Evidence, Service Problems, and Practical Litigation Guidance (Messenger / Bank Delivery Issues)

1) Why “Notice of Dishonor” matters (and in what kinds of cases)

“Notice of dishonor” is a deceptively simple concept: someone presents a check; the drawee bank refuses to pay; the law then expects a notice to be given—so the correct person is informed, and legal consequences can follow.

In Philippine practice, proving notice of dishonor most often decides outcomes in:

Criminal cases under Batas Pambansa Blg. 22 (BP 22, Bouncing Checks Law)
- Notice of dishonor is central because it triggers the five (5) banking-day period to pay or make arrangements, and it is usually how the prosecution establishes (or activates) the statutory presumption related to knowledge of insufficiency.
Civil collection cases involving checks (collection of sum of money, damages, etc.)
- Notice may matter as demand, and in some contexts as part of fixing delay, damages, attorney’s fees, or proving bad faith.
Cases under the Negotiable Instruments Law (NIL, Act No. 2031) involving secondary liability (drawer/indorsers)
- Notice of dishonor is traditionally required to charge drawers and indorsers unless an exception applies (waiver, no right to expect payment, etc.).
- In check disputes, litigants frequently mix NIL concepts with BP 22 concepts—so it’s crucial to separate them.

2) Basic concepts: presentment, dishonor, and notice

A. Presentment (for payment)

For a check (a bill of exchange drawn on a bank and payable on demand), the holder must present it to the drawee bank for payment within a reasonable time. In real life, presentment is proven by bank stamps, clearing records, deposit slips, and return memos.

B. Dishonor (what it means)

A check is dishonored when the drawee bank refuses payment upon presentment. Common reasons include:

Insufficient funds / Drawn against insufficient funds
Account closed
No account
Payment stopped / stop payment
Altered / irregular / stale / post-dated presented early (depending on facts and bank rules)

In BP 22, dishonor reasons tied to insufficiency (and certain functionally equivalent reasons like no account/account closed) are particularly important.

C. Notice of dishonor (what it is)

A “notice of dishonor” is communication to the appropriate party that:

the instrument was presented; and
it was dishonored; and
the party is being notified (often with an implied or express demand to pay).

Key point: “Notice of dishonor” under BP 22 is not the same creature as notice under the NIL. They overlap in wording but differ in legal function and proof expectations.

3) The BP 22 lens: what must be proven about notice

A. What the notice does in BP 22

BP 22 is built around the idea that a drawer who issued a check that bounces should be given a fair chance to cure. Thus:

The drawer must receive notice of dishonor.
After receipt, the drawer has five (5) banking days to:
- pay the amount, or
- make arrangements for payment with the bank/payee.

If the drawer does not cure within that window, criminal liability becomes much easier to establish.

B. Form of notice in BP 22: “written” in practice

In litigation, BP 22 notice is treated as requiring written notice because:

it triggers a specific statutory cure period (5 banking days),
it safeguards due process,
it produces a clean evidentiary trail.

Practical takeaway: If you are prosecuting or representing the complainant, treat written notice as non-negotiable, and treat proof of receipt as the real battleground.

C. What the prosecution typically must establish (notice component)

In most BP 22 prosecutions, the notice element is proven by showing:

A written notice/demand letter referring to the dishonored check(s); and
The fact of receipt by the accused (drawer); and
The drawer failed to pay or arrange payment within 5 banking days from receipt.

D. The common defense theme

The most common successful defense in BP 22 is:

“I did not receive the written notice of dishonor.”

This defense targets the prosecution’s ability to prove receipt beyond reasonable doubt.

4) The NIL lens: when notice is required (and when it isn’t)

Under the NIL, drawers and indorsers are generally secondarily liable, meaning notice of dishonor is typically required to charge them—but there are statutory exceptions, such as:

waiver of notice (express or implied),
circumstances where the drawer has no right to expect or require the drawee to honor the instrument (often argued in NSF situations),
other NIL-recognized excuses.

Practical caution: Even if you can argue NIL exceptions, BP 22 still demands proof of receipt of notice in the usual prosecutorial approach. Do not assume that an NIL “excuse” automatically cures a BP 22 notice problem.

5) Evidence of dishonor vs. evidence of notice: don’t confuse them

A. Evidence of dishonor (bank-side proof)

Common evidence includes:

Original check bearing a bank “RETURNED” stamp and reason code
Bank return memo / debit memo / return slip
Clearing/return records from depositary bank
Bank certification or testimony of bank personnel (where necessary)

This proves dishonor—not receipt of notice by the drawer.

B. Evidence of notice (service-side proof)

This is where cases are won or lost. Evidence often includes:

Demand/notice letter (with specifics: check number, date, amount, drawee bank, reason for dishonor)
Proof of service and receipt (personal service acknowledgement, registered mail return card, courier delivery record, etc.)
Testimony of the person who served it, plus logs/records

6) The gold standard: how to prove receipt of written notice

Option 1: Personal service with acknowledgment (best)

Ideal evidence package:

Original notice letter
Receiving copy signed by the drawer (or authorized representative), with:
- name, signature
- date/time received
- address/location
- contact number/ID details if possible
Server’s affidavit describing:
- when/where served
- to whom
- how identity/authority was confirmed
- what was said/done if refusal occurred
If available, photo evidence of service setting (careful: privacy and admissibility considerations)
If refusal to sign: note “refused to sign” on receiving copy, and secure independent witness affidavit if possible

Why it works: It directly addresses the “receipt” issue.

Option 2: Registered mail with return card (good, but watch the gaps)

A strong registered-mail trail typically includes:

Registry receipt
Official receipt for postage
Copy of the letter and registry envelope details
Return card (or equivalent postal proof) showing delivery and recipient signature/date

Common pitfalls:

Having only a registry receipt (proof of sending) but no proof of delivery/receipt
Return card signed by an unclear person with no linkage to the accused (identity/authority issues)
Address problems (wrong address, incomplete address), which weaken the inference of receipt

Option 3: Courier delivery (increasingly common)

Couriers produce:

Tracking logs
Delivery confirmation
Recipient name/signature (sometimes)
Timestamp and location data (sometimes)

Litigation reality: Courts scrutinize authenticity and linkage:

Who signed?
Is the “help desk printout” reliable?
Can a witness authenticate the record?

For stronger proof:

Print and preserve the tracking page immediately (and keep metadata if possible)
Obtain a courier certification or witness if the case is contested
Pair courier proof with follow-up personal service when stakes are high

Option 4: Electronic notice (email/SMS/messaging)

Electronic notice raises two recurring problems:

Was it actually received/read by the accused?
Can the sender authenticate the message and the recipient identity?

Under Philippine evidence practice, electronic communications can be admissible if properly authenticated, but BP 22 litigation tends to favor hard, traditional proof (signed receipt or postal return card). If you rely on electronic means, strengthen it with:

acknowledgment reply from the drawer,
subsequent personal service,
or a settlement communication referencing the notice.

7) Messenger and bank service issues (the real-world headaches)

A. “We sent it through a messenger”—what can go wrong

Messengers are frequently used by:

law offices,
lending/finance companies,
corporate payees,
banks and depositary banks.

Weak messenger proof looks like:

a generic “messenger affidavit” with no specifics,
no receiving copy,
no logbook entry,
no witness,
no confirmation that the recipient was the accused or an authorized agent.

Strong messenger proof looks like:

Receiving copy signed by the accused or authorized recipient
Messenger’s detailed affidavit (time, place, identity verification, refusal details)
Company dispatch log (job order, route, timestamp, recipient name)
Supervisor testimony or records custodian testimony (if challenged)
If refusal: refusal notation + independent witness (guard, receptionist, barangay tanod, etc.)

Identity and authority issues

A frequent defense is:

“That person who received it was not authorized.”

To counter this, document:

recipient’s position (receptionist, secretary, admin staff),
office practice (who receives mail),
ID or business card (if obtained),
confirmation from the premises (guard log, visitor log),
later correspondence acknowledging the demand.

B. “The bank notified him”—does that automatically satisfy BP 22?

Often, the drawee bank informs its depositor (the drawer) through account statements, SMS alerts, or return item notices. But in BP 22 disputes, the usual controversy is not whether some notice existed—it’s whether the prosecution can prove the accused received a written notice of dishonor that triggers the 5 banking-day period.

Practical risk: Bank internal notices may be hard to authenticate in court or may not clearly show receipt by the accused. If you’re the payee/complainant, do not rely solely on the bank’s internal process—serve your own written notice with solid proof.

C. Deposit-to-clearing mechanics: who “returns” the check?

When a check is deposited, the depositary bank may accept it and then it moves through clearing. On return:

the check (or its record) comes back with return reason(s),
the depositary bank notifies the depositor/payee.

This proves dishonor, but again: it does not automatically prove the drawer received notice.

8) Special service scenarios and how to handle them

A. Notice sent to the drawer’s last known address

If the drawer has moved, service becomes vulnerable. Best practices:

Use the address on the check, the address in prior dealings, and any updated address in contracts
Document how you determined the address (contract, KYC forms, emails)
Attempt multiple methods (registered mail + personal service)
If returned, preserve the envelope and postal annotations

B. Notice received by household member

A household member signing for mail creates disputes:

Is the signer connected to the accused?
Does receipt at residence equate to receipt by the accused?

Strengthen proof with:

affidavit describing the residence as the accused’s home,
barangay certification (careful with hearsay limits; use properly),
other documents showing the accused resides there,
follow-up personal service or confirmation communication.

C. Office receipt by staff (secretary/receptionist)

This is common and can be persuasive, but the defense will attack “authority.” Strengthen with:

proof it was delivered to the accused’s office,
staff identity and role,
office mail-receipt practice,
guard/reception logs,
subsequent communications referencing the demand.

D. Refusal to receive or refusal to sign

Refusal is a classic tactic. The best approach:

Have a witness present (not your employee if possible),
Write “REFUSED TO RECEIVE” or “REFUSED TO SIGN” on the receiving copy with date/time,
Capture objective context (guard log, CCTV request if available, witness affidavit),
Follow with registered mail to lock in a second independent service trail.

9) Drafting the notice letter: content that helps prove your case

A notice is easier to prove when it is specific and unambiguous.

Include:

Drawer’s full name and known addresses
Date of letter
Check details: check number, date, amount, drawee bank/branch (if known), payee
Statement that the check was presented and dishonored, with reason (as per bank return)
Clear demand to pay the amount (and where/how to pay)
In BP 22 situations: a clear statement that the drawer has five (5) banking days from receipt to pay or make arrangements
Attachments: photocopy of check, bank return memo (optional but helpful)

Avoid:

vague statements (“your check bounced” with no identifiers),
incorrect check details,
threats or defamatory language (can create counterclaims/issues).

10) Courtroom proof strategy: how to build a clean chain of evidence

A. For complainants (BP 22 or civil)

Minimum recommended package:

Original check
Bank return memo / dishonor stamp documentation
Written notice/demand letter
Proof of receipt (personal acknowledgment or postal return card/courier proof)
Affidavit/testimony of:
- the person who sent/served the notice,
- custodian of records for logs (if used),
- bank witness if dishonor is disputed

B. For accused/defense

Common attack points:

The notice was never received
Signature is not mine; recipient not authorized
Address used was wrong or outdated
Proof shows only sending, not delivery
Notice letter is vague / does not clearly identify the dishonored check
Alleged receipt date is unreliable (affects 5 banking-day computation)

11) Computing the “five banking days” (BP 22 practicalities)

The 5-day period runs from receipt of notice and counts banking days (not calendar days). Practical implications:

Weekends and declared non-banking holidays generally don’t count as banking days.
Disputes often arise over the actual receipt date—another reason why proof of receipt must be precise.

Best practice: Make the receiving copy show the exact date/time, and keep the envelope/return card showing delivery date.

12) Common misconceptions to avoid

“Dishonor stamp equals notice.” It proves dishonor, not the drawer’s receipt of written notice.
“We mailed it; that’s enough.” In contested cases, proof of delivery/receipt is usually the fight, not proof of mailing.
“The bank already informed him.” You still need court-usable evidence that the accused received the written notice that triggers the cure period.
“Any person’s signature on the return card is fine.” If the signer’s identity/authority is unclear, expect a challenge.

13) Practical best practices (a checklist you can actually follow)

If you want the highest chance of surviving a “no notice” defense:

Serve personally first (or immediately after dishonor), and secure a signed receiving copy.
If personal service is not possible, use registered mail with return card, and preserve:
- registry receipt,
- return card,
- envelope with postal marks.
If you use a messenger:
- require a signed receiving copy,
- require detailed service affidavit,
- keep dispatch logs,
- use an independent witness for high-risk recipients.
Consider double service (personal + registered mail) when the amount is significant or the drawer is evasive.
Keep your records organized—courts reward tidy, credible documentation.

14) A simple “model” proof set for messenger service (what your affidavit should cover)

A strong server’s affidavit typically states:

full name, age, address, and employment of server
authority/purpose for serving
date/time/place of service
exact address served and how it was located
identity of recipient and how verified
whether recipient signed; if not, refusal details
presence of witnesses and their identities
attached receiving copy marked as annex

Final note

This topic is less about fancy legal theory and more about evidence discipline. In disputes involving checks—especially BP 22—your case can collapse if you cannot prove actual receipt of a written notice of dishonor with reliable, credible, and properly authenticated documentation.

If you want, I can also provide:

a sample BP 22 notice/demand letter format, and
a sample messenger/serving affidavit format tailored to common Philippine fact patterns.