Dear Atty. Chona,
Greetings! I want to seek advice regarding my case. My ex-boyfriend owes me money amounting to more than 300,000 php. The thing is, at the early stage of our long distance relationship last Sept. 2012 he convinced me to invest in stock market, in which I immediately agreed without having second thoughts or whatever because I trusted him. I sent the money initially through his younger brother’s bank account with total amount of more than 150,000 php and I just handed him the rest of the money (in dollars) when I came home to the Philippines last October 2012 and last March 2013. I tried to ask for the stock certificate but he wasn’t able to show or give any. The only proof I have now with me is the receipt of bank transfer I sent to his brother’s account. Last August 2013, we broke up for the reason that I discovered he was living with other girls in his house somewhere in QC and I often see photos of them out of town. I asked him to return the money, he said that he will return it and accused me of being “mukhang pera” after everything. He never returned the money even a single cent however, he issued a check last September whom his mom has personally deposited to my mom’s account because I have closed all my bank account in the Philippines since I’m not staying there anymore and it turned out that the check has insufficient fund so the manager of the bank has cancelled it. The only communication I have now with him is through his mom. They were reassuring me that he will return the money but 3 months have passed and I haven’t received any single amount. The guy has promised many times and has even given exact dates when to pay and has even sent messages that he has paid already but when we checked the bank he has not deposited the money. Can I file a complaint or case against this person? I am outside the country and working overseas. Please advise me on what’s the legal and proper step to do to have him return my money. Thank you.
November 28, 2013
You request our office for a legal opinion regarding the possible lawsuit that you may file against your ex- boyfriend. According to your letter, you entrusted him with an amount, more than 300,000 pesos with the agreement that he will invest the same in stock market. Unfortunately, he failed to invest the same. When confronted, he instead promised to repay the money and even drew a check to cover the said amount. The check was subsequently cancelled for lack of funds. And up to this day, the said amount remains unpaid. Thus this leads to your query on the matter.
In response, Article 315 of the Revised Penal Code of the Philippines makes a person liable for estafa in the following manner, to wit:
Art. 315. Swindling (estafa). — Any person who shall defraud another by any of the means mentioned herein below shall be punished by:
1. With unfaithfulness or abuse of confidence, namely:
xxx xxx xxx
(b) By misappropriating or converting, to the prejudice of another, money, goods, or any other personal property received by the offender in trust or on commission, or for administration, or under any other obligation involving the duty to make delivery of or to return the same, even though such obligation be totally or partially guaranteed by a bond; or by denying having received such money, goods, or other property.
In the case of, George L. Tubb, vs. People of the Philippines et, al. G.R. No. L-9811 April 22, 1957, the Supreme Court convicted the accused of the crime of estafa, as defined and penalized under Article 315, subsection 1 (b), of the Revised Penal Code for misappropriating the sum of P6,000.00 which was entrusted upon him for investment purposes. It is essential however, to establish that there is deceit or fraud on the part of the accused.
Furthermore, the making or drawing and issuance of a check to apply for an account or value without sufficient funds or credit is punishable under the Batas Pambansa Bilang 22, April 3, 1979,this provides that:
“Section 1. Checks without sufficient funds. – Any person who makes or draws and issues any check to apply on account or for value, knowing at the time of issue that he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment, which check is subsequently dishonored by the drawee bank for insufficiency of funds or credit or would have been dishonored for the same reason had not the drawer, without any valid reason, ordered the bank to stop payment, shall be punished by imprisonment of not less than thirty days but not more than one (1) year or by a fine of not less than but not more than double the amount of the check which fine shall in no case exceed Two Hundred Thousand Pesos, or both such fine and imprisonment at the discretion of the court.”
In this vein, the mere issuance of check to apply as payment for an obligation without the funds to cover the amount is punishable under the law. According to the Supreme Court in the case of Azarcon vs. People of the Philippines G.R. No. 185906, June 29,2010, the liability attaches the moment the following elements concur:
“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 view of the forgoing, it is our humble opinion that you may file either or both criminal charges against him. One, for estafa in view of the misappropriation of the amount entrusted to him. Two, for the issuance of the unfunded check thereby violating the proscription for the issuance of worthless checks provided under the Batas Pambansa Bilang 22. The same special law clearly states in section 5 thereof that:
“Sec. 5. Liability under the Revised Penal Code. – Prosecution under this Act shall be without prejudice to any liability for violation of any provision of the Revised Penal Code.”
In addition, a civil action for recovery of damages arising thereto may also be filed as provided in the Revised Penal Code of the Philippines, to wit:
“Art. 100. Civil liability of a person guilty of felony. — Every person criminally liable for a felony is also civilly liable.”
As our final emphasis, the complaint should be coursed through the domestic court of the Philippines. The reason is that, the crime or its essential requisites has been committed therein, thus, the proper forum lies therein.
We hope that we have suitably addressed your concerns. Should there be any clarifications on the matter, please feel free to write us again.
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