Revisiting Batas Pambansa Blg. 22 or the bouncing checks law

lorna patajo-kapunan1In order to afford protection to business and the public in general, and prevent the circulation of worthless checks, Batas Pambansa (BP) Blg. 22, also known as “An Act Penalizing the Making or Drawing and Issuance of a Check Without Sufficient Funds or Credit and For Other Purposes,” was approved in April 1979. The law punishes the acts of making and issuing a check with knowledge by the issuer that at the time the check is issued, he does not have sufficient funds, and the failure to keep sufficient funds to cover the full amount of the check if presented within a period of  90 days from the date appearing on the check.

More than three decades after its enactment, let us examine how the law has evolved throughout these years.

When BP 22 was passed, many questioned the statute’s validity vis-à-vis the constitutional guarantee that no person shall be imprisoned for nonpayment of debt. In upholding the constitutionality of BP 22, the Supreme Court (SC) held that “the gravamen of the offense punished by BP 22 is the act of making and issuing a worthless check or a check that is dishonored upon its presentation for payment. It is not the nonpayment of an obligation which the law punishes. The law is not intended or designed to coerce a debtor to pay his debt. The thrust of the law is to prohibit, under pain of penal sanctions, the making of worthless checks and putting them in circulation. Because of its deleterious effects on the public interest, the practice is proscribed by the law. The law punishes the act not as an offense against property, but an offense against public order.” (Lozano v. Martinez, G.R. No. L-63419, 18 December 1986)

BP 22 punishes the issuer of the worthless check with imprisonment of not less than 30 days but not more than one year or a fine of not less than but not more than double the amount of the check, which fine shall in no case exceed P200,000 or both such fine and imprisonment at the discretion of the court. Prior to the amendment of BP Blg. 129 by Republic Act  (RA) 7691 (An Act Expanding the Jurisdiction of the Municipal Trial Courts, Municipal Circuit Trial Courts and the Metropolitan Trial Court), the Regional Trial Court may acquire jurisdiction over BP 22 cases depending on the penalties imposed. However, with the subsequent amendment by RA   7691, the Metropolitan Trial Court assumes exclusive jurisdiction over BP 22 cases.

For a time, many were misled that violations of BP 22 have been decriminalized when the SC rendered decisions modifying the penalties imposed by the lower courts by imposing only the penalty of fine. (Vaca, et al. v. Court of Appeals [G.R. No. 131714, 16 November 1998] and Rosa Lim v. People of the Philippines [G. R. No. 130038, 18 September 2000])  In Administrative Circular 12-2000 issued on November 21, 2000, the SC required all courts and judges concerned to take note of the policy rendered in those two cases, particularly on the matter of the imposition of penalties, making it appear that violation of BP 22 would only merit fines. But the SC was quick to issue another circular, A.M. 00-11-01-SC on  February 13, 2001, clarifying that when A.M. 12-2000 was issued, it was not meant to remove imprisonment as an alternative penalty, but to lay down a rule of preference in the application of the penalties provided for in BP 22. In effect, judges are not directed to impose fine only as penalty for BP 22, instead they are directed to exercise their sound discretion, and taking into consideration the peculiar circumstances of each case, to determine whether the imposition of a fine alone would best serve the interests of justice or whether non-imposition of imprisonment would be contrary to the imperatives of justice.

In April 2003 in order to facilitate an expeditious and inexpensive determination of BP 22 cases, the SC had included the violation of BP 22 as one of the cases governed by the Rules of Summary Procedure. One notable provision under the   Summary Procedure is that the Court shall not order the arrest of a person who was charged except for failure to appear in Court whenever required.

It is the main intention of the law to make the issuer of a worthless check liable since the introduction of worthless checks is not just harmful to the innocent payees but the entire economy, as well. However, one must bear in mind that the mere issuance of a worthless check would not make one liable for BP 22. It is incumbent upon the accuser to prove not only that the accused issued a check that was subsequently dishonored, but it must be established that the accused was actually notified that the check was dishonored. The Notice of Dishonor must be in writing. A mere oral notice to the drawer or maker of a check is not enough to convict him with violation of BP 22. (Bax v. People, G.R. No. 149858, 5 September 2007)

Aside from threat of imprisonment that an issuer of a bum check may face, he shall, after conviction, be disqualified to run for public office for a certain period of time.  Under the Omnibus Election Code, any person who has been sentenced by final judgment for a crime involving moral turpitude, shall be disqualified to be a candidate and to hold any office.  As held by the SC, violation of BP 22 is considered a crime involving moral turpitude, just like the crime of embezzlement, forgery, robbery and swindling.

More than three decades after its enactment, does BP 22 still serve its purpose? Does the law still serve as a deterrent to those unscrupulous issuers of bum checks.

Let us consider these: (1) It is undeniable that what deters a person from committing a crime is the possibility of arrest and imprisonment. When violation of BP 22 was included in those governed by the Summary Procedure, a warrant of arrest is not anymore issued when the case is filed in Court. It is only when the accused fails to appear in Court that a warrant of arrest may be issued against him; (2) Since the Metropolitan/Municipal Trial Courts have exclusive jurisdiction over violations of BP 22, no Hold Departure Orders can be issued against those violators since Metropolitan/Municipal Trial Courts have no power to issue the same. Accused under trial can thus easily evade prosecution by leaving the country; and (3) The aggrieved parties have also failed to pursue the case for BP 22 since the Courts require them to pay the corresponding filing fees. They need to shell out amounts for filing fees after they have been duped and victimized with checks, which they cannot encash.

In the end, there appears a need to revisit the provisions of BP 22 and other laws affecting the same to afford the fullest protection to the public and the economy in general. A check as a substitute for money plays a vital role in commercial transactions. Any person who wishes to trample upon the smooth flow of commercial transactions must be held liable.

 

For comments, you may e-mail me at [email protected]

1 COMMENT

  1. Ask ko lang about bp22 . What if theres 3rd party involved say i issue a check to a friend . She borrowed a check then encash it so a certian person that entertain check but problem is my friend should deposit that certain amount to my account pay that check that she encash. The check bounced since it was insuffecient fund. Now 3rd person doesnt know whose the real owner or the check all she know the one who encash it.sino hahabulin dapat yung nagpa encash or your issuer what if sinabi na issuer hiniram nya lang yun is she still liable?

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