Pp v.

dinglasan

QUISUMBING, J.:
On appeal is the judgment[1] dated August 18, 1997 of the Regional Trial Court of Pasig City, Branch 164, in Criminal
Case No. 107866. Its decretal portion reads:
WHEREFORE, this Court finds accused ALEXANDER DINGLASAN guilty beyond reasonable doubt of Estafa defined
and penalized under Article 315, (2) (d) of the Revised Penal Code, as amended, and applying the Indeterminate
Sentence Law, hereby sentences him to an indeterminate penalty of Twenty (20) Years and One (1) Day of reclusion
perpetua as minimum, to Twenty Eight (28) Years also of reclusion perpetua as maximum.
Accused is likewise ordered to pay Charles Q. Sia the amount of One Hundred Four Thousand One Hundred Sixty
(P104,160.00) Pesos, the total amount of the bouncing checks as actual damages.
With costs against accused.
SO ORDERED.[2]

The factual antecedents of this case are as follows:

Appellant Alexander Dinglasan was the owner and operator of Alexander Transport, a bus firm plying the Manila-
Bicol route, while private complainant Charles Q. Sia is the owner of Schanika Enterprises, which is engaged in
retailing nylon tires. Alexander Transport subsequently became bankrupt and ceased to operate during the pendency
of Criminal Case No. 107866.[3]
On February 13, 1995, the Pasig City Prosecutor charged appellant with estafa allegedly committed as follows:
That sometime in July 1994, in the City of Mandaluyong, Philippines, a place within the jurisdiction of this Honorable
Court, the above-named accused, with intent [to] defraud CHARLES Q. SIA and by means of deceit and false
representations, did then and there willfully, unlawfully and feloniously and simultaneously issued and delivered (sic)
three (3) postdated checks describe[d] as follows:
Check No. Amount Date
029020 P38,760.00 July 24, 1994
029021 P26,400.00 July 25, 1994
029014 P39,000.00 July 30, 1994
in payment of his obligation[s] without informing Charles Q. Sia that at the time accused had no funds in the bank, so
that when said checks were presented for payment to the drawee bank, the same were dishonored and refused
payment due to "Drawn Against Insufficient Funds," and the said accused despite the lapse of three (3) days from
receipt of notice of dishonor, failed and refused to make full payment thereof, to the damage and prejudice of Charles
Q. Sia in the aforementioned amount of P104,160.00.
CONTRARY TO LAW.[4]

When arraigned, appellant pleaded not guilty. Trial on the merits then ensued.
The prosecution's evidence shows that on three occasions in July 1994, appellant purchased several sets of tires from
Sia and issued three separate postdated checks in payment for said purchases. Thus, for the purchase of July 22, 1994,
covered by Sales Invoice No. 856,[5] appellant issued Banco de Oro Check No. 029014 dated September 30, 1994.[6] As
to the purchase of July 23, 1994, as manifested by Sales Invoice No. 861,[7] appellant issued Banco de Oro Check No.
029020 dated September 24, 1994.[8] With respect to the purchase of July 25, 1994 as shown by Sales Invoice No.
864,[9] appellant issued Banco de Oro Check No. 029021 dated September 25, 1994.[10]
When the checks fell due, Sia deposited them with his Metrobank account for clearance and payment, but the drawee
bank, Banco de Oro, dishonored these for insufficiency of funds.[11] He then tried to call appellant several times, but
his calls were unanswered. He sent one of his sales agents to see appellant but to no avail. Sia, with the assistance of a
lawyer, then sent appellant a demand letter.[12] All he got were promises that appellant would pay the amounts due,[13]
finally prompting him to hale appellant to court.
Appellant did not deny buying tires from Sia or issuing the checks in question. He also admitted that said checks
bounced upon presentment for payment.[14] However, he vigorously denied any intent to deceive or defraud Sia. He
vehemently insisted that his refusal to pay Sia was primarily due to the poor quality of the tires sold him by the latter.
Appellant claimed that the tires he bought from Sia would burst, even when the buses were not moving, causing
several severe disruptions in his operations and losses to his company.[15]
The trial court convicted appellant of the charges.
Hence, this appeal with appellant contending that the lower court erred:
I
… IN FAILING TO CONSIDER THAT THERE WAS NO DECEIT OR FRAUD IN THE ISSUANCE OF THE
DISHONORED POSTDATED CHECKS.
II
… IN FAILING TO CONSIDER THAT THE GOODS SOLD TO ACCUSED-APPELLANT WERE OF VERY
POOR QUALITY CAUSING THE BANKRUPTCY OF THE TRANSPORTATION BUSINESS OF THE
ACCUSED-APPELLANT.[16]
For resolution, the issues are: (1) whether appellant's guilt has been proven with moral certainty;
and (2) whether the penalty imposed is proper.
Appellant does not deny issuing the dishonored checks. Nonetheless, he insists that he did not employ any deceit or
fraud against private complainant. Appellant contends that his failure to make good on the checks was due to the
losses sustained by his business as a result of the poor quality of the tires supplied by Sia. Appellant, in praying for
acquittal, relies heavily on our ruling in People vs. Singson,[17] where we held that:
Although in the case of bouncing check under BP Blg. 22, failure of the drawer to deposit the amount necessary to
cover his checks within three days from notice of dishonor shall be prima facie evidence of fraud or deceit, under
Article 315 of the Revised Penal Code, mere failure to make such deposit cannot be the basis for conviction if the
surrounding circumstances tend to show the absence of bad faith or deceit. In the present case, We find the evidence
not sufficient to establish the existence of fraud or deceit on the part of the accused.[18]

For the State, the Office of the Solicitor General (OSG) counters that deceit and fraud were present when appellant
issued the checks in question. The OSG stresses that were it not for the subject checks, complainant would not have
sold appellant the tires. The OSG further points out that appellant failed to rebut the prima facie presumption of
fraud and deceit due to his failure to make the necessary deposit to cover the checks he issued. Finally, the OSG
submits that appellant's reliance on People vs. Singson is misplaced, as the facts in said case are not on all fours with
the factual circumstances in the present case.
At the outset, we find that two of the dates alleged in the information during which appellant supposedly committed
estafa are at variance materially with the prosecution's evidence: (1) With respect to Check No. 029014, the date of the
transaction was alleged in the information as July 30, 1994. Yet, the prosecution's evidence shows that it was issued
for the purchase of six sets of tires on July 22, 1994. (2) Check No. 029020 was issued for the purchase of July 23,
1994, and not July 24, 1994, as alleged in the charge sheet. In these two instances, the checks were postdated
September 30, 1994 and September 24, 1994. Obviously, the charge in regard to these two checks is fatally flawed, for
the alleged dates of the corresponding transactions in the charge are false, or better said inexistent, as hereafter
discussed. It is only with respect to Check No. 029021, postdated September 25, 1994, which was issued in payment
of the purchase made on July 25, 1994 that the correct date of the corresponding transaction is alleged in the
information and supported by the prosecution's evidence.
Section 11, Rule 110 of the 2000 Revised Rules of Criminal Procedure[19] lays down two rules with respect to the
averment of the date the offense was committed in the complaint or information: (1) where time is not a material
ingredient of the offense, it is sufficient that the information alleges that the act constitutive of the offense was
committed at a time as near to the actual date when the same was carried out;[20] but (2) where time is a material
ingredient of the offense, it must be correctly alleged in the information.[21]
Appellant was charged and convicted of estafa under Article 315 (2) (d) of the Revised Penal Code. [22] The elements of
the offense are: (1) postdating or issuing a check in payment of an obligation contracted at the time the check was
issued; (2) lack of sufficient funds to cover the check; (3) knowledge on the part of the offender of such circumstances;
and (4) damage to the complainant. The first element of the offense requires that the dishonored check must have
been postdated or issued at the time the obligation was contracted. In other words, the date the obligation was
entered into, being the very date the check was issued or postdated, is a material ingredient of the offense. Hence, not
only must said date be specifically and particularly alleged in the information, it must be proved as alleged.[23]
In the present case, the prosecution's evidence clearly and categorically shows that there was no transaction between
the parties on July 30, 1994, for which Check No. 029014 was issued. In other words, no obligation was contracted on
July 30, 1994, for which Check No. 029014 was allegedly postdated by appellant. The situation obtains similarly
regarding Check No. 029020. Again, there was no obligation contracted by the parties on July 24, 1994 for which
appellant allegedly postdated another check. Evidently, the first element of the offense was neither correctly alleged
nor proven by the prosecution. Hence, appellant cannot be charged much less found guilty of estafa with respect to
Checks Nos. 029014 and 029020.
The situation, however, is different with respect to Check No. 029021. Here, the prosecution correctly alleged that an
obligation was entered into on July 25, 1994, for which appellant issued Check No. 029021 but postdated September
25, 1994. The material date was not only correctly alleged, it was amply proved by the prosecution's evidence. We
find, moreover, that appellant admitted his failure to cover the amount of said check within three days from receipt of
notice from the bank and/or payee or holder that said check had been dishonored. In his defense, appellant insists
that his failure to make good the check did not constitute deceit, because he suffered business losses on account of the
inferior tires furnished by private complainant. We find no merit in appellant's contention. Under Article 315 (2) (d),
failure of the drawer of the check to deposit an amount sufficient to cover the check within three 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.[24] The record clearly shows that
appellant, with his admission, failed to rebut this prima facie presumption.
Nor could appellant rely on People vs. Singson[25] to aid his cause. As correctly pointed out by the Solicitor General,
accused was acquitted in Singson because the circumstances of her case negated the existence of bad faith on her part.
These circumstances therein were: (a) her prompt action in offering to replace the dishonored checks; (b) partial
payments made by her; and (c) the fact that complainant knew that she had insufficient funds at the time she issued
the checks. None of these circumstances obtains in the present case. Instead, appellant's actions are to the contrary.
Thus, he avoided and delayed meeting with complainant and the latter's representatives when asked about the
dishonored check. He never advised complainant about the insufficiency of funds in his bank account. After the
checks were dishonored, appellant made no effort to settle, even partially, his account. Taken all together, the
foregoing actions of appellant paint a picture of bad faith on his part. Appellant must, therefore, be found guilty of one
count of estafa anent Check No. 029021. As to the two other charges involving material variances in the dates of the
transactions and the issuance of the postdated Checks Nos. 029020 and 029014, the criminal charges ought to be
dismissed for being erroneously filed against appellant. But the payee has the right to pursue the proper civil action
therefor, while the drawer has also the corresponding right to put up his defenses in a civil case.
Coming now to the lone count of estafa properly charged, it is not disputed that Check No. 029021 was for the amount
of P26,400. It was postdated September 25, 1994, to cover the purchase of four sets of tires bought by appellant on
July 25, 1994. In the amendment to the Revised Penal Code, pursuant to P.D. No. 818,[26] the offense and the
prescribed penalty are set forth as follows:
SEC. 1. Any person who shall defraud another by means of false pretenses or fraudulent acts as defined in paragraph 2
(d) of Article 315 of the Revised Penal Code, as amended by Republic Act No. 4885, shall be punished by:
1st. The penalty of reclusion temporal if the amount of the fraud is over 12,000 pesos but does not exceed 22,000
pesos, and if such amount exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its
maximum period, adding one year for each additional 10,000 pesos but the total penalty which may be imposed shall
in no case exceed thirty years. In such cases, and in connection with the accessory penalties which may be imposed
under the Revised Penal Code, the penalty shall be termed reclusion perpetua.
xxx

Since the face value of Check No. 029021, for which appellant is criminally liable for estafa, exceeds P22,000, the
penalty abovecited must be "imposed in its maximum period, adding 1 year for each additional P10,000." Pursuant to
People vs. Hernando, G.R. No. 125214, Oct. 28, 1999, an indeterminate sentence shall be imposed on the accused,
computed favorably to him. In this case, the indeterminate sentence should be computed based on the maximum
period of reclusion temporal as maximum, which is from 17 years, 4 months, and 1 day to 20 years. The minimum
period of the sentence should be within the penalty next lower in degree as provided in the Revised Penal Code, i.e.,
prision mayor, which is from 6 years and 1 day to 12 years imprisonment. Considering that the excess of the fraud
committed, counting from the base of P22,000, is only P4,400, which is less than the P10,000 stated in P.D. 818,
there is no need to add one year to the maximum penalty abovecited.
The trial court, however, sentenced appellant in this case to suffer from 20 years and 1 day of reclusion perpetua as
minimum to 28 years of reclusion perpetua as maximum.[27] Appellant originally appealed said judgment to the Court
of Appeals.[28] But the records were forwarded to this Court on the ground that "Life imprisonment is involved."[29]
The act of forwarding the records to us, rather than to the Court of Appeals, was obviously done pursuant to Article
VIII, Section 5 of the Constitution.[30] However, we find the reason, "Life imprisonment is involved" to be patently
erroneous. The Revised Penal Code, which was amended by P.D. No. 818, does not provide for life imprisonment [31]
but aberrantly for reclusion perpetua, which is not synonymous to life imprisonment. In any event, we now find that
neither reclusion perpetua nor life imprisonment is here involved. The penalty is accordingly modified, taking into
account the maximum as set by P.D. 818, which is twenty (20) years of reclusion temporal, and the minimum penalty
computed under the Indeterminate Sentence Law which is six (6) years and one (1) day of prison mayor.
WHEREFORE, the decision of the Regional Trial Court of Pasig City, Branch 164 in Criminal Case No. 107866 is
hereby MODIFIED. Appellant ALEXANDER DINGLASAN is found GUILTY of one (1) count of Estafa and is hereby
sentenced to suffer an indeterminate penalty of 6 years and 1 day of prision mayor as minimum to 20 years of
reclusion temporal as maximum; and to pay the offended party, Charles Q. Sia, the amount of P26,400.00, the face
value of the check, as actual damages. No pronouncement as to costs.
SO ORDERED.
(People vs. Reyes G.R. 154159, March 31, 2005. 454

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
G.R. No. 146211 August 6, 2002

MANUEL NAGRAMPA, petitioner,

vs.
PEOPLE OF THE PHILIPPINES, respondent.

DECISION

DAVIDE, JR., J.:

In this petition for review on certiorari, petitioner assails his conviction for estafa in
Criminal Case No. Q-90-15797 and for two counts of violation of Batas Pambansa Blg.
22 (Bouncing Checks Law) in Criminal Cases Nos. Q-90-15798 and Q-90-15799.

The accusatory portion of the information in Criminal Case No. Q-90-15797 for estafa
reads as follows:

That on or about the 28th day of July 1989 in Quezon City, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, with intent to gain by
means of false pretenses or fraudulent acts executed prior to or simultaneously with the
commission of the fraud, did then and there, wilfully, unlawfully and feloniously defraud
FEDCOR TRADING CORPORATION represented by FEDERICO A. SANTANDER by
then and there making, drawing and issuing in favor of the latter the following checks, to
wit:

CHECK NOS. AMOUNT POSTDATED

473477 P75,000.00 August 31, 1989

473478 P75,000.00 September 30, 1989

drawn against the SECURITY BANK AND TRUST COMPANY in payment of an

obligation, knowing fully well at the time of issue that he did not have any funds in the
bank or his funds deposited therein was not sufficient to cover the amount of the checks
that upon presentation of said checks to the said bank for payment, the same were
dishonored for the reason that the drawer thereof, accused MANUEL NAGRAMPA did
not have any funds therein and despite notice of dishonor thereof, accused failed and
refused and still fails and refuses to redeem or make good said checks, to the damage
and prejudice of the said FEDCOR TRADING CORPORATION in such amount as may
be awarded under the provisions of the Civil Code.

CONTRARY TO LAW.1

The accusatory portion of the information in Criminal Case No. Q-90-15798 for violation
of B.P. Blg. 22 reads as follows:

That on or about the 28th day of July, 1989 in Quezon City, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, did then and there,
willfully, unlawfully and feloniously make, draw and issue in favor of FEDCOR
TRADING CORPORATION represented by FEDERICO A. SANTANDER a check
numbered 473478 drawn against the SECURITY BANK AND TRUST COMPANY,
Escolta Branch, a duly established domestic banking institution, in the amount of
P75,000.00, Philippine Currency, postdated September 30, 1989 in payment of an
obligation, knowing fully well that at the time of issue that she/he did not have ANY
funds in the drawee bank for the payment of such check; that upon presentation of said
check to said bank for payment, the same was dishonored for the reason that the
drawee bank of accused MANUEL NAGRAMPA did not have ANY funds therein and
despite notice of dishonor thereof, accused failed and refused and still fails and refuses
to redeem or make good said check, to the damage and prejudice of the said FEDCOR
TRADING CORPORATION in the amount aforementioned and in such other amount as
may be awarded under the provisions of the Civil Code.

Contrary to law.2

The information in Criminal Case No. Q-90-15799 is similarly worded as in Criminal

Case No. Q-90-15798 except as to the date and number of the check.

Upon his arraignment, petitioner entered a plea of not guilty in each case.

At the trial on the merits, the prosecution presented Federico Santander, President of
Fedcor Trading Corporation (hereafter FEDCOR), and Felix Mirano, signature verifier of
the Escolta Branch of the Security Bank and Trust Company.

Federico Santander testified that on 28 July 1989, Corseno Bote, FEDCOR’s Sales
Manager, brought to FEDCOR petitioner Manuel Nagrampa (hereafter NAGRAMPA),
General Manager of the Nagrampa Asphalt Plant in Montalban, Rizal. NAGRAMPA
purchased a Yutani Poclain Backhoe Excavator Equipment for P200,000 from FEDCOR
and paid in cash the down payment of P50,000. To cover the balance of P150,000, he
issued Check No. 4734773 postdated 31 August 1989 and Check No. 473478 4
postdated 30 September 1989 in the amount of P75,000 each. The checks were drawn
against the Security Bank and Trust Company. Upon the assurance of FEDCOR’s
salesman that the checks were good, FEDCOR delivered to petitioner the equipment.5

Santander further testified that FEDCOR presented the checks for payment on 22
February 1990; however, they were dishonored on the ground that petitioner’s account
with the drawee bank, Security Bank, had already been closed. In a letter 6 dated 19
March 1990, sent through registered mail, FEDCOR demanded payment from
petitioner; but the latter failed to pay. Hence, the above cases were filed against
petitioner with the trial court.7 During his cross-examination, Santander denied that the
equipment was returned to FEDCOR. Ronnie Bote, son of Corseno Bote, was not an
employee of FEDCOR but was merely its sales agent with no authority to receive
returned equipment.8

Felix Mirano, the second prosecution witness, testified that he had been a signature
verifier of Security Bank for twelve years. His duty was to verify the signatures of the
clients of the bank. He brought with him the signature card for Account No. 0110-4048-
19, petitioner’s account against which the subject checks were drawn. He identified the
signatures appearing on Checks Nos. 473477 and 473478 to be those of the petitioner.
When asked about the status of said account, he answered that the account had been
closed in May 1985 yet.9

For his part, petitioner testified that on 28 July 1989, he bought from Corseno Bote a
backhoe and paid P50,000 cash, as evidenced by an acknowledgment receipt 10 signed
by Corseno Bote. In addition, he issued and handed to Corseno Bote two checks in the
amount of P75,000 each, dated 31 August 1989 11 and 30 September 1989.12 The
agreement with Corseno Bote was that petitioner would replace the two checks with
cash if the backhoe would be in good running condition. The backhoe was delivered at
petitioner’s jobsite on 29 July 1989. After five to seven days of use, the backhoe broke
down. Such fact was reported to Ronnie Bote, and the backhoe was thus repaired. After
one day of using it, the backhoe broke down again. Petitioner again reported the matter
to Ronnie Bote, who told him that the equipment should be brought to the latter’s office
for repair. As evidence of the return of the equipment, petitioner presented a letter dated
3 October 198913 addressed to Electrobus Consolidated, Inc., requesting the release of
the backhoe to Ronnie Bote for repair, with the alleged signature 14 of Ronnie Bote
appearing at the bottom thereof to attest to his receipt of the equipment. After a week,
petitioner demanded from Ronnie Bote the return of the backhoe, the P50,000 cash and
the two postdated checks, but to no avail.15 On cross-examination, he admitted that
during the pendency of the case he paid, upon the advice of his counsel, the amount of
P15,000, which he handed to FEDCOR’s counsel Atty. Orlando Paray.16

On 30 September 1993, the trial court rendered a decision 17 finding petitioner guilty of
two counts of violation of the Bouncing Checks Law and sentencing him to suffer
imprisonment for two years and pay FEDCOR P150,000, with legal interest thereon
from 9 October 1990 up to the time of full payment.

Petitioner appealed the decision to the Court of Appeals. The appeal was docketed as
CA-G.R. CR. No. 18082. Upon noticing that the 30 September 1993 Decision of the trial
court did not resolve the issue of petitioner’s liability for estafa, the Court of Appeals
issued on 19 May 1998 a resolution18 ordering the return of the entire records of the
case to the trial court for the latter to decide the estafa case against petitioner.

On 8 February 1999, the trial court rendered a decision 19 finding petitioner guilty beyond
reasonable doubt of estafa and sentencing him to suffer imprisonment of seven years
and four months of prision mayor as minimum to twelve years and six months of
reclusion temporal as maximum. As might be expected, petitioner also appealed said
decision to the Court of Appeals.

On 21 July 2000, the Court of Appeals rendered a decision 20 affirming in toto the
decision of the trial court finding petitioner guilty of estafa and violations of the Bouncing
Checks Law. It also denied petitioner’s motion for reconsideration of the decision. 21
Hence, this petition.

Petitioner claims that he is not guilty of estafa because no damage was caused to
FEDCOR, considering that the backhoe became unserviceable a few days after delivery
and was eventually returned to FEDCOR through the latter’s sales agent Ronnie Bote.
He also asserts that he did not violate B.P. Blg. 22 either. The two checks issued by him
were presented for payment only on 22 February 1990, or after more than five months
from the date of the checks. Under Sections 1 and 2 of B.P. Blg. 22 FEDCOR, as
payee, had the duty or obligation to encash or deposit the checks issued in its favor
within ninety days from the date of issue. Since FEDCOR deposited the checks after
this period, he cannot be faulted for their subsequent dishonor.

Alternatively, petitioner prays that in the event that his conviction for violations of B.P.
Blg. 22 is sustained, the rulings in Vaca v. Court of Appeals22 and Lim v. People23
should be given retroactive effect in his favor so that only a fine may be imposed on him
as penalty.

In arguing that petitioner’s conviction for two counts of violation of B.P. Blg. 22 is
correct, the Office of the Solicitor General relies heavily on the testimony of Felix Mirano
that the account of petitioner had been closed way back in May 1985, or four years prior
to the issuance of the subject checks to FEDCOR. The date when the checks were
encashed or deposited is immaterial because there was no more existing bank account
against which they were drawn, and their dishonor was therefore certain even if the
checks were presented for payment within the 90-day period from their issuance. With
respect to petitioner’s plea to impose on him the penalty of fine in the event that his
conviction is affirmed, the OSG maintains that the penalty of imprisonment is
appropriate considering petitioner’s act of issuing worthless checks which showed his
culpable violation of B.P. Blg. 22.
Petitioner’s argument that the element of damage to private complainant FEDCOR is
lacking is disputed by the OSG by pointing out petitioner’s failure to prove the return of
the backhoe to FEDCOR. Ronnie Bote, the person to whom the backhoe was allegedly
returned, was not presented as a witness to corroborate petitioner’s testimony. But even
granting arguendo that the backhoe was indeed received by Ronnie Bote, there is no
showing that he acted for, and on behalf of, FEDCOR in doing so considering that he
was not an employee of FEDCOR.

The petition is without merit.

Section 1 of B.P. Blg. 22 provides:

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.

The same penalty shall be imposed upon any person who, having sufficient funds in or
credit with the drawee bank when he makes or draws and issues a check, shall fail to
keep sufficient funds or to maintain a credit or to cover the full amount of the check if
presented within a period of ninety (90) days from the date appearing thereon, for which
reason it is dishonored by the drawee bank.

Two distinct acts are punished under the above-quoted provision:

(1)The making or drawing and issuance of any check to apply on account or for
value, knowing at the time of issue that the drawer does not have sufficient funds
in, or credit with, the drawee bank; and

(2)The failure to keep sufficient funds or to maintain a credit to cover the full
amount of the check if presented within a period of ninety days from the date
appearing thereon, for which reason it is dishonored by the drawee bank. 24

In the first situation, the drawer knows of the insufficiency of funds to cover the check at
the time of its issuance; while in the second situation, the drawer has sufficient funds at
the time of issuance but fails to keep sufficient funds or maintain credit within ninety
days from the date appearing on the check. The check involved in the first offense is
worthless at the time of issuance, since the drawer has neither sufficient funds in, nor
credit with, the drawee bank at the time; while that involved in the second offense is
good when issued, as the drawer has sufficient funds in, or credit with, the drawee bank
when issued. In both instances, the offense is consummated by the dishonor of the
check for insufficiency of funds or credit.25

It can be gleaned from the allegations in the information that petitioner is charged with
the first type of offense under B.P. Blg. 22.

The elements of the first type of offense are as follows:

(1) The making, drawing and issuance of any check to apply for account or for
value;
 (2) The knowledge of the maker, drawer, or issuer that at the time of issue he
does not have sufficient funds in or credit with the drawee bank for the payment
of such check in full upon its presentment; and

(3) The subsequent dishonor of the check by the drawee bank for insufficiency of
funds or credit or dishonor for the same reason had not the drawer, without any
valid cause, ordered the bank to stop payment.26

Petitioner admitted that he issued the two postdated checks worth P75,000 each. He
did not deny that the same were dishonored on the ground that the account from which
they were to be drawn was already closed at the time the checks were presented for
payment. Neither did he rebut the prosecution’s evidence that the account against
which he drew his two postdated checks had been closed in May 1985 yet, or more
than four years prior to the drawing and delivery of the checks.

The fact that the checks were presented beyond the 90-day period provided in Section
2 of B.P. Blg. 22 is of no moment. We held in Wong v. Court of Appeals27 that the 90-
day period is not an element of the offense but merely a condition for the prima facie
presumption of knowledge of the insufficiency of funds; thus:

That the check must be deposited within ninety (90) days is simply one of the conditions
for the prima facie presumption of knowledge of lack of funds to arise. It is not an
element of the offense. Neither does it discharge petitioner from his duty to maintain
sufficient funds in the account within a reasonable time thereof. Under Section 186 of
the Negotiable Instruments Law, "a check must be presented for payment within a
reasonable time after its issue or the drawer will be discharged from liability thereon to
the extent of the loss caused by the delay." By current banking practice, a check
becomes stale after more than six (6) months, or 180 days.

In Bautista v. Court of Appeals,28 we ruled that such prima facie presumption is intended
to facilitate proof of knowledge, and not to foreclose admissibility of other evidence that
may also prove such knowledge; thus, the only consequence of the failure to present
the check for payment within the 90-day period is that there arises no prima facie
presumption of knowledge of insufficiency of funds.29 The prosecution may still prove
such knowledge through other evidence.

In this case, FEDCOR presented the checks for encashment on 22 February 1990, or
within the six-month period from the date of issuance of the checks, and would not
therefore have been considered stale had petitioner’s account been existing. Although
the presumption of knowledge of insufficiency of funds did not arise, such knowledge
was sufficiently proved by the unrebutted testimony of Mirano to the effect that
petitioner’s account with the Security Bank was closed as early as May 1985, or more
than four years prior to the issuance of the two checks in question.

Thus, we find no error in the Court of Appeals’ affirmation of the trial court’s decision
convicting petitioner of violations of B.P. Blg. 22.

Petitioner’s alternative prayer for the modification of penalty by retroactively applying

Vaca v. Court of Appeals30 and Lim v. People31 must likewise be denied. We quote
Administrative Circular No. 13-2001 clarifying Administrative Circular No. 12-2000; thus:

The clear tenor and intention of Administrative Circular No. 12-2000 is not to remove
imprisonment as an alternative penalty, but to lay down a rule of preference in the
application of the penalties provided for in B.P. Blg. 22.

The pursuit of this purpose clearly does not foreclose the possibility of imprisonment for
violators of B.P. Blg. 22. Neither does it defeat the legislative intent behind the law.
Thus, Administrative Circular No. 12-2000 establishes a rule of preference in the
application of the penal provisions of B.P. Blg. 22 such that where the circumstances of
both the offense and the offender clearly indicate good faith or a clear mistake of fact
without taint of negligence, the imposition of a fine alone should be considered as the
more appropriate penalty. Needless to say, the determination of whether the
circumstances warrant the imposition of a fine alone rests solely upon the Judge.
Should the Judge decide that imprisonment is the more appropriate penalty,
Administrative Circular No. 12-2000 ought not be deemed a hindrance.

In this case, when petitioner issued the subject postdated checks even though he had
no more account with the drawee bank, having closed it more than four years before he
drew and delivered the checks, he manifested utter lack of good faith or wanton bad
faith. Hence, he cannot avail himself of the benefits under Administrative Circular No.
12-2000.

We likewise sustain petitioner’s conviction for the crime of estafa.

The crime of estafa under paragraph 2(d) of Article 315 of the Revised Penal Code, as
amended, has the following elements: (1) postdating or issuance of a check in payment
of an obligation contracted at the time the check was issued; (2) lack or insufficiency of
funds to cover the check; and (3) damage to the payee thereof. 32

Settled is the rule that, to constitute estafa, the act of postdating or issuing a check in
payment of an obligation must be the efficient cause of defraudation and, as such, it
should be either prior to, or simultaneous with, the act of fraud. The offender must be
able to obtain money or property from the offended party because of the issuance of the
check, or the person to whom the check was delivered would not have parted with his
money or property had there been no check issued to him. Stated otherwise, the check
should have been issued as an inducement for the surrender by the party deceived of
his money or property, and not in payment of a pre-existing obligation.33

The existence of the first two elements in the case at bar is not disputed. Petitioner
maintains that the third element is not present.

Damage as an element of estafa may consist in (1) the offended party being deprived of
his money or property as a result of the defraudation; (2) disturbance in property right;
or (3) temporary prejudice.34

In this case, the deprivation of the property of FEDCOR is apparent.1âwphi1

Undoubtedly, the reason why FEDCOR delivered the backhoe to petitioner was that the
latter paid the P50,000 down payment and issued two postdated checks in the amount
of P75,000 each.

Petitioner’s claim that he returned the equipment was not duly proved; he never
presented as witness the agent who allegedly received the equipment from him.
Moreover, he admitted that he never wrote FEDCOR about the return of the allegedly
defective backhoe to Ronnie Bote; neither did he go to FEDCOR to claim the return of
the equipment or of the cash down payment and the two checks.35 Such admissions
belie his allegation that he returned the equipment to FEDCOR. Besides, on cross-
examination he admitted that during the pendency of the case, he paid Santander,
through FEDCOR’s lawyer, on two separate occasions in the total amount of P15,000
upon the advice of his own lawyer that he had to pay because he was guilty; thus:

Q During the pendency of this case you paid Engr. Santander cash, is that correct?

A I paid the amount of P10,000.00 and then another P5,000.00 because according to
my first lawyer I have to pay this because I am guilty and this is B.P. case [sic].
Q You delivered the money to Engr. Federico Santander?

A To you Atty. Paray.

Q And I was the lawyer of Engr. Federico Santander?

A Yes, sir.36

If indeed petitioner returned the backhoe to Ronnie Bote and yet the latter did not heed
his demands for the return of his cash payment and the checks, he (petitioner) should
have, at the very least, gone to or written FEDCOR itself about the matter. Instead, he
again paid FEDCOR the amount of P15,000 during the pendency of the case. Such
payment to FEDCOR negates his claim that he returned the backhoe; it may even be
tantamount to an offer of compromise. Under Section 27 of Rule 130 of the Rules on
Evidence, an offer of compromise in criminal cases is an implied admission of guilt.

Finally, by appealing his conviction, petitioner has thrown the whole case open for
review.1âwphi1 It becomes the duty of this Court to correct any error as may be found
in the appealed judgment, even though it was not made the subject of assignment of
errors.37 This Court finds to be erroneous the penalty imposed by the trial court for the
crime of estafa, as affirmed by the Court of Appeals, which is seven years and four
months of prision mayor as minimum to twelve years and six months of reclusion
temporal as maximum. The penalty for estafa committed by means of bouncing checks
has been increased by Presidential Decree No. 818, which took effect on 22 October
1975. Section 1 thereof provides in part as follows:

SECTION 1. Any person who shall defraud another by means of false pretenses or
fraudulent acts as defined in paragraph 2(d) of Article 315 of the Revised Penal Code,
as amended by Republic Act No. 4885, shall be punished by:

1st. The penalty of reclusion temporal if the amount of the fraud is over 12,000 pesos
but does not exceed 22,000 pesos, and if such amount exceeds the latter sum, the
penalty provided in this paragraph shall be imposed in its maximum period, adding one
year for each additional 10,000 pesos but the total penalty which may be imposed shall
in no case exceed thirty years. In such cases, and in connection with the accessory
penalties which may be imposed under the Revised Penal Code, the penalty shall be
termed reclusion perpetua….

Petitioner NAGRAMPA defrauded FEDCOR in the amount of P135,000 (P150,000

[value of the checks] minus P15,000 [payment made by petitioner during the pendency
of these cases]). Applying P.D. No. 818 and the Indeterminate Sentence Law, the
maximum penalty shall be reclusion temporal in its maximum period, plus one year for
each additional P10,000 of the amount of the fraud; and the minimum shall be prision
mayor, which is the penalty next lower to that prescribed for the offense without first
considering any modifying circumstances or the incremental penalty for the amount of
fraud in excess of P22,000.38

WHEREFORE, the instant petition is DENIED. The decision of the Court of Appeals
upholding the decisions of the Regional Trial Court of Quezon City, Branch 80, in
Criminal Cases Nos. Q-90-15797, Q-90-15798 and Q-90-15799 is hereby AFFIRMED,
with the modification that petitioner Manuel Nagrampa is hereby sentenced to suffer (1)
an imprisonment of one year for each of the two counts of violation of B. P. Blg. 22, and
(2) an indeterminate penalty of eight years and one day of prision mayor as minimum to
twenty-eight years, four months and one day of reclusion perpetua as maximum for the
crime of estafa; and to pay private complainant Fedcor Trading Corporation the amount
of P135,000, plus legal interest thereon from 9 October 1990 up to the time of full
payment.

SO ORDERED.

Nagrampa vs. People (G.R. No. 146211)

Posted by

Facts:Manuel Nagrampa purchased porcelain excavator equipment from Fedcor

Trading Corporation on an installment basis. He then issued checks to be drawn against
Security Bank and Trust Company. The checks were dishonored on the ground that the
account was already closed. He was then charge with violation of BP 22. In his defense
he claimed that he is not guilty of estafa because no damage was caused to FEDCOR
and the back hoe being unserviceable was returned to FEDCOR

The trial court found him guilty and was ordered to pay FEDCOR the Court of Appeals
affirmed the decision in toto.

Issue:Whether or not he is liable for violation of BP 22 despite no notice of dishonor

was given.

Held:Yes, because the account was closed for four years prior to the transaction. He
knew fully well that the check he issued would be dishonored and the 90-day grace
period given to him by law is unavailing.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MARY GRACE CAROL FLORES, accused-appellant.

DECISION

MENDOZA, J.:

This is an appeal from the decision,1 dated August 15, 1996, of the Regional Trial Court, Branch 50, Manila,
finding accused-appellant Mary Grace Carol Flores guilty of estafa, for which it sentenced her to an
indeterminate prison term of eight (8) years and one (1) day to ten (10) years, and of violation of Batas
Pambansa Blg. 22, for which it sentenced her to an additional prison term of one (1) year. In its decision, 2 dated
April 13, 1999, the Court of Appeals, while affirming the findings of the trial court, held that the appropriate
penalty for estafa, considering that the amount is more than ₱22,000.00, should be 30 years of reclusion
perpetua and accordingly certified this case to this Court for review pursuant to Rule 124, §13 of the Rules of
Court.

The information for estafa against accused-appellant alleged:

That on or about October 19, 1992, in the City of Manila, Philippines, the said accused, did then and there
wilfully, unlawfully and feloniously defraud PACITA G. DEL ROSARIO in the following manner, to wit: the said
accused, well knowing that she did not have sufficient funds in the bank, drew, made Out and issued post
dated PHILIPPINE COMMERCIAL INTERNATIONAL BANK Check No. 558574 dated October 20, 1992 in the
amount of ₱662,250.00 payable to PACITA G. DEL ROSARIO in payment of one (1) man’s ring with a 5.8 ct.
diamond purchased and received by the said accused on the same date; that upon presentation of said check
to the bank for payment, the same was dishonored and payment thereof refused for the reason "ACCOUNT
CLOSED" and the said accused, notwithstanding due notice to her by said Pacita G. del Rosario of such
dishonor of said check, failed and refused to deposit the necessary amount of said check, to the damage and
prejudice of the said Pacita G. del Rosario in the total amount of ₱662,250.00, Philippine Currency. 3

On the other hand, the information for violation of B.P. Blg. 22 against accused-appellant charged:

That on or about October 19, 199[2], in the City of Manila, Philippines, the said accused did then and there
wilfully and feloniously make or draw and issued to PACITA G. DEL ROSARIO to apply on account or for value
PHILIPPINE COMMERCIAL INT’L BANK Check No. 558574 dated October 20, 1992 payable to PACITA G.
DEL ROSARIO in the amount of ₱662,250.00 said accused well knowing that at the time of issue she did not
have sufficient funds in or credit with the drawee bank for payment of such check in full upon its presentment,
which check when presented for payment within ninety (90) days from the date thereof, was subsequently
dishonored by the drawee bank for "ACCOUNT CLOSED" and despite receipt of notice of such dishonor, said
accused failed to pay said PACITA G. DEL ROSARIO the amount of the check or to make arrangement for
payment of the same within five (5) banking days after receiving such notice.4

A warrant of arrest was issued on August 26, 1993 against accused-appellant, but it was only on November 13,
1994 when she was finally arrested.

Upon arraignment, accused-appellant pleaded not guilty to the crimes charged and thereafter she was tried.

The prosecution presented two witnesses: complainant Pacita del Rosario and Philippine Commercial
International Bank (PCIB) employee Librado Manzano.

Complainant Pacita del Rosario testified that on October 19, 1992, she sold to accused-appellant a 5-karat
diamond ring with a cluster of about 10 small diamonds for ₱662,000.00. As payment therefor, accused-
appellant issued to her PCIB Check No. 558574, postdated October 20, 1992, for the amount of ₱662,250.00,
the check also covering the amount of ₱250.00 which accused-appellant also received from complainant. On
October 20, 1992, complainant deposited the check in her account at the Far East Bank branch in Greenhills,
San Juan. Three days later, however, she was notified by the bank that the check had been dishonored
because accused-appellant’s account had been closed. Pacita del Rosario looked for accused-appellant, who
then promised to pay the value of the check. However, despite several extensions granted to her within which
to make payment, accused-appellant failed to do so.5

Librado Manzano, a cashier of the PCIB, testified that, according to bank records, accused-appellant opened
her account in September 1992, but closed the same on October 20, 1992, which was also the date of the
check issued to complainant. Manzano testified that other checks amounting to ₱5,000.00 and ₱2,000.00
which had been drawn against the said account were also returned for insufficiency of funds. 6

Accused-appellant was the lone witness in her behalf. She said she came to know complainant through her
friend, Aida Gaerlan, who was the niece of complainant. She denied that the check was in payment of a ring
which she bought from complainant. Rather, she claimed that complainant invested in her drapery business.
She said that in September 1992, she borrowed ₱50,000.00 from complainant, for which she issued the check
in question in the amount of ₱662,250.00. According to her, she did not receive the entire amount of
₱662,250.00 but only the amount of ₱50,000.00 as a loan and ₱250.00 as transportation fare. The loan was
payable in one year and the excess amount on the check represents the interest.7

On August 15, 1996, the trial court rendered a decision, the dispositive portion of which reads:

WHEREFORE, premises considered, accused MARY GRACE CAROL FLORES is hereby found guilty of the
charges of estafa and violation of BP 22 and is hereby sentenced applying the Indeterminate Sentence Law to
suffer the penalty of imprisonment from Eight (8) years and One (1) day to Ten (10) years for estafa and an
additional One (1) year of imprisonment and a fine of ONE HUNDRED THOUSAND (₱100,000.00) PESOS, for
violation of BP 22 and to pay the complainant the amount of ₱662,250.00.

No costs.

SO ORDERED.8

Accused-appellant appealed to the Court of Appeals, which rendered a decision, dated April 13, 1999, affirming
the conviction of accused-appellant for the crimes of estafa and of violation of B.P. Blg. 22 with the modification
that accused-appellant was sentenced to suffer the penalty of thirty (30) years of reclusion perpetua.9 Hence,
this appeal.

Accused-appellant contends that the Court of Appeals erred in affirming the judgment of the trial court and in
modifying the assailed judgment by increasing the penalty to thirty (30) years of reclusion perpetua.

We affirm the findings of the trial court and the Court of Appeals that accused-appellant is guilty of the crimes of
estafa, defined and penalized under Art. 315, par. 2(d) of the Revised Penal Code, and of violation of B.P. Blg.
22. However, we hold that the appellate court erred in ruling that the Indeterminate Sentence Law was not
applicable to accused-appellant because the penalty imposable on the latter was reclusion perpetua.

First. The elements of estafa, as defined under Art. 315, par. 2(d) of the Revised Penal Code and amended by
Republic Act No. 4885, are: (1) that the offender postdated or issued a check in payment of an obligation
contracted at the time of the postdating or issuance; (2) that at the time of the issuance of the check, the
offender had no funds in the bank or the funds deposited were insufficient to cover the amount of the check;
and (3) that the payee has been defrauded.10

These elements are present in this case. Accused-appellant admitted that she issued PCIB Check No. 558574,
dated October 20, 1992, for ₱662,250.00 to Pacita G. Del Rosario.11 The check was issued as payment for a
ring and the ₱250.00 transportation fare which accused-appellant received from complainant. Accused-
appellant testified during direct examination that the check was issued merely as a security for the loan, which
was payable within one year. During cross-examination, however, accused-appellant contradicted her
statement by testifying that the excess amount indicated in the check represented interest for the whole year.
According to her testimony:

q Now, where did you obtain the loan of ₱662,250.00 from the private complainant if this check was really
issued in a cash loan?

a The ₱50,000.00 on September.

q Do you mean to tell this Court you did not actually receive the amount of ₱662,250.00 as indicated in this
check

a No, sir. It was supposed to be the capital interest for the whole year na gagamitin ko ang pera niya.

q And by the way, what is your highest educational attainment?

a Third year college, sir.

q And you know the implication considering your educational attainment, third year college and I also notice
your proficiency testifying in English. You know the implication of issuing a check amounting to ₱662,250,00
when in fact you stated that you were extended a loan of ₱50,000.00?

a I knew its implication, I notice it in the first place, sir.

q And you also testified that the [o]ther account or the excess of the loan will correspond to the alleged interest
for the time for all the time you are going to use that money?
a Yes, sir.

q And you testified you obtained the loan on September 1992?

a Yes, sir. Me and my mother at that time.

q And the date of your check October 2[0], 1992?

a Yes, sir.

q Do you mean to tell this Court and you want this court to believe that for a month period the ₱50,000.00 will
earn an interest of more than ₱600,000.00?

a The agreement is for a year period, sir.

q Even assuming you agreed on one year term loan, do you want the court to believe you that for a one year
period, the ₱50,000.00 loan extended to you earn more than ₱6,000.00?

a By September, she went Out of the country around that time, she went back.

q And considering that the alleged loan that you obtained is around ₱50,000.00, how did you arrive[d] at this
figure of ₱662,250.00?

a She was the one who gave that amount, she was the one who required me to place that amount of
₱662,250.00.

q And you place and wrote this amount as you said required, asked by her?

a Yes, sir.

q Is it not true madam witness that this amount of ₱662,250.00 is the prize or the amount corresponding
payment of a diamond ring that you obtained from the complainant?

a I never bought a jewelry because my husband used to buy all our jewelry.

q Is it not true that as indicated in the check there is an additional ₱250.00 because at the time that you issued
the check, the private complainant you informed her that you have no money for transportation is it not?

a That is true, sir.

q So that the complainant loaned to you gave you ₱250.00 and for said amount you added this in this check, is
it not?

a Yes, sir.

q And at the time that you are transacting business with the complainant, the complainant is a labor arbiter at
NLRC department of labor and employees, is it not?

a Yes, sir.

q And do you want to impress this Court that a person like the private complainant occupying a very dignified
position of labor arbiter which correspond to this position of a judge in civil court will force you to issue
something or will force you to do something which is illegal?

a I don’t consider that as illegal because the money was for my use for a period of a year because that was a
loan with her. I consented, I agreed to that. I don’t consider anything against her regarding that money because
I fully consented to that.

q How did you and complainant arrived to this amount of ₱662,250.00?

a She was the one who made the computation.

q In your presence?

a Yes, your Honor.

q What was the basis?

a I actually do not know how she compute.

q This is for one year?

a Yes, your Honor.12

It is improbable for a businesswoman like accused-appellant to agree to pay an interest of more than
₱600,000.00 for a loan of ₱50,000.00. Indeed, if the loan, which she incurred in September 1992, was payable
in one year, the check should have been postdated a year later, in September 1993, and not on October 20,
1992. These glaring contradictions and improbabilities make accused-appellant’s claim implausible.

The testimony of complainant that the check represented payment for a ring which she sold to accused-
appellant must be given credence. Complainant would not have given the ring to accused-appellant had the
latter not issued the check and assured complainant that it was fully funded. 13 Nor has it been shown that
complainant had ill motive in filing this case against accused-appellant. Complainant, it appears, was a labor
arbiter in the Department of Labor and Employment. It is hard to believe she would fabricate the charges
against accused-appellant. Indeed, accused-appellant herself admitted that she had a good relationship with
complainant prior to the filing of the case.14

The fraudulent intent of accused-appellant had been proven to exist at the time of the issuance of the check.
She misrepresented to complainant that she was financially stable and that her business was flourishing. 15 In
reality, however, accused-appellant had no funds sufficient to cover the check she issued to complainant. 16 It is
thus clear that she obtained the amounts of ₱662,000.00 and ₱250.00 through deceit. As already stated, the
account was closed on the very date of the postdated check issued to complainant.

Article 315, par. 2(d) of the Revised Penal Code expressly provides that 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 the said check has been dishonored for lack or insufficiency of funds shall be
prima facie evidence of deceit constituting false pretenses or fraudulent act. In this case, accused-appellant
received two demand letters, dated November 10, 1992, from complainant for the payment of the value of the
check. She never contested the contents of the letters.17 Despite extensions granted to her, she failed to pay the
value of the check. Her refusal to make good her obligation is indicative not only of her inability to pay but also
that she employed false pretenses in incurring her obligation in the first place.

Second. Accused-appellant was likewise guilty of violation of B.P. Blg. 22. The elements of this crime are: (1)
1âw phi 1

the accused makes, draws, or issues any check to apply to account or for value; (2) the accused knows 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; and (3) the 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.18

These elements are present in this case. Accused-appellant issued PCIB Check No. 558574, dated October
20, 1992, in the amount of ₱662,250.00 payable to Pacita G. Del Rosario as payment for the diamond ring sold
to her. Accused-appellant admitted she did not have sufficient funds to cover the check at the time she issued
it. The check, which was deposited on the date indicated therein, was subsequently dishonored because the
account from which the money should have been drawn against was closed by her on the same date. Despite
demands made on her by complainant to pay the value of the check, accused-appellant failed to pay. Nor did
she make arrangements for payment in full of the checks by the bank within five banking days after notice of
dishonor so as to absolve her of any liability for issuing a bouncing check.19

Third. The Court of Appeals held that the Indeterminate Sentence Law does not apply because the amount
defrauded was ₱662,250.00 and the consequent penalty imposable on accused-appellant for the crime of
estafa is imprisonment of thirty (30) years of reclusion perpetua.20 This is based on Art. 315, par. 2(d) of the
Revised Penal Code, as amended by P.D. No. 818, which provides:

SECTION 1. Any person who shall defraud another by means of false pretenses or fraudulent acts as defined
in paragraph 2(d) of Article 315 of the Revised Penal Code, as amended by Republic Act No. 4885, shall be
punished by:

1st. The penalty of reclusion temporal if the amount of the fraud is over 12,000 pesos but does not exceed
22,000 pesos, and if such amount exceeds the latter sum, the penalty provided in this paragraph shall be
imposed in its maximum period, adding one year for each additional 10,000 pesos but the total penalty which
may be imposed shall be no case exceed thirty years. In such cases, and in connection with the accessory
penalties which may be imposed under the Revised Penal Code, the penalty shall be termed reclusion
perpetua;
We have recently ruled that the term reclusion perpetua, as used in the above quoted provision, is not the
penalty prescribed for the offense but a mere description of the penalty imposed where the amount defrauded
exceeds ₱22,000.00.21 Rather, the prescribed penalty under §1, par. 1 of P.D. No. 818 is reclusion temporal.
Thus, even if the amount of fraud involved exceeds ₱22,000.00, the Indeterminate Sentence Law is applicable
in determining the imposable penalty.

Now, the Indeterminate Sentence Law provides that if an offense is punished by the Revised Penal Code or its
amendments, the court shall sentence the accused to an indeterminate penalty, the maximum term of which
shall be that which, in view of the attending circumstances, can be properly imposed under the rules of the
Revised Penal Code, while the minimum term of which shall be within the range of the penalty next lower to
that prescribed by the Code for the offense.22

Hence, as the amount involved (₱662,250.00) exceeds ₱22,000.00, accused-appellant should be sentenced to
suffer an indeterminate penalty, the maximum term of which shall be reclusion temporal, to be imposed in its
maximum period, plus one year for each additional P10,000.00 of the amount of fraud in excess of ₱22,000.00.
The total penalty, however, shall not exceed thirty (30) years. The minimum term of the indeterminate penalty
shall be within the range of penalty next lower to that prescribed by law for the offense, without considering in
the meantime the modifying circumstance, which in this case refers to the incremental penalty for the amount of
fraud in excess of ₱22,000.00.23 Such penalty is prision mayor, with a duration of six (6) years and one (1) day
to twelve (12) years.24 In line with this Court’s rulings,25 the minimum term shall be fixed in this case at twelve
(12) years.

WHEREFORE, the decision of the Court of Appeals convicting accused-appellant for estafa under Art. 315,
par. 2(d) of the Revised Penal Code and for violation of B.P. Blg. 22 is hereby AFFIRMED, with the
MODIFICATION that in the case of estafa, accused-appellant is sentenced to suffer an indeterminate penalty of
twelve (12) years of prision mayor, as minimum, to thirty (30) years of reclusion perpetua, as maximum.

SO ORDERED.

Bellosillo, (Chairman), Quisumbing, Buena, and De Leon, Jr., JJ., concur.

G.R. No. 132323 July 20, 2000

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ERNST GEORG HOLZER and MERCIDITA D. ALBISO, accused-appellants.

DECISION

MENDOZA, J.:

This is an appeal from the decision of the Regional Trial Court, Branch 10, Dipolog City,
1

convicting accused-appellants of estafa under Article 315(2)(d) of the Revised Penal Code and
sentencing them to suffer 24 years of reclusion perpetua and to pay ₱100,000.00 as actual
damages.

The information against accused-appellants reads:

2

That on June 1, 1995 in the City of Dipolog, Philippines, and within the jurisdiction of this
Honorable Court the above-named accused conspiring, confederating with and mutually helping
one another, defraud one BERNHARD FORSTER by means of deceit, false pretenses and
fraudulent acts executed prior to or simultaneously with the commission of the fraud, in the
following manner: that accused made the private-complainant Ramos [should be Forster] to
believe that their FEB&T check No. C054220 dated August 1, 1995 in the amount of
₱100,000.00 was duly covered by corresponding funds in the drawee bank, Far East Bank &
Trust Company, Dipolog Branch; that they assured the private-complainant that the said check
would not bounce; that the latter should accept it as payment of their obligation because the
check has corresponding deposits; which deceit and pretenses, the accused did then and there
wilfully, unlawfully and feloniously able to obtain and receive from him the sum of
₱100,000.00; however, when the said check was presented for payment with the said drawee
bank, the same was dishonored and refused payment by the said bank for the reason that it was
drawn against accuseds’ insufficient funds thereat, and despite repeated demands made upon
them to make good or pay their obligation, the accused failed and/or refused to do so, to the
damage and prejudice of herein private-complainant in the aforestated amount.

CONTRARY TO LAW.

The prosecution presented two witnesses, Bernhard Forster, the complainant, and Jay
Adraincem, general bookkeeper of the Far East Bank and Trust Company Branch in Dipolog
City. The facts, as established by their testimonies, are as follows:

Accused-appellants are the owners of MGF ELECTRONICS SATELLITE SUPPLY, a business

engaged in selling and installing satellite antenna system, with principal office at General Luna
Street, Dipolog City. In May 1995, accused-appellants installed in the house of complainant
3

Bernhard Forster, in Maria Uray, Dapitan City, a single satellite antenna, for which complainant
paid the total amount of ₱82,200.00. 4

Complainant was not, however, satisfied with the satellite antenna installed and the equipment
which came with it, i.e., television, remote control receiver, and manual receiver, which he
thought were second-hand. Moreover, he wanted a bigger antenna. He was assured by accused-
appellant Holzer that should new equipment arrive from abroad, the used equipment would be
replaced and another antenna would be given. 5

On June 1, 1995, accused-appellant Holzer informed complainant that new equipment had
arrived in Manila. His money, however, was not enough to secure the release of the equipment
from the Bureau of Customs. For this reason, he asked complainant to lend him ₱100,000.00.
Complainant agreed and issued a check for ₱100,000.00 to accused-appellant Holzer. In
exchange, the latter issued Check No. C054220 worth ₱100,000.00 and postdated August 1,
1995, which he and the accused-appellant Mercidita D. Albiso signed.

Before the due date, accused-appellant Holzer asked the complainant not to deposit the check on
August 1, 1995. Four days later, accused-appellant again asked the latter not to deposit the check
because the money from Switzerland to cover the check had not yet arrived.

Despite the request, however, complainant deposited the check on August 9, 1995. As to be
expected, the check was dishonored for having been drawn against insufficient funds. 6

On the same day, complainant filed a complaint for estafa against accused-appellants. On
7

September 20, 1995, accused-appellants were ordered arrested by Judge Wilfredo C. Martinez.
Bail was fixed at ₱30,000.00 for each of the accused-appellants. Accused-appellant Holzer was
committed to the City Jail of Dicayas, Dipolog City; accused-appellant Albiso, who had gone to
Manila, was arrested subsequently. 8

During the trial, bank records were presented showing that accused-appellants opened their
Savings Account with Far East Bank and Trust Company in Dipolog City on March 10, 1995
(Account No. 0196-024-10-2) while their Current Account was opened on April 11, 1995
(Account No. 0096-00348-0). The current account of accused-appellants contained the words
ATSA, for Automatic Transfer from Savings Account, which meant that should the current
account be insufficient to cover a check issued by the drawers, and there are enough funds
available in the savings account, there would be an automatic transfer from the savings account
to the current account.

FEBT Co.’s Jay Adraincem testified that, as early as April 1995, some checks issued by accused-
appellants were already covered by the money transferred from the savings account by virtue of
ATSA. He further testified that based on the records, four checks issued by accused-appellants
9

were dishonored by the bank on August 1, 1995 due to insufficient funds. On August 9, 1995,
two checks, one of which was Check No. C054220, were also dishonored due to insufficient
funds. Per bank policy, the current and savings account of accused-appellants were closed. 10

The defense presented as its lone witness accused-appellant Ernst Georg Holzer, a Swiss
national.

Accused-appellant Holzer testified that in May 1995, he installed a single satellite antenna in the
house of complainant. After this transaction was completed, complainant came to him and asked
if it was possible to watch German stations on his TV set. Accused-appellant, after consulting his
foreign suppliers, answered in the affirmative and promised another antenna for the
complainant. 11

On June 1, 1995, he told complainant that the new equipment had arrived. However, he told
complainant that he did not have enough money to secure the release of the equipment from the
Bureau of Customs. He, therefore, asked for an advance payment of ₱100,000.00 for the antenna.
According to accused-appellant, he issued Check No. C054220, postdated August 1, 1995, in the
amount of ₱100,000.00 as security for his obligation of installing the second antenna in
complainant’s house. If he failed to install the antenna, he bound himself to return the amount
advanced to him by means of the check in question. 12

Accused-appellant Holzer claimed that he was able to install the antenna in complainant’s house.
However, since he did not know yet how much the antenna cost, he did not demand immediate
payment from complainant. 13

In November 1995, accused-appellant Holzer sent a letter from jail demanding from complainant
payment of ₱102,345.75 for the antenna. Complainant answered the letter stating that the prices
14

quoted by accused-appellant were excessive and that he was willing to pay only ₱20,000.00. 15
After trial, the lower court rendered judgment as follows:

WHEREFORE, in view of the foregoing and finding the accused guilty of estafa as defined and
penalized under Par. 2(d) of Article 315 of the Revised Penal Code, and considering the amount
of the fraud, accused are hereby sentenced to suffer 24 years of reclusion perpetua together with
the accessory penalties and to indemnify the complaining witness by way of actual damages in
the sum of ₱100,000.00 and to pay the costs.

SO ORDERED. 16

Hence this appeal. Accused-appellants contend that their liability is only civil, not criminal. They
argue (1) that Check No. C054220 was issued to secure the loan they obtained from complainant;
(2) that there was no deceit on their part because they duly informed the complainant that the
check was not yet funded; and (3) that complainant parted with his ₱100,000.00 not because of
the check issued by them but because of the interest they agreed upon.

Art. 315(2)(d), as amended by R.A. No. 4885, states:

Art. 315. Swindling (estafa).- Any person who shall defraud another by any of the means
mentioned hereinbelow... :

xxx

2. By means of the following false pretenses or fraudulent acts executed prior to or

simultaneously with the commission of the fraud:

xxx

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.

The elements of estafa, as defined, 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 were not sufficient to cover the amount of the check.

(3) The payee has been defrauded. 17

In view of the amendment of Art. 315(2)(d) by R.A. No. 4885, the following are no longer
elements of estafa:

1. knowledge of the drawer that he has no funds in the bank or that the funds deposited
by him are not sufficient

2. failure to inform the payee of such circumstance 18

The drawer of the dishonored check is given three days from receipt of the notice of dishonor to
deposit the amount necessary to cover the check. Otherwise, a prima facie presumption of deceit
will arise which must then be overcome by the accused.
First. Accused-appellant issued a postdated check in payment of an obligation. The first element
was thus duly proven. It is admitted that accused-appellants issued Check No. C054220 on June
1, 1995, postdated August 1, 1995, to complainant Forster. The check was issued in exchange for
the ₱100,000.00 loan received by accused-appellant Holzer on that day.

There is no merit in accused-appellants’ contention that the check was given by them merely as a
security for the faithful performance of their obligation to install a satellite antenna in
complainant’s house or even, as contended by them in their brief, as security for the payment of
the loan of ₱100,000.00 contracted by them.

The check could not have been issued to secure the faithful performance by accused-appellants
of their obligation to install an antenna in complainant’s house for if it was, the delivery of the
antenna would have rendered the check without effect. The fact is that even after they had
delivered the antenna to complainant, accused-appellant Holzer still had to pay the ₱100,000.00.

Nor could the check have been intended as security for the loan of ₱100,000.00 from the
complainant. Accused-appellant contracted the loan and, therefore, his obligation was to pay it.
In this case, Holzer promised to pay on August 1, 1995 when the subject check matured. There
was no other means agreed upon to pay the debt. If the check was issued to secure the loan, then
complainant and accused-appellant could have agreed on a method of payment, upon the failure
of accused-appellants to comply with which, complainant would have recourse to Check No.
C054220.

The check was thus not issued as an evidence of the accused-appellant’s debt to the complainant
but rather, as payment of the former to the latter.

Second. Accused-appellants had no sufficient funds in the bank to cover the check at the time of
its issuance. This is the second element of the crime, which we also find to have been duly
proven. On June 1, 1995, when they issued the checks, accused-appellants had insufficient funds
in the bank. This fact was admitted by accused-appellant Holzer himself:

Q When did you issue this check to Mr. Forster?

A 1st week of June as I have testified here.

Q So 1st day of June, 1995, you have money in the bank?

A Yes.

Q May I see the record?

A Yes.

Q (The Prosecution examining the record.)

First week of June the record says between May 31 and June 5 only P30,000.00?

A It is P60,000.00.

Q The post dated check August 1, 1995, at that time, you have no sufficient funds in your drawee
Bank?

A No. 19

On the other hand, as early as April 1995, the current account of accused-appellants no longer
had sufficient funds. When asked about a particular check issued to one Anabelle Ramos which
was honored in April 1995, Jay Adraincem, of the Far East Bank and Trust Company Branch in
Dipolog City, answered:

A Actually, these checks were issued by them [accused-appellants]. We can see the validation of
the bank. Check No. 054207 was encashed to us on April 17, 1995. We can also see this
transaction in their statement. This ₱4,800.00 was encashed April 17, when this check No.
054207 was honored. We can see the ATSA. Meaning, this ₱4,800.00 comes from the Savings
Account. This ₱9,000.00 and ₱15,000.00 can also be seen in this statement, meaning for
encashment. 20

Thus, it appears that accused-appellants were running out of funds as early as April 1995, shortly
after they opened their savings and current account with Far East Bank and Trust Company in
Dipolog City.

Third. There is, however, no evidence that deceit accompanied the issuance of the check. This is
the third element, which we find was not proven. The prosecution presented no evidence to show
that a notice of dishonor had been to sent accused-appellants. Though complainant testified that
he demanded payment from accused-appellant Holzer and waited for several days after the check
had been dishonored, his affidavit, dated August 9, 1995, showed that he filed his complaint on
the same day the check was dishonored. Complainant failed to explain the discrepancy when
confronted about this:

Q What did you do when the check was returned by the drawee Bank for the same reason that it
is drawn against insufficient funds?

A I asked him to pay and he promised.

Q Did you demand payment?

A Yes, I demanded payment.

....

Q Now, when you informed them that the check was dishonored, what did they tell you?

A He promised to pay anytime because he is waiting money from Switzerland any day it will
come so I waited for few days time but the money was not still there.

Q So, there was no money coming from Switzerland?

A Yes, sir.

....

ATTY. GAINSAN:

Q Your affidavit is also dated August 9, 1995, do you mean to say that after the Bank dishonored
his check for drawn against insufficient funds, you right away went to the Office of the Public
Prosecutor to file your case?

A I was not alone. That he had bouncing checks I did not know that then this OTHER person
went to see me and I found out that he had borrowed more than half a million.

Q Can you tell us who is that person you are referring to?

A Annabel Ramos.
....

Q So you filed a case against Holzer?

A Yes.

Q And because of this case, Holzer was arrested?

A Yes.

Q Do you know that Mr. Holzer was called before the Office of the City Prosecutor?

A I did not know.

Q But you are sure, you did not meet this Holzer in that Office before the case was filed?

A No, I cannot remember.

Q But you can remember, that you often meet with Mrs. Ramos before the case of Holzer was
filed?

A Yes, because she knows he was trying to run away before we came to confirm to that he went
there he has a pass port.

Q But, you have not gone to the Office of Mr. Holzer?

A No, before I went there to see him for this purpose after that I did not go. 21

As the prosecution failed to present evidence of any written or oral demand on accused-
appellants to pay the amount of their check, there is no prima facie presumption of deceit. Nor is
there evidence showing that, as a matter of fact, accused-appellant Holzer committed deceit.

Complainant testified that he would not have given ₱100,000.00 to accused-appellant Holzer if
he had known that the latter’s check was not good. However, he also admitted that he knew at
22

the time of the issuance of the check that it was not funded and that the money to cover it was
still to come from Switzerland. Thus,

Q By the way, when the accused issued this check, what did they assure you?

A He promised that Switzerland is sending money.

Q At the time, the check was issued to you on August 1, 1995, what did he say?

A That there is money coming. 23

Complainant also admitted that accused-appellant informed him twice ¾ before the check’s due
date and days thereafter ¾ that the money from Switzerland had not yet arrived. Thus,

PROS. MAH:

Q Now, when you received the check as payment of the obligations of the accused to you this
post dated check dated August 1, 1995, what did you do with the check?

A When the due [date] arrived he went to me and requested not to deposit the check on August 1,
1995 but few days later and about four days he again told me that the money from Switzerland
has not arrived. I wanted to find out.
Q So, you deposited the check with the drawee Bank?

A He kept on coming to me and telling me that his money from Switzerland has not arrived yet. 24

There is, therefore, no proof that complainant was defrauded. 25

The prosecution failed to show what the parties’ transaction really was. Complainant said that
the ₱100,000.00 which he gave accused-appellant Holzer was a loan, but he also said it was an
advance payment. Thus he testified:

Q With respect to the first antenna system that he installed when was that?

A I cannot remember maybe May or something like that.

Q In May of what year?

A Last year.

Q Were you able to pay the installation fee?

A Yes, in full and advance the first one and also the second.26

....

Q You let him borrow money?

A Yes, the first one was for the antenna and the second was a loan which he needed to bring to
Manila according to him.

Q You forgot that you were installing another antenna?

A The first one that he installed I paid in advance and the second which I also paid partly, the
second antenna not yet paid.

Q So, you paid partly for the second?

A Yes.

Q How much?

A (Witness presenting to his counsel a receipt with No. 054 dated 5/31/95 in the amount of
P55,400.00; the second receipt No. 007 dated May 31, 1995 in the amount of ₱1,300.00 this
₱1,300 represents the installation fee.)

....

Q Did it mention that this ₱55,400.00 is for the payment for the second?

A I think it was combined an additional second antenna. It was mixed up payment.

Q But the statement, balance payment for a single satellite TV?

A What does has that when I have answered some related matters to this case.

Q What does it mean when it is stated balance payment for a single satellite TV?

A You better ask Mr. Holzer. That can be answered by him. 27

Indeed, the evidence adduced by the parties shows that the ₱100,000.00 given by the
complainant to accused-appellant Holzer was a loan. It was not an advance, as claimed by
Holzer, because if it was, Holzer would not need to issue a check in exchange. It appears that
after delivering the antenna, accused-appellant Holzer looked to complainant for payment,
something he would not do had the amount of ₱100,000.00 he had received been given to him as
payment for the antenna.

On the other hand, the check which he issued was intended as payment for the loan of
₱100,000.00. It could not have been given as a security or as a mere evidence of the debt because
accused-appellant himself intended to encash it on its due date. That is why accused-appellant
asked complainant not to deposit the check until his money from Switzerland arrived. Had the
28

check been given as security for the faithful performance of accused-appellant’s obligation to
install the antenna, there would have been no need for complainant to encash the check.

It appears that complainant instituted this case through the prodding of one Anabelle Ramos, a
complainant in five other estafa cases against accused-appellants. The trial of the six cases
against accused-appellants ¾ one of which is this criminal case ¾ was conducted jointly. We
cannot, however, base accused-appellants’ conviction on the number of estafa cases filed against
them and the evidence presented in the other cases. Each case must be proven independently of
each other. In this case, we find the evidence to be wanting.

There is no doubt that complainant suffered damage as a result of the dishonored check.1âwphi1
However, where deceit is not proven, the accused cannot be convicted of estafa under Art. 315
(2)(d) of the Revised Penal Code. At most, he can only be held civilly liable.

This is such a case. Accused-appellants’ liability is civil. In accordance with the ruling in Padilla
v. Court of Appeals, accused-appellants must be held liable for ₱100,000.00 in actual damages to
29

complainant.1âwphi1

WHEREFORE, the decision of the trial court is set aside and another one is entered acquitting
accused-appellants of the charge against them on the ground of reasonable doubt but ordering
them to pay the complainant the amount of ₱100,000.00 as actual damages.

The Director of Prisons is hereby directed to forthwith cause the release of accused-appellants
unless the latter are being lawfully held for another cause and to inform the Court accordingly
within ten (10) days from notice hereof.

SO ORDERED.
PHILIPPINE JURISPRUDENCE – FULL TEXT
The Lawphil Project - Arellano Law Foundation
G.R. No. 165275 September 23, 2008
xcite

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

GORETTI ONG, G.R. No. 165275

Petitioner, Present:

- versus - QUISUMBING, J., Chairperson,

PEOPLE OF THE PHILIPPINES, CARPIO MORALES,

Respondent. TINGA,

VELASCO, JR., and

BRION, JJ.

Promulgated:

September 23, 2008

x--------------------------------------------------x

DECISION

CARPIO MORALES, J.:

Goretti Ong (petitioner) was, by Information dated August 10, 1995, charged before
the Regional Trial Court (RTC) of Manila for Estafa, without specification under what
mode in Article 315 of the Revised Penal Code the offense was allegedly committed.
The Information alleged as follows:

That on or about December 12, 1994, in the City of Manila, Philippines, the said
accused, did then and there willfully, unlawfully and feloniously defraud ROSA
CABUSO in the following manner, to wit: the said accused, well knowing that [s]he
did not have sufficient funds in the bank, and without informing the said Rosa Cabuso
of such fact, drew, made out and issued to the latter the following checks, to wit:

Allied Bank Check No. 76000242 dated January 13, 1995 in the amount of
P76,654.00;

Banco de Oro Check No. 026265 dated January 15, 1995 in the amount of P76,654.00;

PS Bank Check No. 000928 dated January 18, 1995 in the amount of P100,000.00;

Banco de Oro Check No. 026270 dated January 15, 1995 in the amount of
P100,000.00;

Banco de Oro Check No. 026266 dated January 20, 1995 in the amount of P76,654.00;

Banco de Oro Check No. 026267 dated January 25, 1995 in the amount of P96,494.00;

PS Bank Check No. 000927 dated January 31, 1995 in the amount of P96,494.00;

Banco de Oro Check No. 026271 dated January 31, 1995, in the amount of
P100,000.00;

Banco de Oro Check No. 26268 dated January 31, 1995 in the amount of P76,654.00;
and

PS Bank Check No. 000950 dated January 31, 1995 in the amount of P144,000.00.

all in the total amount of P923,110.00, in payment of assorted pieces of jewelry which
the said accused ordered, purchased and received from the said complainant on the
same day; that upon presentment of the said checks to the bank for payment, the same
were dishonored and payment thereof refused for the reason "ACCOUNT CLOSED"
and said accused, notwithstanding due notice to her by said complainant of such
dishonor of the said checks, failed and refused and still fail[s] and refuse[s] to deposit
the necessary amount to cover the amount of the checks, to the damage and prejudice
of the said Rosa Cabuso in the aforesaid amount of P923,110.00, Philippine
[c]urrency.1 (Emphasis and underscoring supplied)
VAC1

Petitioner had for years been buying jewelry from Gold Asia which is owned and
operated by the family of Rosa Cabuso (the private complainant). While she normally
bought jewelry on cash basis, she was allowed to issue postdated checks to cover the
jewelry she bought in December 1994 up to February 1995, upon her assurance that the
checks would be funded on their due dates. When, on maturity, the checks were
deposited, they were returned with the stamp "Account Closed."

Hence, petitioner was indicted for Estafa. She was likewise indicted for 10 counts of
violation of B.P. 22 before the RTC of Manila, docketed as Criminal Case Nos.
213645-CR to 213654-CR.

The evidence presented by the prosecution in the Estafa case consisted of, inter alia,
the 10 dishonored checks and the transcript of stenographic notes2 taken during the
trial of the B.P. 22 cases, which transcripts included those of the testimonies of
representatives of the drawee banks Allied Bank, PSBank and Banco de Oro.

Petitioner, denying having intended to defraud the private complainant, gave her side
of the case as follows:

On December 12, 1994, all the personal checks she had issued matured at the same
time, but as her business was faring poorly, she was not able to fund those which she
issued to the private complainant. On her request, however, the private complainant
allowed her to pay on installment the amounts covered by the checks and she had in
fact paid a total of P338,250, a fact admitted by the prosecution.

By Decision3 of March 31, 2003, Branch 8 of the Manila RTC convicted petitioner of
Estafa under Article 315, paragraph 2(a) of the Revised Penal Code in this wise:
While the parties are of the impression that the accused is charged with and is being
tried for the crime of estafa committed by means of the issuance of bouncing checks
[Art. 315, 2(d) of the Revised Penal Code], this Court is of the opinion that the
Information sufficiently charges estafa through false pretenses under Paragraph 2(a) of
the same article which provides:

"Art. 315. Swindling (estafa). – Any person who shall defraud another . . .

xxxx

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

a) By using a fictitious name or falsely pretending to possess power, influence,

qualifications, property, credit, agency, business or imaginary transactions; or by
means of similar deceits."4 (Emphasis and underscoring supplied)

Thus the trial court disposed:

WHEREFORE, the Court hereby renders judgment finding accused Goretti Ong
GUILTY BEYOND REASONABLE DOUBT of the crime of Estafa defined and
penalized under Article 315, paragraph 2(a) of the Revised Penal Code and hereby
imposes on said accused the penalty of TWELVE (12) YEARS imprisonment and to
pay private complainant Rosa Cabuso the amount of FIVE HUNDRED EIGHTY
FOUR THOUSAND EIGHT HUNDRED SIXTY (P584,860.00) PESOS and cost of
suit.5 (Underscoring supplied)

Petitioner challenged the trial court’s decision before the Court of Appeals, raising the
issue of whether she could be convicted of Estafa under Article 315, paragraph 2(a) of
the Revised Penal Code when she was, in the Information, charged of Estafa under
Article 315, paragraph 2(d) of the same Code. She additionally raised the following
issues:

xxxx

2. Whether or not the decision of the trial court is valid even if it failed to comply with
the provisions of the indeterminate sentence law;

3. Whether or not the accused-appellant can be convicted of the crime of estafa despite
the failure of the prosecution to prove her guilt beyond reasonable doubt[.]6
(Underscoring supplied)

The Court of Appeals affirmed the conviction on appeal but modified the penalty and
the amount of indemnity,7 disposing as follows:

WHEREFORE, premises considered, the present appeal is hereby DISMISSED for

lack of merit. The appealed decision dated March 31, 2003 of the trial court in
Criminal Case No. 95-144421 is hereby AFFIRMED with MODIFICATION in that
the accused-appellant is hereby instead sentenced to suffer an indeterminate prison
term of four (4) years and two (2) months of prision correccional, as minimum, to
twenty (20) years of reclusion temporal as maximum, and to indemnify the
complaining witness in the amount of P585,514.00.

With costs against the accused-appellant.8

Her Motion for Reconsideration9 having been denied,10 petitioner filed the present
petition,11 faulting the appellate court for convicting her of Estafa despite her good
faith and lack of criminal intent, and violating her constitutional right to be informed of
the nature and cause of the accusation against her by affirming the trial court’s decision
finding her guilty of Estafa under Article 315, paragraph 2(a), when she was charged
under paragraph 2(d) of the same Article.12

The appeal is impressed with merit.

Section 14(2) of Article III of the Constitution grants the accused the right to be
informed of the nature and cause of the accusation. This is to enable the accused to
adequately prepare for his defense. An accused cannot thus be convicted of an offense
unless it is clearly charged in the complaint or information.13

From the allegations in an information, the real nature of the crime charged is
determined.17 In the case at bar, the Information alleged that petitioner issued the
questioned checks knowing that she had no funds in the bank and failing to fund them
despite notice that they were dishonored. These allegations clearly constitute a charge,
not under paragraph 2(a) as the lower courts found but, under paragraph 2(d) of Article
315 of the Revised Penal Code which is committed as follows:

xxxx

2(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 this 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.

x x x x (Underscoring supplied)

Although the earlier quoted paragraph 2(a) and the immediately quoted paragraph 2(d)
of Article 315 have a common element – false pretenses or fraudulent acts – the law
treats Estafa under paragraph 2(d) by postdating a check or issuing a bouncing check
differently. Thus, under paragraph 2(d), failure to fund the check despite notice of
dishonor creates a prima facie presumption of deceit constituting false pretense or
fraudulent act, which is not an element of a violation of paragraph 2(a).

Under paragraph 2(d), if there is no proof of notice of dishonor, knowledge of

insufficiency of funds cannot be presumed, and unless there is a priori intent, which is
hard to determine and may not be inferred from mere failure to comply with a promise,
no Estafa can be deemed to exist. So holds the 2004 case of People v. Ojeda.14

x x x [N]otice of dishonor is required under both par. 2(d) Art. 315 of the R[evised]
P[enal] C[ode] and Sec. 2 of BP 22. While the RPC prescribes that the drawer of the
check must deposit the amount needed to cover his check within three days from
receipt of notice of dishonor, BP 22, on the other hand, requires the maker or drawer to
pay the amount of the check within five days from receipt of notice of dishonor. Under
both laws, notice of dishonor is necessary for prosecution (for estafa and violation of
BP 22). Without proof of notice of dishonor, knowledge of insufficiency of funds
cannot be presumed and no crime (whether estafa or violation of BP 22) can be
deemed to exist.15 (Emphasis and underscoring supplied)

Notice of dishonor being then an element of a charge under Article 2(d) under which
petitioner was clearly charged, failure to prove it is a ground for acquittal thereunder.

In affirming the trial court’s decision, the Court of Appeals relied on the ruling in the
2003 case of Garcia v. People16 wherein this Court upheld the appellate court’s
affirmance of the trial court’s conviction of the accused for Estafa under Article 315,
"Section 2(2) [sic] of the Revised Penal Code." In that case, the accused was charged
as follows:

That on or about and during the period comprised between June 20, 1995, and August
15, 1995, inclusive, in the City of Manila, Philippines, the said accused did then and
there willfully, unlawfully and feloniously defraud DOLORES S. APOLONIO in the
following manner, to wit: the said accused by means of false manifestations and
fraudulent representations which she made to said DOLORES S. APOLONIO to the
effect that accused has three (3) checks which according to her have sufficient funds
and if encashed, the same will not be dishonored; and by means of other deceits of
similar import, induced and succeeded in inducing the said DOLORES S. APOLONIO
to accept the following checks:

Name of Bank Check No. Amount Date Payable to

Phil. Nat’l. Bank 046884 P28,000.00 6-20-‘95 Cash

- do - 047416 34,000.00 8-15-‘95 - do -

Pilipinas Bank 60042087 25,000.00 7-25-‘95 Garcia Vegetable

Dealer

as payments of assorted vegetables which accused purchased and received from said
DOLORES S. APOLONIO in the amount of P87,000.00, said accused knowing fully
well that the said manifestations and representations were all false and untrue as said
checks when presented to the bank for payment were all dishonored for the reason
"Drawn Against Insufficient Funds," and were made solely for the purpose of
obtaining, as in fact she did obtain assorted vegetables in the amount of P87,000.00;
which once in her possession and with intent to defraud, she willingly, unlawfully and
feloniously misappropriated, misapplied and converted the said assorted vegetables or
the value thereof to her own personal use and benefit, to the damage and prejudice of
the said owner in the aforesaid amount of P87,000.00, Philippine Currency.17
(Underscoring supplied)

The therein accused Garcia argued that since, under the above-quoted Information, she
was charged of Estafa under Article 315, paragraph 2(a) of the Revised Penal Code, it
was error for the appellate court to affirm her conviction by the trial court under Article
315, paragraph 2(d).

The Court in Garcia held that there is "no basis for [her] to conclude that she was
convicted under Article 315, paragraph 2(d)," but that "[e]ven supposing that the trial
court apparently discussed estafa under Article 315, paragraph 2(d), it was only
pointing out the absurdity of [Garcia’s] argument that she could not be held liable
under Article 315 paragraph 2(d) as she was

not the drawer of the therein involved checks." Reliance on Garcia is thus misplaced.

In the case at bar, as priorly stated, petitioner was charged under paragraph 2(d), but
there is no evidence that petitioner received notice of dishonor of all, except one
(Allied Bank Check No. 7600042 for P76,654), of the questioned checks. Hence, with
respect to all but one of the checks, the prima facie presumption of knowledge of
insufficiency of funds did not arise.

This leaves it unnecessary to pass on the evidence for the defense. Suffice it to state
that petitioner’s defenses of good faith and lack of criminal intent, defenses to a malum
in se like Estafa, are not difficult to credit. For, on notice of the lack of sufficient funds
in her bank account, to cover the Allied Bank check, petitioner offered to pay in
installment, to which the private complainant agreed, the amount covered by the said
check, as well as the others. As reflected above, the prosecution stipulated that
petitioner had made a total payment of P338,250, which amount is almost one-third of
the total amount of the ten checks or more than the amount covered by the P76,654
Allied Bank check.

IN FINE, the prosecution having failed to establish all the elements of Estafa under
Article 315, paragraph 2(d) under which petitioner was clearly charged, her acquittal is
in order. The judgment bearing on her civil liability stands, however.

WHEREFORE, the petition is partly GRANTED. Petitioner, Goretti Ong, is

ACQUITTED of the crime charged for failure of the prosecution to prove her guilt
beyond reasonable doubt. The decision bearing on her civil liability is AFFIRMED,
however.

Costs against petitioner.

SO ORDERED.

CONCHITA CARPIO MORALES

Associate Justice
G.R. No. 175316 March 28, 2007

PEOPLE OF THE PHILIPPINES, Appellee,

vs.
ROGER DURANO, Appellant.

DECISION

YNARES-SANTIAGO, J.:

Before us for review is the Decision1 dated April 28, 2006 of the Court of Appeals in CA-
G.R. CR.-H.C. No. 00204-MIN affirming the Judgment2 rendered by Branch 17 of the
Regional Trial Court of Davao City convicting the appellant of two counts of rape.

On July 9, 1999, appellant was charged with four counts of rape and one count of
robbery3 docketed as Crim. Case Nos. 43505-99 to 43509-99. He was acquitted of two
counts of rape in Criminal Case Nos. 43507-99 and 43508-99 for insufficiency of
evidence, and of robbery in Crim. Case No. 43509-99. However, he was convicted of
two counts of rape in Criminal Case Nos. 43505-99 and 43506-99.

The Information in Criminal Case No. 43505-99 reads as follows:

The undersigned Prosecutor, at the instance of the complainant, AAA, whose affidavit is
hereto attached as Annex "A" and made an integral part hereof, accuses the above-
named accused of the crime of RAPE under Article 266-A, par. 1 (a) of the Revised
Penal Code in relation to Republic Act 8353, committed as follows:

That on or about April 13, 1999, in the City of Davao, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused conspiring and
confederating with each other, by force, threat and intimidation, with Roger N. Durano,
as principal by direct participation, did then and there, wilfully, unlawfully and feloniously
have sexual intercourse with AAA, against her will.

CONTRARY TO LAW.4

while the Information in Criminal Case No. 43506-99 states:

The undersigned Prosecutor, at the instance of the complainant, AAA, whose affidavit is
hereto attached as Annex "A" and made an integral part hereof, accuses the above-
named accused of the crime of RAPE under Article 266-A, par. 1 (a) of the Revised
Penal Code in relation to Republic Act 8353, committed as follows:

That on or about April 13, 1999, in the City of Davao, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused conspiring and
confederating with each other, by force, threat and intimidation, with Roger N. Durano,
as principal by direct participation, did then and there, wilfully, unlawfully and feloniously
have sexual intercourse with AAA, against her will.

CONTRARY TO LAW.5

Appellant pleaded not guilty to both charges.

The facts as summarized by the Solicitor General:

Private complainant is a working student who stays at the convent of the BBB Sisters at
Ulas, Davao City (TSN, p. 4, May 10, 2000).
At 3:45 in the afternoon of April 13, 1999, private complainant left the convent and
proceeded to Fuji Photograph Center located at San Pedro Street, Davao City for the
copying of some pictures. Since the process would take an hour, she decided to watch
a movie at Queens Theater (TSN, p. 9, May 10, 2000).

After leaving the movie theater and while she was nearing a gasoline station along
Bonifacio Street, private complainant noticed that appellant was following her. She
continued walking but she was surprised to see that appellant was already beside her.
(TSN, p. 23, May 11, 2000; p. 32, June 30, 2000). Appellant, then, held her right
shoulder. He identified himself as a member of the police and junior drug buster and
showed private complainant his identification card (TSN, p. 7, 23, May 11, 2000).
Appellant told her that she was Grace of Maa, a drug user and a "buntog" (prostitute)
and for which reason he had to arrest her (TSN , p. 7, May 10, 2000; p. 32, June 30,
2000).

Private complainant insisted that she was not Grace of Maa and she was neither a drug
user nor a prostitute (TSN, p. 8, May 10, 2000). When appellant insisted on arresting
her, private complainant agreed to go with appellant to Rizal Park near the Legislative
Building to prove that she was not the person of loose morals appellant claimed her to
be (TSN, p. 8, May 10, 2000; p. 33, June 30, 2000). In the park, they sat on the grass
and talked. She freely talked about her life and even gave her telephone number to
appellant to prove to him that she was not Grace of Maa (TSN, p. 37, June 30, 2000).

Appearing to be convinced that she was not Grace of Maa, appellant told her that
before she could be released, she needed to sign some release papers. Eager to be
released and gripped with fear, she went with appellant and they proceeded to Talisay
Lodge (TSN, p. 6, June 30, 2000). She noticed that two men, referred to as "Ricky" and
"Dante" by appellant, followed them (TSN, p. 10, May 10, 2000).

At Talisay Lodge, appellant requested for a room. Once inside the room, complainant
asked where the release papers were. Appellant replied that before she could sign the
papers, she must have sex with him (TSN, p. 11, May 10, 2000). Thus, instead of
handing her the papers, appellant forced her to undress. Thereafter, appellant pushed
her toward the bed. He kissed her shoulder, chest and inserted his penis into her
vagina. When he could not penetrate his (sic) vagina, he spit on it. He made push-and-
pull movements and after ejaculating, he leaned on the floor. He pulled her by the
shoulder and while lying on the floor, he inserted his penis on her mouth and made
push-and-pull movements. Then he pulled her again to the bed. In the bed, she was
made to lie on her back so appellant could insert his penis into her anus. Since he could
not penetrate her anus, he went on top of her and made push-and-pull movements for
the second time (TSN, pp. 13-17, May 10, 2000). After appellant finished, he went
outside. She remained in bed crying. Later, two other men ravished her (TSN, p. 18,
May 10, 2000). They left the lodge afterwards.

Initially, private complainant hesitated to report the rape incidents because appellant
had threatened her that he would tell the sisters at the convent that she was a "buntog"
or prostitute (TSN, p. 21, May 10, 2000). However, she later confided the rape incident
to her best friend, CCC, a co-intern in the convent (TSN, p. 7-8, May 14, 2000). Two
days after the incident or on April 15, 1999, CCC accompanied her to the Toril Police
Station. They were told to proceed to the Women and Child Desk in Davao City, where
SPO1 Christine Bitgue attended to them (TSN, pp. 22-24, May 10, 2000).6

AAA decided to report the incident upon the advice of CCC because on April 15, 1999,
appellant showed up at their house on the pretext that complainant has to sign some
papers. He also ordered AAA to meet him at the Mercury Drug Store the following day.
AAA felt shame and fear upon seeing the appellant.7
CCC testified that on the night of April 13, 1999, complainant confided to her the rape
incident. Complainant appeared agitated and afraid as she was crying and shivering
while recounting the incident. The following day, complainant was not her usual self at
work. Thus, she advised and accompanied complainant to report the incident to the
authorities at the Toril Police Station.8

Sis. DDD, Treasurer and In-charge of working scholars at the BBB Sisters’ Convent,
testified that she had known complainant since 1986; that complainant is responsible,
honest, open and receptive to advices because of her desire to finish her studies; that
complainant never manifested bad behavior during her stay in the convent; that
sometime in April 1999, she noticed a change in complainant’s behavior as she was
always crying and isolating herself from the rest of the group; that complainant
eventually confided to her the rape incident.9

SPO1 Bitgue testified that on April 15, 1999, complainant went to the Women and Child
Desk in Davao City crying and trembling. She moved from one table to another and
stared at the window from time to time. Thus, she transferred her in a closed room to
make her feel safe and comfortable. She then transcribed the narrations made by
complainant in the blotter report marked as Exhibit B.10

Dr. Samuel Cruz, Medical Officer of the City Health Office, examined complainant the
following day. He found purplish contusions on her breast and a deep hymenal
laceration.11 He testified that the age of the physical injuries is consistent with the
alleged date of infliction.12

Dr. Marilou Villanueva, a psychiatrist connected with the Davao Medical School
Foundation, diagnosed complainant on April 19, 1999. In her psychiatric report, 13 she
found complainant as suffering from acute stress disorder, post-traumatic stress
disorder, and major depression, moderate. She testified that during the rape incident,
complainant was experiencing acute stress disorder which impaired her consent.14

Appellant admitted having sexual intercourse with complainant on April 13, 1999 but
alleged that it was consensual. His version of the events was summarized in Appellant’s
Brief15 as follows:

Accused-appellant ROGER DURANO is 21 years of age, single and a resident of Sasa,

Davao City. He was a student of Criminology at the University of Mindanao. On April 13,
1999 at around 3:00 to 3:30 in the afternoon, while he was crossing San Pedro Street,
he accidentally bumped AAA, private complainant in the instant case, while the latter
was coming out of Fuji Film Center. He immediately apologized to her and she readily
accepted his apologies. Thereafter, they parted ways. When accused-appellant passed
by San Pedro Church, he saw the private complainant sitting in front of the Legislative
Building. Upon seeing her, accused-appellant smiled at her and the latter smiled back.
He approached private complainant, who at that time was looking at the pictures she
got from the Fuji Film Center. Accused-appellant asked her permission to take a look at
those pictures to which private complainant agreed. It was at this point when the two of
them introduced each other. Accused-appellant came to know that private complainant
was also known as AAA to her friends. Thereafter, accused appellant accompanied
AAA to a convent but the nun she was supposed to meet at that time was not around.
He asked AAA if the two of them can have a talk at the Osmena Park near the
Legislative Building. Although she did not answer, AAA nevertheless went with the
accused-appellant. The two of them sat on the park and talked about each other’s lives.
She told [him] that she was a graduate of x x x with a course in Education. AAA
admitted that she had a boyfriend at that time. She likewise told him about her sickly
mother and the financial problem she was undergoing at that time. She further confided
to him that due to financial distress, her mother has tolerated an affair that she had with
a married man. Accused-appellant advised her to stop the relationship with the said
married man for she might be charged in court later on. He even offered help to her
financial problems.

As the hours went by, their conversation turned serious. Accused-appellant found
himself attracted to the private complainant. Right there and then, he expressed his
feelings for her, which she accepted. He proposed that they check-in at a lodge that
evening. At first, she was hesitant because she was afraid that accused-appellant would
just abandon her afterwards. He told her that her fears will not happen and as proof, he
promised to visit her after two days. AAA seemed convinced hence she agreed to go to
the lodge. The new lovers left the park and later boarded a passenger jeep. The couple
alighted at Talisay Lodge and entered the building. Upon reaching the counter,
accused-appellant talked to the one in-charged therein and asked for a room. Before
entering the room however, AAA told the accused-appellant to go ahead because she
wanted to go to the bathroom first. He lied in bed and in less than a minute, AAA
knocked at the door and came in. They embraced and kissed each other. After
removing her upper clothing, accused-appellant removed his own shirt. They continued
kissing until both of them removed their pants. They were still standing at that time
wearing only their underwears (sic). Thereafter they both jumped into bed and made
love. They had several rounds of sexual intercourse experimenting on different
positions. When they finished, they laid at each other’s side and AAA told him that she
was indeed very happy with what happened to them. Moments later, they dressed up
and went out of the room passing by the same counter. AAA held the arms of the
accused-appellant with her face on his back as she was a little bit ashamed of being
identified by the people therein.

The couple went out of the lodge and crossed the street. They waited for a passenger
jeep and when they saw one, accused-appellant volunteered to bring AAA home.
However, AAA told him that she can manage to go home on her own. Accused-
appellant promised her though that he would visit her at her house after two days.

On April 15, 1999 at around 8:00 o’clock in the evening, accused-appellant visited AAA
as promised. AAA brother was outside the house at that time. He introduced himself
and he was told to proceed inside. A woman met him inside and asked for his name. He
told him he was Roger Durano, a former classmate of AAA. The two have agreed
beforehand that they would introduce each other as former classmates. Thereafter, AAA
came out of her room together with her mother, who went towards the balcony. The two
of them had a short talk and accused-appellant apologized for not bringing the
medicines that he promised for her mother. He said he would visit her again on Sunday.
AAA told him to call her at the BBB Convent instead. Accused-appellant was not sure if
he could call AAA at the convent, so he asked her to see him at the Mercury Drug Store
at 2:00 o’clock in the afternoon on Sunday. Nevertheless, he was able to call her up and
told her he would wait at the said drug store up to 4:00 o’clock in the afternoon.
Accused-appellant waited but AAA did not arrive. To his great surprise, AAA accused
him of raping her. (TSN, August 29, 2000, pp. 2-36; TSN, August 30, 200, pp. 2-36.)16

On March 15, 2001, the trial court rendered its Decision convicting the appellant of two
counts of rape. The dispositive portion of the decision reads:

WHEREFORE, finding the evidence of the prosecution, more than sufficient, to prove,
the guilt of accused, Roger Durano only in Crim. Case No. 43,505-99, and Criminal
Case No. 43,506-99, in two counts of rape pursuant to Art. 334 of the Revised Penal
Code as amended by Republic Act 7659, under Art. 9 of said amendatory act without
any aggravating circumstances, proved by the prosecution against accused, Roger
Durano, in the commission of the offense charged, said above-mentioned accused, is
sentenced to suffer a penalty of reclusion perpetua in each of the above-criminal cases
together with all accessory penalty as provided for by law.
In Criminal Case No. 43,507-99, Crim. Case No. 43-508-99, both for rape against
accused, Roger Durano and alias Ricky and alias Dante, accused, Roger Durano is
ordered acquitted, said cases are odered dismissed, for lack of sufficient identification of
the two other accused, in the commission of the offense charged, along with accused
Roger Durano and for their non-arrest, without jurisdiction of this court against both
accused, designated only in their alias, Dante and Ricky.

In Criminal Case No. 43,509-99 for robbery against Roger Durano and his co-accused,
is likewise ordered dismissed, for lack of any evidence, to prove the commission against
all the above-mentioned accused.

However, in accordance with Art. 100 in relation to 104 of the Revised Penal Code in
Crim. Case No. 43,505-99, and another Crim. Case No. 43,506-99, accused, Roger
Durano is furthermore ordered, to pay complainant, AAA, the amount of ₱50,000.00 by
way of civil indemnity and another amount of ₱50,000.00 by way of moral damages and
still another amount of ₱50,000.00 by way of exemplary damages, in both above-
criminal cases, for all the sorrows, humiliation, worry and sufferings of complainant,
AAA, brought about in the commission and filing of the above-criminal cases against
said accused. x x x

SO ORDERED.17

The case was brought before this Court on automatic review, however, pursuant to our
ruling in People v. Mateo,18 the case was referred to the Court of Appeals.

On April 28, 2006, the appellate court rendered its Decision affirming the appellant’s
conviction with modification as to damages. The dispositive portion of the Decision
reads as follows:

WHEREFORE, premises considered, the instant appeal is DISMISSED. The assailed

Judgment rendered by the court a quo is hereby AFFIRMED subject to the
MODIFICATION that the Appellant is further ordered to pay the Appellee the amount of
Php 50,000.00 as moral damages, Php 50,000.00 as civil indemnity and another Php
25,000.00 as exemplary damages for each count of rape.

SO ORDERED.19

Hence, this appeal.

Appellant assails the credibility of the complainant’s testimony. He claims that her
account of the alleged rape is unbelievable considering her conduct before, during and
after the incident. He argues that complainant’s claim that she was arrested or mistaken
for a drug user is highly improbable considering that he never employed force,
intimidation, or threat on complainant or used deadly weapon upon her person. On the
contrary, she went with him voluntarily to the park and during their lengthy conversation
even gave her telephone number to him. She willingly talked to him and told him about
her life and family, including her financial woes. More importantly, she voluntarily
accepted his invitation to go to Talisay Lodge.20

According to appellant, complainant who is a college graduate should know that Talisay
Lodge is a lovers’ rendezvous. Yet, she never resisted or attempted to seek the help of
other people despite opportunities to do so.

We are not persuaded.

Rape is committed when the accused has carnal knowledge of the victim by force or
intimidation and without consent. Having admitted the sexual intercourse between him
and complainant, the determination of appellant’s innocence or guilt hinges on whether
such act was voluntary or was attended with force or intimidation. Crucial in this respect
is the credibility of the testimony of the complainant, for the accused may be convicted
solely on the testimony of the victim provided that it meets the test of credibility. The
testimony should not only come from the mouth of a credible witness, it should likewise
be credible and reasonable in itself, candid, straightforward and in accord with human
experience.21

We find no reason to disturb the trial court’s finding on the credibility of complainant’s
testimony, for it is in a better position to properly evaluate testimonial evidence having
the full opportunity to directly observe the witnesses’ deportment and manner of
testifying. Well-settled is the rule that unless the trial court overlooked, misunderstood,
or misapplied some facts of substance and value which, if considered, might affect the
outcome of the case, its findings carry great weight and will not be disturbed on
appeal.22

A rape victim, who testifies in a categorical, straightforward, spontaneous and frank

manner, and remains consistent, is a credible witness.23 When the testimony of a rape
victim is simple and straightforward, unshaken by rigorous cross-examination and
unflawed by any serious inconsistency or contradiction, the same must be given full
faith and credit.24 The Court Appeals found her narration candid, straightforward, and
credible.25 It likewise found it incredible that an innocent girl like the private complainant,
who practically grew up in a religious institution would concoct a tale of defloration,
publicly admit having been ravished, allow the examination of her private parts, and
endure the pain and trauma of public trial had she not in fact been truly violated. 26

There is likewise no reason shown on the part of complainant to testify against the
appellant and impute to him so grave a crime as rape making her testimony worthy of
full faith and credit. As consistently ruled by this Court:

(W)hen a woman says that she has been raped, she says in effect all that is necessary
to show that rape has been committed. Her testimony is credible where she has no
motive to testify against the appellants, as in the case at bar. Verily, a rape victim would
not publicly disclose that she had been raped and undergo the trouble and humiliation
of a trial if her motive was not to bring to justice the persons who had abused her. More
specifically, no young Filipina of decent repute would publicly admit that she has been
criminally abused and ravished unless it is the truth. It is her natural instinct to protect
her honor.27 (Emphasis supplied)

Appellant’s claim that the sexual act between him and complainant was consensual
must fail. The bruises28 found on complainant’s body corroborate her testimony that she
resisted appellant, albeit unsuccessfully.29 Physical evidence of bruises or scratches
eloquently speaks of the force employed upon the rape victim. 30 Besides, the trial court
observed that complainant was naïve and can be easily manipulated or influenced by
others, to wit:

Moreover, other than her shy personality and appearing without firm judgment of
herself, as could easily be drag by strong influence of others, complainant can be an
easy victim of accused’s intimidation and clever maneuvering for purely professional
and selfish motivation.

As the court observed and gathered, tediously during the appearance and lengthy
testimony of complainant, in court, she appears indeed lacking of firmness and rigid
personality, to stand on her own decision, even if the court also found her naturally
humble and simple, honest in her disposition and apparently modest in her speech and
expressions.
She is submissive and prone easily to suggestion and easy victim of exploitation, as
that described by Dr. Marilou Villanueva, who examined and subjected the complainant,
in a psychological analysis, when she voluntarily come to her for assistance on account
of her emotional stress and disturbances brought about by the rape incident committed
by accused.31

Moreover, she believed that appellant was a person in authority who mistook her for
another person, and that appellant had companions who were watching her thereby
making any resistance or escape futile.

At any rate, resistance is not an element of rape as rape could be perpetrated through
the use of force or intimidation. Lack of physical resistance can not be considered
consent. In People v. Loyola,32 this Court held that:

The test is whether the threat or intimidation produces a reasonable fear in the mind of
the victim that if she resists or does not yield to the desires of the accused, the threat
would be carried out. Where resistance would be futile, offering none at all does not
amount to consent to the sexual assault. It is not necessary that the victim should have
resisted unto death or sustained physical injuries in the hands of the rapist. It is enough
if the intercourse takes place against her will or if she yields because of genuine
apprehension of harm to her if she did not do so. Indeed, the law does not impose upon
a rape victim the burden of proving resistance.33

In the instant case, complainant believed that her life was in danger; that appellant was
a person in authority determined to arrest or even salvage her; and that appellant had
other companions looking after her which would make her escape impossible. 34 Indeed,
all these led her to believe that it would be futile for her to resist appellant. Failing to
resist the advances of her malefactor is not a manifestation of consent, but rather an
indication of involuntary submission.35

Behavioral psychology teaches that people react to similar situations dissimilarly. Most
women would resist sexual assault with a wild struggle. Others become virtually
catatonic because of the mental shock they experience. Yet it can never be successfully
argued that the latter are any less sexual victims than the former.36]

The trial court gave weight to the explanation of Dr. Villanueva, the psychiatrist who
treated complainant, that she had been suffering from an acute stress disorder caused
by her traumatic experience. Dr. Villanueva testified that complainant’s consent was
affected by the stress and the trauma which made her more submissive, for it was
easier for her to follow than to fight. Her psychiatric history also showed the same
response when faced with a traumatic experience such as when she stayed motionless
inside the Davao church during its bombing.37

The "sweetheart defense" is also unavailing. Appellant failed to present convincing

proof that he and complainant had an affair.38 Complainant vehemently denied that they
were lovers. The fact that appellant visited complainant two days after the incident did
not prove that they are sweethearts. In fact, it was the realization on the part of the
complainant that appellant knew her whereabouts which prompted her to report the
incident to the police authorities.39 As correctly observed by the trial court:

If indeed complainant became a sweetheart of accused as vigorously invoked by the

latter, complainant would not have immediately, two days after the rape incident, on
April 15, 1999, from April 13, 1999, reported the rape incident at Toril Police Station,
then formally filed her complaint with the child and women’s desk of Davao City Police
Station, after she submitted herself, in a thorough physical examination by Dr. Samuel
Cruz of the City Health of Davao City.
The immediate and spontaneous action of complainant in reporting the rape incident
with the authorities, clearly shows; she is aggrieve of what accused did, in violating her
honor and person on what she furiously testified, she was treated by accused like a pig,
in the visayan, "binaboy niya ako." The very word of complainant, showing in no
equivocal terms, complainant’s manifestation, of how she was seriously offended, as a
result she wanted, to find vindication, of a wrong done to her.

The allegation of accused, precisely because he believe, he and complainant were

already sweetheart, he readily visited her in their house, on April 15, 1999, at about 8:00
p.m., to confirmed his alleged promise to complainant but despite all his pretensions
that complainant attended to him, complainant in fact was afraid accused came to know
their house and to provide her security, she courageously decided to report the rape
incident that very night, with the Police, to prevent accused from further molesting her.40

Besides, even granting that appellant and complainant were sweethearts, it does not
necessarily negate rape. "A sweetheart cannot be forced to have sex against her will.
Definitely, a man cannot demand sexual gratification from a fiancée and, worse, employ
violence upon her on the pretext of love. Love is not a license for lust." 41

As regards the amount of damages, this Court has consistently held that civil indemnity
ex delicto is mandatory upon finding of rape while moral damages are awarded upon
such finding without need of further proof because it is assumed that a rape victim has
actually suffered moral injuries entitling the victim to such award. 42 Hence, complainant
is entitled to ₱50,000.00 as civil indemnity and ₱50,000.00 as moral damages for each
count of rape consistent with existing jurisprudence on the matter.43

However, with respect to the award of exemplary damages, Article 2230 of the Civil
Code provides that it may be imposed as part of the civil liability when the crime was
committed with one or more aggravating circumstances. Considering that no
aggravating circumstance attended the commission of the crime, the award of
exemplary damages in the amount of ₱25,000.00 is without basis and should be
deleted.44

WHEREFORE, the Decision of the Court of Appeals in CA-G.R. CR.-H.C. No. 00204-
MIN which affirmed the March 15, 2001 Decision of the Regional Trial Court Davao City,
Branch 17 finding Roger Durano guilty beyond reasonable doubt of two counts of rape
and sentencing him to suffer the penalty of reclusion perpetua and ordering him to pay
₱50,000.00 as moral damages, ₱50,000.00 as civil indemnity and another ₱25,000.00
as exemplary damages for each count of rape is AFFIRMED with the MODIFICATION
that the award for exemplary damages is DELETED for lack of basis.

SO ORDERED.
G.R. No. 168217 June 27, 2006

JOY LEE RECUERDO, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

CALLEJO, SR., J.:

Before the Court is a Petition for Review on Certiorari of the Joint Decision of the Court of
1

Appeals (CA) in CA-G.R. CR No. 25983, affirming with modification the decision of the
Regional Trial Court (RTC) of Malolos, Bulacan in Criminal Cases Nos. 2750-M-94, 2751-M-94
and 2807-M-94 for estafa.

As synthesized by the appellate court, the antecedents are as follows:

In September 1994, three separate Criminal Informations charging Joy Lee Recuerdo of Estafa
under Article 315, paragraph 2(d) of the Revised Penal Code involving 18 worthless bank checks
were simultaneously filed by the Office of the Provincial Prosecutor of Bulacan, the accusatory
portions of which read, thus:

A. Six (6) Unitrust Checks

Crim. Case No. 2750-M-94

"That sometime in the second week of December, 1993, in the municipality of Meycauayan,
province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the said
accused Joy Lee Recuerdo, with intent to gain and by means of deceit, false pretenses and
fraudulent manifestations, and pretending to have sufficient funds with the Unitrust, Makati
Commercial Center Branch, did then and there willfully, unlawfully and feloniously prepare,
draw, make and issue the following postdated checks, to wit:

Check No Date Amount

014355 April 5, 1994 ₱22,000.00

014356 May 5, 1994 22,000.00

014357 June 5, 1994 22,000.00

014358 July 5, 1994 22,000.00

014359 August 5, 1994 22,000.00

014360 September 5, 1994 22,000.00

with the total amount of P132,000.00 drawn against the said bank, and deliver the said checks to
the complaining witness Yolanda G. Floro as payment for pieces of jewelry she obtained from
the said complainant, knowing fully well at the time the checks were issued that her
representations were false for she had no sufficient funds in the said bank, so much that upon
presentment of the said checks with the said bank for encashment, the same were dishonored and
refused payment for having been drawn against an "Account Closed", and inspite of repeated
demands to deposit with the said bank the amount of P132,000.00, the said accused failed and
refused to do so, to the damage and prejudice of the said Yolanda G. Floro in the said amount of
P132,000.00.

Contrary to law."

B. Six (6) PCI Bank Checks

Crim. Case No. 2807-M-94

"That sometime in the second week of December 1993, in the municipality of Meycauayan,
province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the said
accused Joy Lee Recuerdo, with intent of gain and by means of deceit, false pretenses and
fraudulent manifestations, and pretending to have sufficient funds with the PCI Bank, Makati-De
La Rosa Branch, did then and there willfully, unlawfully and feloniously prepare, draw, make
and issue the following postdated checks, to wit:

Check No. Date Amount

053051982A March 28, 1994 ₱13,000.00

053051983A April 28, 1994 13,000.00

053051984A May 28, 1994 13,000.00

053051985A June 28, 1994 13,000.00

053051986A July 28, 1994 13,000.00

053051987A August 28, 1994 13,000.00

with the total amount of P78,000.00 drawn against the said bank, and deliver the said checks to
the complaining witness Yolanda G. Floro as payment for pieces of jewelry she obtained from
the said complainant, knowing fully well at the time the checks were issued that her
representations were false for she had no sufficient funds in the said bank, so much that upon
presentment of the said checks with the said bank for encashment, the same were dishonored and
refused payment for having been drawn against an "Account Closed", and inspite of repeated
demands to deposit with the said bank the amount of P78,000.00, the said accused failed and
refused to do so, to the damage and prejudice of the said Yolanda G. Floro in the said amount of
P78,000.00.

Contrary to law.

C. Six (6) Prudential Bank Checks

Criminal Case No. 2751-M-94

That on or about the 7th day of February, 1994, in the municipality of Meycauayan, province of
Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the said accused Joy
Lee Recuerdo, with intent of gain and by means of deceit, false pretenses and fraudulent
manifestations, and pretending to have sufficient funds with the Prudential Bank, Legaspi
Village Branch, did then and there willfully, unlawfully and feloniously prepare, draw, make and
issue the following postdated checks, to wit:

Check No. Date Amount

 0011783 March 13, 1994 P100,000.00

0011784 April 13, 1994 100,000.00

0011785 May 13, 1994 100,000.00

0011786 June 13, 1994 100,000.00

0011787 July 13, 1994 100,000.00

0011788 August 13, 1994 100,000.00

with the total amount of P600,000.00 drawn against the said bank, and deliver the said checks to
the complainant witness Yolanda G. Floro as payment for pieces of jewelry she obtained from
the said complainant, knowing fully well at the time the checks were issued that her
representations were false for she had no sufficient funds in the said bank, so much that upon
presentment of the said checks with the said bank for encashment, the same were dishonored and
refused payment for having been drawn against an "Account Closed", and inspite of repeated
demands to deposit with the said bank the amount of P600,000.00, the said accused failed and
refused to do so, to the damage and prejudice of the said Yolanda G. Floro in the said amount of
P600,000.00

Contrary to law."

Evidence adduced by the Prosecution tend to establish that herein private respondent Yolanda G.
Floro is engaged in the business of buying and selling of jewelry since 1985. She regularly
conducts business at her residence located at No. 51 Interior, Poblacion, Meycauayan, Bulacan.
Sometimes, though, it was Floro who would personally visit her customers to show and offer
them the pieces of jewelry. Herein accused-appellant/petitioner Joy Lee Recuerdo, on the other
hand, a dentist by profession, who was introduced to Floro by the latter’s cousin Aimee Aoro in
the first week of December 1993, became her customer. Sometime in the second week of
December 1993, at around 7:30 in the evening, Recuerdo went to the house of Floro in
Meycauayan, Bulacan and purchased from her two pieces of jewelry, to wit: a 2.19 carat
diamond round stone in white gold setting worth P220,000.00 pesos, and one piece of loose 1.55
karat marquez diamond with a value of P130,000.00 pesos.

For the 2.19 carat diamond stone, accused issued and delivered to the complainant then and there
ten post-dated checks each in the amount of P22,000.00 drawn against Unitrust Development
Bank, Makati Commercial Center Branch. Only six (6) postdated checks, to wit: Checks Nos.
014356, 014357, 014358, 014359 and 014360 are subject of Criminal Case No. 2750-M-94. For
the 1.55 carat marquez loose diamond, accused issued and delivered to complainant then and
there ten (10) postdated checks, each in the amount of P13,000.00 drawn against PCI Bank,
Makati, Dela Rosa Branch. Six of those checks are subject of Criminal Case No. 2807-M-94, to
wit: Checks Nos. 053051983A, 053051984A, 053051985A, 053051986A and 053051987A,
subject matter of Crim. Case No. 2751-M-94.

In yet another transaction that transpired in the early evening of February 7, 1994, Recuerdo
once again proceeded at Floro’s house in Meycauayan, Bulacan and bought another set of
jewelry, this time a pair of diamond earrings worth P768,000.00 pesos. She was given seven (7)
postdated checks one for P168,000.00 as downpayment and another six (6) postdated checks
drawn against Prudential Bank, Legaspi Village, Makati Branch, each for P100,000.00
representing the balance in the aggregate amount of P600,000.00 pesos (Checks Nos. 100783,
01184, 01185, 011786, 011787 and 011788, Record, Criminal Case No. 2750-M-94, pp. 138-
150) subject matter of Crim. Case No. 2751-M-94.
Floro deposited the aforementioned checks at Liberty Savings & Loan Association,
Meyc[a]uayan, Bulacan. Upon presentment for encashment by said depositary bank with the
different drawee banks on their respective maturity dates, the six (6) Prudential Bank checks
were all dishonored for having been drawn against closed accounts. With her pieces of jewelry
still unpaid, Floro, through counsel, made formal demands requiring Requerdo to pay the
amounts represented by the dishonored checks (Record, supra, pp. 123, 138, and 151). Floro’s
efforts to obtain payment, though, only proved futile as Requerdo continuously refused to pay
the value of the purchased pieces of jewelry.

Upon her arraignment on March 1, 1995 in Criminal Case No. 2807-M-94, and on April 4, 1995
in Criminal Case Nos. 2750-M-94 and 2751-M-94, Recuerdo, with the assistance of counsel,
pleaded not guilty. (Record, Criminal Case No. 2807-M-94, p. 40; Criminal Case No. 2750-M-
94, p. 58). Considering the identity of the parties concerned, and the nature of the transactions
from which the charges of Estafa trace its roots, the three criminal cases were consolidated. Joint
trial then ensured. Recuerdo, on separate dates, posted three Personal Bail Bonds to obtain
provisional liberty (Record, Criminal Case No. 2750-M-94, p. 21; 2807-M-94, p. 27; 2751-M-
94, p. 17).

By way of defense, Recuerdo posited the theory that the trial court of Malolos, Bulacan is devoid
of jurisdiction to take cognizance of the criminal cases against her, insisting that all the essential
elements of the crime of Estafa involving the bad checks occurred at the City of Makati, in that,
all her business transactions with Floro, to wit; the purchase of the pieces of jewelry and the
subsequent issuance of and delivery of the subject bank checks in payment thereof which
eventually bounced, all took place and were executed at her Dental Clinic located at the Medical
Towers at Suite 306, Herrera corner Ormaza Streets Legaspi Village Makati City. Furthermore,
Recuerdo argued that her act of issuing the dishonored checks does not constitute the offense of
Estafa considering that the subject checks were not issued and delivered to Floro simultaneous to
the purchase of the pieces of jewelry, but only several days thereafter, when she had already
thoroughly examined the jewelry and is fully satisfied of its fine quality (TSN, Joy Lee
Recuerdo, January 16, 1996, pp. 3-18). 2

On July 28, 1997, the trial court rendered a Joint Decision convicting petitioner Joy Lee
Recuerdo of two counts of estafa under Article 315, paragraph 2(d) of the Revised Penal Code.
The fallo of the decision reads:

WHEREFORE, this Court finds the accused JOY LEE RECUERDO GUILTY beyond
reasonable doubt of two (2) counts of estafa, defined and penalized under Article 315, par. 2[b]
(sic) of the Revised Penal Code and hereby sentences her as follows:

1. In Criminal Case Nos. 2750-M-94 and 2807-M-94, to suffer an indeterminate penalty

of imprisonment ranging from six (6) years and one (1) day of prison correccional as
minimum to twelve (12) years and one (1) day reclusion temporal as maximum and to
pay Yolanda Floro by way of civil indemnity the amount of P210,000.00 pesos plus
interest from the filing of the information until fully paid; and

2. In Criminal Case No. 2751-M-94, to suffer an indeterminate penalty of imprisonment

ranging from six (6) minimum to twelve (12) years and one (1) day of reclusion temporal
as maximum and to pay Yolanda Floro by way of civil indemnity the amount of
P600,000.00 pesos plus interest from the filing of the information until fully paid.

In both cases, accused shall pay the costs of the suit.

SO ORDERED. 3

Petitioner appealed the decision to the CA on the following assignment of errors:

I.
 The Regional Trial Court erred in finding that the Municipal Trial Court, Meycauayan,
Bulacan, Branch I did not pass upon the merits of the criminal cases filed against the
petitioner by confining and limiting itself merely to the dispositive portion of the Joint
Decision dated 28 January 1998 rendered by the latter court, instead of reading the Joint
Decision as a whole to get its true meaning and intent.

II.

The Regional Trial Court erred in affirming the judgment of conviction rendered by the
Municipal Trial Court, Meycauayan, Bulacan, Branch II which is in derogation of the
petitioner’s right against double jeopardy considering that the latter was previously
acquitted of the same criminal cases by the Municipal Trial Court of Meycauayan,
Bulacan, Branch I.

III.

The Regional Trial Court erred in finding that all proceedings in the court a quo have
been made in the presence and with the authority of the public prosecutor, in the face of
the undisputed fact that the appeal initiated by the private respondent is fatally defective
because it was filed without the concurrence, permission and authority of the public
prosecutor, in this case, the provincial prosecutor of Bulacan. 4

Petitioner averred that the trial court had no jurisdiction over the offenses charged because the
crimes were committed in Makati City and not in Malolos, Bulacan where the Informations were
filed. The prosecution failed to prove the essential element of deceit because she drew and
delivered the postdated checks to the private complainant after the jewelries had been delivered.
Moreover, she was denied the right to due process.

On August 23, 2004, the CA rendered judgment affirming with modification the decision of the
RTC as to the penalty meted on the appellant. Petitioner filed a motion for reconsideration
insisting that based on the evidence on record, out of the 17 subject checks, nine were honored
by the drawee banks. Moreover, she made partial payments of the amounts of the subject checks
while the case was pending in the CA. Contrary to the finding of the trial court and the appellate
courts that she acted with deceit when she drew and delivered the checks in payment of the
pieces of jewelry she purchased from the private complainant, she in fact acted in good faith;
hence, should be acquitted based on the decision of this Court in People v. Ojeda. The CA
5

denied the motion on May 20, 2005.

Petitioner filed the instant petition contending that:

THE COURT OF APPEALS HAS DECIDED THE CASE CONVICTING THE PETITIONER
IN A WAY PROBABLY NOT IN ACCORD WITH –

A. THE BENEFICENT RULING OF THE SUPREME COURT ENUNCIATED IN PEOPLE

OF THE PHILIPPINES V. CORA ABELLA OJEDA (G.R. NOS. 104238-58, JUNE 3, 2004)
WHERE IT HELD THAT A DEBTOR’S OFFER TO ARRANGE A PAYMENT SCHEME
WITH HIS CREDITOR AND PAYMENT OF THE OBLIGATION INDICATE GOOD FAITH
THAT SUCCESSFULLY REBUTS THE PRESUMPTION OF DECEIT.

B. WITH THE APPLICABLE DECISIONS OF THE SUPREME COURT ENUNCIATED IN

BORROMEO V. COURT OF APPEALS, PEOPLE V. CLORES, ET AL., PEOPLE V.
BAUTISTA AND PEOPLE V. BENITO GO BIONG, JR. DIRECTING THAT IN CRIMINAL
CASES, ALL CIRCUMSTANCES AGAINST GUILT AND IN FAVOR OF INNOCENCE
MUST BE TAKEN INTO ACCOUNT.

C. THE CONSTITUTIONAL PRESUMPTION OF INNOCENCE IN CONJUNCTION WITH

THE ESTABLISHED JURISPRUDENCE WHICH HOLDS THAT WHEN FACED WITH
TWO PROBABILITIES, ONE CONSISTENT WITH GUILT AND THE OTHER WITH
INNOCENCE, THE SCALES OF JUSTICE SHOULD TILT IN FAVOR OF INNOCENCE.

D. THE APPLICABLE DECISION OF THE SUPREME COURT WHICH DIRECTS THAT IN

ESTAFA CASES, IT IS OF PRIMORDIAL SIGNIFICANCE FOR THE PROSECUTION TO
PROVE THE EXACT DATE OF THE TRANSACTION AND THE EXACT DATE OF THE
ISSUANCE OF THE CHECKS. 6

Petitioner avers that she acted in good faith and exerted her utmost efforts to confer with the
private complainant to settle her obligations. She points out that she made monthly cash
payments to lessen her civil liability and later on, for convenience, deposited the monthly
payments at the private complainant’s bank account with the Bank of the Philippine Islands. She
continued to make payments even during the pendency of the case in the CA, and continues to
make deposits to private complainant’s bank account.

Petitioner asserts that her efforts to settle her civil obligations to the private complainant indicate
that she has no intention of duping the latter, as well as the absence of deceit on her part. That
she failed to comply with her obligations by failing to make good the checks as they fell due
does not suggest deceit, but at best only financial hardship in fulfilling her civil obligations.
Thus, there is no factual and legal basis to convict her of estafa. Petitioner insists that criminal
intent in embezzlement is not based on technical mistakes as to the legal effect of a transaction
honestly entered into, and there can be no embezzlement if the mind of the person doing the act
is innocent or if there is no wrongful purpose.

Petitioner further avers that she should be benefited by the Court’s ruling in People v. Ojeda, 7

considering that the facts therein are parallel if not almost identical to this case, the only
difference being that, in the Ojeda case, the accused-appellant was able to fully settle her civil
obligations. Petitioner points out that she is still paying her obligations to the private complainant
and further argues that:

[i]n Criminal Case No. 2750-M-94, the petitioner issued ten (10) postdated Unitrust
Development Bank checks to the private complainant for the purchase of a 2.19 carat diamond
stone in white gold setting. Out of the ten (10) checks, four checks were duly funded when
presented for acceptance and payment. In Criminal Case No. 2807-M-94, the petitioner issued
ten (10) post-dated PCI Bank checks to the private complaint for the purchase of a 1.55 carat
marquez loose diamond. The first four (4) checks were duly funded when presented for
acceptance and payment. In Criminal Case No. 2751-M-94, the petitioner issued seven (7) post-
dated Prudential Bank checks to the private complainant for the purchase of a pair of diamond
earrings. The amount covered by the first check was paid and settled. The rest bounced.

The petitioner respectfully submits that the act of the petitioner --- OF DULY FUNDING SOME
OF THE POST-DATED CHECKS WHICH SHE ISSUED, SPECIFICALLY THOSE WHICH
BECAME DUE FIRST OR EARLIER – is and should be considered in law as, a
CIRCUMSTANCE INDICATING GOOD FAITH AND ABSENCE OF DECEIT. 8

For its part, the Office of the Solicitor General asserts:

In the case of Ojeda, the prosecution failed to prove deceit. Ojeda never assured Chua the checks
were funded. Chua knew that the checks were issued to guarantee future payments. Furthermore,
Ojeda did not only make arrangements for payment but she fully paid the entire amount of the
dishonored checks.

In the instant case, the elements of deceit and damage were established by convincing evidence.
Petitioner Recuerdo issued the subject bank checks as payment for the pieces of jewelry
simultaneous to the transactions, that is, on the very same occasion when the pieces of jewelry
were bought. The issuance of the check by Recuerdo was the principal inducement to private
complainant to part with the subject jewelries (CA Decision, pp. 12-13). In addition, petitioner
only promised to replace the dishonored checks but she did not settle her obligations with private
complainant. Assuming that there was an offer to settle her obligations, this will not overturn the
findings of the trial court and the Court of Appeals as to the presence of deceit.

The guilt of petitioner was proven beyond reasonable doubt.

The crime of Estafa under Article 315, paragraph 2(d) of the Revised Penal Code has the
following basic elements:

Postdating or issuance of a check in payment of an obligation contracted simultaneously at the

time the check was issued;

The postdating or issuance was done when the offender had no funds in the bank, or that his
funds deposited therein were not sufficient to cover the amount of the check; and

Damage to the payee thereof (Justice Luis B. Reyes, The Revised Penal Code, Thirteenth Edition
1993, Book Two, p. 693; People v. Panganiban, 335 SCRA 354).

The existence of the foregoing elements of the crime was concretely established by the
prosecution through convincing evidence, warranting petitioner’s conviction of the offense of
Estafa.

The trial court found private complainant Floro’s testimony that petitioner issued the subject
checks as payment for the purchase of pieces of jewelry simultaneous to their transactions to be
categorical and credible. There was sufficient evidence established by the prosecution that the
checks were issued by the accused to the complainant in exchange of the pieces of jewelry given
to her on two separate occasions.

The issue of deceit raised by petitioner is a factual issue and must be proved by evidence. The
finding of the trial court and the Court of Appeals that the issuance of petitioner was tainted with
fraud or deceit is a factual finding that binds this Honorable Court (Jose R. Guevarra vs. The
Hon. Court of Appeals, et al., G.R. No. 100894, prom. January 26, 1993). 9

In reply, petitioner avers that she is a dentist/orthodontist with a fairly established practice at the
Medical Towers, Ibarra St., Legaspi Village, Makati City. She did not move out of her office
because she had no intention to renege on her obligations to the private complainant.

The petition is denied for lack of merit.

Estafa through false pretense or fraudulent act under Paragraph 2(d) of Article 315 of the
Revised Penal Code, as amended by Republic Act No. 4885, is committed as follows:

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.

The essential elements of the felony are: (1) a check is postdated or issued in payment of an
obligation contracted at the time it is issued; (2) lack or insufficiency of funds to cover the check;
and (3) damage to the payee thereof. It is criminal fraud or deceit in the issuance of a check
10

which is made punishable under the Revised Penal Code, and not the non-payment of a debt. 11

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. 12

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
13

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. 14

There is no false pretense or fraudulent act if a postdated check is issued in payment of a pre-
existing obligation. As the Court emphasized in Timbal v. Court of Appeals:
15 16

x x x In order to constitute Estafa under the statutory provisions, the act of postdating or of
issuing a check in payment of an obligation must be the efficient cause of the defraudation;
accordingly, it should be either prior to or simultaneous with the act of fraud. In fine, the
offender must be able to obtain money or property from the offended party by reason of the
issuance, whether postdated or not, of the check. It must be shown that the person to whom the
check is delivered would not have parted with his money or property were it not for the issuance
of the check by the other party.

Estafa is a felony committed by dolo (with malice). For one to be criminally liable for estafa
under paragraph (2)(d) of Article 315 of the Revised Penal Code, malice and specific intent to
defraud are required.

General criminal intent is an element of all crimes but malice is properly applied only to
deliberate acts done on purpose and with design. Evil intent must unite with an unlawful act for
there to be a felony. A deliberate and unlawful act gives rise to a presumption of malice by
intent. On the other hand, specific intent is a definite and actual purpose to accomplish some
particular thing.

The general criminal intent is presumed from the criminal act and in the absence of any general
intent is relied upon as a defense, such absence must be proved by the accused. Generally, a
specific intent is not presumed. Its existence, as a matter of fact, must be proved by the State just
as any other essential element. This may be shown, however, by the nature of the act, the
circumstances under which it was committed, the means employed and the motive of the
accused. 17

The law provides that, in estafa, prima facie evidence of deceit is established upon proof that 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 for lack or insufficiency of funds. A prima facie
evidence need not be rebutted by a preponderance of evidence, nor by evidence of greater
weight. The evidence of the accused which equalizes the weight of the People’s evidence or puts
the case in equipoise is sufficient. As a result, the People will have to go forward with the proof.
Should it happen that, at the trial the weight of evidence is equally balanced or at equilibrium and
the presumption operates against the People who has the burden of proof, it cannot prevail. 18

There can be no estafa if the accused acted in good faith because good faith negates malice and
deceit. Good faith is an intangible and abstract quality with no technical meaning or statutory
19

definition, and it encompasses, among other things, an honest belief, the absence of malice and
the absence of design to defraud or to seek an unconscionable advantage. An individual’s
personal good faith is a concept of his own mind, therefore, may not conclusively be determined
by his protestations alone. It implies honesty of intention and freedom from knowledge of
circumstances which ought to put the holder upon inquiry. The essence of good faith lies in an
honest belief in the validity of one’s right, ignorance of a superior claim, and absence of
intention to overreach another. In People v. Gulion, the Court held that:
20 21

Good faith is a defense to a charge of Estafa by postdating a check. This may be manifested by
the accused’s offering to make arrangements with his creditor as to the manner of payment or, as
in the present case, averring that his placing his signature on the questioned checks was purely a
result of his gullibility and inadvertence, with the unfortunate result that he himself became a
victim of the trickery and manipulations of accused-at-large. 22
In the present case, the prosecution adduced proof beyond reasonable doubt of the guilt of the
petitioner of the crime charged. The trial court gave credence and probative weight to the
evidence of the People and disbelieved that proferred by the petitioner.

Petitioner’s insistence of her good faith and her reliance on the ruling of this Court in the Ojeda
case were raised as a mere afterthought in a last ditch effort to secure her acquittal, as these
arguments were invoked only in her motion for reconsideration of the CA decision. In Pascual v.
Ramos, this Court held that if an issue is raised only in the motion for reconsideration of the
23

appellate court’s decision, it is as if it was never raised in that court at all.

Petitioner’s defense of good faith is even belied by the evidence of the prosecution and her own
evidence. When the postdated checks issued by petitioner were dishonored by the drawee banks
and the private complainant made demands for her to pay the amounts of the checks, she
intransigently refused to pay; she insisted that she issued and delivered the postdated checks to
the private complainant after the subject pieces of jewelry had been delivered to her. Petitioner
never offered to pay the amounts of the checks after she was informed by the private
complainant that they had been dishonored by the drawee banks, the private complainant thus
charged her with estafa before the RTC. It was only during the period of January 4, 2005 to June
27, 2005, after the CA promulgated its decision affirming the decision of the trial court, that
petitioner made several payments to the private complainant. While petitioner appended the
deposit slips to her motion for reconsideration in the CA and her petition in this Court, there is
24

no showing as to which checks they were made in payment for. In fine, it was the spectre of a
long prison term which jolted petitioner into making remittances to the private complainant, after
the CA affirmed the decision of the trial court and increased the penalty meted on her, and not
because she had acted in good faith in her transactions with the private complainant. To reiterate,
petitioner rejected the demands of the private complainant to pay the amounts of the dishonored
checks.

While it is true that nine of the 17 postdated checks petitioner issued and delivered to the private
complainant were honored by the drawee banks, such a circumstance is not a justification for her
acquittal of the charges relative to the dishonored checks. The reimbursement or restitution to the
offended party of the sums swindled by the petitioner does not extinguish the criminal liability of
the latter. It only extinguishes pro tanto the civil liability. Moreover, estafa is a public offense
25

which must be prosecuted and punished by the State on its own motion even though complete
reparation had been made for the loss or damage suffered by the offended party. The consent of
26

the private complainant to petitioner’s payment of her civil liability pendente lite does not entitle
the latter to an acquittal. Subsequent payments does not obliterate the criminal liability already
incurred. Criminal liability for estafa is not affected by a compromise between petitioner and the
27

private complainant on the former’s civil liability.

28

Petitioner cannot find solace in the Court’s ruling in the Ojeda case. The CA correctly refuted the
submission of the petitioner in its decision, thus:

This Court is in full agreement with the position advanced by the Office of the Solicitor General
that on account of the glaring dissimilarities between the factual backdrop of the case of Ojeda,
on one hand, and the material facts obtaining in the case at bench, on the other, the doctrine in
the former case may not be applied to benefit accused-appellant. Indeed, even accused-appellant
herself was quick to admit that the facts of her case are not entirely on all fours with those that
obtained in the case of Ojeda. At the outset, emphasis must be made of the fact that the acquittal
of the accused in the Ojeda case was brought about by a combination of reasons not obtaining in
the present case. First, the Supreme Court ruled out the existence of deceit and intent to defraud
in the case of Ojeda in view of the fact that the accused therein performed extraordinary efforts
to gradually pay and settle her monetary obligations with the private complainant, and this
convinced the High Court that the acts of the accused were not tainted with malice, bad faith and
criminal intent. Verily, the accused in the Ojeda case not only made determined and honest
arrangements to pay the private complainant, but was likewise able to actually satisfy with
completeness the sums she owed the latter, and this was evidenced by an affidavit of desistance
where the private complainant categorically declared that the accused already paid in full her
monetary obligations. The facts in the instant case, however, are totally different. Contrary to the
contention of accused-appellant, she never made a determined and earnest effort to arrange and
settle with Floro with the end in view of paying her monetary obligations. In truth, accused-
appellant simply promised to pay Floro the value of the dishonored checks that were issued in
payment for the pieces of jewelry. However, that was all there was to it, and lamentably said
promise turned out to be an empty one as accused-appellant never made good her commitment to
pay for the value of the dishonored checks. Accused-appellant never arranged a payment scheme
with Floro, and as the facts of the case would disclose she never made any gradual payment to
Floro as shown by the fact that the value of the dishonored checks remained unpaid, in direct
contrast with the facts of the Ojeda case where the accused was able to pay in full. Suffice it to
say that accused-appellant failed to perform any concrete act to show that she had the intention
of paying Floro for the value of the purchased pieces of jewelry, in order to somehow rebut the
fact duly established by the prosecution that deceit attended her business dealings with Floro. It
must be reiterated that We have found that accused-appellant issued the subject bank checks as
payment for the pieces of jewelry simultaneous with her transactions with Floro, and that was, on
the very same occasion when the pieces of jewelry were purchased, first, on the second week of
December 1993, and subsequently, on February 7, 1994. It being clear that the subject bank
checks were issued simultaneous with said transactions, it likewise became evident that deceit
attended accused-appellants’ dealings with Floro for the same only goes to show that the bum
checks were issued to Floro in order to induce her to part with the pieces of jewelry in favor of
accused-appellant.

In addition to the foregoing, the High Court likewise found in the Ojeda case that the prosecution
miserably failed to adduce evidence to establish that the indispensable element of notice of
dishonor was sent to and was received by the accused therein. In the case at bench, however, it is
undisputed that after the dishonor of the subject bank checks Floro, through counsel, made
repeated formal demands requiring accused-appellant to pay for the value of the bum checks,
perforce the notice of dishonor which is required to properly prosecute and eventually convict an
accused of the crime of Estafa under Article 315, paragraph 2(d) of the Revised Penal Code has
been sufficiently met. 29

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED. The Decision and Resolution
of the Court of Appeals are AFFIRMED. No costs.

G.R. No. 168217 June 27, 2006

JOY LEE RECUERDO, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
Facts:
Petitioner Recuerdo, a dentist, was charged with the crime of Estafa under Art. 315 of Revised Penal Code for, with
intent to gain and by means of deceit, false pretenses and fraudulent manifestations, and pretending to have
sufficient funds with the Unitrust Makati Commercial Center Branch, PCI Bank Makati-De La Rosa Branch, and
Prudential Bank Legaspi Village Branch, did willfully, unlawfully and feloniously prepare, draw, make and issue
checks amounting to P132,000, P78,000, and P600,000, to complaining witness Yolanda G. Floro, who is engaged
in the business of buying and selling of jewelry, as payment for jewelry she obtained from the said complainant,
knowing fully well at the time the checks were issued that her representations were false for she had no sufficient
funds in the said bank, so much that upon presentment of the said checks with the said bank for encashment, the
same were dishonored and refused payment for having been drawn against an “Account Closed”, and in spite of
repeated demands to deposit with the said bank, the said accused failed and refused to do so.
Recuerdo argued that her act of issuing the dishonored checks does not constitute the offense of Estafa considering
that the subject checks were not issued and delivered to Floro simultaneous to the purchase of the pieces of jewelry,
but only several days thereafter, when she had already thoroughly examined the jewelry and is fully satisfied of its
fine quality; that out of the 17 subject checks, nine were honored by the drawee banks; that she made partial
payments of the amounts of the subject checks while the case was pending in the CA, contrary to the findings of the
courts that she acted with deceit when she drew and delivered the checks.
Issue:
Whether or not petitioner Recuerdo committed the crime of estafa.
Held:
Yes, Recuerdo committed the crime of estafa.
Estafa through false pretense or fraudulent act under Paragraph 2(d) of Article 315 of the Revised Penal Code, as
amended by Republic Act No. 4885, is committed as follows:
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.
The essential elements of the felony are: (1) a check is postdated or issued in payment of an obligation
contracted at the time it is issued; (2) lack or insufficiency of funds to cover the check; and (3) damage to the
payee thereof. It is criminal fraud or deceit in the issuance of a check which is made punishable under the Revised
Penal Code, and not the non-payment 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.
Petitioner’s defense of good faith is even belied by the evidence of the prosecution and her own evidence. When the
postdated checks issued by petitioner were dishonored by the drawee banks and the private complainant made
demands for her to pay the amounts of the checks, she intransigently refused to pay; she insisted that she issued and
delivered the postdated checks to the private complainant after the subject pieces of jewelry had been delivered to
her. Petitioner never offered to pay the amounts of the checks after she was informed by the private complainant that
they had been dishonored by the drawee banks. It was after the CA promulgated its decision affirming the decision
of the trial court, that petitioner made several payments to the private complainant; however, there is no showing as
to which checks they were made in payment for. In fine, it was the spectre of a long prison term which jolted
petitioner into making remittances to the private complainant, after the CA affirmed the decision of the trial court
and increased the penalty meted on her, and not because she had acted in good faith in her transactions with the
private complainant. To reiterate, petitioner rejected the demands of the private complainant to pay the amounts of
the dishonored checks.
While it is true that nine of the 17 postdated checks petitioner issued and delivered to the private complainant were
honored by the drawee banks, such a circumstance is not a justification for her acquittal of the charges relative to the
dishonored checks. The reimbursement or restitution to the offended party of the sums swindled by the petitioner
does not extinguish the criminal liability of the latter. Estafa is a public offense which must be prosecuted and
punished by the State on its own motion even though complete reparation had been made for the loss or damage
suffered by the offended party. The consent of the private complainant to petitioner’s payment of her civil liability
pendente lite does not entitle the latter to an acquittal. Subsequent payments does not obliterate the criminal liability
already incurred. Criminal liability for estafa is not affected by a compromise between petitioner and the private
complainant on the former’s civil liability.
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED. The Decision and Resolution of the Court of
Appeals are AFFIRMED. No costs.