Dear Atty. Gab,

Musta Atty! I hope you can shed some light on my situation. A few months ago, I borrowed P50,000 from a friend, Mr. Santos, for a small emergency. As security, he asked me to issue a post-dated check for the same amount. Honestly, I wasn’t very comfortable doing it because I used a checkbook from an old account I wasn’t actively using, but I felt pressured and needed the money. I told him maybe it’s better if I just sign a promissory note, but he insisted on the check.

As expected, when he deposited the check last month, it bounced because the account was already closed. Shortly after, Mr. Santos called me, quite angry, telling me the check bounced and demanding immediate payment. I explained my situation and promised to pay him back in installments as soon as I could gather the funds. However, just last week, I was shocked to receive a court summons. Apparently, Mr. Santos filed a criminal case against me for violating Batas Pambansa Blg. 22 (Bouncing Checks Law).

My main concern, Atty., is that aside from that angry phone call, I never received any formal written letter or demand telling me the check bounced and giving me a specific period, like 5 days, to pay the amount. I vaguely remember seeing a mailman trying to deliver something registered weeks ago, but I wasn’t home, and I never received any slip to claim it. Is the verbal notice from Mr. Santos enough? Don’t I have the right to receive a proper written demand first before a criminal case can be filed? I’m really worried about having a criminal record over this. What are my rights, and what can I do? Thank you po.

Naguguluhan,
Ricardo Cruz

Dear Ricardo,

Thank you for reaching out. I understand your worry and confusion regarding the BP 22 case filed against you, especially concerning the notice of dishonor. It’s a stressful situation, but understanding the specific requirements of the law can help clarify your position.

The Bouncing Checks Law (BP 22) indeed aims to penalize the issuance of worthless checks. However, the law also provides certain safeguards for the issuer. One crucial element the prosecution must prove is your knowledge that the check had insufficient funds when you issued it. The law presumes this knowledge if, after receiving a notice of dishonor, you fail to pay the check amount within five banking days. Critically, this notice must generally be in writing, and the prosecution must properly prove that you actually received it. Let’s delve deeper into this requirement.

The Crucial Role of Written Notice in Bouncing Check Cases

Batas Pambansa Blg. 22 penalizes the act of making and issuing a check that is subsequently dishonored. To secure a conviction, the prosecution must prove three essential elements: (1) the making, drawing, and issuance of any check to apply on account or for value; (2) the knowledge of the maker, drawer, or issuer that at the time of issue they did not have 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.

The second element, knowledge of insufficient funds, is often the most critical and contentious part. Because proving someone’s state of mind is difficult, BP 22 establishes a legal presumption of this knowledge. However, this presumption does not automatically arise merely because the check bounced. Specific conditions must be met first.

SEC. 2. Evidence of knowledge of insufficient funds. – 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, 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 arrangements for payment in full by the drawee of such check within five (5) banking days after receiving notice that such check has not been paid by the drawee.

This means the prosecution must prove that: (a) the check was presented within 90 days from its date; (b) the drawer (you) received notice that the check was dishonored; and (c) you failed to pay the amount due or make arrangements for payment within five banking days after receiving such notice. The absence of proof of any of these elements, particularly the receipt of notice, prevents the presumption of knowledge from arising.

Crucially, jurisprudence clarifies the nature of this required notice.

A notice of dishonor received by the maker or drawer of the check is thus indispensable before a conviction can ensue. … The notice must be in writing. A mere oral notice to pay a dishonored check will not suffice. The lack of a written notice is fatal for the prosecution.

Therefore, the angry phone call you received from Mr. Santos, while conveying the fact of dishonor, generally does not satisfy the legal requirement for the notice that triggers the five-day period and the presumption of knowledge. The law requires written notice to ensure clarity, certainty, and to properly afford the drawer the opportunity to avoid criminal liability.

Furthermore, if the notice was allegedly sent via registered mail, the prosecution cannot simply present the registry return receipt (the card indicating someone received mail). Proving service by registered mail in criminal cases like BP 22 requires more stringent proof due to the standard of proof beyond reasonable doubt.

In the instant case, the prosecution did not present proof that the demand letter was sent through registered mail, relying as it did only on the registry return receipt. In civil cases, service made through registered mail is proved by the registry receipt issued by the mailing office and an affidavit of the person mailing of facts showing compliance with Section 7 of Rule 13… If, in addition to the registry receipt, it is required in civil cases that an affidavit of mailing as proof of service be presented, then with more reason should we hold in criminal cases that a registry receipt alone is insufficient as proof of mailing. … Receipts for registered letters and return receipts do not prove themselves; they must be properly authenticated in order to serve as proof of receipt of the letters.

This means the prosecution must typically present not just the return card, but also the registry receipt (from the post office) and an affidavit from the person who actually mailed the letter, attesting to the mailing. Alternatively, the mailer could testify in court. Without such authentication, simply showing a return card, especially if the signature is unclear or not proven to be yours or your authorized agent’s, is insufficient to establish that you actually received the written notice as required by law. The purpose of this notice requirement is rooted in fairness and due process:

The absence of a notice of dishonor necessarily deprives an accused an opportunity to preclude a criminal prosecution. Accordingly, procedural due process clearly enjoins that a notice of dishonor be actually served on petitioner. Petitioner has a right to demand – and the basic postulate of fairness require – that the notice of dishonor be actually sent to and received by her to afford her the opportunity to avert prosecution under B.P. 22.

Failure to prove you received the mandatory written notice of dishonor is a significant defense in a BP 22 case, potentially leading to an acquittal on the criminal charge, although the obligation to pay the P50,000 civilly remains.

Practical Advice for Your Situation

• Verify the Prosecution’s Evidence: Carefully examine the documents submitted by the prosecution. Did they present only a verbal demand? If they claim written notice via registered mail, do they have the registry receipt and an affidavit of mailing, or just the return card?
• Challenge Lack of Written Notice: If no written notice was ever properly served on you, this is a strong defense. The verbal notice from Mr. Santos is legally insufficient to establish the presumption of knowledge required for a BP 22 conviction.
• Scrutinize Proof of Mailing: If they rely on registered mail, insist on the presentation of the registry receipt and the mailer’s affidavit or testimony. An unauthenticated return card alone is generally not enough proof in a criminal case.
• Understand the 5-Day Rule: The crucial five-banking-day period to pay and avoid criminal liability only begins after you actually receive the written notice of dishonor. Since you likely never received it based on your account, this period never started running against you for criminal purposes.
• Consult a Lawyer Immediately: Given that a case has already been filed, it is crucial to engage the services of a lawyer who specializes in criminal defense. They can properly raise these defenses in court and protect your rights.
• Distinguish Criminal and Civil Liability: Even if you are acquitted of the criminal charge due to lack of proper notice, you still owe Mr. Santos the P50,000. The acquittal only addresses the criminal aspect (imprisonment/fine under BP 22), not the underlying debt. Continue trying to arrange payment for the civil obligation.
• Document Everything: Keep records of all communications, summons, and any evidence related to the attempted mail delivery or lack thereof.

Ricardo, the requirement for a written notice of dishonor and proper proof of its receipt is a fundamental aspect of due process in BP 22 cases. Based on your narration, there seems to be a strong possibility that this requirement was not met, which could be fatal to the criminal case against you. However, navigating the legal process requires careful handling by a qualified professional.

Hope this helps!

Sincerely,
Atty. Gabriel Ablola

For more specific legal assistance related to your situation, please contact me through gaboogle.com or via email at connect@gaboogle.com.

Disclaimer: This correspondence is provided for informational purposes only and does not constitute legal advice. For specific legal guidance tailored to your situation, please schedule a formal consultation.