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]

Under Batas Pambansa Blg. 22 (BP 22), the prosecution must prove not only that the accused issued a check that was subsequently dishonored. It must also establish that the accused was actually notified that the check was dishonored, and that he or she failed, within five banking days from receipt of the notice, to pay the holder of the check the amount due thereon or to make arrangement for its payment. Absent proof that the accused received such notice, a prosecution for violation of the Bouncing Checks Law cannot prosper.

xxx

To hold a person liable under BP 22, it is not enough to establish that a check issued was subsequently dishonored. It must be shown further that the person who issued the check knew "at the time of issue that 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." Because this element involves a state of mind which is difficult to establish, Section 2 of the law creates a prima facie presumption of such knowledge, as follows:21 [See also Crisologo-Jose v. Court of Appeals, 177 SCRA 594, September 15, 1989; Travel-On, Inc. v. Court of Appeals, 210 SCRA 351, June 26, 1992 and People v. Singson, 215 SCRA 534, November 12, 1992.]