Marigomen vs. People

Check signatory (D) vs. Caltex (P)
GR 153451, May 26, 2005	[T]

Summary: An employee of a reseller of Caltex products is charged with violation of BP 22 because she was a signatory of the dishonored checks. Although resigned from her job, the demand for payment by Caltex to the reseller is being used as evidence against her.

Rule of Law: Procedural due process clearly requires that a notice of dishonor be actually served to the accused under BP 22.

Facts: Caltex Philippines, Inc. (P) sold gasoline and oil products to Industrial Sugar Resources, Inc. (INSURECO) on credit. Ofelia Marigomen (D) was finance officer of INSURECO while John Dalao (D) was the assistant to the general manager. They were authorized to draw and sign checks for INSURECO which paid for its purchases via postdated checks.

On presenting the postdated checks for payment, three were dishonored by the bank because they were "drawn against insufficient funds." Another was also dishonored because the account was closed. Caltex (P) demanded for replacement checks or cash, but received no reply.

Caltex (P) filed criminal complaints against Marigomen (D) and Dalao (D) for violation of BP 22. Marigomen (D) admitted signing the postdated checks along with Dalao, but said that she already resigned from INSURECO and had no participation whatsoever in the purchase of Caltex (P) oil products by INSURECO. Marigomen (D) also did not know that Caltex (P) sent demands for payment to INSURECO because she was no longer employed therein. Lastly, Marigomen (D) insisted that she was not aware that INSURECO's account with the bank had insufficient funds at the time she issued the checks.

The trial court found Marigomen (D) and Dalao (D) guilty of violating BP 22. On appeal, the decision was affirmed.

Issues: Is demand to employer company necessarily a demand on the check signatory for purposes of prosecuting violation of BP 22?

Ruling: No. The ruling of the Court in Lao vs. Court of Appeals is applicable in this case. In acquitting the petitioner therein, the Court explained (paraphrased):

Under BP 22, the state actually offers the violator "a compromise by allowing him to perform some act which operates to preempt the criminal action, and if he opts to perform it the action is abated." ... In this light, the full payment of the amount appearing in the check within five banking days from notice of dishonor is a "complete defense." The absence of a notice of dishonor necessarily deprives an accused an opportunity to avoid criminal prosecution. Accordingly, procedural due process clearly requires that a notice of dishonor be actually served on petitioner. And petitioner has a right to demand and fairness require that the notice of dishonor be actually sent to and received by her to afford her the opportunity to avert prosecution under BP 22.

Petitioner counters that the lack of a written notice of dishonor is fatal. The Court agrees. (paraphrased)

Although Section 2 of BP 22 does not state that the notice of dishonor be in writing, taken in conjunction with Section 3 of BP 22—i.e., that where there are no sufficient funds in or credit with such drawee bank, such fact shall always be explicitly stated in the notice of dishonor or refusal—a mere oral notice or demand to pay would appear to be insufficient for conviction under the law. The Court is convinced that both the spirit and letter of the Bouncing Checks Law would require for the act to be punished thereunder not only that the accused issued a check that was dishonored, but that likewise the accused has actually been notified in writing of the fact of dishonor. The consistent rule is that penal statutes have to be construed strictly against the State and liberally in favor of the accused.

Thus, if the drawer or maker is an officer of a corporation, the notice of dishonor to the said corporation is not notice to the employee or officer who drew or issued the check for and in its behalf. The Court explained in Lao vs. Court of Appeals: (paraphrased)

The postulate of the Court of Appeals that "Demand on the Corporation constitutes demand on the accused," is erroneous. Premiere has no obligation to forward the notice addressed to it to the employee concerned, especially because the corporation itself incurs no criminal liability under BP 22 for the issuance of a bouncing check. Responsibility under BP 22 is personal to the accused; hence, personal knowledge of the notice of dishonor is necessary. Consequently, constructive notice to the corporation is not enough to satisfy due process. Moreover, it is the accused, as an officer of the corporation, who is the latter's agent for purposes of receiving notices and other documents, and not the other way around. It is but axiomatic that notice to the corporation, which has a personality distinct and separate from the petitioner, does not constitute notice to the latter.

__________
* Keywords: BP 22