PEOPLE OF THE PHILIPPINES, PETITIONER, VS. HON. DAVID G. NITAFAN, PRESIDING JUDGE, REGIONAL TRIAL COURT, BRANCH 52, MANILA, AND K.T. LIM ALIAS MARIANO LIM, RESPONDENTS.

Failing in his argument that B.P. 22, otherwise known as the
“Bouncing Check Law”, is unconstitutional,^[1]
private respondent now argues that the check he issued, a memorandum check, is
in the nature of a promissory note, hence, outside the purview of the
statute. Here, his argument must also
fail.

The facts are simple. Private respondent K.T. Lim was charged before respondent court with
violation of B.P. 22 in an Information alleging –

“That on x x x January 10, 1985, in the City of Manila x x x the said accused did
then and there wilfully, unlawfully and feloniously make or draw and issue to
Fatima Cortez Sasaki x x x
Philippine Trust Company Check No. 117383 dated February 9, 1985 x x x in the amount of P143,000.00, x x
x well knowing that at the time of issue he x x x did not have sufficient funds
in or credit with the drawee
bank x x x which check x x x was
subsequently dishonored by the drawee bank
for insufficiency of funds, and despite receipt of notice of such dishonor,
said accused failed to pay said Fatima Cortez Sasaki the amount of said check
or to make arrangement for full payment of the same within five (5) banking
days after receiving said notice.”^[2]

On 18 July 1986, private respondent moved to quash the
Information on the ground that the facts charged did not constitute a felony as
B.P. 22 was unconstitutional and that the check he issued was a memorandum
check which was in the nature of a promissory note, perforce, civil in
nature. On 1 September 1986, respondent
judge, ruling that B.P. 22 on which the Information was based was
unconstitutional, issued the questioned Order quashing the Information. Hence, this petition for review on certiorari
filed by the Solicitor General in
behalf of the government.

Since the constitutionality of the “Bouncing Check Law” has
already been sustained by this Court in Lozano v. Martinez^[3] and the seven (7) other cases
decided jointly with it,^[4] the remaining issue, as aptly stated
by private respondent in his Memorandum, is whether a memorandum check issued
postdated in partial payment of a pre-existing obligation is within the
coverage of B.P. 22.

Citing U.S. v. Isham,^[5] private respondent contends that
although a memorandum check may not differ in form and appearance from an
ordinary check, such a check is given by the drawer to the payee more in the
nature of a memorandum of indebtedness and, as such, partakes of the nature of
a promissory note, and should be sued upon in a civil action.

We are not
persuaded.

A memorandum check is in the form of an ordinary check, with the
word “memorandum”, “memo” or “mem” written across its face, signifying that the
maker or drawer engages to pay the bona fide holder absolutely, without
any condition concerning its presentment.^[6] Such a check is an evidence of debt against
the drawer, and although may not be intended to be presented,^[7]
has the same effect as an ordinary check,^[8] and
if passed to a third person, will be valid in his hands like any other check.^[9]

From the above
definition, it is clear that a memorandum check, which is in the form of an
ordinary check, is still drawn on a bank and should therefore be distinguished
from a promissory note, which is but a mere promise to pay. If private respondent seeks to equate
memorandum check with promissory note, as he does, to skirt the provisions of
B.P. 22, he could very well have issued a promissory note, and this would have
exempted him from the coverage of the law. In the business community, a promissory note, certainly, has less impact
and persuadability than a check.

Verily, a memorandum check comes within the meaning of Sec. 185 of the Negotiable Instruments Law which defines a check as “a bill of
exchange drawn on a bank payable on demand.” A check is also defined as “[a]
written order or request to a bank or persons carrying on the business of
banking, by a party having money in their hands, desiring them to pay, on
presentment, to a person therein named or bearer, or to such person or order, a
named sum of money,” citing 2 Dan. Neg.
Inst. 528; Blair v. Wilson, 28 Gratt. (Va.) 170; Deener v.
Brown, 1 MacArth. (D.C.) 350; In re
Brown, 2 Sto. 502, Fed. Cas.
No. 1,985. See Chapman v. White, 6 N.Y. 412, 57 Am. Dec. 464.^[10] Another definition of check is that
it is “[a] draft drawn upon a bank and payable on demand, signed by the maker
or drawer, containing an unconditional promise to pay a sum certain in money to
the order of the payee,” citing State v. Perrigoue, 81
Wash. 2d 640, 503 p. 2d 1063, 1066.^[11]

A memorandum check must therefore fall within the ambit of B.P. 22 which does not distinguish but
merely provides that “[a]ny person who makes or draws and issues any check knowing at
the time of issue that he does not have sufficient funds in or credit with the
drawee bank x x x which check is subsequently dishonored x x x shall
be punished by imprisonment x x x
x” (underscoring supplied).^[12] Ubi lex non distinguit nec nos distinguere
debemus.

But even if We retrace the enactment of the “Bouncing Check Law”
to determine the parameters of the concept of “check”, We can easily glean that
the members of the then Batasang Pambansa intended it to be comprehensive as to
include all checks drawn against banks. This was particularly the ratiocination of Mr. Estelito P. Mendoza,
co-sponsor of Cabinet Bill No. 9 which later became B.P. 22, when in response
to the interpellation of Mr. Januario T. Seño, Mr. Mendoza explained that the
draft or order must be addressed to a bank or depository,^[13]
and accepted the proposed amendment of Messrs. Antonino P. Roman and Arturo M. Tolentino that the words “draft
or order”, and certain terms which technically meant promissory notes, wherever
they were found in the text of the bill, should be deleted since the bill was
mainly directed against the pernicious practice of issuing checks with
insufficient or no funds, and not to drafts which were not drawn against banks.^[14]

A memorandum check, upon presentment, is generally accepted by
the bank. Hence, it does not matter
whether the check issued is in the nature of a memorandum as evidence of
indebtedness or whether it was issued in partial fulfillment of a pre-existing
obligation, for what the law punishes is the issuance itself of a bouncing
check^[15]
and not the purpose for which it was issued nor the terms and conditions
relating to its issuance. The mere act
of issuing a worthless check, whether as a deposit, as a guarantee, or even as
an evidence of a pre-existing debt, is malum prohibitum.^[16]

We are not unaware that a memorandum check may carry with it the
understanding that it is not to be presented at the bank but will be redeemed
by the maker himself when the loan falls due. This understanding may be manifested by writing across the check
“Memorandum”, “Memo” or “Mem”. However,
with the promulgation of B.P. 22, such understanding or private arrangement may
no longer prevail to exempt it from penal sanction imposed by the law. To require that the agreement surrounding
the issuance of checks be first looked into and thereafter exempt such issuance
from the punitive provisions of B.P. 22 on the basis of such agreement or
understanding would frustrate the very purpose for which the law was enacted –
to stem the proliferation of unfunded checks. After having effectively reduced the incidence of worthless checks
changing hands, the country will once again experience the limitless
circulation of bouncing checks in the guise of memorandum checks if such checks
will be considered exempt from the operation of B.P. 22. It is common practice in commercial
transactions to require debtors to issue checks on which creditors must rely as
guarantee of payment, or as evidence of indebtedness, if not as mode of payment. To determine the reasons for which checks
are issued, or the terms and conditions for their issuance, will greatly erode
the faith the public reposes in the stability and commercial value of checks as
currency substitutes, and bring about havoc in trade and in banking
communities.^[17]

WHEREFORE, the petition is GRANTED and the Order of
respondent Judge of 1 September 1986 is SET ASIDE. Consequently, respondent Judge, or whoever
presides over the Regional Trial Court of Manila, Branch 52, is hereby directed
forthwith to proceed with the hearing of the case until terminated.

SO ORDERED.

Gutierrez, Jr., Cruz, Feliciano, Padilla, Bidin, Griño-Aquino,
Medialdea, Regalado, Davide, Jr., Romero, Nocon, Melo and Campos, Jr., JJ., concur.

Narvasa, C.J., on leave

^[1]
In Lozano v. Martinez, G.R. No. 63419, 18 December 1986, 146 SCRA 323,
We sustained the constitutionality of B.P. 22 as a valid exercise of police
power of the state and ruled that it did not conflict with the constitutional
prohibition against imprisonment for non-payment of debt.

^[2]
Information, Rollo, pp. 3-4.

^[3]
G.R. No. 63419, 18 December 1986; 146 SCRA 323.

^[4]
Lobaton v. Cruz, G.R. Nos. 66839-42; Datuin v. Paño,
G.R. No. 71654; Violago v. Paño, G.R. Nos. 74524-25; Abad v.
Gerochi, Jr., G.R. Nos. 75122-49; Aguiluz VII v. Presiding Judge of Br.
154, G.R. Nos. 75812-13; Hojas v. Penaranda, G.R. Nos. 75765-67; and
People v. Nitafan, G.R. No. 75789.

^[5]
17 Wall 496, 21 L. Ed. 728.

^[6]
Franklin Bank v. Freeman, 16 Pick. 535.

^[7]
Cushing v. Gore, 15 Mass. 69.

^[8]
Dykers v. Leather Manufacturers’ Bank, 11 Page 612.

^[9]
Franklin Bank v. Freeman, supra.

^[10]
Bouvier’s Law Dictionary, Third Rev., Vol. I, St. Paul, Minn., West Publishing
Co., 8th Ed., p. 475.

^[11]
Black’s Law Dictionary, Fifth Ed., St.
Paul, Minn., West Publishing Co., p. 215.

^[12]
Sec. 1, B.P. 22.

^[13]
Journal No. 70, December 4, 1978, p. 259, Batasan Record, First Regular Session, 1978-1979.

^[14]
Journal No. 72, December 6, 1978, p. 270, Batasan Record,
First Regular Session, 1978-1979.

^[15]
See People v. Veridiano II, G. R.
No. 62243, October 12, 1984; 132 SCRA
523.

^[16]
See Que v. People, G. R. Nos. 75217-18,
September 21, 1987; 154 SCRA 160.

^[17]
Lozano v. Martinez, supra.