It is inevitable that we will encounter a check at least once in our lifetime.

This medium of commerce is

still very common despite the proliferation of credit cards. Sadly, with the increase in its use there is also
the increase in the number of individuals taking advantage of checks to defraud other people. For this
reason, a provision in a Revised Penal Code was placed to deal with this issue. Estafa is a criminal
offense wherein a person defrauds another by UNFAITHFULNESS or ABUSE OF CONFIDENCE; DECEIT; or
FRAUDULENT MEANS. Estafa is committed by a person who defrauds another causing him to suffer
damage, by means of unfaithfulness or abuse of confidence, or of false pretense or fraudulent acts. For
swindling to be called estafa under the law, it must satisfy two elements: (1) there is an element of deceit
or fraud used by the offender against the victim; and (2) as a result of the deceit, the victim suffered
some form of damage or injury. This may mean loss of money, property, or the victim was cheated of
something that was promised to him.

There are three (3) elements of estafa by issuing a check. The first one is, Postdating or issuance of a
check in payment of an obligation contracted at the time the check was issued. Next one is, Insufficiency
of funds to cover the check. And lastly, the Damage to the payee thereof. If any of these elements is not
present then a person cannot be held liable for estafa. Estafa is the legal term used to describe certain
forms of swindling. Thus, a person can be considered a swindler for committing a form of estafa.
However, a person can also be a swindler by committing other acts that are not necessarily estafa.
Estafa is a punishable crime under Article 315 of the Revised Penal Code of the Philippines.

Estafa through the issuance of a check is committed by means of any of the following false pretenses or
fraudulent acts executed prior to or simultaneously with the commission of the fraud: By postdating a
check, or issuing a check in payment of an obligation when the offender had no funds in the bank, or his
funds deposited therein were not sufficient to cover the amount of the check. The failure of the drawer
of the check to deposit the amount necessary to cover his check within three (3) days from receipt of
notice from the bank and/ or the payee or holder that said check has been dishonored for lack or
insufficiency of funds shall be prima facie evidence of deceit constituting false pretense or fraudulent
act.

For example, Marian went to a boutique to shop for clothes. Since she is a friend of the store owner,
she was allowed to pay later. After 10 days, Marian issued a check in payment of the clothes she
bought. The check bounced to the dismay of the store owner. Can Marian be held liable for estafa?
No. Marian cannot be held liable for estafa because the check was issued in payment of a pre-existing
debt. As mentioned earlier, estafa through the issuance of a bouncing check can be committed only if
the check was issued in payment of an obligation contracted at the time the check was issued. Note
however that while there is no estafa, nevertheless, Marian can be held liable for another crime.

The following are the acts punishable by the bouncing checks law:

1. Any person who makes or draws and issues any check to apply for an account or for value 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 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.
2. Any person who, having sufficient funds in or credit with the drawee bank when he makes or draws
and issues a check, shall fail to keep sufficient funds or to maintain a credit to cover the full amount of
the check if presented within a period of 90 days from the date appearing thereon, for which reason it is
dishonored by the drawee bank.

Where a check is drawn by a corporation, company or entity, the person(s) who actually signed the
check in behalf of such drawer shall be liable under this Act. (Sec. 1)

The making, drawing and issuance of a check payment of which is refused by the drawee bank, when
presented within 90 days from the date of the check, shall be prima facie evidence of knowledge of
such insufficiency of funds or credit unless such maker or drawer pays the holder thereof the amount
due thereon, or makes arrangement 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. (Sec. 2)
The absence of a notice of dishonor necessarily deprives the accused an opportunity to preclude a
criminal prosecution. Accordingly, procedural due process clearly enjoins that a notice of dishonor be
actually served on petitioner. In order to create the prima facie presumption that the issuer knew of the
insufficiency of funds, it must be shown that he or she received a notice of dishonor and, within 5
banking days thereafter, failed to satisfy the amount of the check or make arrangement for its payment.

Under BP 22, the offense therein punished is not committed:

1. The bouncing check is presented for payment after 90 days from date of issue.

2. If presented within 90 days, the drawer within 5 banking days from notice paid the payee or holder of
the check its amount.

The essential element of the law is knowledge on the part of the maker or drawer of the check of the
insufficiency of his funds. Malice and intent in issuing the worthless check are immaterial; the offense
being malum prohibitum. The gravamen of the offense is the issuance of a bad check, not the non-
payment of an obligation. The makers knowledge of insufficiency of his funds is legally presumed from
the dishonor of the check for lack of funds. Each act of drawing and issuing a bouncing check constitutes
a violation of BP 22 because in a statutory offense or malum prohibitum malice or criminal intent is
immaterial. If the drawer has a valid reason for stopping payment, he cannot be held liable under BP 22.

Other differences between the two also include the following:

(a) Damage and deceit are essential elements in Article 315 2(d) but they are not required in B.P. 22.

(b) A drawer of a dishonored check may be convicted under B.P. 22 even if he had issued the same for
a pre-existing obligation, while under Article 315 2(d) of the Revised Penal Code, such circumstance
negates criminal liability;

(c) Specific and different penalties are imposed in each of the two offenses;

(d) Estafa is a crime against property, while violation of B.P. 22 is principally a crime against public
interest as it does injury to the entire banking system;

(e) Violations of Article 315 are mala in se, while those of B.P. 22 are mala prohibita.