MEHDI SARLAK PETITIONER, VS. PEOPLE OF THE PHILIPPINES AND GALLERIA FLOOR CENTER, RESPONDENTS.
SADANG, J.:
Accused-petitioner Mehdi Sarlak (hereafter, petitioner) was charged before the MTC for violation of BP 22. The Information reads:
Crim. Case No. 69339
On or about or prior to June 2, 2002 in Pasig City, and within the jurisdiction of this Honorable Court, the accused, did then and there willfully, unlawfully and feloniously make or draw and issue to Galleria Floor Center, Inc., represented by Teresita N. Maherolnaghsh to apply on account, the check described below:
Check No. : A0000457606 Drawn Against : China Bank In the amount of : P148,000.00 Dated/Postdated : June 2, 2002 Payable to : Galleria Floor Center Inc. said accused well knowing that at the time of issue, he did not have sufficient funds in or credit with the drawee bank for the payment in full of the face amount of such check upon its presentment, which check when presented for payment, within ninety (90) days from the date thereof was subsequently dishonored by the drawee bank for the reason “Account Closed” and despite receipt of notice of such dishonor, accused failed to pay said payee the face amount of said check or make arrangement for full payment within five (5) banking days after receiving notice.
Contrary to law.[2]
Petitioner pleaded not guilty during the arraignment and the case was set for mediation but no settlement was reached by the parties. Thus, preliminary conference and trial on the merits ensued.
The facts are not disputed.
On February 13, 2002, petitioner issued China Bank Cebu SM City Branch Check No. A0000457606 postdated June 2, 2002 in the amount of P148,000.00, payable to Galleria Floor Center, Inc. (GFCI, for brevity), as payment of twenty-eight (28) pieces of machine made carpets valued at P148,000.00 which were delivered and shipped to petitioner on said date under Delivery Receipts Nos. 8245 and 8246, excluding a one-piece hand made Kasmir silk 10 x 14 feet with stock no. 538 (Dr. no. 8245) and one piece hand made Persian qum silk 2 ½ x 4 feet with stock no. 422 (Dr. no. 8246) which are included in the 122 pieces of hand made carpets delivered on consignment basis. Delivery Receipt Nos. 8245 and 8246, both dated February 13, 2002, were issued to “Floor Center SM City, Inc.” (FCSM) but the checks were payable to GFCI because FCSM is an affiliate of GFCI.
On due date, GFCI deposited the check but it was dishonored by the drawee bank for the reason “Account Closed.” GFCI sent a demand letter, dated July 20, 2002, by registered mail and it was received by petitioner on July 30, 2002. Petitioner, through his lawyer, Atty. Tautho, sent a reply letter dated August 9, 2002 requesting that he be allowed to replace the said check with three equal monthly installment checks including the monthly legal interest that GFCI would impose. GFCI did not answer petitioner’s offer and the latter failed to pay or make good the check. Thus, GFCI filed the criminal case for violation of BP 22.
In his defense, petitioner argued that he did not commit the crime charged because he informed GFCI long before the due date of the check that he was closing his account with China Bank SM Cebu Branch and requested that he be allowed to replace the check but GFCI no longer communicated with him. He claimed that he was willing to pay the face value of the check, however, GFCI was not willing to accept the payment due to the alleged non-payment of another unrelated account. Despite the notice given, GFCI deposited the check which was dishonored because petitioner had closed his account.
On October 18, 2010, the MTC rendered a decision,[3] the fallo of which reads:
WHEREFORE, premises considered, judgment is hereby rendered, finding accused MEHDI SARLAK, GUILTY beyond reasonable doubt of the crime of Violation of B.P. No. 22, in Criminal Case No. 69339 and hereby sentences him to pay a FINE of ONE HUNDRED FORTY EIGHT THOUSAND PESOS (Php148,000.00) with subsidiary imprisonment in case of insolvency. Moreover, the accused is hereby ordered to indemnify the private complainant the sum of ONE HUNDRED FORTY EIGHT (P148,000.00) representing the face value of the check under consideration.
SO ORDERED.
Petitioner appealed the Decision of the MTC to the RTC.
On June 1, 2011, the RTC rendered a Decision[4] affirming the Decision of the MTC. The fallo reads:
WHEREFORE, in light of the foregoing and finding no reversible error in the decision appealed, the same is hereby affirmed.
SO ORDERED.
Petitioner’s motion for reconsideration was denied in the Order[5] dated October 27, 2011.
Hence, this petition raising the following issues:
1. THE RTC-PASIG CITY, BR. 161 ERRED WHEN IT STATED THAT SARLAK DID NOT ATTACH ANY EVIDENCE TO HIS MEMORANDUM TO PROVE THAT HE MAKE ARRANGEMENTS FOR FULL PAYMENT OF THE FACE VALUE OF THE CHECK WITHIN FIVE (5) DAYS FROM THE NOTICE OF DISHONOR;
2. THE RTC-PASIG CITY, BR. 161 ERRED WHEN IT DENIED THE MEMORANDUM OF APPEAL AND THE MOTION FOR RECONSIDERATION ON THE GROUND THAT THE ARRANGEMENTS FOR FULL PAYMENT OF THE FACE VALUE OF THE CHECK WITHIN FIVE (5) DAYS FROM THE NOTICE OF DISHONOR IS NOT A VALID GROUND FOR ACQUITTAL.
RULING
Petitioner claims that the RTC erred in finding that his act of making arrangements for payment is not a ground for acquittal. He argues that by arranging to pay the bounced check, he was relieved of criminal liability under BP 22. On the other hand, the Office of the Solicitor General (OSG) contends that the RTC was correct in its finding and that all the elements of the crime were established.
The petition is bereft of merit.
The crime charged is defined and penalized by Section 1 of BP 22 which reads:
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 check in full upon its 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 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.
The same penalty shall be imposed upon any person who, having sufficient funds in or credit with the drawee bank when he makes or draws and issues a check, 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.
The elements of violation of BP 22 are: (1) the making, drawing, and issuance of any check to apply for account or for value; (2) the knowledge of the maker, drawer, or issuer that at the time of issue he or she does not have sufficient funds in or credit with the drawee bank for the payment of the check in full upon its presentment; and (3) the drawee bank’s subsequent dishonor of the check for insufficiency of funds or credit, or dishonor of the check for the same reason had not the drawer, without any valid cause, ordered the bank to stop payment.[6]
There is no dispute as to the first and third elements. The evidence shows that petitioner issued a post-dated check in favor of GFCI. It also appears that upon presentment for payment, the check was dishonored for the reason “account closed.” The issue in this petition revolves on the second element which is governed by Section 2 of BP 22 which provides:
Sec. 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 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. (underscoring supplied)
The knowledge of insufficiency of funds or credit at the time of the issuance of the check involves a state of mind of the person making, drawing or issuing the check, which is difficult to prove. Thus, Section 2 of BP 22 creates a prima facie presumption of such knowledge. In other words, the presumption arises upon proof that the drawer or issuer of the check had received a notice of dishonor and fails to pay the amount of the check or make arrangement for payment thereof within five days from receipt of said notice. The presumption or prima facie evidence as provided in Section 2 cannot arise, if such notice of nonpayment by the drawee bank is not sent to the maker or drawer, or if there is no proof as to when such notice was received by the drawer, since there would simply be no way of reckoning the crucial 5-day period.[7]
In this case, GFCI sent a letter[8] dated July 20, 2002 to petitioner informing him of the dishonor of the check. Petitioner received the notice of dishonor because his lawyer, Atty. Rico V. Tautho, sent a reply letter,[9] dated August 9, 2002, acknowledging receipt of said notice and expressing his intention to “replace the said checks (sic) with three (3) equal monthly installment checks including the monthly legal interests.”
It appears that petitioner’s position is that his offer to replace the bounced check with three new checks is compliance with the requirement that the drawer or issuer “makes arrangements for payment in full” of the check. Such stance is untenable. A reading of the law shows that in order to avoid criminal liability the drawer or issuer must actually pay the amount of the check within the period of five days from notice. To construe the phrase “making arrangements for payment in full” to mean that the drawer or issuer can simply make an offer to pay or to replace the bounced check would defeat the purpose of the law of punishing the mere issuance of a bad check. Such construal would enable the drawer of a bad check to escape liability by the mere expedient of making an empty promise to make good the check.
In the similar case of Diongzon v. Court of Appeals,[10] the accused issued three post-dated checks one of which was dishonored due to insufficient funds. Upon notice of dishonor, the accused promised to pay the check and issued another check for that purpose. He then argued that this constituted novation and relieved him of criminal liability. Considering that there was no evidence to show that the accused actually paid the value of the check, it was ruled that there was no novation which exculpated accused from criminal liability.
Even if petitioner made an offer to issue replacement checks, following Diongzon, such cannot be considered “making arrangments for payment in full” because the evidence does not show that he, in fact, paid the value of the bounced check. Had petitioner paid the value of the bounced check within the period prescribed by law and before the filing of the criminal case, as held in Diongzon, there would have been a novation which would have prevented the criminal liability from arising.[11] Novation does not apply where the offer to pay by the debtor, and accepted by the creditor, turns out to be merely an empty promise.[12] Only full payment of the amount appearing in the check within 5 banking days from notice of dishonor is a complete defense.[13]
It is well to reiterate the settled rule that the gravamen of the offense punished by BP 22 is the act of making and issuing a worthless check or a check that is dishonored upon its presentation for payment. The thrust of the law is to prohibit, under pain of penal sanctions, the making of worthless checks and putting them in circulation. Because of its deleterious effects on the public interest, the practice is proscribed by law. The law punishes the act not as an offense against property, but an offense against public order.[14]
WHEREFORE, the petition is DENIED. The June 1, 2011 Decision and October 27, 2011 Order of the Regional Trial Court of Pasig City, Branch 161 in Crim. Case No. 144448-PSG affirming the October 18, 2010 Decision of the Metropolitan Trial Court of Pasig City, Branch 70 in Criminal Case No. 69339 finding accused-petitioner Mehdi Sarlak guilty beyond reasonable doubt of the crime of violation of Batas Pambansa Blg. 22 are AFFIRMED.
SO ORDERED.
Librea-Leagogo, J., Chairperson, and Diamante, JJ., concur.
[1] Rollo, pp. 27-30.
[2] Id., p. 43.
[3] Penned by Presiding Judge Marina Gaerlan-Mejorada.
[4] Penned by Judge Nicanor A. Manalo, Jr.
[5] Supra at note 2.
[6] Llenado v. People, GR. No. 193279, March 14, 2012 citing Tan v. Mendez, 432 Phil. 760 (2002).
[7] Dico v. Court of Appeals, G.R. No. 141669, February 28, 2005, 452 SCRA 441, 456-457 .
[8] Rollo, p. 76.
[9] Rollo, p. 59.
[10] 321 SCRA 477 (1999).
[11] Guingona, Jr. v. City Fiscal of Manila, 128 SCRA 577; Medalla v. Laxa, G.R. No. 193362, January 18, 2012.
[12] Llamado v. Court of Appeals, 337 Phil. 153 (1997).
[13] Suarez v. People, 555 SCRA 238 (2008).
[14] Medalla v. Laxa, G.R. No. 193362, January 18, 2012 citing Lozano v. Hon. Martinez, 230 Phil 406, 421 (1986).