What Is Batas Pambansa 22 (BP 22)?

cheque-pen_thumb

cheque pen thumb What Is Batas Pambansa 22 (BP 22)?Batas Pambansa Blg 22, otherwise known as the Bouncing Checks Law, is enacted for the protection of the public, most especially the businessmen, who issue and receive checks as a matter of practice. In short, BP 22 punishes the mere issuance of a worthless check.

A check is worthless when at the time of its presentment to the bank for encashment, usually within 90 days from its issuance, it is dishonored by the bank because of insufficient funds, or because the account against which the check was drawn is already closed. So generally, there are two offenses punished under BP 22, namely: 1)the making or drawing and issuance of a check when at the time of its issuance the issuer knows that he does not have sufficient funds, and 2)failing to keep  sufficient funds to cover the full amount of the check.

Making, Drawing or Issuance of a check when at the time of its issue, issuer knows that he does not have sufficient funds

In the first offense punishable under BP 22, it should be noted that what really gives rise to the violation is not the making, drawing, issuance, or the dishonor if the check, but the failure of the issuer to make good the check within five (5) banking days from the time that he has received the Notice of Dishonor and Demand for Payment.

For instance John issued a check worth P10,000.00 to Jenny. At the time he issued the check, he knew that he does not have P10,000.00 with the bank. If Jenny presents the check to the bank for encashment, and it was dishonored, Jenny should give a Notice of Dishonor and a demand for payment to John; John’s obligation is to pay Jenny P10,000.00 within 5 banking days from the time he receives the Notice of Dishonor, otherwise, he may be liable for violation of BP 22.

According to the case of Lina Lim lao vs. People, GR No. 119178, June 20, 1997, if the issuer was able to make full payment of the amount which appears on the check within 5 days from his receipt of notice of dishonor, he can raise such defense, and a criminal action against him is already disallowed.

Evidence of Knowledge of Insufficient Funds

If the bank refuses to pay the check because of insufficiency of funds when it is presented within 90 days from the date of the check, it shall be used as an evidence that the issuer knows that he has insufficient funds, unless he pays the holder the amount of the check or makes arrangements for its payment within 5 banking days after he received a notice that the check was dishonored.

Failing to keep Sufficient Funds to Cover Full Amount of the Check

In the second offense under BP 22, the issuer has sufficient funds with the bank at the time he issues the check. What makes him liable is his failure to keep sufficient funds with the bank within a reasonable time from the time he issues the check.

In banking practice, the reasonable time is six (6) months or 180 days, which is usually the time when a check becomes stale.

ESTAFA VERSUS BP 22

One thing in common between the estafa and BP 22 is that they can be committed by issuance of bouncing checks. There is only a thin line that distinguishes one from the other, and for most people it is a little difficult to determine.

Estafa by issuance of bouncing checks

One manner of committing estafa is by employment of deceit, deception may be in the form of issuance of a check in payment of an obligation when the issuer knew that he had no funds or that his funds are not sufficient to cover the amount of the check.

In this situation, the issuance of the check should be before or instantaneous with a transaction. If however, the check was issued in payment of an already existing obligation, then there really is no estafa but only a civil liability.

If the drawer of the check was not able to pay or make arrangements for payment of the check within three (3) days from the time he receives a notice of dishonor, then it is a prima facie evidence that he employed deceit in the issuance of the check.

A good example would be the case of People of the Philippines vs. Virginia Baby P. Montaner, G.R. No. 184053, August 31, 2011. In this case, accused Virginia Montaner drew and issued ten postdated checks in exchange for P50,000.00 from Reynaldo Solis. However, when Solis presented the checks to Prudential Bank, they were dishonored because the account was already closed. So, Reynaldo sent a demand letter to Virginia, however Virgina still did not make payment. In this case, the Supreme Court ruled that Virginia was liable for estafa.

It is evident that the issuance of the postdated check was done at the same time that the P50,000.00 cash was given to the issuer; this was the simultaneous transaction which led to the issuance of the check. Then, when Solis demanded payment from Virginia, the latter did not comply; this was a prima facie evidence that Virginia was in bad faith when she issued the check. With all the elements of estafa present, then the issuer should be held liable.

BP 22

In BP 22, there is no need that the issuance of a check be prior to or simultaneous with a transaction, it is enough that a worthless check was issued on account or for value, with the issuer aware that he has no funds with the bank or his funds are insufficient to pay the value of the check.

In estafa, three days are given for the offender to pay or make arrangements for payment of the check, in BP 22, the drawer is given five (5) days after receiving notice of dishonor within which to pay or make arrangements for payment.

Estafa and BP 22

It should be noted that when one is charged with violation of BP 22, he can still be charged with any offense punishable under the Revised Penal Code. So, it is possible that one can be liable for both offenses with just one act of issuing a check.

Estafa Versus Theft

theft

theft Estafa Versus TheftThe crime of theft is closely related to the crime of estafa. Oftentimes, it creates confusion to the victim
as to what should be charged against his offender. However, although having similarities, these two
crimes are very much different from each other.

Theft = Material Possession + Misappropriation

Theft is committed when the offender has taken a personal property of another, without the owner’s
consent. Such taking, since it is unknown to the owner, only gives the offender material possession
of the property. To define, material possession means the actual physical possession of the personal
property, where the possessor does not have a better right over such property than the owner. Then,
after taking the property, the offender misappropriates the property. The offender takes the property
and uses it as if he is really the owner.

For example, if Ana takes the mobile phone of Maria from Maria’s pouch without her consent, then Ana
should be liable for theft. In this case, Ana has physical possession of the mobile phone, and after taking
it she may use it as if it was her own.

Estafa = Material Possession + Juridical Possession + Misappropriation/Conversion

If the possession of the property by the offender arouse from a contract or an agreement, then the
possessor has juridical possession of the property – a right over the property, which he can claim and set
up even against the owner.

To distinguish theft from estafa, it is important to know whether the possession of the property by the
offender is only material or if it is coupled with juridical possession. For example, in the case of Ana and
Maria, if Maria agrees to lend Ana her mobile phone for a week, then Ana has a right over the mobile
phone for that week. Maria cannot take the mobile phone from Ana during the week that they have
agreed upon. Because of their agreement, Ana acquired juridical possession over the property.

But, if Ana sells the phone during the week that it was within her possession, then it is obvious that she
has converted the use of the property. She was permitted to use it, but she was not authorized to sell it.
If this happens, estafa is committed.

Qualified Theft and Estafa

Both qualified theft and estafa may be committed by abuse of confidence. However, it will be easier
to determine whether the crime is qualified theft or estafa once it is settled if the possession is merely
material or juridical. If it is only material possession and there was misappropriation, then the crime
committed is qualified theft. If there was juridical possession and it was misappropriated or converted,
then the crime committed is estafa.

Case in point is Sheala Matrido vs. People of the Philippines, GR. No. 179061, July 13, 2009. In this
case, Sheala was the credit and collection assistant of Empire East Land Holdings, Inc. whose duty was
to collect payments from buyers of real estate properties developed by Empire East Land Holdings,
Inc., issue receipts therefor, and remit the payments to employer in Makati City. Sheala failed to remit
payments received from its clients, so she was charged with estafa.

The Supreme Court ruled that Sheala is liable for qualified theft, not estafa. She did not have juridical
possession over the amount involved. A sum of money received by an employee in behalf of the
employer is considered to be only in the material possession of the employee. For there to be juridical
possession, the employer must recognize such, otherwise the crime committed remains to be qualified
theft.