498 Phil. 213
CALLEJO, SR., J.:
INVOICE NO. DATE OF SALE CHECK NO. AMOUNTBA 87060[6] March 13, 1992 3357283[7] P 44,988.56BA 87464[8] March 17, 1992 3357348[9] P148,656.10BA 87987[10] March 30, 1992 3357543[11] P130,782.70BA 87988[12] -do- -do- P28,000.00BA 88290[13] April 3, 1992 3357619[14] P205,489.50BA 88291[15] -do- -do- P 82,193.30BA 88292[16] -do- -do- -do-
That on or about the 30th day of March 1992, in the City of Bacolod, Philippines, and within the jurisdiction of this Honorable Court, the herein accused being then the Finance Officer and Assistant General Manager, respectively, of Industrial Sugar Resources Company, Inc. (INSURECO) did, then and there, willfully, unlawfully and feloniously make out, issue and deliver Far East Bank and Trust Company, Bacolod Branch, Bacolod, City Check No. 3357348 postdated to April 24, 1992, in the amount of ONE HUNDRED FORTY-EIGHT THOUSAND SIX HUNDRED FIFTY-SIX PESOS and TEN CENTAVOS (P148,656.10), Philippine Currency, in favor of Caltex Philippines, Inc. a corporation duly organized and existing under the Philippine Laws, represented in this case by its Sales Representative, Norman Lee Riego, Jr., in payment of a pre-existing obligation knowing at the time of issue of said check that 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 which check after presentment, was subsequently dishonored by the drawee bank for reason of insufficient funds; that, despite notice of dishonor and repeated demands, accused failed and refused and still fails and refuses to make good the full value of their check or redeem the same to the damage and prejudice of said Caltex Philippines, Inc., in the aforementioned amount.Except for the dates of the commission of the crimes charged and the contents of the postdated checks subject matter thereof, the accusatory portions of the two other Informations are similarly worded.
Contrary to law.[21]
WHEREFORE, premises considered, the Court hereby ACQUITS the accused, John Dalao for the crime of Estafa in Crim. Case No.12311 for insufficiency of evidence. The Court, however, finds the accused Ofelia Marigomen and John Dalao GUILTY beyond reasonable doubt for violation of Batas Pambansa Blg. 22 and hereby sentences them as follows:Marigomen appealed the decision to the CA, asserting in her brief, as appellant therein, that the following errors were committed by the trial court:
1. In Crim. Case No. 13012:One (1) year imprisonment and to jointly and solidarily pay the complainant, by way of civil indemnity the amount of P148,656.10, representing the value of the check.2. In Crim. Case No. 13013:One (1) year imprisonment and to jointly and solidarily pay the complainant the sum of P124,855.75 by way of civil indemnity.3. In Crim. Case No. 13014:One (1) year imprisonment and to jointly and solidarily pay the complainant the amount of P44,988.55, by way of civil indemnity....
SO ORDERED.[28]
On April 19, 2001, the CA rendered judgment affirming the decision of the RTC, with the modification that Marigomen and Dalao pay fines, with subsidiary imprisonment in case of insolvency, in lieu of imprisonment. The appellate court ruled that they were civilly liable for the amounts of the checks, conformably with Article 100 of the Revised Penal Code, and the ruling of this Court in Banal v. Tadeo, Jr.[30] It also held that the notices of demand sent by Caltex for INSURECO to pay the amount of the checks were sufficient notice to Marigomen and Dalao. The CA also declared that whether or not Caltex granted a credit line or accommodation to INSURECO was irrelevant to the issue of whether they were criminally liable for violation of B.P. Blg. 22.1
THE TRIAL COURT ERRED IN HOLDING THAT THERE IS A DEMAND MADE TO THE ACCUSED OFELIA MARIGOMEN.2
THE TRIAL COURT ERRED IN ALLOWING A PRIVATE PROSECUTOR TO CONDUCT THE DIRECT EXAMINATION.3
THE TRIAL COURT ERRED IN HOLDING THAT THE ACCUSED OFELIA MARIGOMEN IS CIVILLY LIABLE.4
THE TRIAL COURT ERRED IN HOLDING THAT THERE IS A VALID OFFER OF EXHIBITS MADE BY THE PROSECUTION.5
THE TRIAL COURT ERRED IN ADMITTING THE TESTIMONY OF THE WITNESS MR. NORMAN RIEGO WITHOUT REQUIRING HIS AUTHORITY OR BOARD RESOLUTION FROM CALTEX, PHILIPPINES.6
THE TRIAL COURT ERRED IN TOTALLY DISREGARDING THE FACT THAT THERE IS A CREDIT LINE GRANTED BY CALTEX, PHILIPPINES TO INDUSTRIAL SUGAR RESOURCES, INC. (INSURECO).[29]
The petitioner avers that the prosecution failed to prove a condition sine qua non to her prosecution and conviction for violation of B.P. Blg. 22, that is, written notice informing her that the subject checks had been dishonored. She alleges that the respondent failed to prove that a copy of the telegram dated May 6, 1992 addressed to INSURECO was sent to and received by her. Thus, even if the telegram had been received by INSURECO, such receipt was not binding on her because she was no longer employed with INSURECO by then.
- WHETHER OR NOT THE HONORABLE COURT OF APPEALS IS RIGHT IN UPHOLDING THE DECISION OF THE REGIONAL TRIAL COURT IN FINDING THE ACCUSED MRS. MARIGOMEN GUILTY FOR VIOLATION OF B.P. 22 INSPITE OF THE FACT THAT NO NOTICE OF DEMAND HAS EVER BEEN SENT TO THE PETITIONER.
- WHETHER OR NOT THE PARTICIPATION OF THE PRIVATE PROSECUTOR IS PROPER OR NOT.
- WHETHER OR NOT PETITIONER MAY BE HELD CIVILLY LIABLE IN THE INSTANT CASE.
- WHETHER OR NOT THERE WAS A VALID OFFER OF EXHIBITS AS AGAINST THE CRIMINAL INFORMATIONS FILED AGAINST ACCUSED MARIGOMEN.[31]
Section 1. Checks without sufficient funds. – Any person who makes or draws and issues any check to apply on 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, shall be punished by imprisonment of not less than thirty days but not more than one (1) year or by a fine of not less than but not more than double the amount of the check which fine shall in no case exceed Two Hundred Thousand Pesos, or both such fine and imprisonment at the discretion of the court.For violation of B.P. Blg. 22 to be committed, the prosecution must prove the following essential elements:
(1) the making, drawing, and issuance of any check to apply for account or for value;It is difficult for the prosecution to prove the second element of the crime because the knowledge on the part of the maker, drawer or issuer that at the time of issue he does not have sufficient funds or credit with the drawee bank for the payment of such checks in full upon its presentation is a state of the mind. However, Section 2 of B.P. Blg. 22 provides that if the prosecution proves that the making, drawing and issuing of a check, payment of which is refused by the drawee bank because of insufficiency of funds or credit with the said bank within 90 days from the date of the check, such shall be prima facie evidence of the second element of the crime. The drawee or maker of the check may overcome the prima facie evidence, either by paying the amount of the check, or by making arrangements for its payment in full within five banking days after receipt of notice that such check was not paid by the drawee bank.[35]
(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.[34]
It has been observed that the State, under this statute, actually offers the violator "a compromise by allowing him to perform some act which operates to preempt the criminal action, and if he opts to perform it the action is abated." This was also compared to certain laws allowing illegal possessors of firearms a certain period of time to surrender the illegally possessed firearms to the Government, without incurring any criminal liability. In this light, the full payment of the amount appearing in the check within five banking days from notice of dishonor is a "complete defense." 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 postulates 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. Blg. 22.Moreover, the notice of dishonor must be in writing; a verbal notice is not enough. The rationale for this was explained by the Court in Domagsang v. Court of Appeals,[37] to wit:
Petitioner counters that the lack of a written notice of dishonor is fatal. The Court agrees.Thus, if the drawer or maker is an officer of a corporation, the notice of dishonor to the said corporation is not notice to the employee or officer who drew or issued the check for and in its behalf. The Court explained in Lao v. Court of Appeals,[38] to wit:
While, indeed, Section 2 of B.P. Blg. 22 does not state that the notice of dishonor be in writing, taken in conjunction, however, with Section 3 of the law, i.e., "that where there are no sufficient funds in or credit with such drawee bank, such fact shall always be explicitly stated in the notice of dishonor or refusal," a mere oral notice or demand to pay would appear to be insufficient for conviction under the law. The Court is convinced that both the spirit and letter of the Bouncing Checks Law would require for the act to be punished thereunder not only that the accused issued a check that is dishonored, but that likewise the accused has actually been notified in writing of the fact of dishonor. The consistent rule is that penal statutes have to be construed strictly against the State and liberally in favor of the accused.