Friday, November 22, 2013

Bounced checks constitute crime of estafa

Dear PAO,
I received a demand letter from my creditor to pay the amount corresponding to the postdated checks I issued, which were dishonored because of “insufficient funds”. Before receipt of the demand letter, I was willing to settle my obligations but my creditor and I had a misunderstanding regarding the manner of payment of my debt. In the end, she said that she would just see me in court as she did not agree to any settlement anymore.

I admit to be a bit angry because of her inconsideration. Then, I received a demand letter asking me to pay all my debts otherwise she will file a case for estafa and threatens me of imprisonment for 20 years. I believe that the case will be dismissed because I know that no person can be imprisoned for non-payment of debt. Please clarify!

Dear Josie,
Our Constitution has declared under Section 20, Article III thereof that “no person shall be imprisoned for debt or non-payment of poll tax”. Although a person who is indebted cannot be punished by imprisonment, he may nevertheless be sued civilly for collection of sum of money, wherein the court shall order payment of debt. However, when the act of borrowing of money is accompanied with an act which is punishable by law with imprisonment or penalty, the debtor may be criminally liable not for the non-payment of debt but for the commission of the crime.  As in your case, borrowing, alone, of money will not make you criminally liable. But your issuance of postdated checks which were later dishonored for “insufficiency of funds” constitutes a crime of either violation of Batas Pambansa Blg. 22 (B.P. 22) or Estafa.

BP 22, commonly referred to as “Bouncing Checks Law”, punishes any person who makes or draws and issues any checks 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 upon its presentment. On the other hand, the maker or issuer may likewise be liable for estafa punishable under Article 315 of the Revised Penal Code if he issues a check for payment of an obligation using false pretense or fraudulent act.

Thus, your creditor may pursue either a criminal case for violation of B.P. 22 and/or estafa against you depending on the events surrounding your issuance of postdated checks. The penalty of twenty (20) years for the issuance of unfunded check is not a threat for you to pay in full the amount of the checks. The said imprisonment is the maximum penalty which can be imposed upon an accused in an estafa case under Article 315 of the Revised Penal Code, which states that “the penalty of prision correccional in its maximum period to prision mayor in its minimum period, if the amount of the fraud is over 12,000 pesos but does not exceed 22,000 pesos, and if such amount exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its maximum period, adding one year for each additional 10,000 pesos; but the total penalty which may be imposed shall not exceed twenty years.”

Please be reminded that the above legal opinion is solely based on our appreciation of the problem that you have stated. The opinion may vary when other facts are stated.

source:  Manila Times Column of Atty Persida Acosta

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