BATAS PAMBANSA BLG.

22
(For the Defense)

STATEMENT OF FACTS

On June 1, Patrick went to Raymond’s house and asked if he could lend him
P100,000.00 payable on July 1,2013. As evidence of this loan, Raymond required Patrick
to issue a check to which Patrick complied. Check No.123456 was issued on July 12,
2013.

Raymond demanded payment but Patrick refused. Raymond deposited on his

account but after three (3) days check was returned to him—“ACCOUNT CLOSED’.

On July15, 2013, Raymond initiated a criminal complaint against Patrick before

the Office of the Provincial Prosecutor of Dagupan.

ISSUE

Whether or not Patrick shall be held liable in violation of Sec. 1 of BP. Blg. 22 for his
non-payment of obligation.

ARGUMENTS

“The gravamen of BP 22 is the issuance of check, not the non-payment of an obligation.”

1. The jurisdiction of BP 22 lodged to Municipal Trial Court where the making, drawing
or issuing or any of the elements took place. (Supreme Court & the Judiciary, Circular
No. 57-97). This was reiterated in the case of Ibasco v CA, GR No. 117488, Sept. 5, 1996.
The Supreme Court declared that the “Violation of BP 22, venue is determined by the
place where the elements of making, issuing, or drawing of the check and delivery
thereof are committed…”

2. In the case at bar, the complaint was filed before the Office of the Provincial
Prosecutor of Dagupan. Such undisputable fact only means that that forum has no
jurisdiction to prosecute the same.

3. Moreover, the first violation of BP 22 requires that the following elements must
concur:

a. That a person makes or draws and issues any check;

b. That the check is made or drawn and issued to apply on account or for
value;

c. That the person who makes or draws and issues the check knows at the
time of issue that he does not have funds or credit with the drawee bank for the
payment of such check in full upon its presentment;

d. That the check is subsequently dishonoured by the drawee bank for

insufficiency of funds or credit, or would have been dishonoured for the same
reason had not the drawer, without any valid reason, ordered the bank to stop
payment.

4. In this case, facts do not show that the accused has knowledge of insufficiency of
funds at the time of the issuance of the check. The law gives presumption of good faith
to every person as stated in Rule 131 of the Rules of Court. It is the duty of the
prosecution to dispute such presumption.

Absence of one element for the commission of this offense shall render the
acquittal of the accused.

5. In the case of Domagsang vs. Court of Appeals, GR No. 139292, Dec. 5, 2000, the
Supreme Court held that “while indeed, Sec. 2 of B.P.22 does not state that the notice of
dishonour be in writing, taken in conjunction, however, with Section 3 of the law, that
where notice funds in or credit with such drawee bank, such fact shall always be
explicitly stated in the notice of dishonour or refusal. A mere oral notice or demand to
pay would appear to be insufficient for conviction under the law.

6. In the case at bar, no notice was given to the accused. In the case of Danao v. Court of
Appeals et al., GR No. 122353, June 6, 2001, “if notice of non-payment by the drawee 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 or prima facie evidence in Sec.
2 of BP 22 cannot arise, since there would simply be no way of reckoning the crucial 5-
day period.

7. Again, notice is an indispensable requirement in order that the prosecution of this

offense will prosper. And such notice should be given to the drawer by the drawee in
order that the 5 banking day period would start to run. Thus, the reckoning point in
order that case may now be filed before the proper court would set in. After the lapse of
5 banking days, then, it may now be said that it is an indicia of violation of BP 22.
8. Furthermore, in the case of Caras vs Court of Appeals, G.R. No. 129900, Oct.2, 2001, it
was held that “the absence of proof that drawer received any notice informing her of
the fact her checks were dishonoured and giving her five working days within which to
make arrangements of payment of the said checks prevents the application of the
disputable presumption that she had knowledge of the insufficiency of her funds.
Absent such presumption, the burden shifts to the prosecution to prove that the drawer
had knowledge of the insufficiency of funds when the drawer issued the checks,
otherwise, the drawer cannot be held liable under the law.

9. The element of knowledge of insufficiency of funds or credit is not present and

therefore, the crime does not exist, when the drawer either:

a. pays the holder of the check the amount due thereon within five 5
banking days after receiving the notice that such check has not been paid
by the drawee;

b. makes arrangements for payment in full by the drawee of such check

within 5 banking days after notice of non-payment.

Emphasizing the notice requirement, without which, the element of knowledge

is absent for he was not informed. Hence, the 5 banking day period will not set in.

10. The following are elements of the second violation:

a. That a person has sufficient funds in or credit with the drawee bank
when he makes or draws and issues a check;
 b. That he fails to keep sufficient funds or to maintain a credit to cover the
full amount of the of the check if presented within a period of 90 days from the
date appearing thereon;

c. That the check is dishonoured by the drawee bank.

11. Assuming arguendo that the prosecution would impute the second violation against
the accused, it seems that the accused shall not be liable therefor. To reiterate, notice of
non-payment of the drawee was not given to the accused. It is then correct to state that
the accused must not be held guilty since the most important requirement was missing.
The crucial 5-day period as reckoning point will not set in.

Therefore, we pray for the acquittal of the accused in this case.

**** If this Honorable Court will decide against the accused, may we ask for the
preferential imposition of penalties as provided for in BP 22 as further clarified by
Admin Circ. No. 13-2001 and Admin Circ. No, 12-2000. That when the circumstances of
the case, for instance, clearly indicate good faith or a clear mistake of fact without taint
of negligence, the imposition of fine alone should be considered as more appropriate
penalty x x x” (OPTIONAL)

Sources:
 The Revised Penal Code, Criminal Law, Luis B. Reyes, 2008
 Criminal Law Reviewer, Atty. Abelardo C. Estrada
 Compact Reviewer in Criminal Law, Leonor D. Boado, 2013