Issuance of Bouncing Check as Estafa

When is issuance of a bouncing check also considered Estafa? Can a person be held liable for violation of Batas Pambansa Blg. 22 (BP 22), and separately also be held liable for the crime of estafa under Article 315 (2-D) of the Revised Penal Code for the issuance of the same bouncing checks?

These questions have been answered by the Supreme Court in the case of Nierras vs. Hon. Dacuycuy [G.R. Nos. 59568-76, January 11, 1990].

In this case, a customer of Pilipinas Shell Petroleum Corporation bought oil products from it. Together with the delivery of the products, he issued nine (9) checks in payment of the oil purchased. However, said checks were dishonored upon presentation because the check issuer's account was already closed. Repeated demands for payment were ignored. The customer was charged with two separate offenses, first under BP 22 and the second under Article 315, (2-D) of the Revised Penal Code.

The High Court upheld the separate charges, ruling that deceit and damage are essential elements in Article 315 (2-D) of the Revised Penal Code, but are not required in BP 22. Under BP 22, mere issuance of a check that is dishonored gives rise to the presumption of knowledge on the part of the drawer that he issued the same without sufficient funds and hence punishable. Moreover, a drawer of a dishonored check may be convicted under BP 22 even if he had issued the same for a pre-existing obligation, while Article 315 (2-D) of the Revised Penal Code penalizes the issuance of a check only if it were itself the immediate consideration for the reciprocal receipt of benefits. [Castro vs. Hon. Mendoza, G.R. No. 50173 September 21, 1993] Estafa is essentially a crime against property, while violation of BP 22 is principally a crime against public interest as it does injury to the entire banking system. Also, violations of Article 315 of the Revised Penal Code are mala in se, while those of BP 22 are mala prohibita. [Nierras vs. Hon. Dacuycuy, G.R. Nos. 59568-76, January 11, 1990]

Therefore, to constitute Estafa, the bouncing check must be issued concurrently with, and in exchange for, a material gain. If in the issuance of a check the drawer derives no such contemporary gain in return since the obligation sought to be settled is already pre-existing or incurred and outstanding before the check is issued, then there is no crime of Estafa.

Again, under the law, the false pretense or fraudulent act must be executed prior to or simultaneously with the commission of the fraud. The issuance of the check must be used as a means to obtain a valuable consideration from the payee, as to make deceit the efficient cause of the defraudation. "In other words, the check must be issued concurrently with, and in exchange for, a material gain to make it a punishable offense under Article 315, paragraph 2(D) of the Revised Penal Code." [Nierras vs. Hon. Dacuycuy, G.R. Nos. 59568-76, January 11, 1990; Castro vs. Hon. Mendoza, G.R. No. 50173 September 21, 1993]