I lent money to a friend. When the due date came, he issued a check to me which bounced when I tried to encash it. I would have just let it pass, but I need money now for my maintenance medicine. Someone told me that I can file a case for Estafa or BP22. Is this true?
It is true that letting a check bounce may constitute Estafa. Under the second paragraph of Article 315 of the Revised Penal Code, Estafa is committed by any person who shall defraud another by false pretenses or fraudulent acts executed prior to or simultaneously with the commission of the fraud. It may be committed by postdating a check or issuing a check in payment of an obligation when the offender has insufficient balance in the bank or no fund at all to cover the check.
However, we should not make a conclusion just yet. As with any other crime, there are elements that must be proved first. To sustain a conviction for Estafa by allowing a check to bounce, or what is legally referred to as dishonor, the prosecution must prove that the check was issued in payment of an obligation contracted at the time the check was issued, lack of sufficient funds to cover the check, and damage to the payee (People vs. Reyes,G.R. No. 154159. March 31, 2005).
In your case, it is probable that there was no sufficient fund to cover the check considering that it bounced. The damage to you is also clear as you did not receive the money that you lent. But there is a problem with the first element, which is that the check was issued in payment of an obligation contracted at the time the check was issued. This requires that the check must be issued as a means to obtain money or property from the payee. There must be concomitance. Otherwise, there is no Estafa. Consequently, a check issued in payment of a pre-existing obligation does not amount to Estafa even if it was dishonored on account of insufficient funds. (Ibid.)
Your case falls on the latter scenario as the check was issued not simultaneous with the time that you extended loan to your friend. The loan happened first and was already in existence when the check was issued to you when the due date came. Thus, you cannot file an Estafa complaint against your friend.
Even so, you may file a case for Violation of Batas Pambansa Bilang (B.P. Blg.) 22. Though it may seem a lot like the Estafa mentioned earlier, this one is a different specie of crime which does not require concomitant deceit or fraud. Time and again, the Supreme Court declared that “the gravamen of the offense punished by B.P. 22 is the act of making and issuing a worthless check or a check that is dishonored upon its presentation for payment.
xxx The thrust of the law is to prohibit, under pain of penal sanctions, the making of worthless checks and putting them in circulation” (Medalla vs. Laxa, G.R. No. 193362, January 18, 2012).
To secure a conviction, you need only to prove the issuance of the check to apply for account or for value, knowledge of the issuer that at the time of issue he does not have sufficient funds to cover the check upon its presentment; and (3) the 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 (People vs. SanMateo, G.R. No. 200090, March 6, 2013).
We hope the foregoing opinion sufficiently addressed your concerns. Please bear in mind that this opinion is based on the facts you narrated and our appreciation of the same. Our opinion may vary if facts are changed or elaborated.
Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to email@example.com