BP 22 Research

https://tiongcosiaobellolaw.com/2017/05/01/bp-22-defanged/

Numerous BP 22 cases have been dismissed and/ or have resulted in the acquittal of the
accused on the ground that the prosecution failed to establish that the accused had actually
received a notice of dishonor. In order to appreciate the impact of this development, we
must realize how difficult it really is to prove actual receipt of the notice of dishonor.

First, the prosecution in a BP 22 case must establish that (a) notice of dishonor was sent to
the issuer of the dishonored check and (b) that the same was actually received (Yu Oh v.
Court of Appeals, et al. G.R. No. 125297, 6 June 2003). A notice of dishonor may be sent to
the maker or drawer of the dishonored check by (1) by personal service upon the issuer or
(2) by registered mail. If the notice of dishonor is sent by registered mail, the fact of sending
the notice of dishonor is established by the registry receipt, the registry return card, and an
affidavit executed by the person who mailed the notice of dishonor detailing the
circumstances of the mailing (Victor Ting “Teng See”, et al. v. Court of Appeals, et al., G.R.
No. 140665, 13 November 2000).

As to establishing actual receipt, the prosecution must also prove that the signature
appearing on the registry return card or notice of dishonor, in case of personal service,
belongs to that of the issuer of the dishonored check or, at the very least, to his duly
authorized agent. In the latter case, the prosecution must establish the capacity and
authority of such person as agent. An illegible signature, such as when a recipient merely
signs his/ her initials on the registry return card or notice of dishonor, as the case may be,
does not prove that the issuer actually received the notice of dishonor (Victor Ting “Teng
See”, et al. v. Court of Appeals, et al., G.R. No. 140665, 13 November 2000). It is also
crucial that the registry return card or the notice of dishonor indicate the date it was received
in order to fix the start of the five (5) day period within which the maker or drawer of the
check must pay or make arrangements for the payment of the amount of the check (Section
1, BP 22)(Danao v. Court of Appeals, G.R. No. 122353, 6 June 2001).

The notice of dishonor may be sent to the office of the maker or drawer of the dishonored
check but he must receive the notice personally or through his authorized agent. A
corporation or an officer of a corporation that receives a notice of dishonor addressed to
one of its employees has no obligation to forward the notice to the employee concerned.
Thus, such receipt is not the receipt contemplated by BP 22 (Lao v. Court of Appeals, G.R.
No. 119178, 20 June 1997). A notice of dishonor may also be sent to the residence of the
maker or drawer of the dishonored check and received by him/her, the housemaids or
houseboys who are deemed to have a special power-of-attorney to receive mail in behalf of
the addressee, or any member of the family of sufficient age or discretion (Petilla v. Court of
Appeals, G.R. No. 150792, 3 March 2004). Notably, the notice of dishonor may be sent to,
and received by, the maker or drawer of the dishonored check wherever he may be found
as long as the fact and date of receipt are established.

On Jurisdiction

Our ruling in Morillo v. People29 is instructive as to where violations of B.P. Blg. 22 should be filed
and tried:

It is well-settled that violations of B.P. [Blg.] 22 cases are categorized as transitory or continuing
crimes, meaning that some acts material and essential thereto and requisite in their consummation
occur in one municipality or territory, while some occur in another. In such cases, the court wherein
any of the crime's essential and material acts have been committed maintains jurisdiction to try the
case; it being understood that the first court taking cognizance of the same excludes the other. Thus,
a person charged with a continuing or transitory crime may be validly tried in any municipality or
territory where the offense was in part committed.

The OSG, relying on our ruling in Rigor v. People, concluded that "the Supreme Court regarded the
place of deposit and the place of dishonor as distinct from one another and considered the place
where the check was issued, delivered and dishonored, and not where the check was deposited, as
the proper venue for the filing of a B.P. Big. 22 case." The Court, however, cannot sustain such
conclusion.

In said case, the accused therein obtained a loan from the Rural Bank of San Juan, Metro Manila,
and in payment thereof, he issued a check drawn against Associated Bank of Tarlac. Thereafter,
Rural Bank deposited the check at PS Bank, San Juan, but the same was returned for the reason
that it had been dishonored by Associated Bank of Tarlac. When all other efforts to demand the
repayment of the loan proved futile, Rural Bank filed an action against the accused for violation of
B.P. Big. 22 at the RTC of Pasig City, wherein crimes committed in San Juan are triable. The
accused, however, contends that the RTC of Pasig had no jurisdiction thereon since no proof had
been offered to show that his check was issued, delivered, dishonored or that knowledge of
insufficiency of funds occurred in the Municipality of San Juan. The Court, however, disagreed and
held that while the check was dishonored by the drawee, Associated Bank, in its Tarlac Branch,
evidence clearly showed that the accused had drawn, issued and delivered it at Rural Bank, San
Juan, viz.:

Lastly, petitioner contends that the Regional Trial Court of Pasig had no jurisdiction over this case
since no proof has been offered that his check was issued, delivered, dishonored or that knowledge
of insufficiency of funds occurred in the Municipality of San Juan, Metro Manila.

The contention is untenable.

x x x x.
The evidence clearly shows that the undated check was issued and delivered at the Rural Bank of
San Juan, Metro Manila on November 16, 1989, and subsequently the check was dated February
16, 1990 thereat. On May 25, 1990, the check was deposited with PS Bank, San Juan Branch,
Metro Manila. Thus, the Court of Appeals correctly ruled:

Violations of B.P. Blg. 22 are categorized as transitory or continuing crimes. A suit on the check can
be filed in any of the places where any of the elements of the offense occurred, that is, where the
check is drawn, issued, delivered or dishonored. x x x

https://www.coursehero.com/file/pg7m9sd/B-DEFENSES-IN-BP-22-WHAT-ARE-THE-POSSIBLE-
DEFENSES-IN-BP-22-1-The-presentation/

B. DEFENSES IN BP. 22WHAT ARE THE POSSIBLE DEFENSES IN B.P. 22?1.The

presentation of the registry card, with an unauthorized signature, does not meet the
requiredproof beyond reasonable doubt that the petitioner received such noticed, especially
considering thathe denied receiving it. (Suarez v. People 555, SCRA 238, June 19,
2008)2.Presumption of knowledge of insufficiency of funds is not conclusive as it may be
rebutted by fullpayment. (Tan vs. Philippine Commercial International Bank 552 SCRA 532,
April 23, 2008)3.Under B.P. Blg. 22, the prosecution must prove not only that the accused
issued a check that wassubsequently dishonored. It must also establish that the accused was
actually notified that the checkwas dishonored, and that he or she failed, within five (5)
banking days from receipt of the notice, topay the holder of the check the amount due thereon
or to make arrangement for its payment.4.Prescription is a proper defense. The prescriptive
period is 4 years reckoned from the lapse of thefive (5) banking days from notice of dishonor
within which to make good the check.5.Forgery of the signature appearing on the check (Ilusorio
vs. Court of Appeals, 353 SCRA 89)An agreement surrounding the issuance of
dishonored checks is irrelevant to the prosecution forviolation of Batas Pambansa
Blg. 22. (Dreamwork Construction, Inc. v. Janiola 591 SCRA 466, June 30,2009)LACK
OF VALUABLE CONSIDERATION is not A PROPER DEFENSE IN VIOLATION OF
B.P. 22.(Dreamwork Construction, Inc. v. Janiola 591 SCRA 466, June 30, 2009)
NOVATION is not A PROPERDEFENSE IN B.P. 22.IS “STOP PAYMENT” A PROPER
DEFENSE IN BP. 22?PAYMENT” or countermand, yet if it was clear from the statement of
account that the check bounceddue to insufficiency of funds, the drawer of the check is still
liable.Chang vs. IAC, 146 SCRA 46 BAR Q.[2002]C. CORPORATION IN RELATION TO
BP. 22Section 1 of the law provides: “Where the check is drawn by a corporation, company
or entity, theperson or persons who actually signed the check in behalf of such drawer shall be
liableThe officer who is accused of signing the check must receive the notice of dishonor.
Constructivenotice to the corporation, who has a separate personality from its officer, is not
 enough.ADMINISTRATIVE CIRCULAR NO. 12-2000 refers to the imposition of penalties
for violation of B.P.22. It provides:Court has not decriminalized B.P. 22 violations, nor have
removed imprisonment as an alternativepenalty.

JURISDICTION

http://brillanteslaw.blogspot.com/2013/06/lack-of-criminal-jurisdiction-in-bp-22.html

lack of criminal jurisdiction in a BP 22

case as ground for dismissal
It is a fundamental principle that criminal actions shall be instituted and tried in
the court of any municipality or territory where the offense was committed or where any
of its essential ingredients occurred (Section 15, Rule 110, 2000 Rules of Criminal
Procedure, as amended). The rationale herein is so that the Accused will not be
compelled to move to, and appear in a different court from that of the province where the
crime was committed, as it would cause him great inconvenience in looking for witnesses
and other evidence in another place (Hernandez vs. Albano, 19 SCRA 85).

Said municipality or territory where the offense was committed or where any of
its essential ingredients occurred fixes not only the venue of the criminal case but also its
jurisdiction. This if for the reason that in criminal cases, venue is jurisdictional as the court
has no jurisdiction to try an offense committed outside its territorial jurisdiction (People
vs. Mercado, 65 PHIL 665).

Relative to violations of Batas Pambansa Blg. 22 of which Accused has been

charged of, the elements or essential ingredients of the offense are as follows:

1) The making, drawing and issuance of any check to apply for account or for value;

2) The knowledge of the maker, drawer or issuer that at the time of issue there are no sufficient funds in or
credit with the drawee bank for the payment of such check in full 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 (Ting vs. Court of Appeals, 344 SCRA 551).

It is evident that the elements of said offense do not take place simultaneously but
one after the other. It may occur then that the making, drawing and issuance of a check
takes place in one municipality or territory while the dishonor thereof in another. Hence,
it may be instituted and tried in the court of the municipality or territory where it was made,
drawn and issued or where it was dishonored. Otherwise said, it is only courts of either
municipality or territory (place of issuance or place of dishonor), and no other which can
validly exercise jurisdiction and thus hear and decide cases involving said cases.

While it is clear based on the checks themselves that they were dishonored in
Tuguegarao, the drawee bank being China Banking Corporation, Tuguegarao Branch,
there is no allegation or proof whatsoever based on Private Complainant’s Complaint-
Affidavit and its supporting documents, where it was made drawn, and issued to herein
Accused.

The truth of the matter as Accused has declared and clearly shown in his Counter-
Affidavit is that she issued and delivered the subject checks to Private Complainant in his
place of residence which is Iguig, Cagayan.

Most evidently, contrary to the very spirit and purpose of the rule on venue,
Private Complainant, for her own convenience and advantage and to the great
inconvenience and disadvantage of Accused, filed her criminal complaint against the
latter in Cabanatuan City, for no other reason than that being her place of residence.
Having not alleged or shown that the alleged offenses or any ingredient thereof, were
committed in Cabanatuan City, the Honorable Office of the City Prosecutor of
Cabanatuan City, has absolutely no basis whatsoever to file the instant Information in
Cabanatuan City. It has no legal authority whatsoever to falsely and arbitrarily allege in
said information that the said offenses were committed within the jurisdiction of the
Honorable Court.

Indubitably, the purpose behind such unwarranted action is to arbitrarily establish

jurisdiction over the instant cases in Cabanatuan courts when in fact there was none at
all. The bare and unsubstantiated allegation however in the information does not
determine the place where the criminal action is to be instituted. To say that the allegation
of the information is determinative of the jurisdiction of the court will have the effect of
conferring upon the investigating and filing prosecutor the absolute discretion to
determine which court has jurisdiction over an offense, a situation which is not only
constitutionally unsound but also anathema to the rule of law (p. 61, Notes and
Comments on the Bouncing Checks Law).

Clearly, Private Complainant, who has the burden of showing that herein cases
are within the jurisdiction of the Honorable Court, has miserably failed to do so. The
Honorable Office of the City Prosecutor of Cabanatuan City should have summarily
dismissed her said criminal complaints.

On the contrary, herein Accused has attested and shown through his Counter-Affidavit and supporting
documents, that in fact, she issued the subject checks in Iguig, Cagayan. Clearly then, all the acts which are essential
to the offense of which Accused has been charged of, took place in the province of Cagayan. Hence, the Honorable
Court has not jurisdiction whatsoever to try and hear the instant cases. They should therefore be quashed.

The Rules of Summary Procedure provide that:

 Should the court, upon consideration of the complaint or information and
the affidavits submitted by both parties, find no cause or ground to hold the
accused for trial, it shall order the dismissal of the case; otherwise, the court shall
set the case for arraignment and trial (Section 13, The 1991 Revised Rule on
Summary Procedure).

Thus, even without this motion to quash, the Honorable Court on its own, may
order the dismissal of the instant cases, if upon consideration of the complaint or
information together with the affidavits submitted by both parties, it finds no cause or
ground to hold the Accused for trial. There is absolutely nothing in the affidavits submitted
by both parties, which will establish any cause or ground for the Honorable Court to
acquire jurisdiction over the instant cases. Most certainly then, there is likewise no cause
or ground for the Honorable Court to hold the Accused for trial.