My former officemate took a loan from me. We executed a contract and he gave me a post-dated check, which I had requested to cover the amount of his loan including our agreed minimal interest. Under the contract, he was supposed to pay me last January 9 but he failed to do so. Come February 1, he still hasn’t paid me. I called him several times but he would not take my calls. So, I decided to encash the check that was also dated January 9. Unfortunately, I was not able to get any amount and was told by the bank teller that the account was already closed.
I then decided to send him formal letters of demand through registered mail as suggested to me. I even attached a copy of the check but until now I still have not heard from him. I want to file a complaint against him for the check that bounced. Will the registry receipt of my mail be enough to prove that I have duly informed him that his check was dishonored? I cannot contact him until now and it seems that he already blocked me from his social media accounts. Please advise me on my concern.
In a long line of cases, our Supreme Court has held that it is essential to prove all the elements of the crime of violation of Batas Pambansa (BP) 22 or the Bouncing Checks Law. These are: (1) Making, drawing and issuing any check to apply for account or for value; (2) Knowledge of the maker, drawer or issuer that at the time of issue there were no sufficient funds in or credit with the drawee bank for the payment of such check in full upon being presented to the bank; and (3) Subsequent dishonor of the check by the drawee bank for insufficiency of funds or credit or the dishonor for the same reason had not the drawer, without any valid cause, ordered the drawee bank to stop payment (Amada Resterio vs. People of the Philippines, G.R. No. 177438, September 24, 2012; ponente: Associate Justice Lucas Bersamin; (Maria Rosario P. Campos vs. People of the Philippines and First Women’s Credit Corporation, G.R. No. 187401, September 17, 2014, ponente: Associate Justice Bienvenido Reyes; and Sonia P. Ruiz vs. People of the Philippines, G.R. No. 160893, November 18, 2005; ponente: former Associate Justice Romeo Callejo Sr.).
In your situation, it appears that the first and third elements are not in issue. You seem to be more concerned about the existence of the second element—the required knowledge of the maker or drawer and issuer of the check that there are no sufficient funds in or credit with the drawee bank. Such knowledge is challenging to prove as it is a state of mind, which can be easily repudiated to avoid liability. Notwithstanding, Section 2 of BP 22 provides the prima facie evidence of such knowledge, that is—“The making, drawing and issuance of a check payment of which is refused by the drawee because of insufficient funds in or credit with such bank, when presented within ninety (90) days from the date of the check x x x” However, be informed that criminal liability will not attach if the “x x x maker or drawer pays the holder thereof the amount due thereon, or makes arrangements for payment in full by the drawee of such check within (5) banking days after receiving notice that such check has not been paid by the drawee. x x x” (Id.) Accordingly, written notice must be given to the maker or drawer and issuer of the check and if he fails to settle the subject amount within the five-day given period, then he may be held responsible for violation of BP 22.
We wish to emphasize that when notification is done by registered mail, such as in your situation, it is essential that there be authenticating affidavit executed by the person/s who had actually mailed such notification, apart from the registry receipts. As explained by the Supreme Court in the above-cited case of Resterio vs. People (Id.):
“x x x Considering that the sending of the written notices of dishonor had been done by registered mail, the registry return receipts by themselves were not proof of the service on the petitioner without being accompanied by the authenticating affidavit of the person or persons who had actually mailed the written notices of dishonor, or without the testimony in court of the mailer or mailers on the fact of mailing. The authentication by affidavit of the mailer or mailers was necessary in order for the giving of the notices of dishonor by registered mail to be regarded as clear proof of the giving of the notices of dishonor to predicate the existence of the second element of the offense. x x x”
Accordingly, in pursuing the complaint against your former officemate for violation of BP 22, you will need to execute the afore-stated affidavit if you have personally done the mailing of your demand letters yourself. If the mailing was done by another person/s, kindly have them execute the affidavit. You will need to present this document together with the mentioned registry receipts in order for you to adequately prove the existence of the second element of subject crime.
We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other 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