BATAS PAMBANSA BLG.

22
(For the Defense)

STATEMENT OF FACTS
On June 1, Patrick went to Raymonds 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 5day 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