Friday, December 19, 2014

BP 22 cases; when notice of dishonor is deemed substantively comlied with - GR 187401.pdf

See - 187401.pdf

"x x x.

Campos argues that the crime’s element requiring her knowledge at the time of the check’s issuance that she did not have sufficient funds with the drawee bank for the payment of the check in full upon presentment was not established by the prosecution. She denies having received a notice of dishonor from FWCC. Insisting on an acquittal, Campos discredits the MeTC’s reliance on a supposed notice of dishonor that was sent to her by FWCC through registered mail. She also invokes good faith as she allegedly made arrangements with FWCC for the payment of her obligation after the subject checks were dishonored.

 The petition lacks merit.

To be liable for violation of B.P. 22, the following essential elements must be present: (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 he does not have sufficient funds in or credit with the drawee bank for the payment of the 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.11

The presence of the first and third elements is undisputed. An issue being advanced by Campos through the present petition concerns her alleged failure to receive a written demand letter from FWCC, the entity in whose favor the dishonored checks were issued. In a line of cases, the Court has

emphasized the importance of proof of receipt of such notice of dishonor,12 although not as an element of the offense, but as a means to establish that the issuer of a check was aware of insufficiency of funds when he issued the check and the bank dishonored it, in relation to the second element of the

offense and Section 2 of B.P. 22. Considering that the second element involves a state of mind which is difficult to establish, Section 2 of B.P. 22 creates a presumption of knowledge of insufficiency of funds,13 as it reads:

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 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.

In the instant case, both the RTC and the CA affirmed the MeTC’s finding that the required notice of dishonor from FWCC was received by Campos. Campos, nonetheless, still maintains that her personal receipt of the notice was not sufficiently established, considering that only a written copy of the letter and the registry return receipt covering it were presented by the prosecution.

The Court has in truth repeatedly held that the mere presentation of registry return receipts that cover registered mail was not sufficient to establish that written notices of dishonor had been sent to or served on issuers of checks. The authentication by affidavit of the mailers was necessary in order for service by registered mail to be regarded as clear proof of the giving of notices of dishonor and to predicate the existence of the second element of the offense.14

In still finding no merit in the present petition, the Court, however, considers Campos' defense that she exerted efforts to reach an amicable settlement with her creditor after the checks which she issued were dishonored by the drawee bank, BPI Family Bank. Campos categorically declared in her petition that, "[she] has in her favor evidence to show that she was in good faith and indeed made arrangements for the payment of her obligations subsequently after the dishonor of the checks." 15 Clearly, this statement was a confirmation that she actually received the required notice of dishonor from FWCC. The evidence referred to in her statement were receipts 16 dated January 13, 1996, February 29, 1996, April 22, 1998 and May 26, 1998 issued by FWCC to Campos for payments in various amounts ranging from P2,500.00 to PlS,700.00. Campos would not have entered into the alleged arrangements beginning January 1996 until May 1998 if she had. not received a notice of dishonor from her creditor, and had no knowledge of the insufficiency of her funds with the bank and the dishonor of her checks.

Campos could have avoided prosecution by paying the amounts due on the checks or making arrangements for payment in full within five ( 5) days after receiving notice. Unfortunately for Campos, these circumstances were not established in the instant case. She failed to sufficiently disclose the terms of her alleged arrangement with FWCC, and to establish that the same had been fully complied with so as to completely satisfy the amounts covered by the subject checks. Moreover, documents to prove such fact should have been presented before the MeTC during the trial, yet Campos opted to be tried in absentia, and thus waived her right to present evidence.

While Campos blamed her former counsel for alleged negligence that led to her failure to be present during the trial, 17 it is settled that the negligence of counsel binds his or her client. Given the circumstances, the Court finds no cogent reason to reverse the ruling of the CA which affirmed the conviction of Campos.

x x x."