Swindling or 

Estafa
The penalty for Estafa is basically dependent on the value of the damage or prejudice
caused by the perpetrator. RA 10951 increased the amount of fraud which is the basis of
penalty and the fine imposed for the crime of Estafa under Article 315 of the RPC. Under
this law, swindling or Estafa shall be punished as follows:

If the amount of the fraud does not exceed Forty thousand pesos (₱40,000), the penalty of
arresto mayor in its medium and maximum periods shall be imposed. (2 months and 1 day
to 6 months)

If the amount of the fraud is over Forty thousand pesos (₱40,000) but does not exceed One
million two hundred thousand pesos (₱1,200,000), the penalty of arresto mayor in its
maximum period to prisión correccional in its minimum period shall be imposed. (4 months
and 1 day to 2 years and 4 months)

If the amount of the fraud is over One million two hundred thousand pesos (₱1,200,000) but
does not exceed Two million four hundred thousand pesos (₱2,400,000), the penalty of
prisión correccional in its minimum and medium periods shall be imposed. (6 months and 1
day to 4 years and 2 months)

If the amount of the fraud is over Two million four hundred thousand pesos (₱2,400,000) but
does not exceed Four million four hundred thousand pesos (₱4,400,000), the penalty of
prisión correccional in its maximum period to prisión mayor in its minimum period shall be
imposed. (4 years, 2 months, and 1 day to 8 years)

If the amount of the fraud exceeds Four million four hundred thousand pesos (₱4,400,000),
the penalty of prisión mayor in its minimum period shall be imposed, adding one year for
each additional Two million pesos (₱2,000,000); but the total penalty which may be
imposed shall not exceed twenty years. (6 years and 1 day to 8 years)

However, any person who shall defraud another by means of false pretenses or fraudulent
acts as defined under Article 315 paragraph 2(d) of the RPC, to wit:

“d) By postdating a check, or issuing a check in payment of an obligation when the offender
had no funds in the bank, or his funds deposited therein were not sufficient to cover the
amount of the check.”

This type of Estafa shall be punished by:

If the amount of the fraud does not exceed Forty thousand pesos (₱40,000), the penalty of
prisión mayor in its minimum period shall be imposed. (6 years and 1 day to 8 years)

If the amount of the fraud is over Forty thousand pesos (₱40,000) but does not exceed One
million two hundred thousand pesos (₱1,200,000), the penalty of prisión mayor in its
medium period shall be imposed. (8 years and 1 day to 10 years)

If the amount of the fraud is over One million two hundred thousand pesos (₱1,200,000) but
does not exceed Two million four hundred thousand pesos (₱2,400,000), the penalty of
prisión mayor in its maximum period shall be imposed. (10 years and 1 day to 12 years)

If the amount of the fraud is over Two million four hundred thousand pesos (₱2,400,000) but
does not exceed Four million four hundred thousand pesos (₱4,400,000), the penalty of
reclusion temporal in its minimum and medium periods shall be imposed. (12 years and 1
day to 17 years and 4 months)

If the amount of fraud is over Four million four hundred thousand pesos (₱4,400,000) but
does not exceed Eight million eight hundred thousand pesos (₱8,800,000), the penalty of
reclusion temporal in its maximum period shall be imposed. (17 years and 4 months and 1
day to 20 years)

If the amount exceeds Eight million eight hundred thousand pesos (₱8,800,000), the
penalty shall be reclusion perpetua.

Law and Definition of Estafa by False

Pretenses or Deceit
The crime of Estafa or Swindling is punishable under Article 315 of the Revised Penal Code
(“RPC”) and there are different forms of committing it. Estafa can be committed a) with
unfaithfulness or abuse of confidence; b) by means of false pretenses or fraudulent acts;
and c) through fraudulent means.

The first form which is “with unfaithfulness or abuse of confidence” is known as estafa with
abuse of confidence, while the second form and third form, which are “by means of false
pretenses or fraudulent acts” and “through fraudulent means” are known simply as estafa by
means of deceit.

In general, case laws enumerate the elements of Estafa by means of deceit, as follows:
 1. that there must be a false pretense or fraudulent representation as to the offender’s
power, influence, qualifications, property, credit, agency, business or imaginary
transactions;
2. that such false pretense or fraudulent representation was made or executed prior to
or simultaneously with the commission of the fraud;
3. that the offended party relied on the false pretense, fraudulent act, or fraudulent
means and was induced to part with his money or property; and
4. that, as a result thereof, the offended party suffered damage.

This article is focused on the discussion of estafa under Article 315, paragraph 2 (a) of the
RPC, which is covered by estafa by means of deceit. Accordingly, this crime of estafa is
defined and penalized by Article 315, paragraph 2 (a) of the Revised Penal Code, to wit.:

“Article 315. Swindling (estafa). Any person who shall defraud another by any of the means
mentioned herein below shall be punished by:

x x xx

2. By means of any of the following false pretenses or fraudulent acts executed prior to or
simultaneously with the commission of the fraud:

(a) By using fictitious name, or falsely pretending to possess power, influence,

qualifications, property, credit, agency, business or imaginary transactions, or by means of
other similar deceits.”

The elements of the said crime are as follows:

 There must be a false pretense, fraudulent acts or fraudulent means;

 Such false pretense, fraudulent act or fraudulent means must be made or executed
prior to or simultaneously with the commission of the fraud;
 The offended party must have relied on the false pretense, fraudulent act or
fraudulent means and was thus induced to part with his money or property; and
 As a result thereof, the offended party suffered damage.

In this particular crime, three ways are enumerated to commit such, and they are:

 By using fictitious name;

 By falsely pretending to possess power, influence, qualifications, property, credit,
agency, business or imaginary transactions
 by means of other similar deceits.”
MALACAÑANG

Manila

PRESIDENTIAL DECREE No. 818 October 22, 1975

AMENDING ARTICLE 315 OF THE REVISED PENAL CODE BY INCREASING THE

PENALTIES FOR ESTAFA COMMITTED BY MEANS OF BOUNCING CHECKS

WHEREAS, reports received of late indicate an upsurge of estafa (swindling) cases committed
by means of bouncing checks;

WHEREAS, if not checked at once, these criminal acts would erode the people's confidence in
the use of negotiable instruments as a medium of commercial transaction and consequently
result in the retardation of trade and commerce and the undermining of the banking system of
the country;

WHEREAS, it is vitally necessary to arrest and curb the rise in this kind of estafa cases by
increasing the existing penalties provided therefor;

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the

powers in me vested by the Constitution, do hereby decree as part of the law of the land the
following amendment to Article 315 of the Revised Penal Code:

Section 1. Any person who shall defraud another by means of false pretenses or fraudulent acts
as defined in paragraph 2(d) of Article 315 of the Revised Penal Code, as amended by Republic
Act No. 4885, shall be punished by:

1st. The penalty of reclusion temporal if the amount of the fraud is over 12,000 pesos but not
exceed 22,000 pesos, and if such amount exceeds the latter sum, the penalty provided in this
paragraph shall be imposed in its maximum period, adding one year for each additional 10,000
pesos but the total penalty which may be imposed shall in no case exceed thirty years. In such
cases, and in connection with the accessory penalties which may be imposed under the
Revised Penal Code, the penalty shall be termed reclusion perpetua;

2nd. The penalty of prision mayor in its maximum period, if the amount of the fraud is over 6,000
pesos but does not exceed 12,000 pesos;

3rd. The penalty of prision mayor in its medium period, if such amount is over 200 pesos but
does not exceed 6,000 pesos; and,

4th. By prision mayor in its maximum period, if such amount does not exceed 200 pesos.

In commercial transactions, checks play a significant factor in the conduct of trade and
business. Apart from ease and convenience of doing business, checks also facilitate a highly
effective and efficient system of commerce.
Checks have long been used in business as early as 9th century. However, it was during the
20th century where checks gained its popularity as a form of non-cash payment scheme.

With the popularity of checks, however, came also a plethora of problems that attend
commercial and trading systems. The issuance of unfunded checks by unscrupulous individuals
brought serious repercussions to the market and the economy, in general. The Revised Penal
Code, at one time, had been sufficient to address cases involving the issuance of unfunded
checks. But the increasing ability of men to get around with the law rendered the Revised Penal
Code unable to cope with the exigencies of business transactions. Thus the passage of B.P. 22
or the Bouncing Checks Law.

Everyday, we heard a lot of stories about Estafa and Bouncing Checks. For lawyers and law
students, distinguishing the two is just a walk in the park. For laymen, a measure of confusion is
not unheard of.

Estafa Through Issuance of Unfunded Checks

The crime of Estafa is punished under the Revised Penal Code. One can be held guilty for
Estafa by means of issuing a bouncing check with the use of false pretenses or fraudulent acts
executed prior to or simultaneously with the commission of the fraud:

“By postdating a check, or issuing a check in payment of an obligation when the offender had no
funds in the bank, or his funds deposited therein were not sufficient to cover the amount of the
check. (Article 315(2)(d) of the Revised Penal Code as amended by R.A. 4885)”

Requirements for a Person to Be Held Guilty for Estafa

1. Postdating or issuance of a check in payment of an obligation contracted at the time the

check was issued

2. Insufficiency of funds to cover the check, and

3. Damage to the payee thereof.

If any of these is absent, a person cannot be held liable for Estafa.

Example:

A bought goods from B and issued an unfunded check in consideration of the goods received.

In the problem above, A can be charged for Estafa because he issued a check knowing it to be
without sufficient funds to pay the goods he bought from B. The issuance of the bounced check
here was with fraudulent intent.

Bouncing Checks Law (BP 22)

A person can be charged for violation of BP 22 when he commits the following acts:

1. Making or drawing and issuing 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;

2. Having sufficient funds in or credit with the drawee bank when he makes or draws and issues
a check, shall fail to keep sufficient funds or to maintain a credit to cover the full amount of the
check if presented within a period of ninety (90) days from the date appearing thereon, for which
reason it is dishonored by the drawee bank.
Requirements for a Person to Be Held Guilty for Violation of BP 22

Violation of BP 22 can be filed against any person when the following are present:

1. Making, drawing and issuance of any check to apply for account or for value;

2. 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 such check in full upon its
presentment; and

3. 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.

Again, the presence of all these requirements is important. Otherwise, no BP 22 case can be
filed. Note that knowledge of insufficiency of funds is presumed when t is proved that the issuer
received a notice of dishonor and that within 5 days from receipt thereof, he failed to pay the
amount of the check or make arrangement for its payment. Additionally, in BP 22, it is not a
defense that upon the issuance of check you are not motivated with malice or fraudulent intent.

Adopting our example above, it would appear then that A can also be charged for Violation of
BP 22, apart from the estafa case, because BP 22 cases also cover issuances of bouncing
checks for value received right there and then.

So What is the Difference Between the Two?

It is Estafa when, among others, you issue an unfunded check with fraudulent intent in
consideration of something of value you received.

It is a case for Violation of BP 22 when you issue an unfunded check whether or not it is for an
obligation you contracted prior to the issuance of the check or not. Otherwise stated, you are
liable for BP 22 whether you issue a check for a present or a past obligation.
G.R. No. 203583 October 13, 2014

LEONORA B. RIMANDO, Petitioner,

vs.

SPOUSES WINSTON and ELENITA ALDABA and PEOPLE OF THE PHILIPPINES,

Respondents.

DECISION

PERLAS-BERNABE, J.:

Before the Court is a petition for review on certiorari1 assailing the Decision2 dated July 25,
2012 and the Resolution3 dated September 25, 2012 of the Court of Appeals (CA) in CA-G.R.
CV No. 96528, which affirmed the Decision4 dated October 28, 2010 of the Regional Trial Court
of Manila, Branch 15 (RTC) in Criminal Case No. 04-227211 acquitting petitioner Leonora B.
Rimando (Rimando) of the crime of estafa, but nonetheless, held her civilly liable to
respondents-spouses Winston and Elenita Aldaba (Sps. Aldaba) in the amount of ₱500,000.00.
The Facts

An Information dated January 21, 2004 was filed before the RTC charging Rimando of the crime
of estafa through the use of false manifestations and fraudulent representations (estafa case).5
According to the prosecution, Rimando enticed Sps. Aldaba to invest in her business under the
assurance that it is stable and that their money would earn 8% monthly interest.6 Convinced by
Rimando’s proposal and taking into consideration their long friendship, Sps. Aldaba gave
Rimando a check in the amount of ₱500,000.00 as investment in her business. In turn, Rimando
gave Sps. Aldaba three (3) postdatedchecks, one for ₱500,000.00 and the other two (2) for
₱40,000.00 each, and made them sign an investment contract with Multitel International Holding
Corporation (Multitel). Upon maturity of the checks, Sps. Aldaba attempted to encash the same
but were dishonored for being drawn against insufficient funds.7 This prompted Sps. Aldaba to
demand Rimando to make good the said checks, but to no avail. Hence, they were constrained
tofile a criminal complaint for estafa against her.8

In her defense, Rimando denied her friendship with Sps. Aldaba and that she enticed them to
invest in her own business, as she had none. According to her, she only referred them to
Multitel Investment Manager Jaimelyn9 Cayaban who handled their investment.10 She also
maintained that she only issued the three (3) post dated checks to accommodate them while
waiting for the check from Multitel, but when the latter issued the check, Sps. Aldaba refused to
accept it so she can be held liable in case their investment fails.11

Meanwhile, Sps. Aldaba also filed a criminal case against Rimando for violation of Batas
Pambansa Bilang (BP) 2212 before the Metropolitan Trial Court of Manila, Branch VI, docketed
as Crim. Cases Nos. 407191-193 (BP 22 cases).13 On July 7, 2010, Rimando was acquitted14
in the BP 22 cases on the ground of reasonable doubt, with a declaration that the act or
omission from which liability may arise does not exist.

The RTC Ruling

In a Decision15 dated October 28, 2010, the RTC acquitted Rimando of the crime of estafa, but
found her civilly liable to Sps. Aldaba in the amount of ₱500,000.00. It found the absence of the
element of deceit as Sps. Aldaba were fully aware that they would be investing their money in
Multitel and not in Rimando’s purported business. Nevertheless, the RTC ruled that as an
accommodation party to one of the checks she issued to Sps. Aldaba on behalf of Multitel,
Rimando should be heldliable to Sps. Aldaba for the corresponding amount of ₱500,000.00.16
Aggrieved, Rimando appealed to the CA. In her Appellant’s Brief17 dated October 29, 2011,
she contended that her acquittal and exoneration from the civil liability in the BP 22 cases
should have barred Sps. Aldaba from claiming civil liability from her in the estafa case.18

The CA Ruling

In a Decision19 dated July 25, 2012, the CAaffirmed the RTC Ruling. It held that a prosecution
for violation of BP 22 is distinct, separate, and independent from a prosecution for estafa, albeit
they may both involve the same parties and transaction. As such, Rimando’s acquittal and
subsequent exoneration from civil liability in the BP 22 cases does not automatically absolve her
from civil liability in the estafa case.20

Rimando moved for reconsideration, which was, however, denied in a Resolution21 dated
September 25, 2012, hence, this petition.
The Issue Before the Court

The primordial issue for the Court’s resolution is whether or not the CA correctly upheld
Rimando’s civil liability in the estafa case despite her acquittal and exoneration from civil liability
in the BP 22 cases.

The Court’s Ruling

The petition is without merit.

At the outset, the Court notes that Rimando’s acquittal in the estafa case does not necessarily
absolve her from any civil liability to private complainants, Sps. Aldaba. It is well-settled that "the
acquittal of the accused does not automatically preclude a judgment against him on the civil
aspect of the case. The extinction of the penal action does not carry with it the extinction of the
civil liability where: (a) the acquittal is based on reasonable doubt as only preponderance of
evidence is required; (b) the court declares that the liability of the accused is only civil; and (c)
the civil liability of the accused does not arise from or is not based upon the crime of which the
accused is acquitted. However, the civil action based on delict may be deemed extinguished if
there isa finding on the final judgment in the criminal action that the act or omission from which
the civil liability may arise did not exist or where the accused did not commit the acts or
omission imputed to him."22

In this case, Rimando’s civil liability did not arise from any purported act constituting the crime of
estafa as the RTC clearly found that Rimando never employed any deceit on Sps. Aldaba to
induce them to invest money in Multitel. Rather, her civil liability was correctly traced from being
an accommodation party to one of the checks she issued to Sps. Aldaba on behalf of Multitel. In
lending her name to Multitel, she, in effect, acted as a surety to the latter, and assuch, she may
be held directly liable for the value of the issued check.23 Verily, Rimando’s civil liability to Sps.
Aldaba in the amount of ₱500,000.00 does not arise from or is not based upon the crime she is
charged with, and hence, the CA correctly upheld the same despite her acquittal in the estafa
case.

In this relation, the CA is also correct in holding that Rimando’s acquittal and subsequent
exoneration in the BP 22 cases had no effect in the estafa case, even if both cases were
founded on the same factual circumstances. In Nierras v. Judge Dacuycuy,24 the Court laid
down the fundamental differences between BP 22 and estafa, to wit:
What petitioner failed to mention in his argument is the fact that deceit and damage are
essential elements in Article 315 (2-d) Revised Penal Code, but are not required in Batas
Pambansa Bilang 22.1âwphi1 Under the latter law, mere issuance of a check that is dishonored
gives rise to the presumption of knowledge on the part of the drawer that he issued the same
without sufficient funds and hence punishable which is not so under the Penal Code. Other
differences between the two also include the following: (1) a drawer of a dishonored check may
be convicted under Batas Pambansa Bilang 22 even if he had issued the same for a preexisting
obligation, while under Article 315 (2-d) of the Revised Penal Code, such circumstance negates
criminal liability; (2) specific and different penalties are imposed in each of the two offenses; (3)
estafa is essentially a crime against property, while violation of Batas Pambansa Bilang 22 is
principally a crime against public interest as it does injury to the entire banking system; (4)
violations of Article 315 of the Revised Penal Code are mala in se, while those of Batas
Pambansa Bilang 22 are mala prohibita.25

Owing to such differences, jurisprudence in People v. Reyes26 even instructs that the
simultaneous filing of BP 22 and estafa cases do not amount to double jeopardy:

While the filing of the two sets of Information under the provisions of Batas Pambansa Bilang 22
and under the provisions of the Revised Penal Code, as amended, on estafa, may refer to
identical acts committed by the petitioner, the prosecution thereof cannot be limited to one
offense, because a single criminal act may give rise to a multiplicity of offenses and where there
is variance or differences between the elements of an offense is one law and another law as in
the case at bar there will be no double jeopardy because what the rule on double jeopardy
prohibits refers to identity of elements in the two (2) offenses. Otherwise stated, prosecution for
the same act is not prohibited. What is forbidden is prosecution for the same offense. Hence,
the mere filing of the two (2) sets of information does not itself give rise to double jeopardy.27

Essentially, while a BP 22 case and an estafa case may be rooted from an identical set of facts,
they nevertheless present different causes of action, which, under the law, are considered
"separate, distinct, and independent" from each other. Therefore, both cases can proceed to
their final adjudication – both as to their criminal and civil aspects – subject to the prohibition on
double recovery.28 Perforce, a ruling in a BP 22 case concerning the criminal and civil liabilities
of the accused cannot be given any bearing whatsoever in the criminal and civil aspects of a
related estafa case, as in this instance.
WHEREFORE, the petition is DENIED. Accordingly, the Decision dated July 25, 2012 and the
Resolution dated September 25, 2012 of the Court of Appeals in CA-G.R. CV No. 96528 are
hereby AFFIRMED.

SO ORDERED.

Dear MM,
Violation of Batas Pambansa Blg. 22 (BP 22) or the Anti-Bouncing Checks Law and
Estafa are two different crimes. According to Section 1 of BP 22, the act being punished
is the making or drawing of any check to apply on account or for value, knowing that at
the time of issue, the check has insufficient funds in or credit with the drawee bank for
the payment of the check in full upon its presentment. Basically, it is the issuance of a
check that is dishonored due to insufficiency of funds or the drawer, without any valid
reason, ordered the bank to stop payment of the said check. The act is punishable by
imprisonment of not less than thirty (30) 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 shall not
exceed P200,000, or both fine and imprisonment at the discretion of the court. Section 1
of Act No. 3326 states that the prescriptive period for filing a complaint for violation of
BP 22 is four (4) years from the day of the commission of the violation of the law, or if
not known at that time, from the discovery thereof.

Article 315 of the Revised Penal Code defines Estafa with the use of checks. In Estafa,
the check, is issued prior to or simultaneous to the commission of a fraud and the said
check was dishonored due to insufficiency of funds.      The punishment for Estafa is
dependent on the value of the fraud, and may range from the penalty of arresto mayor
in its minimum to medium period (1 month to 2 months and 2 months and 1 day to four
months) up to prision correc-cional in its maximum period (4 years, 2 months and 2
days to 6 years) to prision mayor in its minimum period (6 years and 1 day to 8 years).
Depending on the penalty, the prescriptive period for filing a complaint for Estafa may
be from five (5) years to fifteen (15) years from the time the crime is discovered by the
offended parties, the authorities, or their agents.

BP 22 punishes the mere act of issuing a worthless check, while in Estafa, there must
be fraud committed prior or simultaneous to the issuance of the check. The penalties
also differ.

Therefore, if the crime you allegedly committed was BP 22, the lending company has
four (4) years to file a case against you from the day of the commission of the crime or
from the date of dishonor of the check. In Estafa, the time to file a case prescribes
depending on the value of the fraud.

The notice to you that your check bounced or was dis-honored will only provide the
prosecution with a prima facie evidence of deceit constituting false pretense or
fraudulent act in Estafa and prima facie evidence of knowledge of such insufficiency of
funds or credit in BP 22. This means that if the drawee was notified of the dishonor of
his check, the fact of fraud or knowledge of insufficiency of funds is already established.

We hope that we were able to enlighten you on the matter. Please be reminded that this
advice is based solely on the facts you have narrated and our appreciation of the same.
Our opinion may vary when other facts are changed or elaborated.

On Estafa
Article 315 of the Revised Penal Code
Estafa under Article 315, paragraph 2(d) of the Revised Penal Code (RPC) provides as
follows:

“2. By means of the following false pretenses or fraudulent acts executed prior to or
simultaneously with the commission of the fraud:

xxxx

d) By postdating a check, or issuing a check in payment of an obligation when the offender

had no funds in the bank, or his funds deposited 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 payee or holder that said check has been dishonored for lack or insufficiency of
funds shall be prima facie evidence of deceit constituting false pretense or fraudulent act.”

Elements of Estafa according to Supreme Court Cases

In Iluminada Batac vs. People of the Philippines, G.R. No. 191622, 6 June 2018, the
Supreme Court enumerated the elements of estafa under Art. 315, paragraph 2(d) of the
RPC, as follows:

“Jurisprudence has consistently held that such estafa consists of the following elements:
(1) the offender has postdated or issued a check in payment of an obligation contracted at
the time of the postdating or issuance;

(2) at the time of postdating or issuance of said check, the offender has no funds in the
bank or the funds deposited are not sufficient to cover the amount of the check; and

(3) the payee has been defrauded. It has been settled in jurisprudence that in the above-
defined form of estafa, it is not the nonpayment of a debt which is made punishable, but the
criminal fraud or deceit in the issuance of a check.Deceit has been defined as “the false
representation of a matter of fact, whether by words or conduct by false or misleading
allegations or by concealment of that which should have been disclosed which deceives or
is intended to deceive another so that he shall act upon it to his legal injury.”(Emphasis and
underscoring supplied.)

On BP 22 or the Bouncing Checks

Law
Elements of a Violation of BP 22
A violation of Batas Pambansa Bilang 22 (“BP 22”), on the other hand, has the following
elements as discussed by the Court in Erlinda San Mateo vs. People of the
Philippines, G.R. No. 200090, 6 March 2013, to wit:

“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.”

Differences with Estafa and BP 22

Differences in Elements Constituting the Offense
With the foregoing, the elements of estafa are clearly different from the elements of violation
of BP 22. What are the differences then?

In the case of Peter Nierras vs. Judge Dacuycuy,G.R. Nos. 59568-76, 11 January 1990,
the Court laid down the fundamental differences between BP 22 and estafa, to wit:

“What petitioner failed to mention in his argument is the fact that deceit and damage
are essential elements in Article 315 (2-d) Revised Penal Code, but are  not required in
Batas Pambansa Bilang 22. Under the latter law, mere issuance of a check that is
dishonored gives rise to the presumption of knowledge on the part of the drawer that he
issued the same without sufficient funds and hence punishable which is not so under the
Penal Code. Other differences between the two also include the following:

(1) a drawer of a dishonored check may be convicted under Batas Pambansa Bilang
22 even if he had issued the same for a pre-existing obligation, while under Article
315 (2-d) of the Revised Penal Code, such circumstance negates criminal liability; (2)
specific and different penalties are imposed in each of the two offenses; (3)  estafa is
essentially a crime against property, while violation of Batas Pambansa Bilang 22 is
principally a crime against public interest as it does injury to the entire banking
system; (4) violations of Article 315 of the Revised Penal Code are  mala in se, while
those of Batas Pambansa Bilang 22 are mala prohibita.(Emphases and underscoring
supplied.)

As to Double Jeopardy
As regards the double jeopardy issue, the Court has settled the same in the case
of Leonora Rimando vs. Spouses Aldaba and People of the Philippines, G.R. No.
203583, 13 October 2014, and the Court had this to say, to wit:

“Owing to such differences, jurisprudence in People vs. Reyes even instructs that the
simultaneous filing of BP 22 and estafa cases do not amount to double jeopardy:

While the filing of the two sets of Information under the provisions of Batas Pambansa
Bilang 22 and under the provisions of the Revised Penal Code, as amended,
on estafa, may refer to identical acts committed by the petitioner, the prosecution thereof
cannot be limited to one offense, because a single criminal act may give rise to a
multiplicity of offenses and where there is variance or differences between the
elements of an offense is one law and another law as in the case  at bar there will be
no double jeopardy because what the rule on double jeopardy prohibits refers to
identity of elements in the two (2) offenses. Otherwise stated, prosecution for the same
act is not prohibited. What is forbidden is prosecution for the same offense. Hence, the
mere filing of the two (2) sets of information does not itself give rise to double jeopardy.
Essentially, while a BP 22 case and an estafa case may be rooted from an identical set of
facts, they nevertheless present different causes of action, which, under the law, are
considered “separate, distinct, and independent” from each other. Therefore, both
cases can proceed to their final adjudication – both as to their criminal and civil
aspects – subject to the prohibition on double recovery. Perforce, a ruling in a BP 22
case concerning the criminal and civil liabilities of the accused  cannot be given any
bearing whatsoever in the criminal and civil aspects of a related  estafa case, as in this
instance.” (Emphases and underscoring supplied.)

Thus, being separate, distinct and independent from each other, you can file an Estafa case
and a BP 22 case at the same time.

About Nicolas and De Vega Law

Offices
If you need assistance in civil or other criminal law-related issues,  we can help you. Nicolas
and de Vega Law Offices is a full-service law firm in the Philippines.  You may visit us at the
16th Flr., Suite 1607 AIC Burgundy Empire Tower, ADB Ave., Ortigas Center, 1605 Pasig
City, Metro Manila, Philippines.  You may also call us at +632 84706126, +632 84706130,
+632 84016392 or e-mail us at info@ndvlaw.com. Visit our website www.ndvlaw.com.

Estafa By Means of Deceit vis-a-vis Bouncing Checks Law

APRIL 26, 2017 JEFF REY

ESTAFA
Elements in General:

1. The accused defrauded another by abuse of confidence of by means of deceit;

and
2. That damage or prejudice capable of pecuniary estimation is caused to the
offended party or third persons
 

ESTAFA BY MEANS OF DECEIT (Article 315, No. 2 RPC)

Elements:
1. There must be false pretense, fraudulent act or fraudulent means;
2. Such false pretense, act or fraudulent means must be made or executed prior to
or simultaneously with the commission of the fraud;
3. The offended party must have relied on the false pretense, fraudulent act or
fraudulent means, that is, he was induced to part with his money or property
because of the false pretense; and
4. That as result thereof, the offended party suffered damage.
 

Article 315, No. 2 RPC

(d) 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. (As amended by R.A. 4885, approved June 17, 1967.)
ELEMENTS:

1. That the offender postdated a check, OR issued a check in payment of an

obligation; and
2. That such postdating or issuing a check was done when the offender had no
funds in the bank, or his funds deposited therein were not sufficient to cover the
amount of the check
The issuance by the offender of the check (whether postdated or not), prior to or simultaneous with the transaction,
must be for the purpose of contracting the obligation, otherwise if the check is issued in payment of a preexisting
obligation, no estafa is committed, only a civil liability.

If the check was issued by the debtor only for security of the creditor, as in the nature of promissory notes but not to
be encashed, no estafa will be involved.

Good faith is a defense in a charge of estafa by postdating or issuing a check (People vs Villapando, 56 Phil 31)

Estafa by issuing a bad check is a continuing offense

There is prima facie evidence of deceit when the drawer fails to pay or make arrangement for payment three (3) days
after receiving notice of dishonor.

The payee or person receiving the check must be damaged or prejudiced

BOUNCING CHECKS LAW (B.P. Blg. 22)

Offenses Punished under BP22:

1. Making or Drawing and issuing a check knowing at the time of issue that he does not have sufficient funds

Elements:

1. That a person makes or draws and issues any check to apply on account or for value;

2. That the person knows that at the time of issue he does not have sufficient funds or credit with the drawee
bank for the payment of such check upon its presentment; and
 3. That 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

Requisites for Criminal Liability under BP 22

1. A person makes, draws or issues a check as payment for account or for value;

2. That the check was dishonored by the bank due to a lack of funds, insufficiency of funds or account already
closed;

3. The payee or holder of such check gives written notice of dishonor and demand for payment; and

4. That the maker, drawer or issuer, after receiving such notice and demand, refuses or fails to pay the value
of the check within FIVE BANKING DAYS

 It is not the making, drawing, or issuance nor the dishonor of the check which gives rise to a violation of BP
22, but rather the failure to make good the check within FIVE BANKING DAYS from receipt of the Notice of
Dishonor and Demand for Payment

 While the written notice of dishonor and demand is not an element in the violation of BP 22, the failure to
give such notice to the maker, drawer or issuer of the bouncing check is FATAL to an action to hold the
latter criminally liable.

 The full payment of the amount appearing in the check within five banking days from notice of dishonor is a
complete defense against BP 22. The absence of a notice of dishonor necessarily deprives an accused an
opportunity to preclude criminal prosecution. Accordingly, procedural due process clearly enjoins that a
notice of dishonor be actually served on the maker, drawer or issuer of the check. He has a right to demand
that the notice of dishonor be actually sent to and received by him to afford him the opportunity to avert
prosecution under BP 22. (Lina Lim Lao vs People GR No. 117178 June 20, 1997)

2. Failing to keep sufficient funds to cover the full amount of the check

Elements:

1. That a person has sufficient funds with the drawee bank when he makes or draws and issues a check;

2. That he fails to keep sufficient funds or to maintain a credit to cover the full amount if presented within a
period of 90 days  from the date of appearing thereon; and

3. That the check is dishonored by the drawee bank.

 The 90- day period stated is NOT an element of the violation of BP 22 by failing to keep sufficient funds. As
such, the maker, drawer or issuer of the check is not discharged from his duty to maintain a sufficient
balance on his account for a reasonable time  even BEYOND the 90-day period. A “reasonable time”
according to current banking practice is 6 months or 180 days, after which the check becomes stale.

 Thus, where a check is presented beyond the 90-day period but within 180 days from the date of failure to
maintain a sufficient balance, the maker, drawer or issuer shall still be liable for violation of BP 22  (Wong vs
C.A. GR No. 117857, February 2, 2001)

 Gravamen of BP 22 is the issuance of a worthless or bum check

 
Evidence of Knowledge of Insufficient Funds

         – Refusal of drawee bank to pay the check due to insufficiency of funds when presented within 90 days from the
date of the check shall be prima facie knowledge of insufficiency of funds, unless the drawer or maker pays the
holder the amount due thereon or makes arrangements for the payment thereof by the drawee within five (5) banking
days after receipt of notice that the check was dishonored.

BP 22 ESTAFA (RPC)

The maker or drawer and issuer knows at the time of Not necessary that the drawer should know at the
issue that he does not have sufficient fund in or credit time that he issued the check that the funds
with the drawee bank for the payment of the check in deposited in the bank were not sufficient to cover the
full amount of the check

Mere issuance of a check that is dishonored gives

rise to the presumption of knowledge of insufficiency
of funds No presumption of knowledge arises