Dear Mr.

Too Nice,
This pertains to the query that you have sent me regarding the charges against you for estafa
and violation of BP 22 or the Bouncing Checks Law.
You mentioned your friend who was able to persuade 2 major investors for the start-up of his
business and in relation to that, since the person is asking for a check, your friend asked you to issue
a check because he did not have a checkbook of his own in which you did and gave the check to his
investor. Regardless of the assurance that he gave you, he never deposited the said amount in your
account. But then later on, you found out that the check bounced because the investor tried to encash
the check.
Under the law, Estafa is a crime in a form of swindling which is punishable under Article 315
of the Revised Penal Code. The three elements of Estafa are as follows; (1) Postdating or issuance
of a check in payment of an obligation contracted at the time the check was issued (2) Insufficiency of
funds to cover the check, and (3) Damage to the payee thereof. However it should also be noted that
Section 2 of RA 4885 had amended Article 315 of the Revised Penal Code, which states that “By
means of any of the following false pretenses or fraudulent acts executed prior to or simultaneously
with the commission of the fraud: "(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 the
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."

On the other hand, as mentioned in the case Elvira Yu Oh vs. CA (G.R. No. 125297. June 6,
2003), “B.P. Blg. 22 or the Bouncing Checks Law seeks to prevent the act of making and issuing
checks with the knowledge that at the time of issue, the drawer does not have sufficient funds in or
credit with the bank for payment and the checks were subsequently dishonored upon presentment. To
be convicted thereunder, the following elements must be proved; (1) The accused makes, draws or
issues any check to apply to account or for value; (2) The accused knows at the time of the issuance
that he or she 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 check is subsequently dishonored by the drawee bank
for insufficiency of funds or credit or it would have been dishonored for the same reason had not the
drawer, without any valid reason, ordered the bank to stop payment.”
In your case, you mentioned that you received a letter from the investor’s lawyer, informing you
that the check bounced. However, you did not mention that you have received a notice of dishonour
from your bank. Section 2 of BP 22 states that:
“Section 2: Evidence of knowledge of insufficient funds - The making, drawing and issuance of a
check payment of which is refused by the drawee because of insufficient funds in or credit with such
bank, when presented within ninety (90) days from the date of the check, shall be prima facie evidence
of knowledge of such insufficiency of funds or credit unless such maker or drawer pays the holder
thereof the amount due thereon, or makes arrangements for payment in full by the drawee of such
check within (5) banking days after receiving notice that such check has not been paid by the drawee.”
In connection to the aforementioned provision in regards to the second element which involves
a state of mind which is believed to be difficult to establish, the court held in Elvira Yu Oh case that
“the presumption that the issuer had knowledge of the insufficiency of funds 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 arrangement for its
payment. The presumption or prima facie evidence as provided in this section cannot arise, if such
notice of non-payment by the drawee bank is not sent to the maker or drawer, or if there is no proof
as to when such notice was received by the drawer, since there would simply be no way of reckoning
the crucial 5-day period.”
To summarize everything that was discussed, Estafa is committed with fraudulent intent, however
if you will be able to establish that the issuance of check was done in good faith, it can used as a god
defense, whereas in violation of BP 22, regardless of whether or not the issuance of the check was
done in good faith, one is held liable is the said check bounced. But in accordance to Section 2 of BP
22, if you were not given a notice of dishonor, then can be a ground for you to be acquitted from
violation of BP 22 since one of the elements is not present.
Also, you can sue your friend for damages that he caused you in accordance to article 21 of
the New Civil Code which states that: “Any person who wilfully causes loss or injury to another in a
manner that is contrary to morals, good customs or public policy shall compensate the latter for the
damage.”
I wish you luck in answering the charges that you are currently facing.

Sincerely yours,
Maharlika Isabel A Aquino
Dear Miss Pakipot,

It actually depends if your marriage will be recognized here in the Philippines. Article 17 of the
New Civil Code, states that “The forms and solemnities of contracts, wills, and other public instruments
shall be governed by the laws of the country in which they are executed.” It follows the principle of Lex
Loci Celebrationis, or that the law of the place where the contract was executed is the basis for
determining the applicable law
In relation to Article 17 of the New Civil Code, Article 26 (1) states that “All marriages solemnized
outside the Philippines, in accordance with the laws in force in the country where they were
solemnized, and valid there as such, shall also be valid in this country, except those prohibited under
Articles 35 (1), (4), (5) and (6), 36, 37 and 38.”
The general rule is that, where one or both parties to the marriage are citizens of the Philippines,
the foreign marriage is valid in this country if solemnized in accordance with the laws of the country of
celebration. In case the foreign marriage you contracted is null and void in the place where it was
solemnized, the same shall also be null and void in the Philippines even if such was valid if celebrated
under the Philippine laws.
Note that foreign marriages shall not be recognized in the Philippines due to the following
exceptions:
1. Contracted by a national who is below 18 years of age
2. Bigamous or polygamous marriages (except as provided in Article 41 of the Family Code.
3. Contracted through mistake of one party as to the identity of the other
4. Contracted following the annulment or declaration of nullity of a previous marriage but before
partition.
5. Void due to psychological incapacity
6. Incestuous
7. Void for reasons of public policy

If one of the mentioned above is present in your case, then the validity of your marriage will be
dissolved.

Please also note that your marriage solemnized abroad will not be an excuse for a legal ground
for divorce. Under our Constitution, divorce is not allowed except as stated in paragraph 2 of Article
26 of the Family Code, that “Where a marriage between a Filipino citizen and a foreigner is validly
celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or
her to remarry, the Filipino spouse shall have capacity to remarry under Philippine law.”

I wish you luck, happiness, and success of your marriage.

Sincerely yours,

Maharlika Isabel A Aquino