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EVIDENCE |
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An analysis of the evidence presented,
however, shows that not all the aforementioned elements have been
established by the prosecution beyond reasonable doubt. That the seven checks in question were
issued by petitioners is beyond dispute.
Not only were the dishonored checks presented in court, but
petitioners even admitted signing the checks and issuing them to private
complainant. From the
evidence on record, it is clear that petitioners signed and issued the
seven checks in question. That the checks were dishonored is also
clearly established. Section
3 of Batas Pambansa Blg. 22 provides that “the introduction in evidence
of any unpaid and dishonored check, having the drawee’s refusal to pay
stamped or written thereon, or attached thereto, with the reason therefor
as aforesaid, shall be prima facie evidence of the making or
issuance of said check, and the due presentment to the drawee for payment
and the dishonor thereof, and that the same was properly dishonored for
the reason written, stamped, or attached by the drawee on such dishonored
check.” In the instant case, the fact of the checks’ dishonor is
sufficiently shown by the return slips issued by MetroBank, the depository
bank, stating that the checks had been returned for the reason “DAIF —
Drawn Against Insufficient Funds.” Not only are these check return slips
prima facie evidence that the drawee bank dishonored the checks,
but the defense did not present any evidence to rebut these documents.
In fact, counsel for petitioners even admitted the fact of the
checks’ dishonor, agreeing to dispense with the presentation of the bank
representative who was supposed to prove the fact of dishonor of said
checks (p. 162, Rollo.). However, for liability to attach under
Batas Pambansa Blg. 22, it is not enough that the prosecution establishes
that a check was issued and that the same was subsequently dishonored. The
prosecution must also prove the second element, that is, it must further
show that the issuer, at the time of the check’s issuance, had knowledge
that he did not have enough funds or credit in the bank for payment
thereof upon its presentment. Since
the second element involves a state of mind which is difficult to verify, Section
2 of Batas Pambansa Blg. 22 creates a presumption juris tantum that
the second element prima facie exists when the first and third
elements of the offense are present (Magno v. People, 210 SCRA 471
[1992]). Section 2 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 or credit with such bank, when presented within ninety 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.” In truth, this Court declared
in King v. People (G.R. No. 131540, December 2, 1999) that “the
prima facie presumption arises when the check is issued.
But the law also provides that the presumption does not arise when
the issuer pays the amount of the check or makes arrangement for its
payment ‘within five banking days after receiving notice that such check
has not been paid by the drawee.’ Verily, BP 22 gives the accused an
opportunity to satisfy the amount indicated in the check and thus avert
prosecution… This opportunity, however, can be used only upon receipt by
the accused of a notice of dishonor.” Thus, the presumption that the
issuer had knowledge of the insufficiency of funds is brought into
existence only after it is proved that the issuer had received a notice
of dishonor and that, within five days from receipt thereof, he failed
to pay the amount of the check or to make arrangement for its payment. King v. People, decided
by this Division, involves a set of facts similar to the case at
bar. In said case, the
accused therein was proven to have issued eleven checks, all of which were
duly filled up and signed by her. It
was also clearly established that these eleven checks were dishonored, as
shown by the checks themselves which were stamped “ACCOUNT CLOSED” and
further supported by the return tickets issued by PCI Bank stating that
the checks had been dishonored. Yet,
even if the prosecution had already established the issuance of the checks
and their subsequent dishonor, this Court still required the
prosecution to show that the issuer knew of the insufficiency of funds by
proving that he or she received a notice of dishonor and, within five
banking days thereafter, failed to satisfy the amount of the check or make
arrangement for its payment. Moreover, in Lina Lim Lao
v. CA (274 SCRA 572 [1997]), we emphasized that “the full payment of
the amount appearing in the check within five banking days from notice of
dishonor is a ‘complete defense.’ The absence of a notice of dishonor
necessarily deprives an accused an opportunity to preclude a criminal
prosecution. Accordingly,
procedural due process clearly enjoins that a notice of dishonor be
actually served on petitioner. Petitioner
has a right to demand — and the basic postulate of fairness require —
that the notice of dishonor be actually sent to and received by her to
afford her the opportunity to avert prosecution under BP 22.” Aside from the above
testimony, no other reference was made to the demand letter by the
prosecution. As can be
noticed from the above exchange, the prosecution alleged that the demand
letter had been sent by mail. To
prove mailing, it presented a copy of the demand letter as well as the
registry return receipt. However, no attempt was made to show that the demand letter
was indeed sent through registered mail nor was the signature on the
registry return receipt authenticated or identified.
It cannot even be gleaned from the testimony of private complainant
as to who sent the demand letter and when the same was sent.
In fact, the prosecution seems to have presumed that the registry
return receipt was proof enough that the demand letter was sent through
registered mail and that the same was actually received by petitioners or
their agents. As adverted to earlier, it is
necessary in cases for violation of Batas Pambansa Blg. 22, that the
prosecution prove that the issuer had received a notice of dishonor.
It is a general rule that when service of notice is an issue, the
person alleging that the notice was served must prove the fact of service
(58 Am Jur 2d, Notice, § 45). The burden of proving notice rests upon the party asserting
its existence. Now,
ordinarily, preponderance of evidence is sufficient to prove notice.
In criminal cases, however, the quantum of proof required is proof
beyond reasonable doubt. Hence, for Batas Pambansa Blg. 22 cases, there should be
clear proof of notice. Moreover,
it is a general rule that, when service of a notice is sought to be made
by mail, it should appear that the conditions on which the validity of
such service depends had existence, otherwise the evidence is insufficient
to establish the fact of service (C.J.S., Notice, § 18).
In the instant case, the prosecution did not present proof that the
demand letter was sent through registered mail, relying as it did only on
the registry return receipt. In
civil cases, service made through registered mail is proved by the
registry receipt issued by the mailing office and an affidavit of
the person mailing of facts showing compliance with Section 7 of Rule 13
(See Section 13, Rule 13, 1997 Rules of Civil Procedure).
If, in addition to the registry receipt, it is required in civil
cases that an affidavit of mailing as proof of service be presented, then
with more reason should we hold in criminal cases that a registry receipt
alone is insufficient as proof of mailing.
In the instant case, the prosecution failed to present the
testimony, or at least the affidavit, of the person mailing that, indeed,
the demand letter was sent. Moreover, petitioners, during
the pre-trial, denied having received the demand letter (p. 135, Rollo.).
Given petitioners’ denial of receipt of the demand letter, it
behooved the prosecution to present proof that the demand letter was
indeed sent through registered mail and that the same was received by
petitioners. This, the
prosecution miserably failed to do. Instead,
it merely presented the demand letter and registry return receipt as if
mere presentation of the same was equivalent to proof that some sort of
mail matter was received by petitioners.
Receipts for registered letters and return receipts do not prove
themselves; they must be properly authenticated in order to serve as proof
of receipt of the letters (Central Trust Co. v. City of Des Moines,
218 NW 580). Likewise, for notice by mail,
it must appear that the same was served on the addressee or a duly
authorized agent of the addressee. In
fact, the registry return receipt itself provides that “[a] registered
article must not be delivered to anyone but the addressee, or upon the
addressee’s written order, in which case the authorized agent must write
the addressee’s name on the proper space and then affix legibly his own
signature below it.” In the case at bar, no effort was made to show that
the demand letter was received by petitioners or their agent.
All that we have on record is an illegible signature on the
registry receipt as evidence that someone received the letter. As to
whether this signature is that of one of the petitioners or of their
authorized agent remains a mystery. From
the registry receipt alone, it is possible that petitioners or their
authorized agent did receive the demand letter.
Possibilities, however, cannot replace proof beyond reasonable
doubt. There being
insufficient proof that petitioners received notice that their checks had
been dishonored, the presumption that they knew of the insufficiency of
the funds therefor cannot arise. As we stated in Savage v.
Taypin (G.R. No. 134217, May 11, 2000), “penal statutes must be strictly
construed against the State and liberally in favor of the accused.”
Likewise, the prosecution may not rely on the weakness of the evidence for
the defense to make up for its own blunders in prosecuting an offense.
Having failed to prove all the elements of the offense, petitioners
may not thus be convicted for violation of Batas Pambansa Blg. 22. Justice Melo, Third Division, VICTOR TING “SENG DEE” and EMILY CHAN-AZAJAR, petitioners, vs. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents. [G.R. No. 140665. November 13, 2000] In fine, it is evident from the records that there were violations of B.P. Blg. 22 committed by petitioner: (a) all the checks were complete on their faces, i.e., properly dated, signed, with the name of the payee and amount of the checks entered; (b) the checks were issued on account of loans petitioner made; (c) all the checks were dishonored and stamped "drawn against insufficient funds;" and, (d) BPI Bookkeeper Arnulfo Fernandez presented in court a ledger where Account Nos. 001-1151-95 and 0011-1318-08 of petitioner were shown to have insufficient funds at the date of the issuance of the checks.36 [TSN, 12 February 1993, pp. 3-9. ] Added to these is the presumption of knowledge of insufficiency of funds. A maker’s knowledge is presumed from the dishonor of his check for insufficiency of funds.37 [Vaca v. Court of Appeals, G.R. No. 131714, 16 November 1998, 298 SCRA 656.] Once proved that the maker or drawer had knowledge of the insufficiency of his funds or credit, which is also an important element for the offense to exist, he is rendered ipso facto liable. Justice Bellosello, SECOND DIVISION, Cueme v. People, G.R. No. 133325. June 30, 2000
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