Dear PAO,
I borrowed money from a person who is in the business of lending money. She required me to issue post-dated checks before releasing my loan.

I told her that I have a checking account but it is already closed. Despite this, she said that she would accept the checks because they would only serve as security and will not be deposited. Even with this kind of arrangement, she deposited my checks in her account when I failed to pay only after one week from the due date.

Can the lender file B.P. 22 against me even if she knew that the checks were not funded?
Angry Borrower

Dear Angry Borrower,
The issuance of a check 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 is liable for violation of Batas Pambansa (B.P.) Blg. 22 entitled “An Act Penalizing the Making or Drawing and Issuance of a Check without Sufficient Funds of Credit and for other Purpose” or most commonly known as the “Bouncing Checks Law”. Thus, the prosecution needs to prove the following elements in order to have a conviction: (1) the accused makes, draws, or issues any check to apply on account or for value; (2) the accused 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 (3) 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.

You may not be exonerated from liability under B.P. Blg. 22 even if the lender knows that the check is not funded. Upon issuance of a check, in the absence of evidence to the contrary, it is presumed that the same was issued for valuable consideration, which may consist either in some right, interest, profit or benefit accruing to the party who makes the contract, or some forbearance, detriment, loss or some responsibility, to act, or labor, or service given, suffered or undertaken by the other side (Palana v. People of the Philippines, G.R. 149995, 28 September 2007). Your receipt of the loan from the lender may lead to the presumption that the checks were issued for value and thus be liable for the issuance thereof.

Moreover, your agreement that the checks will not be deposited would be immaterial to the case of violation of B.P. Blg. 22 because the gravamen of the offense punished under B.P. Blg. 22 is the act of making or issuing a worthless check or a check that is dishonored upon its presentment for payment. The law has made the mere act of issuing a bad check malum prohibitum, an act proscribed by the legislature for being deemed pernicious and inimical to public welfare. Considering the rule in mala prohibita cases, the only inquiry is whether the law has been breached. Criminal intent becomes unnecessary where the acts are prohibited for reasons of public policy, and the defenses of good faith and absence of criminal intent are unavailing (Palana v. People of the Philippines, G.R. 149995, 28 September 2007).

Please be reminded that the above legal opinion is solely based on our appreciation of the facts that you have stated in your problem. The opinion may vary when the facts stated therein are added or elaborated.