There are two legal provisions regarding the issuance of checks
in our laws and both are criminal in nature. The first falls under
the crime of estafa and is committed by post-dating a check, or issuing
a check in payment of an obligation when the offender therein were not
sufficient to cover the amount of the check. The failure of the drawer
of the check to deposit the amount necessary to cover his check within
three (3) days from receipt of notice from the bank and/or the payee or
holder that said check has been dishonored for lack of insufficiency of
funds shall be prima facie evidence of deceit constituting false pretense
or fraudulent act.
The second is a law in itself, Batas Pambansa Blg. 22, more popularly
known as B.P. 22. This crime is committed by 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.
So how do we differentiate the two?
Settled is the rule that, to constitute estafa, the act of postdating
or issuing a check in payment of an obligation must be the efficient cause
of defraudation and, as such, it should be either prior to or simultaneous
with the act of fraud. The offender must be able to obtain money or property
from the offended party because of the issuance of the check or that the
person to whom the check was delivered would not have parted with his money
or property had there been no check issued to him. Stated otherwise, the
check should have been issued as an inducement for the surrender by the
party deceived of his money or property and not in payment of a pre-existing
obligation.
On the other hand, the elements of the offense under Section 1, BP Blg
22, are: (1) the making, drawing and issuance of any check to apply to
account or for value; (2) the maker, drawer or issuer knows that at the
time of issue he does not have sufficient funds in or credit with the drawee
bank for the payment of such in full upon presentment; and (3) the 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. 23
It will be noted that BP Blg. 22 requires that the drawer of the check
must have knowledge at the time of issue that he does not have sufficient
funds in or credit with the drawee bank. Under Section 2 thereof, 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, is prima facie
evidence of knowledge of such insufficiency when the check is presented
within 90 days from the date of the check. However, the prima facie evidence
of knowledge of such insufficiency does not lie when the maker or drawer
pays the holder of the check 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.
