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Also, the matters contained in the following were written in accordance with the law, rules, and jurisprudence prevailing at the time of writing and posting, and do not include any future developments on the subject matter under discussion.
AT A GLANCE:
Estafa under Article 315(2)(d) of the Revised Penal Code and Batas Pambansa Blg. 22 both involve the issuance of a bounced check, but they differ in terms of their legal nature and specific requirements. A key similarity between the two offenses is that both necessitate a notice of dishonor for prosecution. Without proof of notice of dishonor, knowledge of insufficiency of funds cannot be presumed and no crime can be deemed to exist.
Estafa is considered a malum in se offense, it is inherently wrongful, and deceit is an essential element of the crime. It is essentially a crime against property.
Deceit, to constitute estafa, should be the efficient cause of defraudation. It must have been committed either prior or simultaneous with the defraudation complained of. There must be concomitance: the issuance of a check should be the means to obtain money or property from the payee. Hence, a check issued in payment of a pre-existing obligation does not constitute estafa even if there is no fund in the bank to cover the amount of the check.
The elements of estafa under Article 315, par. 2(d) of the Revised Penal Code are: (1) a check is postdated or issued in payment of an obligation contracted at the time it is issued; (2) lack or insufficiency of funds to cover the check; (3) damage to the payee thereof. Deceit and damage are essential elements of the offense and must be established by satisfactory proof to warrant conviction.
The drawer of the dishonored check is given three days from receipt of the notice of dishonor to cover the amount of the check. Otherwise, a prima facie presumption of deceit arises. It must be noted that reimbursement or belated payment to the offended party of the money swindled by the accused does not extinguish the criminal liability of the latter.
In contrast, B.P. 22 is a malum prohibitum offense. The gravamen of the offense punished by B.P. 22 is the act of making and issuing a worthless check, that is, a check that is dishonored upon its presentation for payment. A violation of B.P. 22 is principally a crime against public interest as it does injury to the entire banking system.
The elements of the offense penalized under B.P. 22, are as follows:
(1) the making, drawing and issuance of any check to apply to 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) 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.
While deceit and damage are essential elements in estafa, they are not required in B.P. 22.
Jurisprudence likewise dictate that the drawer of a dishonored check may be convicted under B.P. 22 even if he had issued the same for a pre–existing obligation.
If an issued check has bounced, the drawer has 5 days from receiving the demand letter or notice of dishonor to pay the amount due. Failure to pay within this period creates the presumption that the drawer knew the check would not be honored. However, unlike Estafa, full payment made before the filing of information is a valid defense under BP 22.
Finally, it is worth mentioning that notice of dishonor is required under both par. 2(d) Art. 315 of the RPC and Sec. 2 of BP 22. Under both laws, notice of dishonor is necessary for prosecution. Without proof of notice of dishonor, knowledge of insufficiency of funds cannot be presumed and no crime (whether estafa or violation of BP 22) can be deemed to exist.
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Alburo Alburo and Associates Law Offices specializes in business law and labor law consulting. For inquiries regarding legal services, you may reach us at info@alburolaw.com, or dial us at (02)7745-4391/ 0917-5772207/ 09778050020.
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