 22 (Bouncing Checks Law) and imposes upon him to pay a fine of ONE HUNDRED SIXTY THOUSAND PESOS (P160,000.00), with subsidiary imprisonment in case of insolvency. Accused is also made liable to pay private complainant Cristina C. Reyes civil indemnity in the total amount of ONE HUNDRED SIXTY THOUSAND PESOS (P160,000.00) representing his civil obligation covered by subject check. Meantime, considering that other accused Wilhelm Bolton remains at large, let a warrant of arrest against him ISSUE. Pending his apprehension, let the case against him be sent to the ARCHIVES. (Emphasis in the original; underscoring supplied) As priorly stated, the RTC affirmed the MeTC judgment and the Court of Appeals denied petitioner’s appeal. Hence, the present petition for review. Petitioner argues that the appellate court erred in finding that the first element of violation of B.P. Blg. 22 – the making, drawing, and issuance of any check "to apply on or for value" – was present, as the obligation to pay interest is void, the same not being in writing and the 10% monthly interest is unconscionable; in holding him civilly liable in the amount of P160,000 to private complainant, notwithstanding the invalidity of the interest stipulation; and in violating his right to due process when it convicted him, notwithstanding the absence of proof of receipt by him of a written notice of dishonor. The petition is impressed with merit. Section 1 of B.P. Blg. 22 or the Bouncing Checks Law reads: SECTION 1. Checks without sufficient funds. – Any person who makes or draws and issues any check to apply on 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 check in full upon its 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 days but not more than one (1) year or by 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. Where the check is drawn by a corporation, company or entity, the person or persons who actually signed the check in behalf of such drawer shall be liable under this Act. For petitioner to be validly convicted of the crime under B.P. Blg. 22, the following requisites must thus concur: (1) the making, drawing and issuance of any check to

apply for or for value; (2) the knowledge of the maker, drawer, or issuer that at the time of issue he does not have sufficient funds in or credit with the drawee bank for the payment of the check in full upon its presentment; and (3) the subsequent dishonor of the check by the drawee bank for insufficiency of funds or credit or dishonor for the same reason had not the drawer, without any valid cause, ordered the bank to stop payment.11 Petitioner its having issued the postdated check to Cristina. The check, however, was dishonored when deposited for payment in Banco de Oro due to DAIF. Hence, the first and the third elements obtain in the case. As for the second element, Section 2 of B.P. Blg. 22 provides that [t]he 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 the 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. In Rico v. People of the Philippines,12 this Court held: x x x [I]f x x x notice of non-payment by the drawee bank is not sent to the maker or drawer of the bum check, or if there is no proof as to when such notice was received by the drawer, then the presumption of knowledge as provided in Section 2 of B.P. 22 cannot arise, since there would simply be no way of reckoning the crucial five-day period. x x x In recent cases, we had the occasion to emphasize that not only must there be a written notice of dishonor or demand letters actually received by the drawer of a dishonored check, but there must also be proof of receipt thereof that is properly authenticated, and not mere ed receipt and/or return receipt. Thus, as held in Domagsang vs. Court of Appeals, 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 funds 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. In our view, both the spirit and letter of the Bouncing Checks Law require for the act to be punished thereunder not only that the accused issued a check that is dishonored, but also that the accused has actually been notified in writing of the fact of dishonor. This is consistent with the rule that penal statues must be construed strictly against the state and liberally in favor of the accused. x x x In fine, the failure of the prosecution to prove the existence and receipt by petitioner of the requisite written notice of dishonor and that he was given at least five banking days within which to settle his constitutes sufficient ground for his acquittal.13 (Italics in the original; emphasis and underscoring supplied) The evidence for the prosecution failed to prove the second element. While the registry receipt,14 which is said to cover the letter-notice of dishonor and of demand sent to petitioner, was presented, there is no proof that he or a duly authorized agent received the same. Receipts for ed letters including return receipts do not

themselves prove receipt; they must be properly authenticated to serve as proof of receipt of the letters.15 Thus in Ting v. Court of Appeals,16 this Court observed: x x x All that we have on record is an illegible signature on the registry receipt as evidence that someone received the letter. As to whether this signature is that of one of the petitioners or of their authorized agent remains a mystery. From the registry receipt alone, it is possible that petitioners or their authorized agent did receive the demand letter. Possibilities, however, cannot replace proof beyond reasonable doubt.17 For failure then to prove all the elements of violation of B.P. Blg. 22, petitioner’s acquittal is in order. Petitioner is civilly liable, however. For in a criminal case, the social injury is sought to be repaired through the imposition of the corresponding penalty, whereas with respect to the personal injury of the victim, it is sought to be compensated through indemnity, which is civil in nature.18 The decision of the MeTC, which was affirmed on appeal by the RTC and the appellate court, ordering petitioner "to pay private complainant Cristina C. Reyes civil indemnity in the total amount of ONE HUNDRED SIXTY THOUSAND PESOS (P160,000) representing his civil obligation covered by subject check," deserves circumspect examination, however, given that the obligation of petitioner to pay 10% interest per month on the loan is unconscionable and against public policy. The P160,000 check petitioner issued to Cristina ittedly represented unpaid interest. By Cristina’s information, the interest was computed at a fixed rate of 10% per month.19 While the Usury Law ceiling on interest rates was lifted by Central Bank Circular No. 905, nothing therein grants lenders carte blanche to raise interest rates to levels which will either enslave their borrowers or lead to a hemorrhaging of their assets.20 Stipulations authorizing such interest are contra bonos mores, if not against the law. They are, under Article 140921 of the New Civil Code, inexistent and void from the beginning.22 The interest rate of 10% per month agreed upon by the parties in this case being clearly excessive, iniquitous and unconscionable cannot thus be sustained. In Macalalag v. People,23 Diño v. Jardines,24 and in Cuaton v. Salud,25 this Court, finding the 10% per month interest rate to be unconscionable, reduced it to 12% per annum. And in other cases26 where the interest rates stipulated were even less than that involved herein, the Court equitably reduced them. This Court deems it fair and reasonable then, consistent with existing jurisprudence, to adjust the civil indemnity to P16,000, the equivalent of petitioner’s unpaid interest on the P200,000 loan at 12% percent per annum as of February 2, 1999, the date of the check, plus 12% per annum interest to be computed from April 29, 1999, the date of judicial demand (date of the filing of the Information) up to the finality of this judgment. After the judgment becomes final and executory until the obligation is satisfied, the total amount due shall bear interest at 12% per annum.27 Respecting petitioner’s claim that since the promissory note incorporating the stipulated 10% interest per month was not presented, there is no written proof thereof, hence, his obligation to pay the same must be void, the same fails. As reflected above, Cristina itted such stipulation.

In any event, the presentation of the promissory note may be dispensed with in a prosecution for violation of B.P. Blg. 22 as the purpose for the issuance of such check is irrelevant in the determination of the accused’s criminal liability. It is for the purpose of determining his civil liability that the document bears significance. Notably, however, Section 24 of the Negotiable Instruments Law provides that "Every negotiable instrument is deemed prima facie to have been issued for a valuable consideration, and every person whose signature appears thereon to have become a party thereto for value." It was incumbent then on petitioner to prove that the check was not for a valuable consideration. This he failed to discharge. WHEREFORE, the Court of Appeals Decision of November 16, 2006 is REVERSED and SET ASIDE. Petitioner, James Svendsen, is acquitted of the crime charged for failure of the prosecution to prove his guilt beyond reasonable doubt. He is, however, ordered to pay private complainant, Cristina C. Reyes, the amount of SIXTEEN THOUSAND PESOS (P16,000) representing civil indemnity, plus 12% interest per annum computed from April 29, 1999 up to the finality of this judgment. After the judgment becomes final and executory until the obligation is satisfied, the total amount due shall earn interest at 12% per annum. SO ORDERED.