Lack of deceit

To be convicted of estafa by post dating or issuance of a check, it must be shown that the check was in payment of an obligation contracted at the time it was issued; that the victim parted with his money by virtue of the check issued by the accused who assured him that it is good and would not bounce. Otherwise, there is no crime of estafa committed. This is illustrated in this case of Alma.

Alma was engaged in the wholesale of soft drinks. Needing money to finance her business a friend introduced her to Bernie sometime in 1996. Since then Alma started borrowing money from Bernie. To pay her loans, Alma issued Allied Bank checks under its Negotiable Order of Withdrawal (NOW) account or a savings account where the drawer issues checks payable only to a specific payee and therefore cannot be further negotiated. The account was in the name of Alma and her daughter Lisa. It was opened on January 27, 1997 and closed on March 26, 1997.

On different occasions Alma issued around sixteen checks signed by her and her daughter Lisa before the closure of the NOW account. One of the said checks was issued sometime in February 1998 but dated March 31, 1998 amounting to P280,000. When this check was presented to Allied Bank for encashment, the same was dishonored for the reason "Account Closed". Bernie also presented for encashment four other checks each bearing the amount of P13,000.00 and respectively dated August 31, 1997, January 31, 1998, March 1,1998 and March 31, 1998. The check dated August 31, 1997 was deposited by Bernie to his Metrobank account on September 1, 1997 and it was also dishonored for the reason "account closed". But Bernie sued Alma and her daughter for estafa with respect to the check amounting to P280,000 dated March 31, 1998 alleging that sometime in February 1998, Alma and her daughter came to him and begged to have the said check discounted with represen-tations that their check was good and would never bounce and because of their seeming honest representations he was lured to accept said check and simultaneously gave them the money.

After trial the lower court found Alma guilty of estafa. Her daughter was not tried as she had flown to Australia and remained at large. The lower court upheld Bernie’s theory that Alma issued to him the subject check for rediscounting in February 1998; that it was used by Alma to obtain money from him on said date. Was the lower court correct?

No. Deceit, to constitute estafa should be the efficient cause of the defraudation. It must have been committed either prior to or simultaneously with the defraudation com-plained of. The issuance of the check should be the means to obtain money from the payee. Hence a check issued in payment of a pre-existing obligation does not constitute estafa even if there is no fund in the bank to cover the amount of the check.

In this case Alma issued the subject check to Bernie in payment of a pre-existing obligation. They met in 1996 and since then Alma started borrowing money from Bernie. Bernie did not part with his money out of the fraudulent assurances of Alma that the subject check was good and would never bounce. It is incredulous that after the NOW check dated August 31, 1997 bounced on September 3, 1997 for the reason "account closed" Bernie would still discount Alma’s checks in succession particularly the check for P280,000 in February 1998. As early as September 2, 1997 Bernie already knew that Alma’s NOW account had been closed. He himself said that the subject check was issued to him sometime in February 1998. At that time he already knew that Alma’s account where the subject check is charged was closed. Bernie’s rediscounting theory must fail. There is no estafa through bouncing checks when it is shown that complainant knew that the drawer did not have sufficient funds in the bank at the time the check was issued to him. Such knowledge negates the element of deceit and constitutes a defense in estafa through bouncing checks.

Alma is not however without liability. She is still civilly liable. The case should therefore be remanded to the lower court for reception of further evidence as to the amount of her remaining obligation (People vs. Reyes G.R. 154159, March 31, 2005. 454 SCRA 635).

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