The sole issue in the petition at bar is; where does the venue lie in this particular prosecution for violation of B.P. Blg. 22?

The parties are not at odds with respect to the applicability of the principles enunciated in the case of People v. Yabut, supra, that the venue of the offense lies at the place where the check was executed and delivered to the payee and that the place where a check was written, signed or dated does not necessarily fix the place where it was executed, as what is decisive importance is the delivery thereof which is the final act essential to its consummation as an obligation. The disagreement springs from the parties' conflicting conclusions as to when and where delivery was effected in the case at bar.

Petitioner contends that delivery was completed in Baguio City as his brother Vicente Lim did not take the checks in question from private respondent as a holder nor as his agent; while the Solicitor General in representation of public respondents considers Vicente Lim as petitioner's agent so as to make the delivery of the checks to him in Manila, delivery likewise to petitioner.

We rule for the petitioner.

In the aforecited case of People v. Yabut, supra, this Court stated:

"Modesto Yambao's receipt of the bad checks from Cecilia Que Yabut or Geminiano Yabut, Jr, in Caloocan City cannot, contrary to the holding of the respondent Judges, be licitly taken as delivery of the checks to the complainant Alicia P. Andan at Caloocan City to fix the venue there. He did not take delivery of the checks as holder, i.e., as `payee' or `indorsee'. And there appears to be no contract of agency between Yambao and Andan so as to bind the latter for the acts of the former. Alicia P. Andan declared in that sworn testimony before the investigating fiscal that Yambao is but her `messenger' or `part-time employee.' There was no special fiduciary relationship that permeated their dealings. For a contract of agency to exist, the consent of both parties is essential, the principal consents that the other party, the agent, shall act on his behalf, and the agent consents so to act. It must exist as a fact. The law makes no presumption thereof. The person alleging it has the burden of proof to show, not only the fact of its existence, but also its nature and extent. This is more imperative when it is considered that the transaction dealt with involves checks, which are not legal tender, and the creditor may validly refuse the same as payment of obligation." (at p. 630)

These observations and conclusions apply with full force and effect to the almost identical set of facts obtaining in the case at bar. The "delivery" contemplated by law "must be to a person who takes it (the bad check) as holder, which means 'the payee or indorsee of a bill or note, who is in possession of it, or the bearer thereof.'" 3  [People v. Yabut, supra, People v. Grospe, supra] Petitioner's brother, Vicente Lim, cannot be said to have taken the bad checks in question in the concept of a holder for he is neither the payee or indorsee thereof. Neither could he be deemed the agent of petitioner with respect thereto, for he was purposely sent to private respondent to get certain stock certificates and not the checks in dispute. Thus, declared by Vicente Lim in his affidavit: 4.       Annex "F", Petition, p. 31, Rollo.

"5.        That at one time when I was asked again by my brother to purchase some of the vinyl portable closets, he asked me to get from Mr. Ko Hu certain stock certificates which the latter is supposed to deliver to my brother.

"6.        That instead of stock certificates, I was given several post-dated checks by Mr. Ko Hu to be delivered to my brother. In exchange of the post dated checks, I surrendered to Mr. Ko Hu a temporary receipt signed by him for the sum of P200,000.00;

"7.        That my brother was surprised to find out that I got several post-dated checks instead of stock certificates he was expecting;

xxx                    xxx                    xxx

The instructions given by petitioner to his brother relating specifically to stock certificates, Vicente Lim was constituted agent of petitioner, if at all, only with respect to said stock certificates. Such agency, assuming it existed, cannot be presumed to extend to the bad checks, for as earlier stated, "the transaction dealt with involves checks, which are not legal tender, and the creditor may validly refuse the same as payment of obligation." 5   People v. Yabut, supra, People v. Grospe, supra.More so, as petitioner did not even expect the checks in question.

Upon these considerations, we rule that Vicente Lim, like Modesto Yambao in the Yabut case, is a mere messenger or conduit. Delivery to him cannot be considered as delivery to petitioner. Delivery was therefore effected to petitioner in Baguio City as to likewise fix the venue therein, aside from Manila where the checks were executed and subsequently dishonored.

Besides, it was held in People v. Hon. Manzanilla, supra, that as "violation of the bad checks act is committed when one 'makes or draws and issues any checks to apply on account or for value, knowing at the time of issue that he does not have sufficient funds' or having sufficient funds in or credit with the drawee bank . . . shall fail to keep sufficient funds o 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,'" "knowledge" is an essential ingredient o the offense charged. As defined by the statute, knowledge, is by itself, a continuing eventuality, whether the accused be within one territory or another. This being the case, the Regional Trial Court of Baguio City has jurisdiction to try Criminal Case No. 2089-R (688).

CJ Fernan, THIRD DIVISION, BENITO LIM, petitioner, vs. HON. JUDGE RODOLFO D. RODRIGO, Regional Trial Court Branch VII, First Judicial Region (Baguio City), La Trinidad, Benguet SILVESTRE H. BELLO III, Deputy Minister of Justice, CITY FISCAL OF BAGUIO AND KO HU, respondents, [G.R. No. 76974.  November 18, 1988.]

In its decision dated September 1, 1986, the trial court ruled that the accused could not be convicted of a violation of the Bouncing Checks Law, B.P. Blg. 22, because the information failed to allege that he knew, when he issued the check, that he would not have sufficient funds for its payment in full upon its presentment to the drawee bank. In the opinion of the trial judge, the information did not charge an offense, hence, he dismissed it.

In this petition for certiorari and mandamus, the State alleges that the information is sufficient, hence, respondent Judge committed an error of law, and/or gravely abused his discretion, in dismissing Criminal Case No. 2934. We agree.

The accused was charged with having violated Batas Pambansa Blg. 22, which provides:

"Section 1.            Checks without sufficient funds. — 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 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 bank to stop payment, shall be punished by imprisonment of not less than thirty (30) days but not more than on (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." (Emphasis supplied.)

The elements of the offense are:

1.         the making, drawing and issuance of any check to apply to account or for value,

2.         the maker, drawer or issuer knows 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, 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.

The "defect" which respondent Judge perceived in the information was the failure to allege that the accused, as maker or drawer of the check at the time of issue, knew of the insufficiency of his funds in the bank for payment of the check in full "upon its presentment" (p. 56, Rollo). In the court's opinion, it was not enough for the information to have alleged that the accused knew when he issued the check that he then did not have sufficient funds in the bank; the information should have alleged that the accused knew that he would not have sufficient funds in the bank to pay the check in full "upon its presentment." It believed that the absence of an allegation that the accused foresaw or had foreknowledge of the insufficiency of his bank account upon presentment of the check for payment, was fatal to the information. 

The interpretation is erroneous. Section 2 of the law provides:

"Section 2.            Evidence of knowledge of insufficient funds. - 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, when presented within ninety (90) days from the date of the check, shall be prima facie evidence of knowledge of such insufficiency of funds or credit unless such maker or drawer pays the holder thereof 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." (Emphasis supplied.)

In other words the presence of the first and third elements of the offense constitutes prima facie evidence that the second element exists. The maker's knowledge of the insufficiency of his funds is legally presumed from the dishonor of his check for insufficiency of funds. This Court has ruled that:

"Violation of the bad checks act is committed when one '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' or 'having sufficient funds in or credit with the drawee bank . . . 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.'" (People vs. Manzanilla, 156 SCRA 279, 282.)

The gravamen of the offense under B.P. Blg. 22 is the act of making and issuing a worthless check or a check that is dishonored upon its presentment for payment. The law has made the mere act of issuing a bum check a malum prohibitum, an act proscribed by legislature for being deemed pernicious and inimical to public welfare. (Lozano vs. Martinez, Lobaton vs. Cruz, Datuin vs. Pano, Violago vs. Pano, Abad vs. Gerochi, Aguiluz vs. Isnani, Hojas vs. Peñaranda, People vs. Nitafan, G.R. Nos. L-63419, 66839-42, 71654, 74524-25, 75122-49, 75812-13, 75765-67 & 75789, December 18, 1986, 146 SCRA 323).

Since the information in Criminal Case No. 2934 did allege that the accused, for value received, unlawfully and feloniously issued the postdated check "knowing fully well that he had no funds and/or insufficient funds in the bank . . .and when the said check was presented for encashment, said check was dishonored and returned with the information that the said check is drawn against 'CLOSE ACCOUNT' . . ." (pp. 21-22, Rollo) the information satisfies the legal definition of the offense under Section 1, B.P. Blg. 22. It is sufficient. The trial court erred in dismissing it.

However, although its decision is erroneous, that decision may not be annulled or set aside because it amounted to a judgment of acquittal. It became final and executory upon its promulgation. The State may not appeal that decision for it would place the accused twice in jeopardy of punishment for the offense in violation of his constitutional right against double jeopardy (Art. III, Sec. 21, 1987 Constitution).

This case is somewhat similar to the case of US vs. Yam Tung Way, 21 Phil. 67, where this Court ruled that the defendant, after having been discharged by a competent court, cannot again be put on trial for the same offense "whether his discharge be the result of formal acquittal or of a ruling of the court upon some question of law arising at the trial; no appeal lies in such case on behalf of the government." The accused therein was charged with infringement of literary rights. After trial, he moved for the dismissal of the information on the ground that the evidence of the Government did not establish the commission of the offense charged. The Court reserved its judgment on the motion and required the defendant to submit his evidence. Afterwards, it discharged him on the ground that no copyright law existed then in the Philippines. The Government appealed. The Supreme Court held that the Government held no right to appeal:

"Defendant was regularly arraigned, pleaded not guilty, put upon his trial by the calling of the government's witnesses against him, and thereafter discharged by the trial court. It is true that the court made no express finding as to whether the defendant did or did not commit the specific acts set out in the information, and that the dismissal of the information was based on the court's conclusion of law that there being no copyright law in force in these Islands, the acts which it is alleged were committed by the defendant do not constitute the crime with which he was charged, nor any other offense defined and penalized by law. But the reasoning and authority of the opinion of the Supreme Court of the United States in the case of Kepner vs. United States, supra, is conclusively against the right of appeal by the government from a judgment discharging the defendant in a criminal case after he has been brought to trial, whether defendant was acquitted on the merits or whether defendant's discharge was based upon the trial court's conclusion of law that the trial had failed for some reason to establish the guilt of the defendant as charged.

"As indicated in the opinion in that case, the protection afforded by the prohibition against the putting of any person twice in jeopardy for the same offense, is a protection not merely against the peril of second punishment, but against being tried a second time for the same offense. In that case the court expressly held that:

"'It follows that Military Order No. 58, as amended by Act of the Philippine Commission, No. 194, insofar as it undertakes to permit an appeal by the Government after acquittal, was repealed by the Act of Congress of July, 1902, providing immunity from second jeopardy for the same criminal offense.'

"But the reasoning of the opinion goes further and denies the right to the Government to procure the reversal of erroneous proceedings and commence anew, save only in those cases in which the first proceeding did not create legal jeopardy. So that, without his own consent, a defendant who has once been brought to trial in a court of competent jurisdiction cannot be again put on trial for the same offense after the first trial has terminated by a judgment directing his discharge, whether his discharge be the result of a formal acquittal, or of a ruling of the court upon some question of law arising at the trial." (US vs. Yam Tung Way, 21 Phil. 67, 70-71.)

Since in the present case the accused Eliseo Soriano had been arraigned, pleaded "not guilty," and was tried upon a valid and sufficient information (although the lower court erroneously thought otherwise) and the case against him was dismissed by decision of the trial court (hence, without his consent and not upon his motion), he has been placed in jeopardy or danger of punishment for the offense charged. For this Court to re-assess the evidence against him pursuant to the Government's appeal, would place him twice in jeopardy of punishment for the same offense.

Although the dismissal of the information against him may constitute a miscarriage of justice, the erroneous dismissal by the trial court may not be disturbed for it would violate his basic constitutional right to be exempt from double jeopardy.

WHEREFORE, the petition for review of the trial court's decision dismissing the information in Criminal Case No. 2934, is denied.

Justice Grino-Aquino, FIRST DIVISION, PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. PEDRO G. LAGGUI, Presiding Judge of Branch XXXIV of the Regional Trial Court of Pampanga and ELISEO SORIANO, respondents, [G.R. Nos. 76262-63.  March 16, 1989.]

The act of issuing the bum checks, as charged in the informations, furthermore, is a malum prohibitum.  3 [Lozano v. Martines, supra, 334.] As such, it is committed by the very fact of its performance. 4.Colmenares v. Villar, No. L-27126, May 29, 1970, 33 SCRA 186 (1970).] In that event, jurisdiction or venue is determined by the allegations in the information.  5 [Supra, 189, citing Mediante v. Ortiz, L-19425, 27 April 1967, 19 SCRA 832 (1967); Arches v. Bellosillo, 46 O.G. 71]. In this case, the information states that the offense was committed in Bacolod City. The legal requirements set forth in Rule 110, Section 15 of the Revised Rules of Court as amended have, therefore, been substantially complied with.

Justice Sarmiento, SECOND DIVISION, PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. HERBERTO A. MANZANILLA, Presiding Judge, Branch XLVII, Regional Trial Court of Negros Occidental, Bacolod City, LOURDES TAN CHUA and JOHNNY TAN CHUA, respondents, [G.R. Nos. L-66003-04.  December 11, 1987.]