In the Philippine legal landscape, a "bouncing check" is not merely a financial inconvenience; it is a potential criminal liability. When a check is dishonored by a bank due to "Insufficiency of Funds" (DAIF) or "Account Closed," the drawer may face charges under two distinct laws: Batas Pambansa Bilang 22 (The Anti-Bouncing Checks Law) and Article 315 of the Revised Penal Code (Estafa).
While both involve a dishonored check, their legal elements, defenses, and penalties differ significantly. Understanding these nuances is critical for both creditors seeking redress and debtors facing litigation.
1. Batas Pambansa Bilang 22 (BP 22)
BP 22 was enacted to maintain the stability of the banking system and ensure the "convertibility" of checks as a medium of exchange. It is a malum prohibitum offense—meaning the act itself is a crime regardless of the intent of the drawer.
The Essential Elements:
- Issuance: The making, drawing, and issuance of any check to apply on account or for value.
- Knowledge of Insufficiency: At the time of issuance, the drawer knows they do not have sufficient funds in or credit with the drawee bank.
- Dishonor: The check is subsequently dishonored by the bank upon presentment for payment within 90 days from the date on the check.
The "Presumption of Knowledge": The most potent tool for the prosecution in BP 22 is the legal presumption that the drawer knew of the insufficiency of funds. This arises if the check is presented within 90 days and the drawer fails to pay the amount or make arrangements with the bank within five (5) banking days after receiving a written notice of dishonor.
2. Estafa (Article 315, par. 2(d))
Estafa is a crime of deceit. Unlike BP 22, it is malum in se, meaning the prosecution must prove "criminal intent" or the presence of fraud. Under the Revised Penal Code, Estafa via a check occurs when a check is issued in payment of an obligation contracted at the time the check was issued.
The Essential Elements:
- Issuance as Means of Fraud: A check is issued in payment of an obligation contracted at the time of issuance.
- Lack of Funds: There were no funds or insufficient funds to cover the check.
- Deceit: The payee (creditor) relied on the check as the primary inducement to part with their money or property.
- Damage: The payee suffers loss because the check bounces.
The Key Distinction: The Timing of the Debt If the check was issued to pay a pre-existing debt (e.g., a loan taken out a month ago), the drawer cannot be charged with Estafa, even if the check bounces. In that scenario, the creditor was not "tricked" into the loan by the check. However, the drawer can still be charged under BP 22.
Comparison Table: BP 22 vs. Estafa
| Feature | BP 22 (Anti-Bouncing Checks Law) | Estafa (Revised Penal Code) |
|---|---|---|
| Nature of Offense | Malum Prohibitum (The act is the crime). | Malum in Se (Intent/Deceit is required). |
| Intent | Irrelevant. Good faith is not a defense. | Essential. Fraud must be proven. |
| Notice of Dishonor | Mandatory. Without proof of receipt of a written notice, the case will likely fail. | Required to establish the "presumption of deceit," but fraud can be proven otherwise. |
| Purpose of Issuance | Covers both pre-existing debts and current obligations. | Must be for an obligation contracted at the time of issuance (Simultaneous). |
| Penalty | Fine and/or Imprisonment (usually 30 days to 1 year). | Imprisonment based on the amount defrauded (potentially much higher). |
| Nature of Action | A crime against public order/banking system. | A crime against property. |
Common Defenses and Procedural Requirements
The "Written Notice" Requirement
In BP 22 cases, the lack of a written notice of dishonor is the most common cause for acquittal. The prosecution must prove that the drawer actually received the notice. If the notice was sent via registered mail, the postman’s certification or the registry return card must be presented. A verbal notice is insufficient to trigger the criminal presumption.
Payment Within the Grace Period
If the drawer pays the full amount of the check within five banking days from receipt of the written notice of dishonor, they cannot be held criminally liable under BP 22. This is known as "vitiating" the element of knowledge.
Checks Issued as Guarantee
In some Estafa cases, if it can be proven that the check was issued merely as a "security" or "guarantee" for a loan (and not as payment), the element of deceit may be negated. However, this defense rarely works for BP 22, as that law punishes the mere act of issuing a worthless check regardless of the reason.
Jurisdiction
The criminal action must be filed in the place where the check was issued, where it was delivered, or where it was dishonored.
Administrative Circular No. 12-2000
It is important to note that the Philippine Supreme Court, through Administrative Circular 12-2000, expressed a preference for the imposition of fines rather than imprisonment for BP 22 violations, provided the drawer is not a "recidivist" and acted without blatant bad faith. This does not decriminalize the act, but it gives judges discretion to avoid jail time in favor of heavy financial penalties.