Dear Atty. Nico,

I sell cars, mostly Chinese and Vietnamese electric cars, as my primary business. At the same time, I have a client who has been buying such for his taxi operations.

Our payment arrangement has been as follows: he would book an order for a certain number of vehicles. Thereafter, he would issue post-dated checks in return.

One day, he made a purchase order for three Chinese cars worth P800,000 each. Consequently, he paid them through three separate post-dated checks.

Unfortunately, when I deposited all three checks, the same were dishonored and returned unpaid due to the account being tagged as “Account Closed.”

My question is: What do I do after? Do I immediately file a criminal case of BP22 (or Bouncing Checks Law) against my client?

Thank you and I appreciate your help.

Mark

Dear Mark,

In an En Banc decision of the Supreme Court (Spouses Carlos v. People of the Philippines and Tire Star Inc.; G.R. No. 277047), it emphasized that the service of notice of dishonor is material as it proves an element of the offense. Specifically, it establishes that the drawer of the check had knowledge of insufficient funds or credit in the bank to cover the amount upon presentment.

Given its significance, the notice of dishonor must be served in a manner that ensures its receipts and eventual admissibility in court.

To that end, the Court found it proper to apply to the service of notice of dishonor, as relevant herein, the same modes of service recognized in analogous cases where notice or demand is a condition precedent to legal action.

Accordingly, service shall primarily be made personally. If personal service is not practicable, service may be effected by registered mail.

Significantly, service through electronic means may likewise by undertaken, either as a primary mode or as a form of substituted service, in recognition of the evolving modes of communication and in line with the Court’s Strategic Plan for Judicial Innovations 2022-2027.

Clearly, regardless of the mode of service employed, the requirement for an affidavit of service of notice of dishonor is now mandatory. This requirement ensures clear and reliable evidence of service, thereby preventing unfounded claims of non-receipt and ensuring that the adjudication of cases under Batas Pambansa Blg. 22 is not unduly hindered by mere denials of service of notice of dishonor.

Additionally, in instances where the drawee bank notifies the drawer of the dishonor of the check through a text message and/or email address on record, such notification may be presented to corroborate the fact of service, subject to proper authentication under the Rules of Court and Rules on Electronic Evidence.

However, this shall serve only as supporting evidence and does not dispense with the requirement of proper service laid down herein.

On the part of the drawer, it must be shown, as in other criminal prosecutions, that it was physically impossible for them to have received the notice of dishonor.

Thus, for the defense of denial to prosper, the drawer must prove that it was physically impossible for them to be present at the place and at the time when service of the notice of dishonor was effected. Absent such clear and convincing proof of impossibility, a mere denial of receipt cannot overcome affirmative evidence of service.

Applying the above-mentioned jurisprudence, it would be wise to inform your client, first, about the dishonored checks by doing one of the enumerated modes of service of notice. If after the notice of dishonor has been properly given and there was a failure to pay the checks or make arrangements for their payment within the five days from notice, you may proceed in filing a criminal case of BP22 against your client.

Atty. Nico A. Antonio