"x x x.
“It is well-settled that the following requisites must be present for novation to take place: (1) a previous valid obligation; (2) agreement of all the parties to the new contract; (3) extinguishment of the old contract; and (4) validity of the new one. 4
These requisites, particularly the third, were not proven in this case. As the Court of Appeals held, the transaction became a personal undertaking of the petitioner when he received the goods for delivery but made no delivery thereof either to the credited dealer or to the credit rider. 5 Petitioner had an existing obligation to pay she value of the goods for which the check was issued. This obligation was not extinguished when the check was dishonored and a new agreement was reached by the two parties to pay in cash its value. The change in the mode of paying the obligation was not a change in any of the objects or principal conditions of the contract. As Tolentino states, neither acceptance of partial payment nor change of place or manner of payment involves novation. For novation cannot be presumed but must be expressly intended by the parties.
The Court of Appeals denied petitioner’s motion for reconsideration on the ground, inter alia, that the written undertaking was not presented as evidence. The records of the trial court show, however, that the existence of the written undertaking was actually admitted by the prosecution during trial, although, for some reason, it was not formally offered in evidence by the prosecution. However that may be, whether the written undertaking was presented or not, the fact remains that there was no novation in this case.
Nor is novation a mode of extinguishing criminal liability. As held by this Court, novation “may prevent the rise of criminal liability as long as it occurs prior to the filing of the criminal information in court.” In other words, novation does not extinguish criminal liability but may only prevent its rise.
Petitioner claims that the new agreement took effect prior to the filing of the information in court on December 15, 1981. He argues that, therefore, there could not have been any criminal liability under B.P. Blg. 22.
The argument is untenable. The fact is that the supposed new agreement never took effect as petitioner never complied with his undertaking. In Llamado v. Court of Appeals, a similar issue arose. An agreement to partially pay the dishonored check was made, but the accused failed to comply with his promise. This Court ruled:
[T]he “novation theory” recognized by this Court in certain cases does not apply in the case at bar. While private complainant agreed to petitioner’s offer to pay him 10% of the amount of the check on November 14 or 15, 1983 and the balance to be rolled over for 90 days, this turned out to be only an empty promise which effectively delayed private complainant’s filing of a case for violation of B.P. Blg. 22 against petitioner and his co-accused.
The Court thus held that the novation theory does not apply where the offer to pay by the debtor, and accepted by the creditor, turns out to be merely an empty promise. In this case, the balance of the check was never paid, as witness Anacleto B. Palisoc testified.
Indeed, the gravamen of the offense of violating B.P. Blg. 22 is the issuance of worthless checks. In this case, petitioner admitted issuing the check which when presented was dishonored. Though he promised to pay its value when it was dishonored, the fact remains that at the time it was presented to the drawee bank, it was not sufficiently funded. Petitioner, as the drawer of the check, is presumed to have knowledge of the insufficient funds, and his failure to pay the value of the check within five banking days from notice of dishonor did not dispute this presumption. On this, the Court of Appeals correctly affirmed the trial court.
But we think it was error for the appellate court not to impose subsidiary imprisonment in case of insolvency on the ground that there is no provision in B.P. Blg. 22 allowing for such penalty. This Court has, on several occasions, imposed subsidiary imprisonment in case of insolvency to pay the fine for violation of special laws, notwithstanding the absence of such provision in said laws. In Llamado v. Court of Appeals, we imposed subsidiary imprisonment on petitioner who was convicted of violating B.P. Blg. 22.
x x x."
