BP 22 jurisprudence (on elements; 90 day period to present check; etc)

Ruth D. Bautista v. CA, Office of the RSP, Region IV, Susan Aloña, GR No. 143375, July
6, 2001.

The question posed is whether the drawer of a check which is dishonored due to lack of
sufficient funds can be prosecuted under BP 22 even if the check is presented for
payment after ninety (90) days from its due date. 

April 1998 date of check. Offended party presented it on October 20, 1998.

An analysis of Sec. 1 shows that The Bouncing Checks Law penalizes two (2) distinct
acts: First, making or drawing and issuing any check to apply on account 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, second, having sufficient funds in or credit with the drawee
bank 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. 15

In the first paragraph, the drawer knows that he does not have sufficient funds to cover
the check at the time of its issuance, while in the second paragraph, the drawer has
sufficient funds at the time of issuance but fails to keep sufficient funds or maintain
credit within ninety (90) days from the date appearing on the check. In both instances,
the offense is consummated by the dishonor of the check for insufficiency of funds or
credit.

The check involved in the first offense is worthless at the time of issuance since the
drawer had 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 drawer had sufficient funds
in or credit with the drawee bank when issued. 16 Under the first offense, the ninety (90)-
day presentment period is not expressly provided, while such period is an express
element of the second offense.17

From the allegations of the complaint, it is clear that petitioner is being prosecuted for
violation of the first paragraph of the offense.

Petitioner asserts that she could not be prosecuted for violation of BP 22 on the simple
ground that the subject check was presented 166 days after the date stated thereon.
She cites Sec. 2 of BP 22 which reads –

Sec. 2. Evidence of knowledge of insufficient funds. - The making, drawing and issuance
of a check payment 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 (italics
supplied).

Petitioner interprets this provision to mean that the ninety (90)-day presentment period
is an element of the offenses punished in BP 22. She asseverates that "for a maker or
issuer of a check to be covered by B.P. 22, the check issued by him/her is one that is
dishonored when presented for payment within ninety (90) days from date of the check.
If the dishonor occurred after presentment for payment beyond the ninety (90)-day
period, no criminal liability attaches; only a civil case for collection of sum of money may
be filed, if warranted." To bolster this argument, she relies on the view espoused by
Judge David G. Nitafan in his treatise - 18

We are not convinced. It is fundamental that every element of the offense must be
alleged in the complaint or information, and must be proved beyond reasonable doubt
by the prosecution. What facts and circumstances are necessary to be stated must be
determined by reference to the definitions and the essentials of the specific crimes. 19

The elements of the offense under BP 22 are (a) the making, drawing and issuance of
any check to apply to account or for value; (b) the maker, drawer or issuer knows 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; and, (c) 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.20

The ninety (90)-day period is not among these elements. Section 2 of BP 22 is clear that
a dishonored check presented within the ninety (90)-day period creates a prima
facie presumption of knowledge of insufficiency of funds, which is an essential element
of the offense. Since knowledge involves a state of mind difficult to establish, the statute
itself creates a prima facie presumption of the existence of this element from the fact of
drawing, issuing or making a check, the payment of which was subsequently refused for
insufficiency of funds.21 The term prima facie evidence denotes evidence which, if
unexplained or uncontradicted, is sufficient to sustain the proposition it supports or to
establish the facts, or to counterbalance the presumption of innocence to warrant a
conviction.22

The presumption in Sec. 2 is not a conclusive presumption that forecloses or precludes

the presentation of evidence to the contrary. 23 Neither does the term prima
facie evidence preclude the presentation of other evidence that may sufficiently prove
the existence or knowledge of insufficiency of funds or lack of credit. Surely, the law is
not so circumscribed as to limit proof of knowledge exclusively to the dishonor of the
subject check when presented within the prescribed ninety (90) day period. The
deliberations on the passage of BP 22 (then known as Cabinet Bill No. 9) between the
author, former Solicitor General Estelito P. Mendoza, and Bataan Assemblyman Pablo
Roman prove insightful –

MR. ROMAN: x x x x Under Section 1, who is the person who may be liable under this
Section? Would it be the maker or the drawer? How about the endorser, Mr. Speaker?

MR. MENDOZA: Liable.

MR. ROMAN: The endorser, therefore, under Section 1 is charged with the duty of
knowing at the time he endorses and delivers a check . . . .

MR. MENDOZA: If the endorser is charged for violation of the Act then the fact of
knowledge must be proven by positive evidence because the presumption of knowledge
arises only against the maker or the drawer. It does not arise as against endorser under
the following section (italics supplied).
MR. ROMAN: But under Section 1, it says here: "Any person who shall make or draw or
utter or deliver any check." The preposition is disjunctive, so that any person who
delivers any check knowing at the time of such making or such delivery that the maker
or drawer has no sufficient funds would be liable under Section 1.

MR. MENDOZA: That is correct Mr. Speaker. But, as I said, while there is liability even as
against endorser, for example, the presumption of knowledge of insufficient funds arises
only against the maker or drawer under Section 2.

MR. ROMAN: Yes, Mr. Speaker. It is true; however, under Section 1, endorsers of checks
or bills of exchange would find it necessary since they may be charged with the
knowledge at the time they negotiate bills of exchange they have no sufficient funds in
the bank or depository.

MR. MENDOZA: In order that an endorser may be held liable, there must be evidence
showing that at the time he endorsed the check he was aware that the drawer would
not have sufficient funds to cover the check upon presentation. That evidence must be
presented by the prosecution. However, if the one changed is the drawer, then that
evidence need not be presented by the prosecution because that fact would be
established by presumption under Section 2 (italics supplied).24

An endorser who passes a bad check may be held liable under BP 22, even though the
presumption of knowledge does not apply to him, if there is evidence that at the time of
endorsement, he was aware of the insufficiency of funds. It is evident from the
foregoing deliberations that the presumption in Sec. 2 was intended to facilitate proof
of knowledge and not to foreclose admissibility of other evidence that may also prove
such knowledge. Thus, the only consequence of the failure to present the check for
payment within ninety (90) days from the date stated is that there arises no prima
facie presumption of knowledge of insufficiency of funds. But the prosecution may still
prove such knowledge through other evidence. 

Manuel Nagrampa v. People of the Philippines, GR No. 146211, August 6, 2002.

Two distinct acts are punished under the above-quoted provision:

(1)The making or drawing and issuance of any check to apply on account 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.
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 account 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

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 Appeals27 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 account 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 admissibility 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.

Xxx

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.

Pacifico B. Arceo, Jr. v. People of the Philippines, GR No. 142641, July 17, 2006

Petitioner asserts that there was no violation of BP 22 because the check was presented
to the drawee bank only on December 5, 1991 or 120 days from the date thereof
(August 4, 1991). He argues that this was beyond the 90-day period provided under the
law in connection with the presentment of the check. We disagree.

Section 1 of BP 22 provides:

Xxx

In Wong v. Court of Appeals,4 the Court ruled that the 90-day period provided in the law
is not an element of the offense. Neither does it discharge petitioner from his duty to
maintain sufficient funds in the account within a reasonable time from the date
indicated in the check. According to current banking practice, the reasonable period
within which to present a check to the drawee bank is six months. Thereafter, the check
becomes stale and the drawer is discharged from liability thereon to the extent of the
loss caused by the delay.

Thus, Cenizal’s presentment of the check to the drawee bank 120 days (four months)
after its issue was still within the allowable period. Petitioner was freed neither from the
obligation to keep sufficient funds in his account nor from liability resulting from the
dishonor of the check.

Based on the allegations in the information, 7 petitioner was charged for violating the
first paragraph of BP 22. The elements of the offense are:

1. the making, drawing and issuance of any check to apply to account or for value;
2. 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. subsequent dishonor of the check by the drawee bank for insufficiency of funds or
credit, or dishonor of the check for the same reason had not the drawer, without any
valid cause, ordered the bank to stop payment.8
All these elements are present in this case.

Both the trial and appellate courts found that petitioner issued BPI check no. 163255
postdated August 4, 1991 in the amount of P150,000 in consideration of a loan which he
obtained from Cenizal. When the check was deposited, it was dishonored by the drawee
bank for having been drawn against insufficient funds. There was sufficient evidence on
record that petitioner knew of the insufficiency of his funds in the drawee bank at the
time of the issuance of the check. In fact, this was why, on maturity date, he requested
the payee not to encash it with the promise that he would replace it with cash. He made
this request and assurance seven times but repeatedly failed to make good on his
promises despite the repeated accommodation granted him by the payee, Cenizal.