DICO Vs CA
DICO Vs CA
DICO Vs CA
DICO vs CA
Facts:
Jaime Dico, now petitioner, was charged on 28 March 1994 with three
(3) counts of violation of Batas Pambansa Bilang 22 before the MTC
That on or about the 12th day of May, 1993 and for sometime
subsequent thereto, in the City of Cebu, Philippines, and within the
jurisdiction of this Honorable Court, the said accused, knowing at the
time of issue of the check she/he does not have sufficient funds in or
credit with the drawee bank for the payment of such check in full upon
its presentment, with deliberate intent, with intent of gain and of
causing damage, did then and there issue, make or draw Far East Bank
and Trust Co. Check No. 364903 dated May 12, 1993 in the amount of
P100,000.00 payable to Equitable Banking Corp. which check was
issued in payment of an obligation of said accused, but when said
check was presented with said bank, the same was dishonored for
reason Account Closed and despite notice and demands made to
redeem or make good said check, said accused failed and refused, and
up to the present time still fails and refuses to do so, to the damage
and prejudice of said Equitable Card Network Inc. in the amount of
P100,000.00 Philippine Currency.
ThatonMay31,1993,hefiledaPetitionForInsolvencywiththe
RegionalTrialCourt
Theaccusedfurthertestifiedoncrossexaminationthatalthoughhe
couldnotagreeonhisoutstandingobligationtothecomplainant,
heneverthelessplacedhistotalliabilitytothecomplainantinhis
Petition,
In a decision dated 19 June 1996, Amado B. Bajarias, Sr., Presiding
Judge of the MTCC, Branch 7, Cebu City, convicted petitioner of the
crimes charged
In its Comment to the Petition for Review, the Office of the Solicitor
General asked for the dismissal of the petition on the ground that the
same had no merit.
CA
CA DENIED MR
The record of the case shows the only letter received by petitioner
involving the three checks subject of these cases was the one dated 08
June 1993.[33] This letter sent by the counsel of private complainant
asked petitioner to make good the checks within five (5) days from
receipt thereof, otherwise, criminal charges for violation of B.P. Blg. 22
will be filed against him.
SEC. 2. Evidence of knowledge of insufficient funds
For this presumption to arise, the prosecution must prove the following:
(a) the check is presented within ninety (90) days from the date of the
check; (b) the drawer or maker of the check receives notice that such
check has not been paid by the drawee; and (c) the drawer or maker of
the check fails to pay the holder of the check the amount due thereon,
or make arrangements for payment in full within five (5) banking days
after receiving notice that such check has not been paid by the
drawee. In other words, the presumption is brought into existence only
after it is proved that the issuer had received a notice of dishonor and
that within five days from receipt thereof, he failed to pay the amount
of the check or to make arrangements for its payment.
The requirement of notice, its sending to, and its actual receipt by, the
drawer or maker of the check gives the latter the option to prevent
criminal prosecution if he pays the holder of the check the amount due
thereon, or makes arrangements for payment in full by the drawee of
such check within five (5) banking days after receiving notice that the
check has not been paid.
As already stated above, the only notice received by petitioner for the
three checks involved in these cases was that dated 08 June 1993.
There is no dispute that there was indeed a demand letter from the
counsel of Equitable Card Network, Inc., but the same was received by
petitioner before the checks maturity or due date on 12 June 1993. As
testified to by prosecution witness Lily Canlas, the demand letter was
sent to petitioner on 08 June 1993[39] and the check was deposited on
14 June 1993.[40] The demand letter was sent four days before the
date of the check and six days before said check was deposited
This Court rules that as regards FEBTC Check No. 369404,[41]
petitioner did not receive the notice of dishonor contemplated by the
law. There was no valid notice of dishonor to speak of. The term notice
of dishonor denotes that a check has been presented for payment and
was subsequently dishonored by the drawee bank. This means that the
check must necessarily be due and demandable because only a check
that has become due can be presented for payment and subsequently
be dishonored. A postdated check cannot be dishonored if presented
for payment before its due date.
Case
1 As the FEBTC Check No. 369403 dated 12 May 1993 in the amount of
P100,000.00 was the check adduced in evidence and used as payment
for petitioners unpaid obligation to Equitable Card Network, Inc.,
petitioner cannot be held civilly liable therefor considering that this is
not the check described in the information.[
2
3 ACQUITTED Check was dishonored when presented for payment on
May 17, 1993 or beyond ninety (90) days from date thereof, no such
prima facie evidence of knowledge of insufficiency of funds or credit
exists