Petitioner raises this issue for the first time on appeal. As already stated, his contentions in the trial court were: (1) that the two checks which had been dishonored had not been issued by him as shown by different signatures they contained, and (2) that since the checks had not been issued "on account" or "for value," an essential element of the crime defined in B.P. Blg. 22 had not been established. It was only after the trial court had rejected these defenses and found petitioner guilty that petitioner advanced the theory of novation in his Supplemental Brief in the Court of Appeals.

This defense was rightfully ignored by the Court of Appeals in its decision affirming petitioner’s conviction. As the Court of Appeals held, novation is not a mode of extinguishing criminal liability and criminal liability, once incurred, cannot be compromised.3 [Rollo, pp. 99-100.] Indeed, there was no novation, and even if there was, petitioner’s liability under B.P. Blg. 22 was not thereby extinguished.

It is well-settled that the following requisites must be present for novation to take place: (1) a previous valid obligation; (2) agreement of all the parties to the new contract; (3) extinguishment of the old contract; and (4) validity of the new one.4 [Reyes v. CA, 332 Phil. 40 (1996)]

These requisites, particularly the third, were not proven in this case. As the Court of Appeals held, the transaction became a personal undertaking of the petitioner when he received the goods for delivery but made no delivery thereof either to the credited dealer or to the credit rider.5 [Rollo, p. 95.] Petitioner had an existing obligation to pay the value of the goods for which the check was issued. This obligation was not extinguished when the check was dishonored and a new agreement was reached by the two parties to pay in cash its value. The change in the mode of paying the obligation was not a change in any of the objects or principal conditions of the contract. As Tolentino states, neither acceptance of partial payment nor change of place or manner of payment involves novation.6 [4 A. Tolentino, Commentaries and Jurisprudence on the Civil Code of the Philippines 387 (1995)] For novation cannot be presumed but must be expressly intended by the parties.

The Court of Appeals denied petitioner’s motion for reconsideration on the ground, inter alia, that the written undertaking was not presented as evidence. The records of the trial court show, however, that the existence of the written undertaking was actually admitted by the prosecution during trial,7 [TSN, p. 47, Sept. 8, 1982.] although, for some reason, it was not formally offered in evidence by the prosecution. However that may be, whether the written undertaking was presented or not, the fact remains that there was no novation in this case.

Nor is novation a mode of extinguishing criminal liability. As held by this Court, novation "may prevent the rise of criminal liability as long as it occurs prior to the filing of the criminal information in court."8 [Guingona, Jr. v. City Fiscal of Manila, 128 SCRA 577.] In other words, novation does not extinguish criminal liability but may only prevent its rise.

Petitioner claims that the new agreement took effect prior to the filing of the information in court on December 15, 1981. He argues that, therefore, there could not have been any criminal liability under B.P. Blg. 22.

The argument is untenable. The fact is that the supposed new agreement never took effect as petitioner never complied with his undertaking. In Llamado v. Court of Appeals,9 [337 Phil. 153 (1997)] a similar issue arose. An agreement to partially pay the dishonored check was made, but the accused failed to comply with his promise. This Court ruled:

[T]he "novation theory" recognized by this Court in certain cases does not apply in the case at bar. While private complainant agreed to petitioner’s offer to pay him 10% of the amount of the check on November 14 or 15, 1983 and the balance to be rolled over for 90 days, this turned out to be only an empty promise which effectively delayed private complainant’s filing of a case for violation of B.P. Blg. 22 against petitioner and his co-accused.

The Court thus held that the novation theory does not apply where the offer to pay by the debtor, and accepted by the creditor, turns out to be merely an empty promise. In this case, the balance of the check was never paid, as witness Anacleto B. Palisoc testified.10 [TSN, p. 47, Sept. 8, 1982.]

Justice Mendoza, Second Division, Dionzong v. Court of Appeals, G. R. No. 114823, December 23, 1999

With regard to petitioner's third allegation, the "novation theory" recognized by this Court in certain cases, does not apply in the case at bar. While private complainant agreed to petitioner's offer to pay him 10% of the amount of the check on November 14 or 15, 1983 and the balance to be rolled over for 90 days, this turned out to be only an empty promise which effectively delayed private complainant's filing of a case for Violation of BP 22 against petitioner and his co-accused. As admitted by petitioner in his Memorandum, private complainant was never paid as agreed upon.

Justice Torres, SECOND DIVISION, RICARDO A. LLAMADO, petitioner, vs. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondent, [G.R. No. 99032.  March 26, 1997.]