Make sure your B.P. 22 (Bouncing Checks Law) case will not be dismissed
Updated: Jul 23, 2020
Batas Pambansa Blg. 22, otherwise known as the Bouncing Checks Law (BP 22), is among the most common cases litigated in the lower courts. But even though this law took effect on June 29, 1979, many cases filed are dismissed on technical grounds. Make sure your case will not be dismissed by remembering these developments in jurisprudence on the Bouncing Checks Law.
BP 22 punishes the making or the drawing of a bouncing check. A bouncing check is one which cannot be funded.
The law applies to any person who makes or issues any check knowing that he does not have enough funds in his bank to pay for it, and the check is subsequently dishonored by the bank. The punishment is imprisonment of thirty (30) day to one (1) year, or a fine, or both (at the court's discretion. If the person cannot pay the fine, then he shall serve subsidiary imprisonment.
This is the actual legal provision:
Any person who makes or draws and issues any check to apply on account 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 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.
ELEMENTS OF VIOLATION OF BP 22
When a criminal case is pending against a person, the trial court will determine whether or not a person is guilty by determining if the following elements of the crime were present:
That the check was made, drawn, and issued for value;
That the maker of the check knew at the time of issue that he does not have sufficient funds in or credit with the bank for the payment of the check;
That when the check was presented, it was dishonored for insufficiency of funds or credit or, when he ordered the bank to stop payment without valid reason.
Things to remember
Present the check to the bank within 90 days from the date
Note that the date written on the check is considered as the date of issue. The check should be presented within 90 days from date of issue. If not , then there is no presumption of the second element - that the maker of the check knew that he did not have sufficient funds in the bank. This could lead to dismissal of the case. The exception to that rule is when the bank account was closed before the end of the 90-day period. Since it it was closed, then obviously, the check's maker knew that there was no money to fund it.
The Notice of Dishonor should include a demand for payment within five (5) days.
When writing a Notice of Dishonor, provide the check details and reason for the dishonor. It is also important that the notice should have a demand for payment of the amounts written on the check within five (5) days from the date of its receipt.
This is important because the section 2 of the law itself gives that period to the accused to pay the holder of the check. If demand for payment is less than five (5) days, then the case may be dismissed on technicality.
Service of the Notice of Dishonor
Service of the Notice of Dishonor is the act of giving the notice of dishonor to the person who made and issued the check.
If the check is actually a check drawn by a corporation ,partnership, or other juridical entity, then the notice should be addressed and given to the person or persons who actually signed the check on behalf of the corporation. The case should also be filed against those persons. This is what is stated in the law:
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.
Make sure that the Notice of Dishonor is served on the accused
It is important that the person who signed the check is the one who receives the Notice of Dishonor. You will be required to prove this, so make sure that you have adequate evidence. If the complainant fails to show that the maker or drawer of the check actually received a Notice of Dishonor, then the accused will be acquitted. In fact, this is the strongest single defense that is used in a BP 22 case. And it is the main reason for many, if not most, acquittals
If you can get the maker of the check to sign on a receiving copy of the Notice of Dishonor, then you would have adequate proof of receipt.
There are times however, that the accused will refuse to cooperate. She may even refuse to accept, or even touch, the Notice of Dishonor. But in these cases, it is enough that you tried to serve it to the accused. You have to leave it when she can reach it, or drop it at her feet. This is already considered as valid service. Whatever you do, don't bring it back with you, or it will not be considered served. You would have to prove later on that you actually did this.
Notices may also be sent by registered mail or courier, but again, it will not be considered served if the accused was not shown to have received it.
Failure to establish that a written notice of dishonor was actually received by the maker or drawer of the check is a ground for an acquittal.
What evidence do you need to prepare?
First, you need to present the originals of the checks. Second, you need to present the Notice of Dishonor, and show that it was sent to and received by the accused. The Supreme Court ruled that the prosecution in a BP 22 case must establish that (a) a Notice of Dishonor was sent to the issuer of the dishonored check and (b) that the Notice was actually received by the accused.
The most ideal evidence that you served the Notice of Dishonor is the signature of the accused on the receiving copy. But it is not always the case that you can do this.
In the example above about the accused who refuses to sign or accept the Notice of Dishonor, you have to be more creative. Immediately execute an affidavit of service putting in as many details as possible so that you can present this to the trial court later on. If possible, get a witness to come with you. This will support the fact that you were present and had actually tried to serve the Notice. A witness can back up your testimony if needed.
If you are sending the Notice by mail or by courier service, check the record with regard to who received the document. If the accused was not the one who received the document, then the Notice will not be considered served. Also, the registry return card or certification from the postmaster should indicate the date of receipt, otherwise, there would be no way to count the 5-day period. This would lead also to acquittal of the accused.
PUNISHMENT OF BP 22 CASES
The Supreme Court issued Administrative Circular No. 12-2000 declaring that, judges should be follow the policy of “redeeming valuable human material and preventing unnecessary deprivation of personal liberty and economic usefulness with due regard to the protection of the social order.” The Supreme Court therefore directed judges to impose the penalty of paying a fine instead of imprisonment.
But the Supreme Court later clarified in Administrative Circular No. 13-01, that it is not removing imprisonment as a penalty. It is only directing judges to consider imposing a fine as the preferential penalty. The trial court should reserve imposing the penalty of imprisonment only for serious cases which can affect the social order. The judge may also impose subsidiary imprisonment if the accused cannot pay the fine.