Atty. Jun De Zuñiga Bouncing checks are checks which are returned by the bank because their issuers do not have sufficient funds on deposit. This term originated from the fact that a check is “bounced” back from the bank. Another term for it is “rubber check.” In the Philippines, there are two laws which criminalize and punish the issuance of bouncing checks. The first is under Article 315 of the Revised Penal Code which punishes for estafa a person who issues a check in payment of an obligation when he had no funds in the bank sufficient to cover the amount of the check. The failure to deposit the amount to cover the check within three days from receipt of notice of dishonor shall be prima facie evidence of deceit. The phrase “in payment of an obligation” “means that the check should not be issued in payment of a pre-existing obligation. When a check was issued in payment of a debt contracted prior to such issuance, there is no estafa. The reason for this rule is that deceit to constitute estafa should be the efficient cause of the defraudation. Moreover, when postdated checks are issued and intended only as promissory notes, there is no estafa. The other law is Batas Pambansa Blg. 22 which punishes the acts of: (1) issuing a check to apply an account or for value, knowing at the time of issue that he does not have sufficient funds in the bank, which check is subsequently dishonored by the bank; or (2) having sufficient funds in the bank when he issues the check, by failing to keep sufficient funds to cover the check for which reason it is dishonored by the bank. How can now these two laws be differentiated from each other? The gravamen of B.P. Blg. 22 is the issuance of a check, not the payment of an obligation. This law has made the mere act of issuing a bouncing check a criminal act. B.P. Blg. 22 also does not make a distinction as to whether the bad check is issued in payment of an obligation. In view of the purpose of B.P. Blg. 22, the crime defined and penalized there is against public interest, while the crime of estafa is against property. Moreover, deceit is an element of estafa. This is not required under B.P. Blg. 22. In terms of penalty, estafa under Article 315 is punishable by penalties of imprisonment ranging from 2 months to 8 years depending on the amount of the fraud. In the case of B.P. Blg. 22 the penalty shall be imprisonment of not less than 30 days but not more than 1 year, or by a fine of not less than but not more than double the amount of the check, which fine shall not exceed P200,000.00, or both such fine and imprisonment at the discretion of the court. This article does not advise which remedy may be better to pursue since this is a matter that has to be decided in consideration of the circumstances of each case with the advice of counsel. It can be mentioned that Assemblyman Estelito Mendoza who authored B.P. Blg. 22 expressed the view that an offender can be held liable under both laws. He said that the “Supreme Court in several cases has decided that where there is a variance between the elements of an offense in one law and another law, there will be no double jeopardy.”

* The above comments are the personal views of the writer. His email address is [email protected]