Notice of dishonor not an element for committing estafa by issuing a rubber check

Article 315, paragraph 2(d), of the Revised Penal Code, as amended by R.A. 4885 penalizes estafa when committed as follows:

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

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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.

By settled jurisprudence, the elements of the crime of estafa, as defined in the above quoted provision of law, are as follows: (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. Damage and deceit are essential elements of the offense and must be established with satisfactory proof to warrant conviction, while the false pretense or fraudulent act must be committed prior to, or simultaneous with, the issuance of the bad check. The drawer of the dishonored check is given three days from receipt of the notice of dishonor to cover the amount of the check, otherwise, a prima facie presumption of deceit arises.

Further it is settled that it is criminal fraud or deceit in the issuance of a check which is made punishable under the Revised Penal Code, and not the nonpayment of a debt. Deceit is 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. Concealment which the law denotes as fraudulent implies a purpose or design to hide facts which the other party ought to have. The postdating or issuing of a check in payment of an obligation when the offender had no funds in the bank or his funds deposited therein are not sufficient to cover the amount of the check is a false pretense or a fraudulent act.

The receipt by the drawer of the notice of dishonor is not an element of the offense. The presumption only dispenses with the presentation of evidence of deceit if such notification is received and the drawer of the check failed to deposit the amount necessary to cover his check within three (3) days from receipt of the notice of dishonor of the check. The presumption indulged in by law does not preclude the presentation of other evidence to prove deceit.

The absence of proof as to receipt of the written notice of dishonor notwithstanding, the evidence shows that petitioner had actual notice of the dishonor of the check because he was verbally notified by the respondent and notice whether written or verbal was a surplusage and totally unnecessary considering that almost two (2) months before the issuance of the check, petitioners current account was already closed. Under these circumstances, the notice of dishonor would have served no useful purpose as no deposit could be made in a closed bank account. (Lopez vs. People, GR No. 166810, 26 June 2008)

Can a forged deed of sale of real property convey a title?

The answer, according to the Supreme Court is NO. (Sps. Bernales vs. Heirs of Sambaan, GR No. 163271; 15 January 2010). A forged deed of absolute sale is null and conveys no title. Neither does prescription bar the action to recover ownership of the subject property.

Hence, after affirming that the findings of fact of both the CA and the trial court that the signatures of supposed vendors are forgeries, the Supreme Court answers the question on the validity of the transfer of title to the petitioners (buyers) in the negative.

It declares that in Sps. Solivel v. Judge Francisco:

x x x in order that the holder of a certificate for value issued by virtue of the registration of a voluntary instrument may be considered a holder in good faith for value, the instrument registered should not be forged. When the instrument presented is forged, even if accompanied by the owner’s duplicate certificate of title, the registered owner does not thereby lose his title, and neither does the assignee in the forged deed acquire any right or title to the property.

x x x The innocent purchaser for value protected by law is one who purchases a titled land by virtue of a deed executed by the registered owner himself, not by a forged deed, as the law expressly states. x x x

In Instrade, Inc. v. Court of Appeals, we reiterated the said ruling maintaining that “[A]s early as Joaquin v. Madrid, x x x, we said that in order that the holder of a certificate for value issued by virtue of the registration of a voluntary instrument may be considered a holder in good faith and for value, the instrument registered should not be forged”. Indubitably, therefore, the questioned Deed of Absolute Sale did not convey any title to herein petitioners. Consequently, they cannot take refuge in the protection accorded by the Torrens system on titled lands.

Thus, we hold that with the presentation of the forged deed, even if accompanied by the owner’s duplicate certificate of title, the registered owner did not thereby lose his title, and neither does the assignee in the forged deed acquire any right or title to the said property.

Case of this nature also falls under the purview of Article 1410 of the Civil Code which provides that an action to declare the inexistence of void contracts does not prescribe.

The supposed vendor's signature having been proved to be a forgery, the instrument is totally void or inexistent as "absolutely simulated or fictitious" under Article 1409 of the Civil Code. According to Article 1410, "the action or defense for the declaration of the inexistence of a contract does not prescribe”. The inexistence of a contract is permanent and incurable which cannot be cured either by ratification or by prescription.

Manu and the art of subtle blackmail

Now, this one is about our second-born son who seems to have my number.

One day before the classes ended, and while in school, a mom of one of Manu’s girl classmates sheepishly approached my wife and asked her if it was ok to invite Manu and Vito to her daughter’s birthday. Of course, my wife saw nothing unusual with that. However, the mom also told her that Manu was her daughter’s chosen partner for the cotillion, hehe.

My wife was pleasantly taken aback. But she said yes, nonetheless. She was giggling when she told me about it. For 2-3 weeks almost everyday, our boys would go to the girl’s house and rehearse the dances with the other kids. Almost everyday, upon getting home I would also ask them how the practice was going, and invariably tease Manu about his classmate. “Nah, I’m still a kid,” he is wont to say.

The big day came. It was on a weekend, about 3:00 in the afternoon. I was lazily lounging in bed, flicking the TV remote. The boys were busy in the living room getting dressed. Then I heard the bedroom door open. A stuff toy softly hit the TV. I looked back at the door and saw Manu, on his black pants, long-sleeve polo shirt and tie.

“You’re not coming with us?” Manu asked. “Yeah,” I said, “I need to rest for a while and I’ll work later. Your mommy will join you.” Then brief silence. “You won’t see me dance,” he gently but decisively declared.

Well, I got up quickly, brushed my teeth, washed my face, combed my hair and put on a pair of cargo shorts and fresh shirt and went with them. Case - if ever there was one - closed.

Vito and the concepts of courage and innocence

Yesterday, the missus and I decided to bring our boys to this Subic Freeport hotel with a heated swimming pool.

We arrived there a few minutes before 5:00 p.m., as the sun was just about to sink behind Redondo Peninsula. Immediately, Vito and Manu waded in the kiddie pool, joining a dozen or so kids. I perched myself on a marble turtle beside the pool, as the missus had her camera ready.

Manu got preoccupied with submersing himself under the water, and “keeping score” by always asking me how many seconds he had been staying at the bottom. The water slide caught Vito’s interest on the other. Now, between the two, we always thought that Manu was the more physically daring, i.e., he’s into football, dancing and enjoys biking and roller-skating. Vito is more interested with painting and reading, and appears cool with sports. Manu likes to wrestle with me while Vito is the proverbial big brother ready to pounce on me whenever his younger brother cries for help. Otherwise, he’s not interested.

So I was surprised when, without any prodding, Vito joined the queue of a few kids taking their turn to use the slide. I just hollered at him to be careful. Without even throwing a glance at me, Vito took his turn and slid. Again and again. On the other hand, Manu tried it once but did not like it.

On one of his turns, as Vito rose following his fall to the water from the slide, his head bumped its edge. He appeared hurt and I asked him if he was ok. He shrugged it off and went on his merry ways for 2 hours, until lights of changing hues appeared from the pool’s bottom.

Now, I’m sharing this because while our boys were enjoying the pool and the slide, I couldn’t help but notice another dad talking to his son, who was on the verge of crying. The son could be as old as Vito, and as the dad was speaking rather loud, I could hear what they were talking about: he was egging his son to slide down the pool, saying that it was one way for him to learn how to be brave.

The dad was getting mad at the boy who continued to refuse. He did not stop even when the boy was already crying. Perhaps because of the incessant nagging, the boy finally relented, with the dad waiting for him at the end of the slide. And so he finally made it.

It did not stop there though as the dad wanted him to do it again and again, pointing at Vito and saying, “Look at the kid, he keeps on doing it.” So there went another battle of wits and another round of crying. I think the boy only slid twice or thrice until we left the hotel.

I’m not trying to be judgmental here just as I realize that parents, particularly the fathers, have different styles and manners of raising their kids, especially their sons. I’m only thinking that, perhaps concerned with the future and the concept of self-worth of their sons, we may be missing the point of being here and now, and the simple joys of being innocent kids unburdened by adult expectations.