Can You File Estafa and BP 22 at the Same Time?

Can You File Estafa and BP 22 at the Same Time Nicolas and De Vega Law Offices Image

On Estafa

Article 315 of the Revised Penal Code

Estafa under Article 315, paragraph 2(d) of the Revised Penal Code (RPC) provides as follows:

“2. By means of the following false pretenses or fraudulent acts executed prior to or simultaneously with the commission of the fraud:

x x x x

d) By postdating a check, or issuing a check in payment of an obligation when the offender had no funds in the bank, or his funds deposited therein were not sufficient to cover the amount of the check. The failure of the drawer of the check to deposit the amount necessary to cover his check within three (3) days from receipt of notice from the bank and/or payee or holder that said check has been dishonored for lack or insufficiency of funds shall be prima facie evidence of deceit constituting false pretense or fraudulent act.”

Elements of Estafa according to Supreme Court Cases

In Iluminada Batac vs. People of the Philippines, G.R. No. 191622, 6 June 2018, the Supreme Court enumerated the elements of estafa under Art. 315, paragraph 2(d) of the RPC, as follows:

“Jurisprudence has consistently held that such estafa consists of the following elements:

(1) the offender has postdated or issued a check in payment of an obligation contracted at the time of the postdating or issuance;

(2) at the time of postdating or issuance of said check, the offender has no funds in the bank or the funds deposited are not sufficient to cover the amount of the check; and

(3) the payee has been defrauded. It has been settled in jurisprudence that in the above-defined form of estafa, it is not the nonpayment of a debt which is made punishable, but the criminal fraud or deceit in the issuance of a check.Deceit has been defined as “the false representation of a matter of fact, whether by words or conduct by false or misleading allegations or by concealment of that which should have been disclosed which deceives or is intended to deceive another so that he shall act upon it to his legal injury.”(Emphasis and underscoring supplied.)

On BP 22 or the Bouncing Checks Law

Elements of a Violation of BP 22

A violation of Batas Pambansa Bilang 22 (“BP 22”), on the other hand, has the following elements as discussed by the Court in Erlinda San Mateo vs. People of the Philippines, G.R. No. 200090, 6 March 2013, to wit:

“To be liable for violation of B.P. 22, the following essential elements must be present:

(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 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 subsequent dishonor of the check by the drawee bank for insufficiency of funds or credit or dishonor for the same reason had not the drawer, without any valid cause, ordered the bank to stop payment.”

Differences with Estafa and BP 22

Differences in Elements Constituting the Offense

With the foregoing, the elements of estafa are clearly different from the elements of violation of BP 22. What are the differences then?

In the case of Peter Nierras vs. Judge Dacuycuy,G.R. Nos. 59568-76, 11 January 1990, the Court laid down the fundamental differences between BP 22 and estafa, to wit:

What petitioner failed to mention in his argument is the fact that deceit and damage are essential elements in Article 315 (2-d) Revised Penal Code, but are not required in Batas Pambansa Bilang 22. Under the latter law, 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 which is not so under the Penal Code. Other differences between the two also include the following:

(1) a drawer of a dishonored check may be convicted under Batas Pambansa Bilang 22 even if he had issued the same for a pre-existing obligation, while under Article 315 (2-d) of the Revised Penal Code, such circumstance negates criminal liability; (2) specific and different penalties are imposed in each of the two offenses; (3) estafa is essentially a crime against property, while violation of Batas Pambansa Bilang 22 is principally a crime against public interest as it does injury to the entire banking system; (4) violations of Article 315 of the Revised Penal Code are mala in se, while those of Batas Pambansa Bilang 22 are mala prohibita.(Emphases and underscoring supplied.)

As to Double Jeopardy

As regards the double jeopardy issue, the Court has settled the same in the case of Leonora Rimando vs. Spouses Aldaba and People of the Philippines, G.R. No. 203583, 13 October 2014, and the Court had this to say, to wit:

“Owing to such differences, jurisprudence in People vs. Reyes even instructs that the simultaneous filing of BP 22 and estafa cases do not amount to double jeopardy:

While the filing of the two sets of Information under the provisions of Batas Pambansa Bilang 22 and under the provisions of the Revised Penal Code, as amended, on estafa, may refer to identical acts committed by the petitioner, the prosecution thereof cannot be limited to one offense, because a single criminal act may give rise to a multiplicity of offenses and where there is variance or differences between the elements of an offense is one law and another law as in the case at bar there will be no double jeopardy because what the rule on double jeopardy prohibits refers to identity of elements in the two (2) offenses. Otherwise stated, prosecution for the same act is not prohibited. What is forbidden is prosecution for the same offense. Hence, the mere filing of the two (2) sets of information does not itself give rise to double jeopardy.

Essentially, while a BP 22 case and an estafa case may be rooted from an identical set of facts, they nevertheless present different causes of action, which, under the law, are considered “separate, distinct, and independent” from each other. Therefore, both cases can proceed to their final adjudication – both as to their criminal and civil aspects – subject to the prohibition on double recovery. Perforce, a ruling in a BP 22 case concerning the criminal and civil liabilities of the accused cannot be given any bearing whatsoever in the criminal and civil aspects of a related estafa case, as in this instance.” (Emphases and underscoring supplied.)

Thus, being separate, distinct and independent from each other, you can file an Estafa case and a BP 22 case at the same time.

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