Estafa and the Bouncing Checks Law and Jurisprudence

Distinction between the 1st and 2nd paragraphs of Section 1.

In the first paragraph, Section 1 of the Bouncing Check's Law, the drawer knows that he does not have sufficient funds to cover the check at the time of its issuance, while in the second paragraph thereof, the drawer has insufficient funds at the time of issuance but fails to maintain credit within ninety (90) days from date appearing on the check. In both instances, the offense is consummated by the dishonor of the check for insufficiency of funds or credit.4

Endorser who passes bad check liable.

An endorser who assess a bad check may be held liable under BP 22, even though the presumption of knowledge does not apply to him, if there is evidence that at the time of endorsement, he was aware of the insufficiency of funds.5

The case Bautista vs. Court of Appeals, (360 SCRA 620)

In this case, the Supreme Court held that: "An analysis of Section 1 shows that The Bouncing Checks Law penalizes two distinct acts: First, making or drawing and issuing any check to apply for value, knowing at the time of issue that the drawer (Toes not have sufficient funds in or credit with the drawee bank; and second, having sufficient funds in or credit with the drawee bank shall fail to keel) sufficient funds or to maintain a credit to cover the full amount of the check if presented within ninety (90) (lays from the (late appearing thereon, for which reason it is dishonored by the drawee bank. "Moreover, an endorser who passes a bad check may be held liable under BP 22, even though the presumption of knowledge does not apply to him, if there is evidence that at the time of endorsement, he was aware of the insufficiency of funds. Xxx Sec. 2 was intended to facilitate proof of knowledge and not to foreclose admissibility of other evidence that may also prove such knowledge. Thus, the only consequence of the failure to present the check for payment within the ninety (90) clays from the date stated is that there arises no prima facie presumption of knowledge of insufficiency of funds. "Portions of the decision follow.Sometime in April 1998 petitioner Ruth D. Bautista issued to private respondent Susan Alona Metrobank Check No. 005014037 dated 8 May 1998 for P1,500,000.00 drawn on Metro bank Cavite City Branch. According to private respondent, petitioner assured her that the check would be sufficiently funded on the maturity date.

On 20 October 1998 private respondent presented the check for payment. The drawee bank dishonored the check because it was drawn against insufficient funds (DAIF).On 16 March 1999 private respondent filed a complaint-affidavit with the City Prosecutor of Cavite City. In addition to the details of the issuance and the dishonor of the check, she also alleged that she made repeated demands on petitioner to make arrangements for the payment of the check within five (5) working days after receipt of notice of dishonor from the bank, but that petitioner failed to do so. Petitioner then submitted her own counter-affidavit asserting in her defense that presentment of the check within ninety (90) days from clue date thereof was an essential element of the offense of violation of BP 22. Since the check was presented for payment 166 clays after its due date, it was no longer punishable under BP 22 and therefore the complaint should be dismissed for lack of merit. She also claimed that she already assigned private respondent her condominium unit at Antel Seaview Condominium, Roxas Boulevard, as full payment lbr the bounced checks thus extinguishing her criminal liability.

On 22 April 1999, the investigating prosecutor issued a resolution recommending the filing of an Information against petitioner for violation of BP 22, which was approved by the City Prosecutor. On 13 May 1999 petitioner filed with the Office of the Regional State Prosecutor (ORSP) for Region IV a petition for review of the 22 April 1999 resolution. The ORSP denied the petition in a one (1)-page resolution dated 25 June 1999. On 5 July 1999 petitioner filed a motion for reconsideration, which the ORSP also denied on 31 August 1999. According to the ORSP, only resolution of prosecutors dismissing a criminal complaint were cognizable for review by that office, citing Department Order No. 223. On 1 October 1999 petitioner filed with the Court of Appeals a petition for review of the resolution of the ORSP, Region IV, dated 22 April 1999 as well as the order dated 31 August 1999 denying reconsideration. The appellate court issued the assailed Resolution dated 26 October 1999 denying due course outright and dismissing the petition.6 According to Respondent appellate court- A petition for review is appropriate under Rule 42 (1997 Rules of Civil Procedure) from a decision of the Regional Trial Court rendered in the exercise of its appellate jurisdiction, filed in the Court of Appeals. Rule 43 xxx provides for appeal, via a petition for review xxx from judgment or final orders of the Court of Tax Appeals and Quasi-Judicial Agencies to the Court of Appeals. Petitioner's Petition for Review of the ORSP resolution does not fall under any of the agencies mentioned in Rule 43 xxxx It is worth to note that petitioner in her three (3) assigned errors charged the ORSP of "serious error of law and grave abuse of discretion." The grounds relied upon by petitioner are proper in a petition for certiorari xxxx Even if we treat the "Petition for Review" as a petition for certiorari, petitioner failed to allege the essential requirements of a special civil action. Besides, the remedy of petitioner is in the Regional Trial Court, following the doctrine of hierarchy of courts xxxx. First, some ground rules. This case went to the Court of Appeals by way of petition for review under Rule 43 of the 1997 Rules of Civil Procedure. Rule 43 applies to "appeals from judgments or final orders of the Court of Tax Appeals and from awards, judgments, final orders or resolutions of or authorized by any quasi-judicial agency in the exercise of quasi-judicial functions.

Petitioner submits that a prosecutor conducting a preliminary investigation performs a quasi-judicial function, citing Cojuangco v. PCGG, Koh v. Court of Appeals,7 Andaya v. Provincial Fiscal of Surigao del None8 and Crespo v. Mogul. In these cases this Court held that the power to conduct preliminary investigation is quasi-judicial in nature. But this statement holds true only in the sense that, like quasi-judicial bodies, the prosecutor is an office in the executive department exorcising powers akin to those of a court, 1-lere is where the similarity ends.

A closer scrutiny will show that preliminary investigation is very different from other quasi-judicial proceedings. A quasi-judicial body has been defined as "an organ of government other than a court and other than a legislature which affects the rights of private 1)arties through either adjudication or rule-making." In Luzon Development Bank v. Luzon Development Bank Employees, we held that a voluntary arbitrator, whether acting solely or in a panel, enjoys in law the status of a quasi-judicial agency, hence his decisions and awards are appeasable to the Court of Appeals. This is so because the awards of voluntary arbitrators become final and executory upon the lapse of the period to appeal; and since their awards determine the rights of parties, their decisions have the same effect as judgments of a court. Therefore, the proper remedy from an award of a voluntary arbitrator is a petition for review to the Court of Appeals, following Revised Administrative Circular No. 1-95, which provided for a uniform procedure for appellate review of all adjudications of quasi-judicial entities, which is now embodied in Rule 43 of the 1997 Rules of Civil Procedure.

On the other hand, the prosecutor in a preliminary investigation does not determine the guilt or innocence of the accused. He does not exercise adjudication nor rule-making functions. Preliminary investigation is merely inquisitorial, and is often the only means of discovering the persons who may be reasonably charged with a crime and to enable the fiscal to prepare his complaint or information. It is not a trial of the case on the merits and has no purpose except that of determining whether a crime has been committed and whether there is probable cause to believe that the accused is guilty thereof. While the fiscal makes that determination, he cannot be said to be acting as a quasi- court, for it is the courts, ultimately, that pass judgment on the accused, not the fiscal.

Hence, the Office of the Prosecutor is not a quasi-judicial body; necessarily, its decisions approving the filing of a criminal complaint are not appeasable to the Court of Appeals under Rule 43. Since the ORSP has the power to resolve appeals with finality only where the penalty prescribed for the offense does not exceed p1.iSi()n correctional, regardless of the imposable fine,9 the only remedy of petitioner, in the absence of grave abuse of discretion, is to present her defense in the trial of the case.

Besides, it is well-settled that the courts cannot interfere with the discretion of the fiscal to determine the specificity and adequacy of the offense charged. lie may dismiss the complaint forthwith if he finds it to be insufficient in form or substance or if he finds no ground to continue with the inquiry; or, he may otherwise proceed with the investigation if the complaint is, in his view, in due and proper form.

In the 1)resent recourse, notwithstanding the procedural lapses, we give due course to the petition, in view of the novel legal question involved, to prevent further delay of the prosecution of the criminal case below, and more importantly, to dispel any notion that procedural technicalities are being used to defeat the substantive rights of petitioner. Petitioner is accused of violation of BP 22 the substantive portion of which reads

Section 1. Checks without sufficient funds.

Any person who makes or draws and issues any check to apply an 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 in. full upon. 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 batik to stop payment, shall be punished 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 fine shall in no case exceed Two Hundred Thousand Pesos, or both such fine and imprisonment at the discretion of the court.