EN BANC

[G.R. No. 46428. April 13, 1939.]

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. IRINEO TUMLOS, Defendant-Appellant.

DECISION

VILLA REAL, J.:

The defendant Irineo Tumlos appeals to this court from the judgment of the Court of First Instance of Iloilo finding him guilty of the crime of theft of large
cattle defined and punished in article 310, in relation to article 309, of the Revised Penal Code, and sentencing him to suffer the indeterminate penalty of
from two months and one day of arresto mayor to two years, four months and one day of prision correccional with the accessories prescribed by law and
costs, by virtue of an information reading as follows:jgc:chanrobles.com.ph

"The undersigned acting provincial fiscal accuses Irineo Tumlos of the crime of qualified theft committed as follows:jgc:chanrobles.com.ph

"That on or about November 21,1937, in the municipality of Sara, Province of Iloilo, Philippines. and within the jurisdiction of this court, said defendant,
wilfully and without using force upon things or violence or intimidation against persons, took, with intent to gain and without the consent of their owner,
five cows valued at P39 and belonging to Ambrosio Pecasis.

"An act punishable by law.

"Iloilo, July 11, 1938."cralaw virtua1aw library

In support of his appeal the appellant assigns as the only error allegedly committed by the lower court in the aforesaid judgment its failure to sustain the
defense of "autrefois convict" or double jeopardy, interposed by said defendant.

On or about November 21, 1937, eight cows belonging to Maximiano Sobrevega and five belonging to his son-in-law, Ambrosio Pecasis, then grazing
together in the barrio of Libong-cogon, municipality of Sara, Province of Iloilo, were taken by the herein defendant without the knowledge or consent of
their respective owners. The deputy fiscal of Iloilo filed on July 11, 1938, an information against the said defendant for the offense of theft of the eight cows
belonging to Maximiano Sobrevega, which resulted in his being sentenced, on July 15, 1938, to an indeterminate penalty of from one year, eight months
and twenty-one days to five years, five months and eleven days of prision correccional with the accessories prescribed by law and costs. In the information
filed in the present case the same defendant is charged with the theft of five cows belonging to Ambrosio Pecasis, committed on November 21, 1937, the
date of the commission of the theft of the eight cows of Maximiano Sobrevega charged in the previous information.

The question to be decided in the present appeal is whether or not the conviction of the accused for the theft of the eight cows belonging to Maximiano
Sobrevega constitutes a bar to his conviction for the theft of the five cows belonging to Ambrosio Pecasis, which were grazing together with the aforesaid
eight cows belonging to Maximiano Sobrevega in the same place from which they were stolen at the same time, under the legal procedural principle of
"autrefois convict" or double jeopardy.

The theft of the thirteen cows committed by the defendant took place at the same time and in the same place; consequently, he performed but one act.
The fact that eight of said cows pertained to one owner and five to another does not make him criminally liable for two distinct offenses, for the reason that
in such case the act must be divided into two, which act is not susceptible of division.

The intention was likewise one, namely, to take for the purpose of appropriating or selling the thirteen cows which he found grazing in the same place. As
neither the intention nor the criminal act is susceptible of division, the offense arising from the concurrence of its two constituent elements cannot be
divided, it being immaterial that the subject matter of the offense is singular or plural, because whether said subject matter be one or .several animate or
inanimate objects, it is but one.

Therefore, as the five cows alleged to be stolen by Irineo Tumlos were integral parts of the thirteen cows which were the subject matter of theft, and as he
had already been tried for and convicted of the theft of eight, he cannot not be convicted of the theft of the other five.

Wherefore, as he had already been put in jeopardy of being convicted of the theft of the five cows in question when he was tried for and convicted of the
theft of the eight which together with the five form an integral part of the thirteen which were the subject matter of the offense, the conviction of the
herein defendant Irineo Tumlos for the said five cows in the present case would be the second, in violation of his constitutional right not to be punished
twice for the same offense; hence, he is acquitted of the charge, which is dismissed, with costs de oficio. So ordered.

Avanceña, C.J., Imperial, Diaz, Laurel, Concepcion and Moran, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 176298 January 25, 2012
ANITA L. MIRANDA, Petitioner,
vs.
THE PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

VILLARAMA, JR., J.:

Petitioner Anita L. Miranda appeals the January 11, 2007 Decision1 of the Court of Appeals (CA) affirming the judgment2 of the Regional Trial Court (RTC) of
Manila, Branch 20, convicting her of qualified theft.

Petitioner was charged with qualified theft in an Information dated November 28, 2002. The Information reads:

That in or about and during the period comprised between April 28, 1998 and May 2, 2002, inclusive, in the City of Manila, Philippines, the said accused, did
then and there wilfully, unlawfully and feloniously, with intent of gain and without the knowledge and consent of the owner thereof, take, steal and carry
away the total amount of P797,187.85 belonging to VIDEO CITY COMMERCIAL, INC. and VIVA VIDEOCITY, INC. represented by MIGUEL Q. SAMILLANO, in the
following manner, to wit: by making herself the payee in forty-two pre-signed BPI Family Bank checks in the account of Video City Commercial and Jefferson
Tan (the latter as franchise[e]) and encashing said checks in the total amount of P797,187.85, for her personal benefit, to the damage and prejudice of said
owner in the aforesaid amount of P797,187.85, Philippine Currency.

That the said accused acted with grave abuse of confidence, she being then employed as bookkeeper in the aforesaid firm and as such was privy to the
financial records and checks belonging to complainant and was actually entrusted with the said financial records, documents and checks and their
transactions thereof in behalf of complainant.3

Upon arraignment, petitioner pleaded not guilty. Trial thereafter ensued.

Summarily, the prosecution proved the following facts: Video City Commercial, Inc. (VCCI) and Viva Video City, Inc. (Viva) were sister companies which
managed a chain of stores known as Video City. These stores, some company-owned while others were operated in joint ventures with franchisees, were
engaged in the sale and rental of video-related merchandises. During the period of April 28, 1998 to May 2, 2002, petitioner was the accounting clerk and
bookkeeper of VCCI and Viva. One of her duties was to disburse checks for the accounts she handled. She was assigned to handle twelve (12) Video City
store franchise accounts, including those of Tommy Uy, Wilma Cheng, Jefferson Tan and Sharon Cuneta. As regards the franchisee Jefferson Tan, who was
out of the country most of the time, Tan pre-signed checks to cover the store’s disbursements and entrusted them to petitioner. The pre-signed checks by
Jefferson Tan were from a current account maintained jointly by VCCI and Jefferson Tan at BPI Family Bank, Sta. Mesa. There was also an existing
agreement with the bank that any disbursement not exceeding ₱20,000.00 would require only Tan’s signature.4

Taking advantage of Tan’s constant absence from the country, petitioner was able to use Tan’s joint-venture bank account with VCCI as a clearing house for
her unauthorized transfer of funds. Petitioner deposited VCCI checks coming from other franchisees’ accounts into the said bank account, and withdrew the
funds by writing checks to her name using the checks pre-signed by Tan. It was only after petitioner went on maternity leave and her subsequent
resignation from the company in May 2002 that an audit was conducted since she refused to turn over all the financial records in her possession. The audit
was made on all the accounts handled by petitioner and it was discovered that she made unauthorized withdrawals and fund transfers amounting to
₱4,877,759.60.5

The prosecution, in proving that petitioner had unlawfully withdrawn ₱797,187.85 for her own benefit, presented as its witness Jose Laureola, the assistant
manager/acting cashier of BPI Family Bank, Sta. Mesa Branch. Laureola presented a microfilm of the checks, the encashed checks and deposit slips. He also
presented the bank statement of VCCI which showed the encashment of forty-two (42) checks from the account of VCCI and Jefferson Tan amounting to
₱797,187.85.6

In the face of the prosecution’s evidence, petitioner chose not to present any evidence during trial.

On October 7, 2005, the RTC found petitioner guilty beyond reasonable doubt of qualified theft. The RTC sentenced her to suffer the indeterminate penalty
of eight (8) years and one (1) day of prision mayor, as minimum, to eighteen (18) years, two (2) months and twenty-one (21) days of reclusion temporal, as
maximum, and to pay VCCI ₱797,187.85 plus costs.7

The RTC found that the prosecution was able to establish that the checks deposited to the joint account of VCCI and Jefferson Tan at BPI Family Bank were
unlawfully withdrawn by the petitioner without VCCI’s consent. Petitioner took advantage of her position with VCCI and her access to the checks and its
bank accounts.

On appeal, the CA affirmed the decision of the RTC. The CA held that contrary to petitioner’s claim that the prosecution failed to show who was the
absolute owner of the thing stolen, there was no doubt that the personal property taken by petitioner does not belong to her but to Jefferson Tan and his
joint venture partner VCCI. Thus, petitioner was able to gain from taking other people’s property without their consent. More, she was able to perpetrate
the crime due to her position in VCCI which gave her access to the joint venture account of VCCI and Jefferson Tan, both of whom reposed trust and
confidence in her. She exploited said trust and confidence to their damage in the amount of ₱797,187.85.

Undaunted, petitioner filed the instant petition for review on certiorari before this Court, raising the following issues:

WHETHER OR NOT THE ACCUSED IS GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF QUALIFIED THEFT.

1-a. WHETHER THE PHRASE "X X X SHALL TAKE THE PERSONAL PROPERTY OF ANOTHER WITHOUT THE LATTER'S CONSENT X X X" IN ARTICLE 308 OF THE
REVISED PENAL CODE IN RELATION TO ARTICLE 310 OF THE SAME CODE WOULD REQUIRE AS AN ELEMENT OF "QUALIFIED THEFT" AN ESTABLISHED PROOF
OF "OWNERSHIP" OF THE PROPERTY ALLEGEDLY STOLEN?

1-b. WHETHER IT IS IMPERATIVE THAT THE DUE EXECUTION AND AUTHENTICITY OF THE ALLEGED SIGNATURES OF THE ACCUSED IN THE CHECKS BE FULLY
ESTABLISHED AND IDENTIFIED AND IF NOT SO ESTABLISHED AND IDENTIFIED, THE SAME WOULD BE A FATAL FLAW IN THE EVIDENCE OF THE PROSECUTION
WHICH INEVITABLY WOULD LEAD TO ACCUSED’S ACQUITTAL?

1-c. WHETHER THE FAILURE TO ESTABLISH AND AUTHENTICATE OR IDENTIFY THE SIGNATURES OF THE ACCUSED ANNIE MIRANDA AND JEFFERSON TAN
CONSTITUTED A FATAL FLAW IN PROVING THAT THE ACCUSED AND JEFFERSON TAN WERE THE AUTHORS OF SAID SIGNATURES?
1-d. [WHETHER THE] CONCLUSION OF FACTS BY THE REGIONAL TRIAL COURT AND COURT OF APPEALS ARE NOT SUPPORTED BY EVIDENCE.

1-e. WHETHER THE CHECKS AND VOUCHERS PRESENTED AS EVIDENCE NOT IN THEIR ORIGINALS SHOULD HAVE BEEN DENIED ADMISSION BY THE COURT A
QUO, THERE BEING NO SUFFICIENT FACTS ADDUCED TO JUSTIFY THE PRESENTATION OF XEROX COPIES OR SECONDARY EVIDENCE.8

Essentially, the issue for our resolution is whether the CA correctly affirmed petitioner’s conviction for qualified theft.

Petitioner insists that she should not have been convicted of qualified theft as the prosecution failed to prove the private complainant’s absolute ownership
of the thing stolen. Further, she maintains that Jefferson Tan’s signatures on the checks were not identified by any witness who is familiar with his
signature. She likewise stresses that the checks and vouchers presented by the prosecution were not original copies and that no secondary evidence was
presented in lieu of the former.

The appeal lacks merit.

A careful review of the records of this case and the parties’ submissions leads the Court to conclude that there exists no cogent reason to disturb the
decision of the CA. We note that the arguments raised by petitioner in her petition are a mere rehash of her arguments raised before, and correctly
resolved by, the CA.

The elements of the crime of theft as provided for in Article 3089 of the Revised Penal Code are as follows: (1) that there be taking of personal property; (2)
that said property belongs to another; (3) that the taking be done with intent to gain; (4) that the taking be done without the consent of the owner; and (5)
that the taking be accomplished without the use of violence against or intimidation of persons or force upon things.10 Theft becomes qualified when any of
the following circumstances under Article 31011 is present: (1) the theft is committed by a domestic servant; (2) the theft is committed with grave abuse of
confidence; (3) the property stolen is either a motor vehicle, mail matter or large cattle; (4) the property stolen consists of coconuts taken from the
premises of a plantation; (5) the property stolen is fish taken from a fishpond or fishery; and (6) the property was taken on the occasion of fire, earthquake,
typhoon, volcanic eruption, or any other calamity, vehicular accident or civil disturbance.12

Here, the prosecution was able to prove beyond reasonable doubt that the amount of ₱797,187.85 taken does not belong to petitioner but to VCCI and that
petitioner took it without VCCI’s consent and with grave abuse of confidence by taking advantage of her position as accountant and bookkeeper. The
prosecution’s evidence proved that petitioner was entrusted with checks payable to VCCI or Viva by virtue of her position as accountant and bookkeeper.
She deposited the said checks to the joint account maintained by VCCI and Jefferson Tan, then withdrew a total of ₱797,187.85 from said joint account
using the pre-signed checks, with her as the payee. In other words, the bank account was merely the instrument through which petitioner stole from her
employer VCCI.

We find no cogent reason to disturb the above findings of the trial court which were affirmed by the CA and fully supported by the evidence on record. Time
and again, the Court has held that the facts found by the trial court, as affirmed in toto by the CA, are as a general rule, conclusive upon this Court13 in the
absence of any showing of grave abuse of discretion. In this case, none of the exceptions to the general rule on conclusiveness of said findings of facts are
applicable.14 The Court gives weight and respect to the trial court’s findings in criminal prosecution because the latter is in a better position to decide the
question, having heard the witnesses in person and observed their deportment and manner of testifying during the trial.15 Absent any showing that the
lower courts overlooked substantial facts and circumstances, which if considered, would change the result of the case, this Court gives deference to the trial
court’s appreciation of the facts and of the credibility of witnesses.

Moreover, we agree with the CA when it gave short shrift to petitioner’s argument that full ownership of the thing stolen needed to be established first
before she could be convicted of qualified theft. As correctly held by the CA, the subject of the crime of theft is any personal property belonging to another.
Hence, as long as the property taken does not belong to the accused who has a valid claim thereover, it is immaterial whether said offender stole it from the
owner, a mere possessor, or even a thief of the property.16 In any event, as stated above, the factual findings of the courts a quo as to the ownership of the
amount petitioner stole is conclusive upon this Court, the finding being adequately supported by the evidence on record.1avvphi1

However, notwithstanding the correctness of the finding of petitioner’s guilt, a modification is called for as regards the imposable penalty. On the
imposition of the correct penalty, People v. Mercado17 is instructive. Pursuant to said case, in the determination of the penalty for qualified theft, note is
taken of the value of the property stolen, which is ₱797,187.85 in this case. Since the value exceeds ₱22,000.00, the basic penalty is prision mayor in its
minimum and medium periods to be imposed in the maximum period, that is, eight (8) years, eight (8) months and one (1) day to ten (10) years of prision
mayor.

To determine the additional years of imprisonment to be added to the basic penalty, the amount of ₱22,000.00 is deducted from ₱797,187.85, which yields
a remainder of ₱775,187.85. This amount is then divided by ₱10,000.00, disregarding any amount less than ₱10,000.00. The end result is that 77 years
should be added to the basic penalty. However, the total imposable penalty for simple theft should not exceed 20 years. Thus, had petitioner committed
simple theft, the penalty would be 20 years of reclusion temporal. As the penalty for qualified theft is two degrees higher, the trial court, as well as the
appellate court, should have imposed the penalty of reclusion perpetua.

WHEREFORE, the January 11, 2007 Decision of the Court of Appeals in CA-G.R. CR No. 29858 affirming the conviction of petitioner Anita L. Miranda for the
crime of qualified theft is AFFIRMED with the MODIFICATION that the penalty is increased to reclusion perpetua.

With costs against the petitioner.

FIRST DIVISION
[G.R. NO. 138954 : November 25, 2004]
ASUNCION GALANG ROQUE, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

AZCUNA, J.:

This is a Petition for Review on Certiorari under Rule 45 of the 1997 Rules of Civil Procedure, assailing the decision of the Court of Appeals in CA G.R. CR No.
20411, entitled "People of the Philippines v. Asuncion Galang Roque," which affirmed in toto the decision of the Regional Trial Court (RTC) of Guagua,
Pampanga, Branch 49, where petitioner was found guilty of the crime of qualified theft.

In an information dated December 3, 1990, the petitioner was charged with qualified theft in the Regional Trial Court of Guagua Pampanga, Branch 49. The
Information reads as follows:

That on or about the 16th day of November, 1989, in the municipality of Floridablanca, province of Pampanga, Philippines and within the jurisdiction of his
Honorable Court, the above-named accused ASUNCION GALANG ROQUE, being then employed as teller of the Basa Air Base Savings and Loan Association
Inc. (BABSLA) with office address at Basa Air Base, Floridablanca, Pampanga, and as such was authorized and reposed with the responsibility to receive and
collect capital contributions from its member/contributors of said corporation, and having collected and received in her capacity as teller of the BABSLA the
sum of TEN THOUSAND PESOS (P10,000.00), said accused, with intent of gain, with grave abuse of confidence and without the knowledge and consent of
said corporation, did then and there willfully, unlawfully and feloniously take, steal and carry away the amount of P10,000.00, Philippine currency, by
making it appear that a certain depositor by the name of Antonio Salazar withdrew from his Savings Account No. 1359, when in truth and in fact said
Antonio Salazar did not withdr[a]w the said amount of P10,000.00 to the damage and prejudice of BABSLA in the total amount of P10,000.00, Philippine
currency.

All contrary to law.1

The evidence of the prosecution consisted of the testimonies of three witnesses, namely: Antonio Salazar, Rosalina de Lazo and Reynaldo Manlulu and
Exhibits A to G with submarkings.

The first prosecution witness, Antonio Salazar (Salazar) is a member/depositor of the Basa Air Base Savings and Loan Association Inc. (BABSLA) as evidenced
by his passbook No. 1359. He was made to sign two ledgers when he opened his savings account. On November 16, 1989, Salazar made a deposit of P2,000
at the BABSLA; however, he did not make any withdrawal, nor did he authorize anyone to do the same on that date or on November 17, 1989 or for the
whole month of November of that year. Salazar disclosed that around July 1990 he heard that the funds of other depositors were missing inside the BABSLA
and were supposedly clandestinely circulating around the base. Prodded by this news, and considering that the balance in his passbook was P46,000, he
went to the BABSLA to withdraw P40,000, but was informed that his balance at the BABSLA was insufficient to cover the withdrawal. He was not allowed to
withdraw. Rosalina de Lazo, the general manager, informed him that several withdrawals were made on his account amounting to P30,500, as evidenced by
three (3) withdrawal slips. Included among these withdrawal slips is one with the amount of P10,000, dated November 16, 1989. Salazar claimed that the
signature appearing on said withdrawal slip was not his signature. He does not personally know who made the withdrawal of P10,000. Salazar assumed that
the one in control of the funds made the withdrawal.2

The second prosecution witness was the general manager of the BABSLA in the person of Rosalina de Lazo (de Lazo). She has held her position as general
manager since 1983. De Lazo averred that the BABSLA had only one teller, and that the petitioner, Asuncion Galang Roque, held that job from 1989 up to
the last working day of June 1990. She added that the petitioner had not been absent from work, particularly in 1989. Sometime in July 1990, she met MSgt.
Antonio Salazar, who was complaining that the amount of P30,500 was missing from his account. A comparison of the bank's ledger and his passbook
manifested that there were three (3) withdrawals appearing on the ledger that do not appear in his passbook, inclusive of the withdrawal made on
November 16, 1989. She saw the three (3) withdrawal slips and in the withdrawal slip dated November 16, 1989 the initial after the figure 11-17-89 is the
customary initial of the petitioner. She claimed that she was familiar with the customary initial of the petitioner. The withdrawal slip dated November 16,
1989 was made after 3:00 o'clock in the afternoon of the same day but was stamped 11-17-89, as it is bank regulation that all transactions made after 3:00
p.m. will be entered in the book the next day.

De Lazo further testified that at the commencement of the business hour, petitioner gets cash from the treasurer and her beginning cash on November 17,
1989 per Teller's Daily Report was P355,984.53 which she used to serve all kinds of transactions pertaining to withdrawals. The initial over the typewritten
name "agroque" is the customary initial of the petitioner, Asuncion Galang Roque. De Lazo claimed to be familiar with it. At the end of the work day
petitioner prepared the Abstract of Payment, which is a summary of the withdrawals the teller paid that day as evidenced by several withdrawal slips.

De Lazo testified that before the petitioner went on forced leave petitioner sought her assistance because she feared she would be removed from work. She
claimed that petitioner admitted to taking some money from the depositors, including the account of Sgt. Salazar. Unable to help petitioner, she referred
her to Col. Dunilayan, the president and chairman of the BABSLA, who told her to return the money immediately. Petitioner told Col. Dunilayan that she
would return the money. She failed to do so. During the same meeting, petitioner, in the presence of Col. Dunilayan and de Lazo, prepared a list containing
the names of members from whose accounts she took money. Petitioner gave the list to Col. Dunilayan. When petitioner failed to return the money they
decided to file a case against her. In the morning of November 17, de Lazo was already aware of the taking of the P10,000 that occurred the day prior. Since
she had full trust and confidence in petitioner, and did not fear that this anomaly would persist, she did not ask for the presentation of the passbook so that
the corresponding entries could be made in order to avoid a discrepancy between the ledger and the passbook, nor did she send notice to Antonio Salazar.
It is the practice of the bank that all withdrawals require the presentation of the passbook. This was the first instance that a transaction was not recorded in
the passbook. There are only a few cases wherein she (de Lazo) allows deposits to be made without the presentation of the passbook on the same day. In
these instances she just requires the depositor to come some other time for the recording of the transaction in the passbook. As of the date of this
testimony, the BABSLA had already paid deposits on accounts from which the petitioner had taken money, including that of Antonio Salazar as indicated in
the bank records.3

The third and last prosecution witness is Reynaldo Manlulu, who is both the treasurer and a member of the board of directors of the BABSLA. He testified
that petitioner was the teller of the BABSLA in November 1989 and that she reported for work on the 17th of that month. He intimated that on that date
petitioner got a beginning cash from him amounting to P355,984.53, including all the the transactions that occurred after 3:00 p.m. of the preceding day.
This beginning cash can be seen in the Teller's Daily Report. The signature above the typewritten name "agroque" is petitioner's because she signed it in his
presence. Apart from the beginning cash, he also turned over to petitioner the transactions that took place after 3:00 p.m. of the preceding day, particularly
the withdrawal slip of MSgt. Salazar. At the end of the business day of November 17, 1989, she prepared an abstract of payment and in this abstract the
initial over the typewritten name "agroque" is the initial of the petitioner because she signed it in his presence. Petitioner paid the withdrawal of P16,300
evidenced by the withdrawal slips attached to the abstract of payment. After she prepared the abstract of payment, petitioner turned over to him the cash
and all the transactions that were taken after 3:00 p.m. A Cash Count shows the total cash that petitioner turned over to him. The initial over the
typewritten name "agroque" is petitioner's because it was signed in his presence.4

The evidence for the petitioner consists of the testimony of the petitioner herself and that of Atty. Norbin Dimalanta and Exhibits 1 to 5 with sub-markings.
Petitioner, Asuncion Galang Roque, testified that she was employed as teller at the BABSLA from 1979 until her termination in 1990. In the morning she gets
the money from the treasurer and they do a cash count which is reflected in the Teller's Daily Report and at 3:00 p.m. she prepares and submits an abstract
of payment. However, before making the abstract, she and the treasurer conduct a cash count and the remaining cash is turned over to the treasurer. As a
teller, she received deposits and payments, deposits of checks and payments of loans. She does not discharge any memorandum or withdrawals unless both
the manager and the treasurer previously approve it. Depositors cannot withdraw after 3:00 p.m., unless they talk to the manager or treasurer.
Withdrawals done after 3:00 p.m. are reflected as transactions of the following day. She insisted that the charge against her of stealing and carrying away
P10,000 is false since she did not prepare the withdrawal slip dated November 16, 1989 which involves the account of Antonio Salazar. She also denied
forging the signature of Salazar and affixing her initial. Petitioner also disowned the initial in the abstract of payment dated November 17, 1989 and the
initials on several withdrawal slips. She claimed to be innocent and contended that Rosalina de Lazo is the one who is guilty because she was only used by
the president. The latter is still connected with the BABSLA while the petitioner was terminated in June 1990.

Throughout the eleven years that petitioner worked as a teller at the BABSLA, she had never been absent from work or required by the treasurer to explain
any discrepancy or anomaly related to the cash that she handled as a teller. Before her dismissal, petitioner was not suspended by the board of directors of
the BABSLA during the investigation of her case. She was put on forced leave which eventually led to her termination. The manager was also supposed to be
on forced leave. However, when the manager reported for work and some members protested and filed a petition, the president asked them to retract
their statements by means of executing an affidavit of desistance. Even though petitioner received notice regarding the investigation, she did not attend
because she knew the personalities of the members of the committee. Only the accused and the complainants whose accounts were withdrawn were
investigated. She filed a complaint with the Department of Labor in connection with her dismissal but it was dismissed because she did not pursue it. Apart
from the president, there were seven (7) members of the board of directors of the BABSLA in 1990: Col. Dunilayan, Col. Sanchez, MSgt. Romero, Sgt.
Manlulu, Sgt. Torato, Mrs. Bagasbas and Capt. Baluyut. Capt. Baluyut was subsequently dimissed as a member of the board of directors.5

The second witness for the petitioner was Atty. Norbin Dimalanta. He averred that he only gave advice regarding the legality of the possible dismissal of the
petitioner based on the evidence the committee gathered. He was present when the evidence and witnesses were presented. Proper notices were sent to
the accused. The chairman of the committee, Leonardo Tolentino, concluded that the initials on the withdrawal slips were similar to the petitioner's initials.
He did not suggest the consultation of a handwriting expert on forgery since there were other pieces of evidence showing that the petitioner figured in the
anomaly because several witnesses identified the figures appearing in the original copy of the questioned receipt as written by the petitioner. His
conclusion that no one else could have done it except for Mrs. Roque was arrived at only after the investigation of the records and documents presented to
the committee.6

The RTC found the petitioner guilty beyond reasonable doubt of the crime charged, on the following grounds:

After a careful evaluation of the evidence presented by both sides, the Court finds that the prosecution has proved the guilt of the accused beyond
reasonable doubt. This finding is supported by the categorical testimony of prosecution witness Reynaldo Manlulu who testified that on November 17, 1989
accused received from him a beginning cash in the amount of P355,984.53 which is shown in a Teller's Daily Report (Exh. D) prepared by the accused and
signed by the accused in his presence ( TSN, March 25, 1993, page 3). At the close of business day of November 17, 1989 the accused also prepared an
Abstract of Payment (Exh. E) and she signed it in his presence (Id., page 6). Aside from the beginning cash he also turned over to the accused the
transactions that took place after 3:00 o'clock of the preceding day particularly the withdrawal slip of M/Sgt. Salazar (Id., page 4) so that it can be entered
on the records on that very date as bank regulation requires that transactions occurring after 3:00 o'clock of a particular day are recorded the following day.
This explains why although the questionable withdrawal slip was dated November 16, 1989 it was stamped paid on November 17, 1989, for record
purposes. Since it was the accused who gave Reynaldo Manlulu the withdrawal slip dated November 16, 1989 the presumption is that, being in possession
of said withdrawal slip before its delivery to Reynaldo Manlulu, the accused is the one who prepared the said withdrawal slip. This particular transaction
was turned over to him by the accused the previous day (Id., page 5).

The Teller's Daily Report dated November 17, 1989 reflects, among others, a total withdrawal on that date in the amount of P16,300.00. This amount is the
totality of withdrawal after adding the seven (7) legitimate withdrawals amounting to P6,300.00 (Exhs. E-2 to E-8) and the questionable withdrawal of
P10,000.00 (Exh. C). On the other hand, the Abstract of Payment (Exh. E) reflects, among others, a savings withdrawal of P16,300.00 which tallies with the
Teller's Daily Report of that date and with the seven (7) withdrawal slips.

The defense interposed by the accused is one of denial. She claimed that all the initials in the withdrawal slip of P10,000.00 (Exh. C), on the Teller's Daily
Report (Exh. D), in the Abstract of Payment (Exh. E) as well as on the list of names of depositors (Exh. G) are not hers, implying, therefore, that these
documents were prepared by somebody else. To emphasize that the initials on Exhibits C, D, E, and G are not hers, accused during the hearing on March 18,
1993 wrote six (6) of her initials in a piece of paper (Exh. "1"). However, the Court is not in a position to state whether the initial in Exhibit 1 is the same or
different from the initials in Exhibits C, D, E, and G not being an expert along that line. Accused could have very well availed of court processes to request
the NBI or PNP Crime Laboratory to determine whether or not the initials in Exhibits C, D, E, and G are hers by comparing the same with similar documents
on file with the BABSLA which are abundant as said documents are prepared daily and accused was, prior to her dismissal, the only teller of BABSLA for over
a year and has therefore accomplished a lot of these documents. Unfortunately, accused did not make any attempt to do so. At any rate, denial cannot
prevail over the affirmative and categorical testimony of Reynaldo Manlulu who stated that accused turned over to him the questionable withdrawal slip on
November 16, 1989 and it was in turn returned to the accused by said witness the following day November 17, 1989 in order that said transaction may be
reflected on the records on that date. Said witness also positively testified that the accused initialed in his presence the Teller's Daily Report and the
Abstract of Payment which said accused prepared on November 17, 1989. Denial is a self-serving negative evidence that cannot be given greater weight
than the declaration of credible witnesses who testified on affirmative matters (People v. Carizo, 233 SCRA 687). Like alibi, denial is inherently a weak
defense and cannot prevail over the positive and credible testimony of the prosecution witnesses (People v. Macagaleng, 237 SCRA 299).

Accused after denying that the initials over the typewritten name A. G. Roque found in several exhibits introduced by the prosecution are not hers
concentrated [on] her defense that Rosalina de Lazo, another prosecution witness, and the General manager of BABSLA was the author of the anomaly
being imputed against her because said witness has committed certain anomalous transactions at the BABSLA in the past. Accused, however, never
mentioned a word about the testimony of Reynaldo Manlulu which actually proved her undoing. She failed to controvert nor even comment on the
damaging testimony of Reynaldo Manlulu that she turned over to him the questionable withdrawal slip and signed and/or placed her initial on the Teller's
Daily Report and Abstract of Payment in his presence. Accused did not present any evidence that Reynaldo Manlulu had ulterior motives to testify falsely
against her. When there is no evidence indicating that the principal witness for the prosecution was moved by improper motive, the presumption is that he
was not so moved, and his testimony is entitled to full faith and credit. (People v. Perciano, 233 SCRA 393). Accused also failed to controvert the testimony
of Rosalina de Lazo that accused confessed before Col. Dunilayan, the president of BABSLA that she took money from some depositors which she promised
to return and in fact wrote down the names of said depositors before Col. Dunilayan in a piece of paper which she handed to him. This fact and [it being]
taken in the light that she failed to appear for investigation after the anomaly was discovered despite due notice, and her lack of interest to pursue a case
she filed before the Department of Labor which caused its dismissal, do not speak well of her claim of innocence.

Art. 309, paragraph 2 of the Revised Penal Code provides that the penalty for theft is prision correccional in its medium and maximum periods if the value
property stolen is more than P6,000.00 but does not exceed P12,000.00 and since the accused is charged for qualified theft, and the property or money
stolen is P10,000.00, under Art. 310 the penalty prescribed for this crime is increased two (2) degrees higher, the basis of which is Art. 309, paragraph 2.
Therefore the corresponding penalty is prision mayor maximum to reclusion temporal minimum. However, as the accused is qualified [under] the
indeterminate sentence law, the prescribed penalty for her in this case is prision mayor as minimum to reclusion temporal as maximum.
WHEREFORE, judgment is rendered finding the accused guilty beyond reasonable doubt of the crime of qualified theft as charged and she is hereby
sentenced to suffer the penalty of 6 years and 1 day of prision mayor as minimum to 12 years, 2 months and 1 day of reclusion temporal as maximum, and
to indemnify the offended party Basa Air Base Savings & Loan Association Inc. in the amount of P10,000.00, and to pay the costs.

SO ORDERED.7

On appeal, the appellate court found the conviction in accord with law and the evidence and affirmed the decision of the RTC in toto. The Court of Appeals,
quoting at length the lower court, reasoned, thus:

The Court fully agrees with the court a quo in finding that appellant's guilt has been proven beyond reasonable doubt. As aptly pointed out by the lower
court:

This finding is supported by the categorical testimony of prosecution witness Reynaldo Manlulu who testified that on November 17, 1989 accused received
from him a beginning cash in the amount of P355,984.53 which is shown in a Teller's Daily Report (Exh. D) prepared by the accused and signed by the
accused in his presence (TSN, March 25, 1993, page 30). At the close of business day of November 17, 1989 the accused also prepared an Abstract of
Payment (Exh. E) and signed it in his presence (Id., page 6). Aside from the beginning cash he also turned over to the accused the transaction that took place
after 3:00 o'clock of the preceding day particularly the withdrawal slip of M/Sgt. Salazar (Id., page 4) so that it can be entered on the records on that very
date as bank regulation required that transaction occurring after 3:00 o'clock of a particular day are recorded the following day. This explains why although
the questionable withdrawal slip was dated November 16, 1989 it was stamped paid on November 17, 1989 for record purposes. Since it was the accused
who gave Reynaldo Manlulu the withdrawal slip dated November 16, 1989 the presumption is that being in possession of said withdrawal slip before its
delivery to Reynaldo Manlulu the accused is the one who prepared the said withdrawal slip. This particular transaction was tuned over to him by the
accused the previous day (Id., page 5).

The Teller's Daily Report dated November 17, 1989 reflects among others a total withdrawal on that date in the amount of P16,300.00. This amount is the
totality of withdrawal after adding the seven (7) legitimate withdrawals amounting to P6,300.00 (Exhs. E-2 to E-8) and the questionable withdrawal of
P10,000.00 (Exh. C). On the other hand the Abstract of Payment (Exh. E) reflects among others a savings withdrawal of P16,300.00 which tallies with the
Teller's Daily Report of that date and with the seven (7) withdrawal slips.

Appellant's defense is one of denial. She claims that the initials in the withdrawal slip of P10,000.00 (Exh. C) the Teller's Daily Report (Exh. D) the Abstract of
Payment (Exh. E) and list of names of depositors (Exh. G) are not hers thus implying that these documents were prepared by somebody else. To bolster her
claim she wrote her initials six (6) times on a piece of paper during the hearing on March 18, 1993 (Exh. 2) probably for comparison purposes. Admittedly
there are noticeable differences between her initials in Exhibit 2 and those appearing on Exhibits C to G. This is of course understandable. It was not difficult
for appellant to feign her initials in Exhibit 2 in order to mislead the Court.

At any rate no less than Rosalina de Lazo who as general manager of BABSLA is familiar with the initials has positively identified the initials on Exhibits C to G
as hers. Likewise, Reynaldo Manlulu categorically stated not only that the questionable withdrawal slip (Exh. C) was turned over to him by appellant on
November 16, 1989 and returned to her on November 17, 1989 but also that the Teller's Daily Report (Exh. D) and the Abstract of Payment (Exh. E) were
initialed by her in his presence. Needless to say the initials in Exhibits C, D, and E bear such similarities as would lead to the conclusion that they were
prepared by one and the same person. Hence, a more worthy and reliable evidence than the mere samples of her initials written during the trial is required
to controvert the positive testimonies of Rosalina de Lazo and Reynaldo Manlulu.

No cogent reason has been shown for this court not to give credence to the prosecution witnesses. As aptly observed by the court a quo:

Accused after denying that the initials over the typewritten name A.G. Roque found in several exhibits introduced by the prosecution are not hers
concentrated [on] her defense that Rosalina de Lazo another prosecution witness and the General Manager of BABSLA was the author of the anomaly being
imputed against her because said witness has committed certain anomalous transactions at the BABSLA in the past. Accused however, never mentioned a
word about the testimony of Reynaldo Manlulu which actually proved her undoing. She failed to controvert nor even comment on the damaging testimony
of Reynaldo Manlulu that she turned over to him the questionable withdrawal slip and signed and/or placed her initial on the Teller's Daily Report and
Abstract of Payment in his presence. Accused did not present any evidence that Reynaldo Manlulu had ulterior motives to testify falsely against her. When
there is no evidence indicating that the principal witness for the prosecution was moved by improper motive the presumption is that he was not so moved
and his testimony is entitled to full faith and credit. (People v. Perciano 233 SCRA 393). Accused also failed to controvert the testimony of Rosalina de Lazo
that the accused confessed before Col. Dunilayan the president of BABSLA that she took money from some depositors which she promised to return and in
fact wrote down the names of said depositors before Col. Dunilayan in a piece of paper which she handed to him. This fact and [it being] taken in the light
that she failed to appear for investigation after the anomaly was discovered despite due notice, and her lack of interest to pursue a case she filed before the
Department of Labor which caused its dismissal, do not speak well of her claim of innocence.

In sum, the Court finds appellant's conviction of the offense charged in accord with law and evidence.8

Petitioner now raises the following issues:

WHETHER OR NOT THE COURT OF APPEALS CORRECTLY AFFIRMED THE DECISION OF THE LOWER COURT CONVICTING PETITIONER OF THE CRIME OF
QUALIFIED THEFT THROUGH FALSIFICATION OF BANK DOCUMENTS?

II

WHETHER OR NOT THE COURT OF APPEALS CORRECTLY AFFIRMED THE DECISION OF THE LOWER COURT CONVICTING PETITIONER OF THE CRIME OF
QUALIFIED THEFT BECAUSE OF THE WEAKNESS OF THE DEFENSE OFFERED BY PETITIONER AND NOT ON THE STRENGTH OF THE EVIDENCE OF THE
PROSECUTION?

III

WHETHER OR NOT THE COURT OF APPEALS CORRECTLY AFFIRMED THE DECISION OF THE LOWER COURT CONVICTING PETITIONER OF THE CRIME OF
QUALIFIED THEFT IN THE ABSENCE OF ANY EVIDENCE WHETHER TESTIMONIAL OR DOCUMENTARY TO THE EFFECT THAT PETITIONER WAS SEEN OR CAUGHT
IN THE ACT OF TAKING OR CARRYING AWAY THE SUM OF P10,000.00?

IV

WHETHER OR NOT THE COURT OF APPEALS CORRECTLY AFFIRMED THE DECISION OF THE LOWER COURT CONVICTING PETITIONER OF THE CRIME OF
QUALIFIED THEFT WHEN THE AMOUNT OF P10,000.00 WHICH CONSTITUTES THE CORPUS DELICTI OR BODY OF THE CRIME WAS NEVER OFFERED IN
EVIDENCE BY THE PROSECUTION?
V

WHETHER OR NOT THE COURT OF APPEALS CORRECTLY AFFIRMED THE DECISION OF THE LOWER COURT CONVICTING PETITIONER OF THE CRIME OF
QUALIFIED THEFT WHEN THE PROSECUTION FAILED TO PROVE BEYOND REASONABLE DOUBT THE FACT OF LOSS OF THE AMOUNT OF P10,000.00 IN THE
ABSENCE OF ANY AUDIT BY AN INDEPENDENT AUDITOR?9

Said issues may be summed up into two:

1. Whether or not qualified theft may be committed when the personal property is in the lawful possession of the accused prior to the commission of the
alleged felony?chanroblesvirtualawlibrary

2. Whether or not the elements of qualified theft were proven?

First Issue

Petitioner contends:

Theft as defined in Article 308 of the Revised Penal Code requires physical taking of another's property without violence or intimidation against persons or
force upon things.

The crime of theft is akin to the crime of robbery. The only difference is in robbery there is force upon things or violence or intimidation against persons in
taking of personal properties. In the crime of theft the taking of the personal property with intent to gain is without violence against or intimidation of
persons nor force upon things and the taking shall be without the consent of the owner. In robbery, the taking is against the will of the owner.

Under Article 308 of the Revised Penal Code, the following are the elements of the crime of theft:

1. Intent to gain;

2. Unlawful taking;

3. Personal property belonging to another;

4. Absence of violence or intimidation against persons or force upon things.

The foregoing requirements presume that the personal property is in the possession of another, unlike estafa, [where] the possession of the thing is already
in the hands of the offender. In People v. Lacson, 57 Phil. 325, it was held:

"Commentators on the Spanish Penal Code lay great stress on the taking away, that is, getting possession in theft, laying hold of the thing, so that if the
thing is not taken away, but received and then appropriated or converted, without consent of the owner, it may be any other crime, that of estafa for
instance."

Can a person tasked to receive and collect capital contributions and having collected and received in her capacity as teller as alleged in the information, be
guilty of theft? The question should be answered in the negative. xxx10

Petitioner's argument contradicts jurisprudence. In U.S. v. De Vera,11 the accused, Nieves de Vera, received from Pepe, an Igorot, a bar of gold weighing
559.7 grams for the purpose of having a silversmith examine the same, and bank notes amounting to P200 to have them exchanged for silver coins. Accused
appropriated the bar of gold and bank notes. This Court, citing Spanish and U.S. jurisprudence, ruled that the crime committed was theft and not estafa
since the delivery of the personal property did not have the effect of transferring the juridical possession, thus such possession remained in the owner; and
the act of disposal with gainful intent and lack of owner's consent constituted the crime of theft.

The principle enunciated in U.S. v. De Vera was reiterated in People v. Trinidad,12 thus:

The defendant received a finger ring from the offended party for the purpose of pledging it as security for a loan of P5 for the benefit of said offended party.
Instead of pledging the ring, the defendant immediately carried it to one of her neighbors to whom she sold it for P30 and appropriated the money to her
own use.

xxx

The defendant is undoubtedly guilty of having sold the ring without authority and the only question which presents some difficulty is to determine whether
the crime committed was theft or whether it should be classified as estafa. The question is discussed at length in the case of United States v. De Vera (43
Phil., 1000) in which the court, citing various authorities, held that "When the delivery of a chattel or cattle has not the effect of transferring the juridical
possession thereof, or title thereto, it is presumed that the possession of, and title to, the thing so delivered remains in the owner; and the act of disposing
thereof with intent of gain and without the consent of the owner constitutes the crime of theft." This view seems to be supported both by Spanish and
American authorities.

xxx

Though the facts in the present case differs somewhat from those in the De Vera case, the underlying principle is the same in both cases: the juridical
possession of the thing appropriated did not pass to the perpetrators of the crime, but remained in the owners; they were agents or servants of the owners
and not bailees of the property. (See 17 R. C. L., 43, par. 49.) But it has been suggested that one of the essential elements of the crime of theft is that the
intent to misappropriate the property taken must exist at the time of the asportation and that while this element clearly existed in the De Vera case, it is not
as apparent in the case at bar.

We may agree that in cases such as the present the crime committed should not be regarded as theft unless the circumstances are such that it must be
presumed that the intent to convert or misappropriate the property existed at the time it was received by the perpetrator of the crime. But the existence of
such intent is, in our opinion, fully as apparent in this case as it was in the De Vera case; the defendant, according to her own statement, offered the ring for
sale immediately after its delivery to her, and we are forced to conclude that she did not receive it with honest intentions, but had the disposal of it in mind
at the time.

In the case of People v. Locson13 which also deals with money of a bank in the possession of its teller, the Court articulated:

Although the question is not specifically raised in the assignments of error, the court has carefully considered the classification of the crime committed by
the defendant and found it to be correctly classified by the trial court as qualified theft. The money was in the possession of the defendant as receiving
teller of the bank, and the possession of the defendant was the possession of the bank. When the defendant, with a grave abuse of confidence, removed
the money and appropriated it to his own use without the consent of the bank, there was the taking or apoderamiento contemplated in the definition of
the crime of theft.

In the case of the United States v. De Vera (43 Phil., 1000, 1003), Justice Villamor speaking for the court said:

"The argument advanced in support of the contention of the defense is that the goods misappropriated were not taken by the accused without the consent
of the owner who had delivered them to her voluntarily, and this element being lacking, it cannot be the crime of theft.

"It is well to remember the essential elements of the crime of theft, as expounded in the textbooks, which are as follows: First, the taking of personal
property; second, that the property belongs to another; third, that the taking away be done with intent of gain; fourth, that the taking away be done
without the consent of the owner; and fifth, that the taking away be accomplished without violence or intimidation against persons or force upon things.

"The commentators on the Spanish Penal Code, from which ours was adopted, lay great stress on the first element, which is the taking away, that is, getting
possession, laying hold of the thing, so that, as Viada says, if the thing is not taken away, but received and then appropriated or converted without the
consent of the owner, it may be any other crime, that of estafa for instance, but in no way that of theft, which consists in the taking away of the thing, that
is, in removing it from the place where it is kept by the legal owner, without the latter's consent, that is, without obtaining for the purpose the consent of
the legitimate owner."

The doctrine of the case as stated in the syllabus is as follows:

"When the delivery of a chattel or cattle has not the effect of transferring the juridical possession thereof, or title thereto, it is presumed that the
possession of, and title to, the thing so delivered remains in the owner; and the act of disposing thereof with intent of gain and without the consent of the
owner constitutes the crime of theft."

The Supreme Court of Spain in a decision of June 23, 1886 held that a shepherd, who takes away and converts to his own use several head of the sheep
under his care, is guilty of qualified theft. (Viada: Vol. 3, p. 433, 4th ed.)

In the case of People v. Isaac,14 which involved a temporary driver of a public service vehicle, this Court pronounced:

In the case of U. S. v. De Vera (43 Phil., 1000), this Court said that when the delivery of a chattel has not the effect of transferring the juridical possession
thereof, or title thereto, it is presumed that the possession of, and title to, the thing so delivered remains in the owner; and the act of disposing thereof
with intent of gain and without the consent of the owner constitutes the crime of theft. This, we think, is actually the case here. For as we see it, appellant
had only substituted for the regular driver of a vehicle devoted to the transportation of passengers for a fare or compensation and therefore operated as a
public utility; and while his arrangement with the owner was to turn in, not all the fare collected, but only a fixed sum known in the trade as "boundary",
still he cannot be legally considered a hirer or lessee, since it is ordained in section 26 of the Rules of Regulations of the Public Service Commission that "no
motor vehicle operator shall enter into any kind of contract with any person if by the terms thereof it allows the use and operation of all or any of his
equipment under a fixed rental basis." In the eye of the law then, appellant was not a lessee but only an employee or agent of the owner, so that his
possession of the vehicle was only an extension of that of the latter. In other words, while he had physical or material possession of the jeepney, the
juridical possession thereof remained in the owner. Under those circumstances his disposing of the jeepney with intent of gain and without the consent of
its owner makes him guilty of theft.

Quoting from Ruling Case Law, this Court has also said in the same case:

"A felonious taking is necessary in the crime of larceny, and generally speaking, a taking which is done with the consent or acquiescence of the owner of the
property is not felonious. But if the owner parts with the possession thereof for a particular purpose, and the person who receives the possession avowedly
for that purpose has the fraudulent intention to make use of it as the means of converting it to his own use and does so convert it, this is larceny, for in such
case, the fraud supplies the place of the trespass in the taking, or, as otherwise stated, the subsequent felonious conversion of the property by the alleged
thief will relate back and make the taking and conversion larceny."

Under this theory, appellant, who, according to his own confession, took the vehicle from its owner already with the intention of appropriating it, should
also be deemed guilty of theft. (People v. Trinidad, 50 Phil., 65.)

In the present case, what is involved is the possession of money in the capacity of a bank teller. In People v. Locson,15 cited above, this Court considered
deposits received by a teller in behalf of a bank as being only in the material possession of the teller. This interpretation applies with equal force to money
received by a bank teller at the beginning of a business day for the purpose of servicing withdrawals. Such is only material possession. Juridical possession
remains with the bank. In line with the reasoning of the Court in the above-cited cases, beginning with People v. De Vera, if the teller appropriates the
money for personal gain then the felony committed is theft and not estafa. Further, since the teller occupies a position of confidence, and the bank places
money in the teller's possession due to the confidence reposed on the teller, the felony of qualified theft would be committed.

Second Issue

The elements of qualified theft include the elements of theft and any of the circumstances enumerated in Article 310 of the Revised Penal Code16 (RPC).
The elements of theft, which is defined in Artilce 308 of the RPC,17 are the following:

xxx there are five essential elements which constitute the crime of theft, namely: (1) Taking of personal property; (2) that said property belongs to another;
(3) that said taking be done with intent to gain; (4) that, further, it be done without the owner's consent; and (5) finally, that it be accomplished without the
use of violence or intimidation against persons, nor of force upon things.18

The specific qualifying circumstance in Article 310 of the RPC which the information indicated was that the felony was committed with grave abuse of
confidence. Hence, to warrant a conviction, the prosecution should have proven the following elements:

1. Taking of personal property.

2. That the said property belongs to another.

3. That the said taking be done with intent to gain.

4. That it be done without the owner's consent.

5. That it be accomplished without the use of violence or intimidation against persons, nor of force upon things.

6. That it be done with grave abuse of confidence.

Regarding the first element, the taking of personal property, the prosecution was not able to present direct evidence that petitioner took the P10,000 on
November 16, 1989. The prosecution attempted to prove the taking through circumstantial evidence. One of the pieces of evidence that the prosecution
adduced and the trial court and Court of Appeals relied on heavily for the conviction was the withdrawal slip for P10,000, dated November 16, 1989.
Antonio Salazar disowned the signature on the withdrawal slip. However, he also indicated that he did not know who made the withdrawal. Rosalina de
Lazo testified that the initial on the withdrawal slip, written after the figure 11-17-89, was the customary signature of petitioner. She, however, did not
intimate the significance of petitioner's initial on the withdrawal slip. A careful inspection of all the withdrawal slips,19 including the withdrawal slip stated
above, shows that the date and the initial of petitioner were written across the stamped word "paid." This indicates that petitioner's initial was placed in her
capacity as a teller which, therefore, only proves that this transaction passed through her hands in such capacity. It does not in any manner show that
petitioner prepared the withdrawal slip or that the proceeds of the withdrawal increased her patrimony.

The trial court articulated and the Court of Appeals quoted in toto the following:

Since it was the accused who gave Reynaldo Manlulu the withdrawal slip dated November 16, 1989 the presumption is that, being in possession of said
withdrawal slip before its delivery to Reynaldo Manlulu, the accused is the one who prepared the said withdrawal slip. This particular transaction was
turned over to him by the accused the previous day20

This presumption is without basis in law. Under the rules of evidence, there is a fixed number of presumptions. These are contained in Sections 2 and 3 of
Rule 131, of the Revised Rules of Court. Courts of law should not be too ready to generate other presumptions. After a thorough review of all the
presumptions enumerated in Sections 2 and 3 of Rule 131, the presumption that comes closest to the one the RTC and Court of Appeals relied on is
paragraph (j), Section 3 of Rule 131, which reads:

That a person found in possession of a thing taken in the doing of a recent wrongful act is the taker and the doer of the whole act; otherwise, that things
which a person possesses, or exercises acts of ownership over, are owned by him;

In a long line of cases,21 this Court has always applied this presumption to a situation where property has been stolen and the stolen property is found in
the possession of the accused. In these cases the possession of the accused gives rise to the presumption that the accused is the taker of the stolen
property. In the presumption availed of by the lower courts the property found in the possession of the accused, which is the withdrawal slip, is not stolen
property. Furthermore, the presumption the lower court made was not that the petitioner stole anything, but rather that the petitioner was the maker of
the withdrawal slip. It is plain that the presumption used by the lower court and the one found in paragraph (j), Section 3 of Rule 131 are different.
Consequently, there is no basis for the finding that the withdrawal slip was prepared by the petitioner.

Another piece of evidence offered to prove petitioner's taking is her extrajudicial confession to de Lazo and Col. Dunilayan wherein she allegedly admitted
taking money from the accounts of several members of the BABSLA and the list of people from whose accounts she took money, which list petitioner
supposedly prepared in the presence of de Lazo and Col. Dunilayan. In the testimony of Rosalina de Lazo, all she mentioned was that petitioner confessed to
having taken sums of money from the accounts of several depositors, including the account of Sgt. Salazar. Nowhere in her testimony did she mention that
petitioner confessed the exact date on which she took the money, nor the amount she took from the account of Sgt. Salazar. It cannot be deduced from the
alleged verbal confession of petitioner that she was confessing a specific taking of P10,000 from the account of Sgt. Salazar on November 16, 1989. She also
saw petitioner prepare the list of depositors from whose accounts she had taken some money. Again, a perusal of the handwritten list allegedly prepared by
petitioner does not disclose any relation to the specific taking alleged in the information. All that was written on the list, among other names and figures,
was the name Salazar, Antonio and the number fifteen (15) to the right of the name. It must be kept in mind that the information was for a theft of P10,000
that occurred on the 16th of November 1989. The list does not mention the date on which the money was taken. Neither does it disclose the precise
amount that was taken.

The other pieces of evidence such as the Teller's Daily Report and Abstract of Payment, to which witnesses de Lazo and Salazar both testified as containing
the customary initials of petitioner, only corroborate the withdrawal slip. They merely reveal that on the 16th of November 1989, a withdrawal was made
on the account of Sgt. Antonio Salazar and that this withdrawal passed through the hands of petitioner in her capacity as a teller of the BABSLA. Again, they
prove neither that petitioner prepared the subject withdrawal slip nor that she took the P10,000 on that date.

From the foregoing discussion it is plain that the prosecution failed to prove by direct or sufficient circumstantial evidence that there was a taking of
personal property by petitioner.

A discussion of the other elements of qualified theft mentioned above is not necessary. Even if the other elements were satisfactorily proven, the first and
most basic element of qualified theft was not established. The prosecution was, therefore, unsuccessful in proving beyond reasonable doubt that the
petitioner committed the crime of qualified theft.

WHEREFORE, the petition is GRANTED and the decision and resolution of the Court of Appeals dated December 28, 1998 and May 26, 1999, respectively,
are REVERSED and SET ASIDE. Petitioner, Asuncion Galang Roque, is ACQUITTED of the crime of qualified theft charged in the information. No costs.

SO ORDERED.

Quisumbing, (Acting Chairman), Ynares-Santiago, and Carpio, JJ., concur.

Davide, Jr., C.J., (Chairman), on official leave.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC

G.R. No. 104988 June 18, 1996

MUSTANG LUMBER, INC., petitioner,
vs.
HON. COURT OF APPEALS, HON. FULGENCIO S. FACTORAN, JR., Secretary, Department of Environment and Natural Resources (DENR), and ATTY.
VINCENT A. ROBLES, Chief, Special Actions and Investigations Division, DENR, respondents.

DAVIDE, JR., J.:p

The first and third case, G.R. No. 104988 and G.R. No. 123784, were originally assigned to the Second and Third Divisions of the Court, respectively. They
were subsequently consolidated with the second, a case of the Court en banc.

Petitioner, a domestic corporation with principal office at Nos. 1350-1352 Juan Luna Street, Tondo, Manila, and with a Lumberyard at Fortune Street,
Fortune Village, Paseo de Blas, Valenzuela, Metro Manila, was duly registered as a lumber dealer with the Bureau of Forest Development (BFD) under
Certificate of Registration No. NRD-4-092590-0469. Its permit as such was to expire on 25 September 1990.

Respondent Secretary Fulgencio S. Factoran, Jr., and respondent Atty. Vincent A. Robles were, during all the time material to these cases, the Secretary of
the Department of Environment and Natural Resources (DENR) and the Chief of the Special Actions and Investigation Division (SAID) of the DENR,
respectively.

The material operative facts are as follows:

On 1 April 1990, acting on an information that a huge stockpile of narra flitches, shorts, and slabs were seen inside the lumberyard of the petitioner in
Valenzuela, Metro Manila, the SAID organized a team of foresters and policemen and sent it to conduct surveillance at the said lumberyard. In the course
thereof, the team members saw coming out from the lumberyard the petitioner's truck, with Plate No. CCK-322, loaded with lauan and almaciga lumber of
assorted sizes and dimensions. Since the driver could not produce the required invoices and transport documents, the team seized the truck together with
its cargo and impounded them at the DENR compound at Visayas Avenue, Quezon City.1 The team was not able to gain entry into the premises because of
the refusal of the owner.2

On 3 April 1990, the team was able to secure a search warrant from Executive Judge Adriano R. Osorio of the Regional Trial Court (RTC) of Valenzuela,
Metro Manila. By virtue thereof, the team seized on that date from the petitioner's lumberyard four truckloads of narra shorts, trimmings, and slabs; a
negligible number of narra lumber; and approximately 200,000 board feet of lumber and shorts of various species including almaciga and supa.3

On 4 April 1990, the team returned to the premises of the petitioner's lumberyard in Valenzuela and placed under administrative seizure the remaining
stockpile of almaciga, supa, and lauan lumber with a total volume of 311,000 board feet because the petitioner failed to produce upon demand the
corresponding certificate of lumber origin, auxiliary invoices, tally sheets, and delivery receipts from the source of the invoices covering the lumber to prove
the legitimacy of their source and origin.4

Parenthetically, it may be stated that under an administrative seizure the owner retains the physical possession of the seized articles. Only an inventory of
the articles is taken and signed by the owner or his representative. The owner is prohibited from disposing them until further orders.5

On 10 April 1990, counsel for the petitioner sent a letter to Robles requesting an extension of fifteen days from 14 April 1990 to produce the required
documents covering the seized articles because some of them, particularly the certificate of lumber origin, were allegedly in the Province of Quirino Robles
denied the motion on the ground that the documents being required from the petitioner must accompany the lumber or forest products placed under
seizure.6

On 11 April 1990, Robles submitted his memorandum-report recommending to Secretary Factoran the following:

1. Suspension and subsequent cancellation of the lumber Dealer's Permit of Mustang Lumber, Inc. for operating an unregistered lumberyard and resaw mill
and possession of Almaciga Lumber (a banned specie) without the required documents;

2. Confiscation of the lumber seized at the Mustang Lumberyard including the truck with Plate No. CCK-322 and the lumber loaded herein [sic] now at the
DENR compound in the event its owner fails to submit documents showing legitimacy of the source of said lumber within ten days from date of seizure;

3. Filing of criminal charges against Mr. Ri Chuy Po, owner of Mustang Lumber Inc. and Mr. Ruiz, or if the circumstances warrant for illegal possession of
narra and almaciga lumber and shorts if and when recommendation no. 2 pushes through;

4. Confiscation of Trucks with Plate No. CCS-639 and CDV. 458 as well as the lumber loaded therein for transport lumber using "recycled" documents.7

On 23 April 1990, Secretary Factoran issued an order suspending immediately the petitioner's lumber-dealer's permit No. NRD-4-092590-0469 and directing
the petitioner to explain in writing within fifteen days why its lumber-dealer's permit should not be cancelled.

On the same date, counsel for the petitioner sent another letter to Robles informing the latter that the petitioner had already secured the required
documents and was ready to submit them. None, however, was submitted.8

On 3 May 1990, Secretary Factoran issued another order wherein, after reciting the events which took place on 1 April and 3 April 1990, he ordered
"CONFISCATED in favor of the government to be disposed of in accordance with law" the approximately 311,000 board feet of lauan, supa, and almaciga
lumber, shorts, and sticks found inside the petitioner's lumberyard.9

On 11 July 1990, the petitioner filed with the RTC of Manila a petition for certiorari and prohibition with a prayer for a restraining order or preliminary
injunction against Secretary Fulgencio S. Factoran, Jr., and Atty. Vincent A. Robles. The case (hereinafter, the FIRST CIVIL CASE) was docketed as Civil Case
No. 90-53648 and assigned to Branch 35 of the said court. The petitioner questioned therein (a) the seizure on 1 April 1990, without any search and seizure
order issued by a judge, of its truck with Plate No. CCK-322 and its cargo of assorted lumber consisting of apitong, tanguile, and lauan of different sizes and
dimensions with a total value of P38,000.00; and (b) the orders of Secretary Factoran of 23 April 1990 for lack of prior notice and hearing and of 3 May 1990
for violation of Section 2, Article III of the Constitution.

On 17 September 1990, in response to reports that violations of P.D. No. 705 (The Revised Forestry Code of the Philippines), as amended, were committed
and acting upon instruction of Robles and under Special Order No. 897, series of 1990, a team of DENR agents went to the business premises of the
petitioner located at No. 1352 Juan Luna Street, Tondo, Manila. The team caught the petitioner operating as a lumber dealer although its lumber-dealer's
permit had already been suspended or 23 April 1990. Since the gate of the petitioner's lumberyard was open, the team went inside and saw an owner-type
jeep with a trailer loaded with lumber. Upon investigation, the team was informed that the lumber loaded on the trailer was to be delivered to the
petitioner's customer. It also came upon the sales invoice covering the transaction. The members of the team then introduced themselves to the caretaker,
one Ms. Chua, who turned out to be the wife of the petitioner's president and general manager, Mr. Ri Chuy Po, who was then out of town. The team's
photographer was able to take photographs of the stockpiles of lumber including newly cut ones, fresh dust around sawing or cutting machineries and
equipment, and the transport vehicles loaded with lumber. The team thereupon effected a constructive seizure of approximately 20,000 board feet of lauan
lumber in assorted sizes stockpiled in the premises by issuing a receipt
therefor. 10

As a consequence of this 17 September 1990 incident, the petitioner filed with the RTC of Manila a petition for certiorari and prohibition. The case
(hereinafter, the SECOND CIVIL CASE) was docketed as Civil Case No. 90-54610 and assigned to Branch 24 of the said court.

In the meantime, Robles filed with the Department of Justice (DOJ) a complaint against the petitioner's president and general manager, Ri Chuy Po, for
violation of Section 68 of P.D. No. 705, as amended by E.O. No. 277. After appropriate preliminary investigation, the investigating prosecutor, Claro
Arellano, handed down a resolution 11 whose dispositive portion reads:

WHEREFORE, premises considered, it is hereby recommended that an information be filed against respondent Ri Chuy Po for illegal possession of
approximately 200,000 bd. ft. of lumber consisting of almaciga and supa and for illegal shipment of almaciga and lauan in violation of Sec. 68 of PD 705 as
amended by E.O. 277, series of 1987.

It is further recommended that the 30,000 bd. ft. of narra shorts, trimmings and slabs covered by legal documents be released to the rightful owner,
Malupa. 12

This resolution was approved by Undersecretary of Justice Silvestre H. Bello III, who served as Chairman of the Task Force on Illegal Logging." 13

On the basis of that resolution, an information was filed on 5 June 1991 by the DOJ with Branch 172 of the RTC of Valenzuela, charging Ri Chuy Po with the
violation of Section 58 of P.D. No. 705, as amended, which was docketed as Criminal Case No. 324-V-91 (hereinafter, the CRIMINAL CASE). The accusatory
portion of the information reads as follows:

That on or about the 3rd day of April 1990, or prior to or subsequent thereto, within the premises and vicinity of Mustang Lumber, Inc. in Fortune Village,
Valenzuela, Metro Manila, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there wilfully, feloniously and
unlawfully have in his possession truckloads of almaciga and lauan and approximately 200,000 bd. ft. of lumber and shorts of various species including
almaciga and supa, without the legal documents as required under existing forest laws and
regulations. 14

On 7 June 1991, Branch 35 of the RTC of Manila rendered its decision 15 in the FIRST CIVIL CASE, the dispositive portion of which reads:

WHEREFORE, judgment in this case is rendered as follows:

1. The Order of Respondent Secretary of the DENR, the Honorable Fulgencio S. Factoran, Jr., dated 3 May 1990 ordering the confiscation in favor of the
Government the approximately 311,000 board feet of Lauan, supa, end almaciga Lumber, shorts and sticks, found inside and seized from the Lumberyard of
the petitioner at Fortune Drive, Fortune Village, Paseo de Blas, Valenzuela, Metro Manila, on April 4, 1990 (Exhibit 10), is hereby set aside and vacated, and
instead the respondents are required to report and bring to the Hon. Adriano Osorio, Executive Judge, Regional Trial Court, NCR, Valenzuela, Metro Manila,
the said 311,000 board feet of Lauan, supa and almaciga Lumber, shorts and sticks, to be dealt with as directed by Law;

2. The respondents are required to initiate and prosecute the appropriate action before the proper court regarding the Lauan and almaciga lumber of
assorted sizes and dimensions Loaded in petitioner's truck bearing Plate No. CCK-322 which were seized on April 1, 1990;

3. The Writ of Preliminary Injunction issued by the Court on August 2, 1990 shall be rendered functus oficio upon compliance by the respondents with
paragraphs 1 and 2 of this judgment;.

4. Action on the prayer of the petitioner that the Lauan, supa and almaciga lumber, shorts and sticks mentioned above in paragraphs 1 and 2 of this
judgment be returned to said petitioner is withheld in this case until after the proper court has taken cognizance and determined how those Lumber, shorts
and sticks should be disposed of; and

5. The petitioner is ordered to pay the costs.

SO ORDERED.

In resolving the said case, the trial court held that the warrantless search and seizure on 1 April 1990 of the petitioner's truck, which was moving out from
the petitioner's lumberyard in Valenzuela, Metro Manila, loaded with large volumes of lumber without covering document showing the legitimacy of its
source or origin did not offend the constitutional mandate that search and seizure must be supported by a valid warrant. The situation fell under one of the
settled and accepted exceptions where warrantless search and seizure is justified, viz., a search of a moving vehicle. 16 As to the seizure of a large volume of
almaciga, supa, and lauan lumber and shorts effected on 4 April 1990, the trial court ruled that the said seizure was a continuation of that made the
previous day and was still pursuant to or by virtue of the search warrant issued by Executive Judge Osorio whose validity the petitioner did not even
question. 17 And, although the search warrant did not specifically mention almaciga, supa, and lauan lumber and shorts, their seizure was valid because it is
settled that the executing officer is not required to ignore contrabands observed during the conduct of the
search.18

The trial court, however, set aside Secretary Factoran's order of 3 May 1990 ordering the confiscation of the seized articles in favor of the Government for
the reason that since the articles were seized pursuant to the search warrant issued by Executive Judge Osorio they should have been returned to him in
compliance with the directive in the warrant.

As to the propriety of the 23 April 1990 order of Secretary Factoran, the trial court ruled that the same had been rendered moot and academic by the
expiration of the petitioner's lumber dealer's permit on 25 September 1990, a fact the petitioner admitted in its memorandum.

The petitioner forthwith appealed from the decision in the FIRST CIVIL CASE to the Court of Appeals, which docketed the appeal as CA-G.R. SP No. 25510.

On 7 July 1991, accused Ri Chuy Po filed in the CRIMINAL CASE a Motion to Quash and/or to Suspend Proceedings based on the following grounds: (a) the
information does not charge an offense, for possession of lumber, as opposed to timber, is not penalized in Section 68 of P.D. No. 705, as amended, and
even granting arguendo that lumber falls within the purview of the said section, the same may not be used in evidence against him for they were taken by
virtue of an illegal seizure; and (b) Civil Case No. 90-53648 of Branch 35 of the RTC of Manila, the FIRST CIVIL CASE, then pending before the Court of
Appeals, which involves the legality of the seizure, raises a prejudicial question. 19
The prosecution opposed the motion alleging that lumber is included in Section 68 of P.D. No. 705, as amended, and possession thereof without the
required legal documents is penalized therein. It referred to Section 3.2 of DENR Administrative Order No. 19, series of 1989, for the definitions of timber
and lumber, and then argued that exclusion of lumber from Section 68 would defeat the very purpose of the law, i.e., to minimize, if not halt, illegal logging
that has resulted in the rapid denudation of our forest resources. 20

In her order of 16 August 1991 in the CRIMINAL CASE, 21 respondent Judge Teresita Dizon-Capulong granted the motion to quash and dismissed the case on
the ground that "possession of lumber without the legal documents required by forest laws and regulations is not a crime. 22

Its motion for reconsideration having been denied in the order of 18 October 1991, 23 the People filed a petition for certiorari with this Court in G.R. No.
106424, wherein it contends that the respondent Judge acted with grave abuse of discretion in granting the motion to quash and in dismissing the case.

On 29 November 1991, the Court of Appeals rendered a decision 24 in CA-G.R. SP No. 25510 dismissing for lack of merit the petitioner's appeal from the
decision in the FIRST CIVIL CASE and affirming the trial court's rulings on the issues raised. As to the claim that the truck was not carrying contraband articles
since there is no law punishing the possession of lumber, and that lumber is not timber whose possession without the required legal documents is unlawful
under P.D. No. 705, as amended, the Court of Appeals held:

This undue emphasis on lumber or the commercial nature of the forest product involved has always been foisted by those who claim to be engaged in the
legitimate business of lumber dealership. But what is important to consider is that when appellant was required to present the valid documents showing its
acquisition and lawful possession of the lumber in question, it failed to present any despite the period of extension granted to it. 25

The petitioner's motion to reconsider the said decision was denied by the Court of Appeals in its resolution of 3 March 1992. 26 Hence, the petitioner came
to this Court by way of a petition for review on certiorari in G.R. No. 104988, which was filed on 2 May 1992. 27

On 24 September 1992, Branch 24 of the RTC of Manila handed down a decision in the SECOND CIVIL CASE dismissing the petition for certiorari and
prohibition because (a) the petitioner did not exhaust administrative remedies; (b) when the seizure was made on 17 September 1990 the petitioner could
not lawfully sell lumber, as its license was still under suspension; (c) the seizure was valid under Section 68-A of P.D. No. 705, as amended; and (d) the
seizure was justified as a warrantless search and seizure under Section 80 of P.D. No. 705, as amended.

The petitioner appealed from the decision to the Court of Appeals, which docketed the appeal as CA-G.R. SP No. 33778.

In its decision 28 of 31 July 1995, the Court of Appeals dismissed the petitioner's appeal in CA-G.R. SP No. 33778 for lack of merit and sustained the grounds
relied upon by the trial court in dismissing the SECOND CIVIL CASE. Relying on the definition of "lumber" by Webster, viz., "timber or logs, especially after
being prepared for the market," and by the Random House Dictionary of the English Language, viz., "wood, esp. when suitable or adapted for various
building purposes," the respondent Court held that since wood is included in the definition of forest product in Section 3(q) of P.D. No. 705, as amended,
lumber is necessarily included in Section 68 under the term forest product.

The Court of Appeals further emphasized that a forest officer or employee can seize the forest product involved in a violation of Section 68 of P.D. No. 705
pursuant to Section 80 thereof, as amended by P.D. No. 1775, which provides in part as follows:

Sec. 80. Arrest, Institution of Criminal Actions. -- A forest officer or employee of the Bureau or any personnel of the Philippine Constabulary/Integrated
National Police shall arrest even without warrant any person who has committed or is committing in his presence any of the offenses defined in this
chapter. He shall also seize and confiscate, in favor of the Government, the tools and equipment used in committing the offense, or the forest products cut,
gathered or taken by the offender in the process of committing the offense.

Among the offenses punished in the chapter referred to in said Section 80 are the cutting, gathering, collection, or removal of timber or other forest
products or possession of timber or other forest products without the required legal documents.

Its motion to reconsider the decision having been denied by the Court of Appeals in the resolution of 6 February 1996, the petitioner filed with this Court on
27 February 1996 a petition for review on certiorari in G.R. No. 123784.

We shall now resolve these three cases starting with G.R. No. 106424 with which the other two were consolidated.

G.R. No. 106424

The petitioner had moved to quash the information in Criminal Case No. 324-V-91 on the ground that it does not charge an offense. Respondent Judge
Dizon-Capulong granted the motion reasoning that the subject matter of the information in the CRIMINAL CASE is LUMBER, which is neither "timber" nor
"other forest product" under Section 68 of P.D. No. 705, as amended, and hence, possession thereof without the required legal documents is not prohibited
and penalized under the said section.

Under paragraph (a), Section 3, Rule 117 of the Rules of Court, an information may be quashed on the ground that the facts alleged therein do not
constitute an offense. It has been said that "the test for the correctness of this ground is the sufficiency of the averments in the information, that is,
whether the facts alleged, if hypothetically admitted, constitute the elements of the
offense, 29 and matters aliunde will not be considered." Anent the sufficiency of the information, Section 6, Rule 110 of the Rules of Court requires, inter
alia, that the information state the acts or omissions complained of as constituting the offense.

Respondent Ri Chuy Po is charged with the violation of Section 68 of P.D. No. 705, as amended by E.O. No. 277, which provides:

Sec. 68. Cutting, Gathering and/or collecting Timber, or Other Forest Products Without License. -- Any person who shall cut, gather, collect, remove timber
or other forest products from any forest land, or timber from alienable or disposable public land, or from private land, without any authority, or possess
timber or other forest products without the legal documents as required under existing forest laws and regulations, shall be punished with the penalties
imposed under Articles 309 and 310 of the Revised Penal Code: Provided, That in the case of partnerships, associations, or corporations, the officers who
ordered the cutting, gathering, collection or possession shall be liable, and if such officers are aliens, they shall, in addition to the penalty, be deported
without further proceedings on the part of the Commission on Immigration and Deportation.

The Court shall further order the confiscation in favor of the government of the timber or any forest products cut, gathered, collected, removed, or
possessed, as well as the machinery, equipment, implements and tools illegally used in the area where the timber or forest products are found.

Punished then in this section are (1) the cutting, gathering, collection, or removal of timber or other forest products from the places therein mentioned
without any authority; and (b) possession of timber forest products without the legal documents as required under existing forest laws and regulations.

Indeed, the word lumber does not appear in Section 68. But conceding ex gratia that this omission amounts to an exclusion of lumber from the section's
coverage, do the facts averred in the information in the CRIMINAL CASE validly charge a violation of the said section?
A cursory reading of the information readily leads us to an infallible conclusion that lumber is not solely its subject matter. It is evident therefrom that what
are alleged to be in the possession of the private respondent, without the required legal documents, are truckloads of

(1) almaciga and lauan; and

(2) approximately 200,000 bd. ft. of lumber and shorts of various species including almaciga and supa.

The "almaciga and lauan" specifically mentioned in no. (1) are not described as "lumber." They cannot refer to the "lumber" in no. (2) because they are
separated by the words "approximately 200,000 bd. ft." with the conjunction "and," and not with the preposition "of." They must then be raw forest
products or, more specifically, timbers under Section 3(q) of P.D. No. 705, as amended, which reads:

Sec. 3. Definitions. --

xxx xxx xxx

(q) Forest product means timber, firewood, bark, tree top, resin, gum, wood, oil, honey, beeswax, nipa, rattan, or other forest plant, the associated water,
fish game, scenic, historical, recreational and geological resources in forest lands.

It follows then that lumber is only one of the items covered by the information. The public and the private respondents obviously miscomprehended the
averments in the information. Accordingly, even if lumber is not included in Section 68, the other items therein as noted above fall within the ambit of the
said section, and as to them, the information validly charges an offense.

Our respected brother, Mr. Justice Jose C. Vitug, suggests in his dissenting opinion that this Court go beyond the four corners of the information for
enlightenment as to whether the information exclusively refers to lumber. With the aid of the pleadings and the annexes thereto, he arrives at the
conclusion that "only lumber has been envisioned in the indictment."

The majority is unable to subscribe to his view. First, his proposition violates the rule that only the facts alleged in the information vis-a-vis the law violated
must be considered in determining whether an information charges an offense.

Second, the pleadings and annexes he resorted to are insufficient to justify his conclusion. On the contrary, the Joint Affidavit of Melencio Jalova, Jr., and
Araman Belleng, which is one of the annexes he referred to, 30 cannot lead one to infer that what the team seized was all lumber. Paragraph 8 thereof
expressly states:

8. That when inside the compound, the team found approximately four (4) truckloads of narra shorts, trimmings and slabs and a negligible amount of narra
lumber, and approximately 200,000 bd. ft. of lumber and shorts of various species including almaciga and supa which are classified as prohibited wood
species. (emphasis supplied)

In the same vein, the dispositive portion of the resolution31 of the investigating prosecutor, which served as the basis for the filing of the information, does
not limit itself to lumber; thus:

WHEREFORE, premises considered, it is hereby recommended that an information be filed against respondent Ri Chuy Po for illegal possession of 200,000
bd. ft. of lumber consisting of almaciga and supa and for illegal shipment of almaciga and lauan in violation of Sec. 63 of PD 705 as amended by E.O. 277,
series of 1987. (emphasis supplied)

The foregoing disquisitions should not, in any manner, be construed as an affirmance of the respondent Judge's conclusion that lumber is excluded from the
coverage of Section 68 of P.D. No. 705, as amended, and thus possession thereof without the required legal documents is not a crime. On the contrary, this
Court rules that such possession is penalized in the said section because lumber is included in the term timber.

The Revised Forestry Code contains no definition of either timber or lumber. While the former is included in forest products as defined in paragraph (q) of
Section 3, the latter is found in paragraph (aa) of the same section in the definition of "Processing plant," which reads:

(aa) Processing plant is any mechanical set-up, machine or combination of machine used for the processing of logs and other forest raw materials into
lumber, veneer, plywood, wallbond, blockboard, paper board, pulp, paper or other finished wood products.

This simply means that lumber is a processed log or processed forest raw material. Clearly, the Code uses the term lumber in its ordinary or common usage.
In the 1993 copyright edition of Webster's Third New International Dictionary, lumber is defined, inter alia, as "timber or logs after being prepared for the
market." 32 Simply put, lumber is a processed log or timber.

It is settled that in the absence of legislative intent to the contrary, words and phrases used in a statute should be given their plain, ordinary, and common
usage meaning. 33 And insofar as possession of timber without the required legal documents is concerned, Section 68 of P.D. No. 705, as amended, makes
no distinction between raw or processed timber. Neither should we. Ubi lex non distinguere debemus.

Indisputably, respondent Judge Teresita Dizon-Capulong of Branch 172 of the RTC of Valenzuela, Metro Manila, committed grave abuse of discretion in
granting the motion to quash the information in the CRIMINAL CASE and in dismissing the said case.

G.R. No. 104988

We find this petition to be without merit. The petitioner has miserably failed to show that the Court of Appeals committed any reversible error in its
assailed decision of 29 November 1991.

It was duly established that on 1 April 1990, the petitioner's truck with Plate No. CCK-322 was coming out from the petitioner's lumberyard loaded with
lauan and almaciga lumber of different sizes and dimensions which were not accompanied with the required invoices and transport documents. The seizure
of such truck and its cargo was a valid exercise of the power vested upon a forest officer or employee by Section 80 of P.D. No. 705, as amended by P.D. No.
1775. Then, too, as correctly held by the trial court and the Court of Appeals in the FIRST CIVIL CASE, the search was conducted on a moving vehicle. Such a
search could be lawfully conducted without a search warrant.

Search of a moving vehicle is one of the five doctrinally accepted exceptions to the constitutional mandate 34 that no search or seizure shall be made
except by virtue of a warrant issued by a judge after personally determining the existence of probable cause. The other exceptions are (3) search as an
incident to a lawful arrest, (2) seizure of evidence in plain view, (3) customs searches, and (4) consented warrantless search. 35

We also affirm the rulings of both the trial court and the Court of Appeals that the search on 4 April 1990 was a continuation of the search on 3 April 1990
done under and by virtue of the search warrant issued on 3 April 1990 by Executive Judge Osorio. Under Section 9, Rule 126 of the Rules of Court, a search
warrant has a lifetime of ten days. Hence, it could be served at any time within the said period, and if its object or purpose cannot be accomplished in one
day, the same may be continued the following day or days until completed. Thus, when the search under a warrant on one day was interrupted, it may be
continued under the same warrant the following day, provided it is still within the ten-day period. 36

As to the final plea of the petitioner that the search was illegal because possession of lumber without the required legal documents is not illegal under
Section 68 of P.D. No. 705, as amended, since lumber is neither specified therein nor included in the term forest product, the same hardly merits further
discussion in view of our ruling in G.R. No. 106424.

G.R. No. 123784

The allegations and arguments set forth in the petition in this case palpally fail to shaw prima facie that a reversible error has been committed by the Court
of Appeals in its challenged decision of 31 July 1995 and resolution of 6 February 1996 in CA-G.R. SP No. 33778. We must, forthwith, deny it for utter want
of merit. There is no need to require the respondents to comment on the petition.

The Court of Appeals correctly dismissed the petitioner's appeal from the judgment of the trial court in the SECOND CIVIL CASE. The petitioner never
disputed the fact that its lumber-dealer's license or permit had been suspended by Secretary Factoran on 23 April 1990. The suspension was never lifted,
and since the license had only a lifetime of up to 25 September 1990, the petitioner has absolutely no right to possess, sell, or otherwise dispose of lumber.
Accordingly, Secretary Factoran or his authorized representative had the authority to seize the Lumber pursuant to Section 68-A of P.D. No. 705, as
amended, which provides as follows:

Sec. 68-A Administrative Authority of the Department Head or his Duly Authorized Representative to Order Confiscation. -- In all cases of violations of this
Code or other forest laws, rules and regulations, the Department Head or his duly authorized representative may order the confiscation of any forest
products illegally cut, gathered, removed, or possessed or abandoned. . . .

The petitioner's insistence that possession or sale of lumber is not penalized must also fail view of our disquisition and ruling on the same issue in G.R. No.
106424. Besides, the issue is totally irrelevant in the SECOND CIVIL CASE which involves administrative seizure as a consequence of the violation of the
suspension of the petitioner's license as lumber dealer.

All told then, G.R. No. 104988 and G.R. No. 123784 are nothing more than rituals to cover up blatant violations of the Revised Forestry Code of the
Philippines (P.D. No. 705), as amended. They are presumably trifling attempts to block the serious efforts of the DENR to enforce the decree, efforts which
deserve the commendation of the public in light of the urgent need to take firm and decisive action against despoilers of our forests whose continuous
destruction only ensures to the generations to come, if not the present, an inheritance of parched earth incapable of sustaining life. The Government must
not tire in its vigilance to protect the environment by prosecuting without fear or favor any person who dares to violate our laws for the utilization and
protection of our forests.

WHEREFORE, judgment is hereby rendered

1. (a) GRANTING the petition in G.R. No. 106424; (b) SETTING ASIDE and ANNULLING, for having been rendered with grave abuse of discretion, the
challenged orders of 16 August 1991 and 18 October 1991 of respondent Judge Teresita Dizon-Capulong, Branch 172, Regional Trial Court of Valenzuela,
Metro Manila, in Criminal Case No. 324-V-91, entitled "People of the Philippines vs. Ri Chuy Po"; (c) REINSTATING the information in the said criminal case;
and (d) DIRECTING the respondent Judge or her successor to hear and decide the case with purposeful dispatch; and

2. DENYING the petitions in G.R. No. 104988 and in G. R. No. 123784 for utter failure of the petitioner to show that the respondent Court of Appeals
committed any reversible error in the challenged decisions of 29 November 1991 in CA-G.R. SP No. 25510 in the FIRST CIVIL CASE and of 31 July 1995 in CA-
G.R. SP No. 33778 on the SECOND CIVIL CASE.

Costs against the petitioner in each of these three cases.

SO ORDERED.

Narvasa, C.J., Padilla, Regalado, Romero, Bellosillo, Melo, Puno, Kapunan, Mendoza, Francisco, Hermosisima, Jr., Panganiban and Torres, Jr., JJ., concur.
EN BANC
[G.R. No. 1366. November 18, 1903. ]
THE UNITED STATES, Complainant-Appellee, v. GABRIEL FUSTER, Defendant-Appellant.

DECISION

MAPA, J. :

The defendant was convicted in the court below of the crime of usurpation and condemned to pay a fine of 2,500 pesetas.

Article 521 of the Penal Code, which punishes this crime, provides as follows:jgc:chanrobles.com.ph

"He who, by the use of violence or intimidation, shall take possession of any real property or usurp a real right belonging to another, shall, in addition to the
penalties which he may incur because of the use of violence, pay a fine equal to from 50 to 100 per cent of the profits which he may have thereby received,
but in no case less than 325 pesetas. If the profit should be such that it is impossible to determine the amount, then the penalty shall be a fine of from 325
to 3,250 pesetas."cralaw virtua1aw library

Under this article, among other requisites which are essential for the existence of the offense of usurpation, it is necessary that the real property or the real
right, which is supposed to be the object of this crime, be the property of another. In the absence of proof of this fact, no conviction can be had upon an
information for this offense.

In the present case the evidence for the prosecution deals solely and exclusively with the possession and not the ownership of the land alleged to have been
usurped by the defendant. All the testimony for the prosecution tends to show the fact, and nothing more than the fact, that the land in question was in
possession of Doña Carolina Gomez de la Serna and others at the time of the defendant’s forcible entry therein. Furthermore, it appears that the possessors
did not make any claim to the ownership of the said land, but only to its possession. Doña Carolina herself says that this land "does not belong to anybody,"
and that, although she is occupying it, it is only because she is in possession of it. There is, therefore, no evidence that the land is the property of those
alleged to have been injured by the offense charged.

On the other hand, the defendant offered to prove, by authentic documents, that he was the lawful owner of the land in question. This evidence was
rejected in the court below. In this the court erred, for it unquestionably is an error to exclude proof of the ownership of property in litigation when, as in
the case of usurpation, this ownership constitutes a necessary and indispensable element for the determination of the defendant’s guilt or innocence. If the
defendant herein had shown that he was the owner of the land in question, there would have been no ground on which he could have been convicted of
the offense charged, because no one can, in a legal sense, be guilty of the usurpation of his own property. The law requires that the real property or the real
right seized be the property of another, in order that the crime of usurpation may exist.

The error of law into which the court fell in refusing to admit the evidence of ownership offered by the defendant, and against which ruling the defendant
duly excepted, would be a sufficient ground for remanding the case for a new trial. We do not, however, consider it necessary to do this, in view of the fact
that the prosecution has not proven that the land alleged to have been usurped was not the property of the defendant. The burden lay with the
prosecution to prove this fact, and, having failed to do so, we must acquit the defendant, even in the absence of any evidence in his behalf, because of the
presumption of innocence to which every defendant is entitled until proven guilty.

We therefore reverse the judgment appealed and acquit the defendant, with the costs of both instances de oficio. So ordered.

Arellano, C.J., Torres, Cooper, Willard and McDonough, JJ., concur.

Johnson, J., did not sit in this case.

FIRST DIVISION
[G.R. No. L-4302. September 17, 1952.]
ANDRES PITARGUE, Plaintiff-Appellee, v. LEANDRO SORILLA, Defendant-Appellant.

DECISION

LABRADOR, J.:

On July 30, 1941, plaintiff-appellee filed a miscellaneous sales application for a parcel of land known as cadastral lot No. 2777 situated at Elang, Kidapawan,
Cotabato, and paid a deposit of P5 therefor (Exhibit F). The Bureau of Lands acknowledged receipt of his application on November 22, 1941 (Exhibit E), and
informed that it had been referred to the district land office of Cotabato, Cotabato. Upon receipt of his acknowledgment he started the construction of a
small house on the lot, but the same was not finished because of the outbreak of the war. In 1946 he had another house constructed on the lot, which he
used both as a clinic (he is a dentist) and as a residence. He introduced other improvements on the land and these, together with the house, he declared for
tax purposes (Exhibit B), paying taxes thereon in 1947 and 1948 (Exhibits C and D). He placed one Cacayorin in charge of the house, but Cacayorin left it on
December 13, 1948. Thereupon defendant-appellant herein demolished the house and built thereon one of his own. On December 17, 1948, plaintiff went
to defendant and asked the latter why he had constructed a building on the land, and the latter gave the excuse that there was no sign of interest on the
part of the one who had applied for it.

On March 9, 1949, plaintiff-appellee instituted this action of forcible entry in the justice of the peace court, praying that defendant be ordered to vacate the
lot usurped and remove the construction he had made thereon, with monthly damages at P10. Thereupon defendant filed a motion to dismiss the action on
two grounds, namely, (1) that the court has no jurisdiction over the subject matter, as the same falls under the exclusive jurisdiction of the Bureau of Lands,
and (2) that the action is barred by a prior judgment, because a previous criminal action for usurpation of real property filed by plaintiff against him had
been dismissed. The justice of the peace court denied the motion on the ground that the issue involved is as to who was in the actual possession of the lot
in question on December 14, 1948, which issue can be resolved only after the presentation of evidence (Record on Appeal, pp. 26-27). Thereupon
defendant filed an answer denying plaintiff’s possession since 1946, and alleging as special defenses (1) that the lot is an unawarded public land, which is
already under investigation by the Bureau of Lands, and (2) that defendant was already acquitted of a criminal charge filed by plaintiff against him for
usurpation of real property. By way of counterclaim he demanded P2,800 from plaintiff (Record on Appeal, pp. 27-33). On June 4, 1949, the justice of the
peace court declared itself without jurisdiction to try the case for the reason that the subject matter of the action is the subject of an administrative
investigation (Ibid., p. 39). Against this judgment plaintiff appealed to the Court of First Instance. At first this court refused to take cognizance of the case,
but upon the authority of the case of Mago v. Bihag, 44 Off. Gaz., (12) 4934, decided by the Court of Appeals, it proceeded to try the case on the merits.
After trial it found the facts already set forth above, and sentenced the defendant to vacate the land and indemnify the plaintiff in the sum of P100, with
costs. Against this judgment this appeal has been presented, the defendant-appellant making the following assignments of error in his brief:chanrob1es
virtual 1aw library

1. The lower Court erred in trying the case when the land involved is a public land and jurisdiction of which belong to the Land Department of the
Philippines.

2. The lower Court erred in trying the case when prior to the commencement of this action an administrative case was (is) pending between the parties over
the same land in the Bureau of Lands and, as such, the latter has acquired first jurisdiction over the subject- matter of the action.

3. The lower Court erred in trying the case when the cause of this action is barred by a prior judgment.

4. The lower Court erred in trying the case and rendering a decision on the merits when its duty after it had determined that the Justice of the Peace Court
has jurisdiction is to reverse the order of dismissal of the inferior court and remand to it for further proceedings.

Under the facts and circumstances of the case the question now before us is as follows: Do courts have jurisdiction to entertain an action of forcible entry
instituted by a bona fide applicant of public land, who is in occupation and peaceful possession thereof and who has introduced improvements, against one
who deprives him of the possession thereof before award and pending investigation of the application? Defendant-appellant contends that as the
administrative disposition and control of public lands is vested exclusively in the Lands Department, cognizance of the forcible entry action or of any
possessory action constitutes a "prejudicial interference" with the said administrative functions, because there is an administrative case pending in the
Bureau of Lands between the same parties over the same land. The record contains a certificate of a land inspector to the effect that the investigation of
the conflict between plaintiff- appellee herein and the defendant-appellant has been suspended because of the trial of the criminal case for usurpation filed
by plaintiff against defendant-appellant. (See Record on Appeal, pp. 25-26.) We note from the certificate, however, that while plaintiff’s application is
registered as MSA 9917, Defendant-Appellant does not appear to have made any formal application at all.

It must be made clear at the outset that this case does not involve a situation where the Bureau of Lands has already made an award of, or authorized an
entry into, the public land. It is purely a possessory action by a bona fide applicant who has occupied the land he has applied for before the outbreak of the
war under the ostensible authority of his application, which was given due course for investigation, but as to which no approval has been given because
investigation has not yet been finished.

An ideal situation in the disposition of public lands would be one wherein those alienable and disposable are yet unoccupied and are delivered to the
applicants upon the approval of their application, free from other occupants or claimants. But the situation in the country has invariably been the opposite;
lands are occupied without being applied for, or before the applications are approved. In fact, the approval of applications often takes place many years
after the occupations began or the application was filed, so that many other applicants or claimants have entered the land in the meantime, provoking
conflicts and overlapping of applications. For some reason or other the Lands Department has been unable to cope with the ever increasing avalanche of
applications, or of conflicts and contests between rival applicants and claimants.

The question that is before this Court is: Are courts without jurisdiction to take cognizance of possessory actions involving these public lands before final
award is made by the Lands Department, and before title is given any of the conflicting claimants? It is one of utmost importance, as there are public lands
everywhere and there are thousands of settlers, especially in newly opened regions. It also involves a matter of policy, as it requires the determination of
the respective authorities and functions of two coordinate branches of the Government in connection with public land conflicts.

Our problem is made simple by the fact that under the Civil Code, either in the old, which was in force in this country before the American occupation, or in
the new, we have a possessory action, the aim and purpose of which is the recovery of the physical possession of real property, irrespective of the question
as to who has the title thereto. Under the Spanish Civil Code we had the accion interdictal, a summary proceeding which could be brought within one year
from dispossession (Roman Catholic Bishop of Cebu v. Mangaron, 6 Phil. 286, 291); and as early as October 1, 1901, upon the enactment of the Code of Civil
Procedure (Act No. 190 of the Philippine Commission) we implanted the common law action of forcible entry (section 80 of Act No. 190), the object of
which has been stated by this Court to be "to prevent breaches of the peace and criminal disorder which would ensue from the withdrawal of the remedy,
and the reasonable hope such withdrawal would create that some advantage must accrue to those persons who, believing themselves entitled to the
possession of property, resort to force to gain possession rather than to some appropriate action in the courts to assert their claims." (Supia and Batioco v.
Quintero and Ayala, 59 Phil. 312, 314.) So before the enactment of the first Public Land Act (Act No. 926) the action of forcible entry was already available in
the courts of the country. So the question to be resolved is, Did the Legislature intend, when it vested the power and authority to alienate and dispose of
the public lands in the Lands Department, to exclude the courts from entertaining the possessory action of forcible entry between rival claimants or
occupants of any land before award thereof to any of the parties? Did Congress intend that the lands applied for, or all public lands for that matter, be
removed from the jurisdiction of the Judicial Branch of the Government, so that any troubles arising therefrom, or any breaches of the peace or disorders
caused by rival claimants, could be inquired into only by the Lands Department to the exclusion of the courts? The answer to this question seems to us
evident. The Lands Department does not have the means to police public lands; neither does it have the means to prevent disorders arising therefrom, or
contain breaches of the peace among settlers; or to pass promptly upon conflicts of possession. Then its power is clearly limited to disposition and
alienation, and while it may decide conflicts of possession in order to make proper award, the settlement of conflicts of possession which is recognized in
the courts herein has another ultimate purpose, i.e., the protection of actual possessors and occupants with a view to the prevention of breaches of the
peace. The power to dispose and alienate could not have been intended to include the power to prevent or settle disorders or breaches of the peace among
rival settlers or claimants prior to the final award. As to this, therefore, the corresponding branches of the Government must continue to exercise power
and jurisdiction within the limits of their respective functions. The vesting of the Lands Department with authority to administer, dispose, and alienate
public lands, therefore, must not be understood as depriving the other branches of the Government of the exercise of their respective functions or powers
thereon, such as the authority to stop disorders and quell breaches of the peace by the police, and the authority on the part of the courts to take
jurisdiction over possessory actions arising therefrom not involving, directly or indirectly, alienation and disposition.

Our attention has been called to a principle enunciated in American courts to the effect that courts have no jurisdiction to determine the rights of claimants
to public lands, and that until the disposition of the land has passed from the control of the Federal Government, the courts will not interfere with the
administration of matters concerning the same. (50 C. J. 1093-1094.) We have no quarrel with this principle. The determination of the respective rights of
rival claimants to public lands is different from the determination of who has the actual physical possession or occupation with a view to protecting the
same and preventing disorder and breaches of the peace. A judgment of the court ordering restitution of the possession of a parcel of land to the actual
occupant, who has been deprived thereof by another through the use of force or in any other illegal manner, can never be "prejudicial interference" with
the disposition or alienation of public lands. On the other hand, if courts were deprived of jurisdiction of cases involving conflicts of possession, that threat
of judicial action against breaches of the peace committed on public lands would be eliminated, and a state of lawlessness would probably be produced
between applicants, occupants or squatters, where force or might, not right or justice, would rule.

It must be borne in mind that the action that would be used to solve conflicts of possession between rivals or conflicting applicants or claimants would be
no other than that of forcible entry. This action, both in England and the United States and in our jurisdiction, is a summary and expeditious remedy
whereby one in peaceful and quiet possession may recover the possession of which he has been deprived by a stronger hand, by violence or terror; its
ultimate object being to prevent breach of the peace and criminal disorder. (Supia and Batioco v. Quintero and Ayala, 59 Phil., 312, 314.) The basis of the
remedy is mere possession as a fact, of physical possession, not a legal possession. (Mediran v. Villanueva, 37 Phil., 752.) The title or right to possession is
never in issue in an action of forcible entry; as a matter of fact, evidence thereof is expressly banned, except to prove the nature of the possession. (Section
4, Rule 72, Rules of Court.) With this nature of the action in mind, by no stretch of the imagination can the conclusion be arrived at that the use of the
remedy in the courts of justice would constitute an interference with the alienation, disposition and control of public lands. To limit ourselves to the case at
bar can it be pretended at all that its result would in any way interfere with the manner of the alienation or disposition of the land contested? On the
contrary, it would facilitate adjudication, for the question of priority of possession having been decided in a final manner by the courts, said question need
no longer waste the time of the land officers making the adjudication or award.

The original Public Land Law (Act 926) was drafted and passed by a Commission composed mostly of Americans and as the United States has had its vast
public lands and has had the same problems as we now have, involving their settlement and occupation, it is reasonable to assume that it was their
intention to introduce into the country these laws in relation to our problems of land settlement and disposition. The problem now brought before us was
presented in an analogous case in the year 1894 before the Supreme Court of Oklahoma in the case of Sproat v. Durland, 2 Okl. 24, 35 Pac. 682, and said
court made practically the same solution as we have, thus:chanrob1es virtual 1aw library

. . . This question is one of vital importance in Oklahoma. All our lands are entered, and title procured therefor, under the homestead laws of the United
States. The question arising out of adverse possession, as between homestead claimants, daily confront our courts. To say that no relief can be granted, or
that our courts are powerless to do justice between litigants in this class of cases, pending the settlement of title in the land department, would be the
announcement of a doctrine abhorrent to a sense of common justice. It would encourage the strong to override the weak, would place a premium upon
greed and the use of force, and, in many instances, lead to bloodshed and crime. Such a state of affairs is to be avoided, and the courts should not hesitate
to invoke the powers inherent in them, and lend their aid, in every way possible, to prevent injustice, by preventing encroachments upon the possessory
rights of settlers, or by equitably adjusting their differences. In the case under consideration, no adequate remedy at law is provided for relief. Ejectment
will not lie. Adams v. Couch, 1 Okl. 17, 26 Pac. 1009. And, at the time this proceeding was instituted, the forcible entry and detainer act was insufficient in its
provisions to afford a remedy. The appellee was entitled to speedy relief, and ought not to be compelled to await the final and tedious result of the
litigation in the interior department, before obtaining that which he clearly shows himself entitled to have.

The action of forcible entry was then deemed insufficient in that state to prevent acts of trespass interfering with an applicant’s possession, so that the
court ordered the issuance of an injunction. The main issue involved, however, was whether pending final investigation and award the occupant should be
protected in his possession, and the Supreme Court of Oklahoma said it should, issuing an injunction to protect said possession.

The same conclusion was arrived at by the Supreme Court of Washington in the case of Colwell v. Smith, 1 Wash. T. 92, 94, when it held:chanrob1es virtual
1aw library

We will not decide between two conflicting claimants, both of whom are actually in possession of certain portions of the claim in dispute, who is in the
right, so far as to dispossess one or the other from the entire claim, which would render it impossible for him to prove that residence the law requires, and
thus contest his claim before the register and receiver; we can and must protect either party from trespass by the other, upon such portion of the claim as
may be in the actual exclusive possession of such party.

Resuming the considerations we have set forth above, we hold that the grant of power and duty to the Lands Department to alienate and dispose of public
lands does not divest the courts of their duty or power to take cognizance of actions instituted by settlers or occupants or applicants against others to
protect their respective possessions and occupations, more especially the actions of trespass, forcible entry and unlawful detainer, and that the exercise of
such jurisdiction is no interference with the alienation, disposition, and control of public lands. The question we have proposed to consider must be
answered in the affirmative.

Our resolution above set forth answers defendant-appellant’s contention. We have, however, to go further and explore another fundamental question, i.e.,
whether a public land applicant, such as the plaintiff-appellee herein, may be considered as having any right to the land occupied, which may entitle him to
sue in the courts of justice for a remedy for the return of the possession thereof, such as an action of forcible entry or unlawful detainer, or any other
suitable remedy provided by law. In the United States a claim "is initiated by an entry of the land, which is effectual by making an application at the proper
land office, filing the affidavit and paying the amounts required by . . . the Revised Statutes. (Sturr v. Beck, 133 U. S. 541, 10 S. Ct. 350, 33 L. Ed. 761.) "Entry"
as applied to appropriation of land, "means that act by which an individual acquires an inceptive right to a portion of the unappropriated soil of the country,
by filing his claim." (Ibid., citing Chotard v. Pope, 25 U. S. 12 Wheat, 586, 588.) It has been held that entry based upon priority in the initiatory steps, even if
not accompanied by occupation, may be recognized as against another applicant.

In Hastings & Dakota R. v. Whitney, ubi supra, an affidavit for the purpose of entering land as a homestead was filed on behalf of one Turner, in a local land
office in Minnesota, on May 8, 1865, Turner claiming to act under section 1 of the Act of March 21, 1864 (13 Stat. 35), now section 2293 of the Revised
Statutes of the United States. As a matter of fact, Turner was never on the land, and no member of his family was then residing, or ever did reside, on it,
and no improvements whatever had ever been made thereon by anyone. Upon being paid their fees, the register and receiver of the land office allowed the
entry, and the same stood upon the records of the local land office and upon the records of the General Land Office, uncanceled, until September 30, 1872.
Between May, 1865, and September, 1872, Congress made a grant to the State of Minnesota for the purpose of aiding in the construction of a railroad from
Hastings, through certain countries, to a point on the western boundary of the State, which grant was accepted by the Legislature of the State of Minnesota
and transferred to the Hastings and Dakota Railroad Company, which shortly thereafter definitely located its line of road by filing its map in the office of the
commissioner of the General Land Office. All these proceedings occurred prior to the 30th of September, 1872. This Court declared that the almost uniform
practice of the Department has been to regard land upon which an entry of record, valid upon its face, has been made, as appropriated and withdrawn from
subsequent homestead entry, pre-emption, settlement, sale or grant, until the original entry be cancelled or be declared forfeited, in which case the land
reverts to the government as part of the public domain, and becomes again subject to entry under the Land Laws; and it was held that whatever defects
there might be in an entry, so long as it remained a subsisting entry of record, whose legality has been passed upon by the land authorities and their action
remained unreversed, it was such an appropriation of the tract as segregated it from the public domain, and therefore precluded it from subsequent grant;
and that this entry on behalf of Turner "attached to the land" in question, within the meaning of the Act of Congress making the grant (14 Stat. 87), and
could not be included within it. And as to mere settlement with the intention of obtaining title under the Pre-emption Law, while it has been held that no
vested right in the land as against the United States is acquired until all the prerequisites for the acquisition of title have been complied with, yet rights in
parties as against each other were fully recognized as existing, based upon priority in the initiatory steps, when followed up to a patent. "The patent which
is afterwards issued relates back to the date of the initiatory act, and cuts off all intervening claimants." Shepley v. Cowan, 91 U. S. 330, 337 (23: 424, 426).

There are compelling reasons of policy supporting the recognition of a right in a bona fide applicant who has occupied the land applied for. Recognition of
the right encourages actual settlement; it discourages speculation and land-grabbing. It is in accord with well established practices in the United States. It
prevents conflicts and the overlapping of claims. It is an act of simple justice to the enterprise and diligence of the pioneer, without which land settlement
can not be encouraged or emigration from thickly populated areas hastened.

Our answer to the second problem is also in the affirmative, and we hold that even pending the investigation of, and resolution on, an application by a bona
fide occupant, such as plaintiff-appellee herein, by the priority of his application and record of his entry, he acquires a right to the possession of the public
land he applied for against any other public land applicant, which right may be protected by the possessory action of forcible entry or by any other suitable
remedy that our rules provide.

Having disposed of the most important questions raised on this appeal, we will next consider the procedural question, i.e., that the Court of First Instance,
after deciding the question of jurisdiction of the justice of the peace favorably, should have remanded the case to that court for trial. The record discloses
that upon the docketing of the case in the Court of First Instance on appeal, defendant- appellant filed a motion to dismiss, which the Court of First Instance
granted. However, upon motion for reconsideration filed by plaintiff, the trial court vacated this order of dismissal, and thereupon the defendant presented
his answer. There was no need of remanding the case to the justice of the peace court for trial, because this court had already heard and tried the case
evidently on the merits. The case was, therefore, brought before the Court of First Instance on appeal and for a new trial, not only on the question of
jurisdiction but on the merits also.

The claim of bar by a prior judgment, because the action for usurpation of real property instituted by plaintiff-appellee against defendant-appellant was
dismissed, can not be sustained, for not only are the parties in the previous criminal action and in this action of forcible entry not identical, but the causes of
action involved are also different.

The judgment appealed from is hereby affirmed, with costs against the Appellant.

Pablo, Bengzon, Padilla, Tuason, Montemayor and Bautista Angelo, JJ., concur.

Paras, C.J., concurs in the result.

 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-39177 February 21, 1934
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
TAN DIONG (alias TANGO), PASTORA PADLA, and EUSTAQUIO BARANDA, defendants-appellants.

STREET, J.:

This appeal has been brought to reverse a judgment of the Court of First Instance of Misamis Oriental, finding the three appellants, Tan Diong (alias Tango),
Pastora Padla, and Eustaquio Baranda, guilty of the offense of making way with the property in fraud of creditors, in violation of article 523 of the old Penal
Code (article 314, R.P.C.), and sentencing them as follows: Tan Diong to imprisonment for six years and one day, presidio mayor, and Pastora Padla and
Eustaquio Baranda to imprisonment for four years, two months and one day, presidio correccional, and requiring them to pay proportional costs.

Prior to the acts with which we are here concerned the appellant Tan Diong was a merchant in good standing in the municipality of Kinoguitan, Misamis
Oriental. Pastora Padla is his wife and Eustaquio Baranda is the husband of the latter's niece. Prior to June, 1931, Tan Diong had become indebted to various
merchants of Cebu, and a judgment against him had been rendered in favor of Lim Tian Ting & Co. for more than five thousand pesos. Upon this judgment
an execution had been issued, but it realized only the sum of P198.23 from certain personal property levied upon in Tan Diong's, store. Tan Diong and his
wife had previously owned various parcels of real property in the municipality, but investigation showed that prior to the events mentioned they had
transferred all to their co-defendant Eustaquio Baranda.

The proof amply shows that these conveyances were made for the purpose of putting the property beyond the reach of Tan Diong's creditor's, and that the
consideration mentioned in the deeds of conveyance from Tan Diong and wife to Baranda was fictitious. No error, in our opinion, was committed in finding
the appellant Tan Diong guilty of the offense charged.

As to Eustaquio Baranda, we note that the conveyances by which these properties were conveyed to him were unilateral character. Baranda did not
participate in the conveyances, and his alleged participation in the fraud consisted only of the fact that he has asserted ownership in the property conveyed.
In our opinion, this does not justify his conviction as a participant in the fraud. His resolution to accept the benefit of the fraudulent conveyances may have
been formed only after the act. His guilt as a co-conspirator in the fraud is therefore not proved.

The judgment appealed from is therefore reversed as to Pastora Padla and Eustaquio Baranda, without prejudice to the right of the creditors, or any
creditor, of Tan Diong to bring a civil action against Baranda. So ordered, with costs de oficio against said appellants. As to Tan Diong, the judgment
appealed from is modified by sentencing him to an indeterminate period of from one year, prision correccional, to eight years and one day, prision mayor;
and as thus modified, the judgment as to him is affirmed, with costs. So ordered.

Abad Santos, Butte, Goddard, and Diaz, JJ., concur.

EN BANC
[G.R. No. 38618. September 15, 1934.]
THE PEOPLE OF THE PHILIPPINE ISLANDS, Plaintiff-Appellee, v. SY GESIONG, Defendant-Appellant.

DECISION

ABAD SANTOS, J.:

Appellant was convicted by the Court of First Instance of Bohol of the crime of estafa for having concealed or otherwise disposed of certain personal
property belonging to him for the purpose of defrauding his creditors, and sentenced to one year of presidio correccional, to indemnify Ignacio Molina and
Vicente Gaviola in the sum of P2,997.76 with subsidiary imprisonment in case of insolvency, and to pay the costs. From this judgment the present appeal
was taken.

Appellant has assigned five errors as having been committed by the court. The first error assigned raises the question of the sufficiency of the facts alleged
in the information filed against the appellant. The pertinent part of the information reads as follows:jgc:chanrobles.com.ph

"Que en o hacia el mes de agosto de 1931, en el Municipio de Guindulman, Provincia de Bohol, Islas Filipinas, y dentro de la jurisdicción de este Juzgado el
referido acusado Sy Gesion voluntaria, ilegal y criminalmente con intención de defraudar y con abuso de confianza de sus fiadores Ignacio Molina y Vicente
Gaviola, se comprometió a dichos fiadores que el acusado responderia el reembolso de la cantidad de P3,792.76 a favor de la viuda Julia Raneses de Juan
Cabello siendo administrador el acusado de la testamentaria de Juan Cabello, de conformidad con el fallo distado por el Juzgado de Primera Instancia de
Bohol contra dicho acusado Sy Gesiong el 31 de julio, 1931, dandelo un plazo de 30 dias a contar de la citada fecha; pero el referido acusado antes de
expirar el plazo concedido, fraudulentamete y sin consentimiento de sus fiadores despacho y traslado para ocultar en otros sitios todos los efectos de valor
embargables que estaban depositados en su bodega y tienda en Guindulman, Bohol, consistentes en 350 picos de copra, 350 picos de abaca y maguey y en
otros efectos de su tienda, cuyo valor asciende proximamente el total de P3,000 equivalente a 15,000 pesetas."cralaw virtua1aw library

The theory of the prosecution is that the facts alleged in the information constitute the crime of estafa defined in article 523 of the old Penal Code and in
article 314 of the Revised Penal Code. The two articles mentioned are couched practically in the same language. Article 314 of the Revised Penal Code
reads:jgc:chanrobles.com.ph

"Any person who shall abscond with his property to the prejudice of his creditors, shall suffer the penalty of prision mayor, if he be a merchant, and the
penalty of prision correccional in its maximum period to prision mayor in its medium period, if he be not a merchant."cralaw virtua1aw library

It will be noticed that one of the essential elements of the crime thus defined is that the absconding of the property by the defendant must result in
prejudice to his creditors. The information filed in this case contains no such allegation. It is true that it alleges that the defendant fraudulently concealed
his property mentioned in the information, but such allegation is not sufficient to fulfill the requirement of the law. A person may fraudulently dispose of
some of his property, and yet such act may not necessarily result in prejudice to his creditors; for he may have some other property with which to satisfy his
obligations. It is too well-settled to require the citation of authorities that to warrant conviction, every element of the crime must be alleged and proved.

The second assignment of error attacks the findings of fact of the trial court. On his point, the evidence for the prosecution shows that the goods alleged to
have been concealed and otherwise disposed of by the appellant were shipped from Bohol to Cebu under suspicious circumstances. Appellant admitted
having shipped the goods to Cebu, but claimed that he did so as a commission or purchasing agent for a firm in that city. Appellant further claimed that he
had no knowledge of the order of the court of July 31, 1931, which was notified to him by his attorney only on August 15, 1931; and that, besides the goods
alleged to have been fraudulently disposed of or concealed by him, he still had in his possession property valued at P4,600.

Upon a careful consideration of the facts and circumstances of the case, we believe that the guilt of the appellant has not been established beyond a
reasonable doubt.

In view of the above conclusions, we do not deem it necessary to discuss the other errors assigned by the Appellant.

The judgment appealed from is reversed, and the defendant acquitted with costs de oficio. So ordered.

Street, Malcolm, Vickers and Butte, JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-20995 October 30, 1923
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellant,
vs.
CHONG CHUY LIMGOBO and LIM KAN, defendants-appellees.

VILLAMOR, J.:

The provincial fiscal of Cebu filed with the court below the following information:

The undersigned accuses Chong Chuy Limgobo and Lim Kan of the crime of fraud committed as follows: That in or about the month of February, 1922, in the
municipality of Cebu, Province of Cebu, the accused Chong Chuy Limgobo, being the owner of a soap factory and a merchant by profession, with a
commercial establishment at No. 114, Juan Luna Street, city of Cebu, Province of Cebu, P. I., did willfully, intentionally, maliciously, and feloniously abscond
with all of his property, stimulating a conveyance and transfer of all his business, including a shed and soap factory, in favor of one Lim Kan, who is a brother
of the accused Chong Chuy Limgobo, for the sole purpose of defrauding his lawful creditors who, by reason of said simulation of sale, were prejudiced in
their interests, because from the date of said fraudulent conveyance, it was, and would be, impossible for them to collect their respective credits against
said Chong Chuy Limgobo, due to his absconding with all of his property and his actual condition of fictitious and meditated insolvency. That the accused
Lim Kan has directly cooperated, as principal, in the commission, of this crime by accepting the conveyance of the property and business of his brother and
coaccused Chong Chuy Limgobo, with acknowledge that the same was fictitious and fraudulent and was made for the purpose of defrauding the latter's
lawful creditors. Contrary to article 523 of the Penal Code.

To this information the attorney for the defendants interposed a demurrer, alleging that article 523 of the Penal Code, for which the defendants are
prosecuted, has been repealed by section 71 of Act No. 1956 known as the Insolvency Law.

After a hearing upon the demurrer, the lower court, without deciding the question whether or not said article 523 of the Penal Code was in force, dismissed
the information, holding that the facts alleged therein do not constitute the crime defined in article 523 of the Penal Code, on the ground that in order for
said article to be applicable and for the said crime to exist as defined therein, it is necessary that the accused should depart and physically conceal his
property, and that real property such as that mentioned in the information could not be the subject-matter of fraudulent concealment.

From this ruling of the court below the prosecuting attorney took this appeal and now submits to this court for consideration the following: (a) That the
lower court erred in holding that the facts alleged in the information do not constitute the crime of concealment, defined in article 523 of the Penal Code,
on the ground that in order for this article to be applicable and the concealment to exist, it is necessary that the accused should depart and physically
conceal his personal, not real, property, such as that in question; and (b) that the lower court erred in sustaining the demurrer to the information filed by
defendants' counsel and dismissing said information. 1awph!l.net

According to a decision of the supreme court of Spain of June 10, 1885, the crime of fraudulent concealment penalized by article 536 of the Code of Spain,
which is in accord with article 523 of the Philippine Code, is committed by any means whereby any property of the debtor is made to disappear, for the
purpose of evading the fulfillment of the obligations and liabilities contracted with one or more creditors to the damage of the latter, it not being an
essential of said crime that the debtor should depart or abscond in some way at the same time that he abstracts said property, because neither the
meaning of the word "concealment" authorizes such an interpretation, nor it is in line with the procedures provided in the complied Spanish legislation.
Neither it is necessary that the property concealed be personal property, so that it may be physically concealed, as was held by the supreme court of Spain
in the decisions, among others, of October 29, 1886, April 6, 1897, and February 28, 1906.

The Attorney-General maintains that there is no conflict between section 71 of the Insolvency Law article 523 of the Penal Code. The former requires for its
application that the criminal act should have been committed after the institution of insolvency proceedings; whereas, the latter contains no such
requirement, nor makes it necessary that the defendant should have been adjudged bankrupt or insolvent, as was held by the supreme court of Spain in a
decision of March 13, 1882, in which it is held that article 536 of the Code of Spain form which 523 of ours was taken, does not require that the
concealment be attended by the circumstance of the accused being bankrupt or insolvent in order that he may be convicted and punished for this crime.

We agree with the Attorney-General that section 71 of the Insolvency Law and article 523 of the Penal Code are not incompatible, and this being the case,
we are of the opinion that the facts alleged in the information constitute the crime defined in said article 523 of the Penal Code.

In view of all of the foregoing, the order appealed from is revoked, and the demurrer to the information overruled and it is ordered that the record be
remanded to the court of origin for further proceedings in accordance with law. So ordered.

Johnson, Street, Malcolm, Avanceña, Johns and Romualdez, JJ., concur.

EN BANC
[G.R. No. 130038. September 18, 2000.]
ROSA LIM, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

PARDO, J.:

The case is an appeal from the decision 1 of the Court of Appeals affirming in toto that of the Regional Trial Court, Cebu City. 2 Both courts found petitioner
Rosa Lim guilty of twice violating Batas Pambansa Bilang 22 3 and imposing on her two one-year imprisonment for each of the two violations and ordered
her to pay two fines, each amounting to two hundred thousand pesos (P200,000.00). The trial court also ordered petitioner to return to Maria Antonia
Seguan, the jewelry received or its value with interest, to pay moral damages, attorney’s fees and costs. 4

We state the relevant facts. 5

On August 25, 1990, petitioner called Maria Antonia Seguan by phone. Petitioner thereafter went to Seguan’s store. She bought various kinds of jewelry —
Singaporean necklaces, bracelets and rings worth P300,000.00. She wrote out a check dated August 25, 1990, payable to "cash" drawn on Metrobank in the
amount of P300,000.00 6 and gave the check to Seguan.chanrob1es virtua1 1aw 1ibrary

On August 26, 1990, petitioner again went to Seguan’s store and purchased jewelry valued at P241,668.00. Petitioner issued another check payable to
"cash" dated August 16, 1990 drawn on Metrobank in the amount of P241,668.00, 7 and sent the check to Seguan through a certain Aurelia Nadera.

Seguan deposited the two checks with her bank. The checks were returned with a notice of dishonor. Petitioner’s account in the bank from which the
checks were drawn was closed.

Upon demand, petitioner promised to pay Seguan the amounts of the two dishonored checks. She never did.

On June 5, 1991, 8 an Assistant City Prosecutor of Cebu filed with the Regional Trial Court, Cebu City, Branch 23 two informations against petitioner. Both
informations were similarly worded. The difference is that in Criminal Case No. 22128, the bouncing check is Metro Bank Check No. CLN 094244392 dated
August 26, 1990 in the amount of P241,668.00. The informations read: 9

Criminal Case No. 22127 —

"The undersigned Prosecutor I of the City of Cebu, accuses ROSA LIM for VIOLATION OF BATAS PAMBANSA BILANG 22 committed as
follows:jgc:chanrobles.com.ph

"That on or about the 20th day of August, 1990, and for sometime subsequent thereto, in the City of Cebu Philippines, and within the jurisdiction of this
Honorable Court, the said accused, knowing at the time of issue of the check she does not have sufficient funds in the drawee bank for the payment of such
check in full upon its presentment, with deliberate intent, with intent of gain and of causing damage, did then and there issue, make or draw Metro Bank
Check NO. 1 CLN 094244391 dated August 25, 1990 in the amount of P300,000.00 payable to Maria Antonia Seguan which check was issued in payment of
an obligation of said accused, but when the said check was presented with the bank the same was dishonored for reason "Account Closed" and despite
notice and demands made to redeem or make good said check, said accused failed and refused, and up to the present time still fails and refuses to do so, to
the damage and prejudice of said Maria Antonia Seguan in the amount of P300,000.00, Philippine Currency.chanrob1es virtua1 1aw 1ibrary

"CONTRARY TO LAW."cralaw virtua1aw library

Criminal Case No. 22128 —

"The undersigned Prosecutor I of the City of Cebu, accuses ROSA LIM for VIOLATION OF BATAS PAMBANSA BILANG 22, COMMITTED AS
FOLLOWS:jgc:chanrobles.com.ph

"That on or about the 20th day of August, 1990, and for sometime subsequent thereto, in this City of Cebu, Philippines, and within the jurisdiction of this
Honorable Court, the said accused, knowing at the time of issue of the check she does not have sufficient funds in or credit with the drawee bank for the
payment of such check in full upon its presentment, with deliberate intent, with intent of gain and of causing damage, did then and there issue, make or
draw Metro Bank Check No. CLN-094244392 dated August 26, 1990 in the amount of P241,668.00 payable to Maria Antonia Seguan which check was issued
in payment of an obligation of said accused but when the said check was presented with the bank, the same was dishonored for reason "Account Closed"
and despite notice and demands made to redeem or make good said check, said accused failed and refused, and up to the present time still fails and refuses
to do so, to the damage and prejudice of said Maria Antonia Seguan in the amount of P241,668.00, Philippine Currency.chanrob1es virtua1 1aw 1ibrary

"CONTRARY TO LAW.

"Cebu City, Philippines, 30 May 1991." 10

Upon arraignment, petitioner pleaded "not guilty" in both cases.

After due trial, on December 29, 1992, the trial court rendered a decision in the two cases convicting petitioner, to wit: 11

"WHEREFORE, prosecution having established the guilt of the accused beyond reasonable doubt, judgment is hereby rendered convicting the accused, Rosa
Lim and sentencing her in Criminal Case No. CBU-22127, to suffer the penalty of imprisonment for a period of ONE (1) YEAR and a fine of TWO HUNDRED
THOUSAND (P200,000.00) PESOS and in Criminal Case No. CBO-22128, the same penalty of imprisonment for ONE YEAR and fine of TWO HUNDRED
THOUSAND (P200,000.00) is likewise imposed.

"The accused is hereby ordered to pay private complainant Maria Antonia Seguan, the sum of P541,668.00 which is the value of the jewelries bought by the
accused from the latter with interest based on the legal rate to be counted from June 5, 1991, the date of the filing of the informations, or return the
subject jewelries; and further to pay private complainant:jgc:chanrobles.com.ph

"(a) The sum of P50,000.00 as moral damages in compensation for the latter’s worries with the freezing of her business capital involved in these litigated
transactions;

"(b) The sum of P10,000.00 for attorney’s fees, plus costs.

"SO ORDERED." 12
In due time, petitioner appealed to the Court of Appeals. 13

On October 15, 1996, the Court of Appeals rendered a decision, dismissing the appeal in this wise:jgc:chanrobles.com.ph

"WHEREFORE, premises considered, the appeal is DISMISSED. The decision appealed from is AFFIRMED in toto.

"SO ORDERED." 14

Hence, this appeal. 15

In this appeal, petitioner argues that she never knew Seguan and much more, had any "transaction" with her. According to petitioner, she issued the two
checks and gave them to Aurelia Nadera, not to Seguan. She gave the two checks to Aurelia Nadera from whom she got two sets of jewelry, as a "security
arrangement" or "guarantee" that she would return the jewelry received if she would not be able to sell them. 16

The appeal has no merit.chanrob1es virtua1 1aw 1ibrary

The elements of B. P. Blg. 22 are: 17

"(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."cralaw virtua1aw library

Petitioner never denied issuing the two checks. She argued that the checks were not issued to Seguan and that they had no pre-existing transaction. The
checks were issued to Aurelia Nadera as mere guarantee and as a security arrangement to cover the value of jewelry she was to sell on consignment basis.
18 These defenses cannot save the day for her. The first and last elements of the offense are admittedly present. To escape liability, she must prove that the
second element was absent, that is, at the time of issue of the checks, she did not know that her funds in the bank account were insufficient. She did not
prove this.

B.P. No. 22, Section 2 creates a presumption juris tantum that the second element prima facie exists when the first and third elements of the offense are
present. 19 If not rebutted, it suffices to sustain a conviction. 20

The gravamen of B. P. No. 22 is the act of making and issuing a worthless check or one that is dishonored upon its presentment for payment. And the
accused failed to satisfy the amount of the check or make arrangement for its payment within five (5) banking days from notice of dishonor. 21 The act is
malum prohibitum, pernicious and inimical to public welfare. 22 Laws are created to achieve a goal intended and to guide and prevent against an evil or
mischief. 23 Why and to whom the check was issued is irrelevant in determining culpability. The terms and conditions surrounding the issuance of the
checks are also irrelevant. 24chanrob1es virtua1 1aw 1ibrary

Unlike in estafa, 25 under B.P. No. 22, one need not prove that the check was issued in payment of an obligation, or that there was damage. The damage
done is to the banking system. 26

In United States v. Go Chico, we ruled that in acts mala prohibita, the only inquiry is, "has the law been violated?" When dealing with acts mala prohibita 27
—

". . . it is not necessary that the appellant should- have acted with criminal intent. In many crimes, made such by statutory enactment, the intention of the
person who commits the crime is entirely immaterial. This is necessarily so. If it were not, the statute as a deterrent influence would be substantially
worthless. It would be impossible of execution. In many cases, the act complained of is itself that which produces the pernicious effect the statute seeks to
avoid. In those cases the pernicious effect is produced with precisely the same force and result whether the intention of the person performing the act is
good or bad."cralaw virtua1aw library

This case is a perfect example of an act mala prohibita. Petitioner issued two checks. They were dishonored upon presentment for payment due to the fact
that the account was closed. Petitioner failed to rebut the presumption that she knew her funds were insufficient at the time of issue of the checks. And she
failed to pay the amount of the checks or make arrangement for its payment within five (5) banking days from receipt of notice of dishonor. B. P. No. 22 was
clearly violated. Hoc quidem per quare durum est sed ita lex scripta est. The law may be exceedingly hard but so the law is written.chanrob1es virtua1 1aw
1ibrary

However, we resolve to modify the penalty imposed on petitioner. B. P. No. 22 provides a penalty of "imprisonment of not less than thirty days but not
more than one year or 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." 28

In Vaca v. Court of Appeals, 29 we held that in determining the penalty to be imposed for violation of B.P. No. 22, the philosophy underlying the
Indeterminate Sentence Law applies. The philosophy is to redeem valuable human material, and to prevent unnecessary deprivation of personal liberty and
economic usefulness with due regard to the protection of the social order. There, we deleted the prison sentence imposed on petitioners. We imposed on
them only a fine double the amount of the check issued. We considered the fact that petitioners brought the appeal, believing in good faith, that no
violation of B.P. No. 22 was committed, "otherwise, they would have simply accepted the judgment of the trial court and applied for probation to evade
prison term." 30 We do the same here. We believe such would best serve the ends of criminal justice.

Consequently, we delete the prison sentences imposed on petitioner. The two fines imposed for each violation, each amounting to P200,000.00 are
appropriate and sufficient.

The award of moral damages and order to pay attorney’s fees are deleted for lack of sufficient basis.

WHEREFORE, we AFFIRM with modification the decision of the Court of Appeals. 31 We find petitioner Rosa Lim guilty beyond reasonable doubt of two
counts of violation of Batas Pambansa Bilang 22. We SET ASIDE the sentence of imprisonment and hereby sentence her only to pay a fine of P200,000.00 in
each case, with subsidiary imprisonment in case of insolvency or non-payment not to exceed six (6) months. 32 We DELETE the award of moral damages
and attorney’s fees. The rest of the judgment of the trial court as affirmed by the Court of Appeals shall stand. Costs against petitioner.chanrob1es virtua1
1aw 1ibrary

SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Purisima, Buena, Gonzaga-Reyes and De Leon, Jr., JJ., concur.

Quisumbing, J., concurs in the result.

Ynares-Santiago, is on leave.
SECOND DIVISION
G.R. No. 143375. July 6, 2001
RUTH D. BAUTISTA,, Petitioner, v. COURT OF APPEALS, OFFICE OF THE REGIONAL STATE PROSECUTOR, REGION IV, and SUSAN ALOA, Respondents.

DECISION

BELLOSILLO, J.:

This petition for certiorari presents a new dimension in the ever controversial Batas Pambansa Bilang 22 or The Bouncing Checks Law. The question posed is
whether the drawer of a check which is dishonored due to lack of sufficient funds can be prosecuted under BP 22 even if the check is presented for payment
after ninety (90) days from its due date. The burgeoning jurisprudence on the matter appears silent on this point.

Sometime in April 1998 petitioner Ruth D. Bautista issued to private respondent Susan Aloa Metrobank Check No. 005014037 dated 8 May 1998 for
P1,500,000.00 drawn on Metrobank Cavite City Branch. According to private respondent, petitioner assured her that the check would be sufficiently funded
on the maturity date.

On 20 October 1998 private respondent presented the check for payment. The drawee bank dishonored the check because it was drawn against insufficient
funds (DAIF).

On 16 March 1999 private respondent filed a complaint-affidavit with the City Prosecutor of Cavite City. 1 In addition to the details of the issuance and the
dishonor of the check, she also alleged that she made repeated demands on petitioner to make arrangements for the payment of the check within five (5)
working days after receipt of notice of dishonor from the bank, but that petitioner failed to do so.

Petitioner then submitted her own counter-affidavit asserting in her defense that presentment of the check within ninety (90) days from due date thereof
was an essential element of the offense of violation of BP 22. Since the check was presented for payment 166 days after its due date, it was no longer
punishable under BP 22 and therefore the complaint should be dismissed for lack of merit. She also claimed that she already assigned private respondent
her condominium unit at Antel Seaview Condominium, Roxas Boulevard, as full payment for the bounced checks thus extinguishing her criminal liability.

On 22 April 1999, the investigating prosecutor issued a resolution recommending the filing of an Information against petitioner for violation of BP 22, which
was approved by the City Prosecutor.

On 13 May 1999 petitioner filed with the Office of the Regional State Prosecutor (ORSP) for Region IV a petition for review of the 22 April 1999 resolution.
The ORSP denied the petition in a one (1)-page resolution dated 25 June 1999. On 5 July 1999 petitioner filed a motion for reconsideration, which the ORSP
also denied on 31 August 1999. According to the ORSP, only resolutions of prosecutors dismissing a criminal complaint were cognizable for review by that
office, citing Department Order No. 223.

On 1 October 1999 petitioner filed with the Court of Appeals a petition for review of the resolution of the ORSP, Region IV, dated 22 April 1999 as well as
the order dated 31 August 1999 denying reconsideration. The appellate court issued the assailed Resolution dated 26 October 1999 denying due course
outright and dismissing the petition. 2 According to respondent appellate court -

A petition for review is appropriate under Rule 42 (1997 Rules of Civil Procedure) from a decision of the Regional Trial Court rendered in the exercise of its
appellate jurisdiction, filed in the Court of Appeals. Rule 43 x x x provides for appeal, via a petition for review x x x from judgment or final orders of the
Court of Tax Appeals and Quasi-Judicial Agencies to the Court of Appeals. Petitioner's "Petition for Review" of the ORSP resolution does not fall under any of
the agencies mentioned in Rule 43 x x x x It is worth to note that petitioner in her three (3) assigned errors charged the ORSP of "serious error of law and
grave abuse of discretion." The grounds relied upon by petitioner are proper in a petition for certiorari x x x x Even if We treat the "Petition for Review" as a
petition for certiorari, petitioner failed to allege the essential requirements of a special civil action. Besides, the remedy of petitioner is in the Regional Trial
Court, following the doctrine of hierarchy of courts x x x x (italics supplied)

First , some ground rules. This case went to the Court of Appeals by way of petition for review under Rule 43 of the 1997 Rules of Civil Procedure. Rule 43
applies to "appeals from judgments or final orders of the Court of Tax Appeals and from awards, judgments, final orders or resolutions of or authorized by
any quasi-judicial agency in the exercise of quasi-judicial functions." 3cräläwvirtualibräry

Petitioner submits that a prosecutor conducting a preliminary investigation performs a quasi-judicial function, citing Cojuangco v. PCGG, 4 Koh v. Court of
Appeals, 5 Andaya v. Provincial Fiscal of Surigao del Norte 6 and Crespo v. Mogul. 7 In these cases this Court held that the power to conduct preliminary
investigation is quasi-judicial in nature. But this statement holds true only in the sense that, like quasi-judicial bodies, the prosecutor is an office in the
executive department exercising powers akin to those of a court. Here is where the similarity ends.

A closer scrutiny will show that preliminary investigation is very different from other quasi-judicial proceedings. A quasi-judicial body has been defined as
"an organ of government other than a court and other than a legislature which affects the rights of private parties through either adjudication or rule-
making." 8cräläwvirtualibräry

In Luzon Development Bank v. Luzon Development Bank Employees, 9 we held that a voluntary arbitrator, whether acting solely or in a panel, enjoys in law
the status of a quasi-judicial agency, hence his decisions and awards are appealable to the Court of Appeals. This is so because the awards of voluntary
arbitrators become final and executory upon the lapse of the period to appeal; 10 and since their awards determine the rights of parties, their decisions
have the same effect as judgments of a court. Therefore, the proper remedy from an award of a voluntary arbitrator is a petition for review to the Court of
Appeals, following Revised Administrative Circular No. 1-95, which provided for a uniform procedure for appellate review of all adjudications of quasi-
judicial entities, which is now embodied in Rule 43 of the 1997 Rules of Civil Procedure.

On the other hand, the prosecutor in a preliminary investigation does not determine the guilt or innocence of the accused. He does not exercise
adjudication nor rule-making functions. Preliminary investigation is merely inquisitorial, and is often the only means of discovering the persons who may be
reasonably charged with a crime and to enable the fiscal to prepare his complaint or information. It is not a trial of the case on the merits and has no
purpose except that of determining whether a crime has been committed and whether there is probable cause to believe that the accused is guilty thereof.
11 While the fiscal makes that determination, he cannot be said to be acting as a quasi-court, for it is the courts, ultimately, that pass judgment on the
accused, not the fiscal. 12cräläwvirtualibräry

Hence, the Office of the Prosecutor is not a quasi-judicial body; necessarily, its decisions approving the filing of a criminal complaint are not appealable to
the Court of Appeals under Rule 43. Since the ORSP has the power to resolve appeals with finality only where the penalty prescribed for the offense does
not exceed prision correccional, regardless of the imposable fine, 13 the only remedy of petitioner, in the absence of grave abuse of discretion, is to present
her defense in the trial of the case.

Besides, it is well-settled that the courts cannot interfere with the discretion of the fiscal to determine the specificity and adequacy of the offense charged.
He may dismiss the complaint forthwith if he finds it to be insufficient in form or substance or if he finds no ground to continue with the inquiry; or, he may
otherwise proceed with the investigation if the complaint is, in his view, in due and proper form. 14cräläwvirtualibräry
In the present recourse, notwithstanding the procedural lapses, we give due course to the petition, in view of the novel legal question involved, to prevent
further delay of the prosecution of the criminal case below, and more importantly, to dispel any notion that procedural technicalities are being used to
defeat the substantive rights of petitioner.

Petitioner is accused of violation of BP 22 the substantive portion of which reads -

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 in full upon 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 (30) 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 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 x x x x (italics supplied).

An analysis of Sec. 1 shows that The Bouncing Checks Law penalizes two (2) distinct acts: First, making or drawing and issuing 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, second, having sufficient
funds in or credit with the drawee bank shall fail to keep sufficient funds or to maintain a credit 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. 15cräläwvirtualibräry

In the first paragraph, the drawer knows that he does not have sufficient funds to cover the check at the time of its issuance, while in the second paragraph,
the drawer has sufficient funds at the time of issuance but fails to keep sufficient funds or maintain credit within ninety (90) days from the date appearing
on the check. In both instances, the offense is consummated by the dishonor of the check for insufficiency of funds or credit.

The check involved in the first offense is worthless at the time of issuance since the drawer had 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 drawer had sufficient funds in or credit with the drawee bank when issued. 16
Under the first offense, the ninety (90)-day presentment period is not expressly provided, while such period is an express element of the second offense.
17cräläwvirtualibräry

From the allegations of the complaint, it is clear that petitioner is being prosecuted for violation of the first paragraph of the offense.

Petitioner asserts that she could not be prosecuted for violation of BP 22 on the simple ground that the subject check was presented 166 days after the date
stated thereon. She cites Sec. 2 of BP 22 which reads -

Sec. 2. Evidence of knowledge of insufficient funds. - The making, drawing and issuance of a check payment which is refused by the drawee because of
insufficient funds in or credit with such bank, when presented within ninety (90) days from the date of the check, shall be prima facie evidence of
knowledge of such insufficiency of funds or credit unless such maker or drawer pays the holder thereof the amount due thereon, or makes arrangements
for payment in full by the drawee of such check within five (5) banking days after receiving notice that such check has not been paid by the drawee (italics
supplied).

Petitioner interprets this provision to mean that the ninety (90)-day presentment period is an element of the offenses punished in BP 22. She asseverates
that "for a maker or issuer of a check to be covered by B.P. 22, the check issued by him/her is one that is dishonored when presented for payment within
ninety (90) days from date of the check. If the dishonor occurred after presentment for payment beyond the ninety (90)-day period, no criminal liability
attaches; only a civil case for collection of sum of money may be filed, if warranted." To bolster this argument, she relies on the view espoused by Judge
David G. Nitafan in his treatise - 18cräläwvirtualibräry

Although evidentiary in nature, section 2 of the law must be taken as furnishing an additional element of the offense defined in the first paragraph of
section 1 because it provides for the evidentiary fact of "knowledge of insufficiency of funds or credit" which is an element of the offense defined in said
paragraph; otherwise said provision of section 2 would be rendered without meaning and nugatory. The rule of statutory construction is that the parts of a
statute must be read together in such a manner as to give effect to all of them and that such parts shall not be construed as contradicting each other. The
same section cannot be deemed to supply an additional element for the offense under the second paragraph of section 1 because the 90-day presentment
period is already a built-in element in the definition of said offense (italics supplied).

We are not convinced. It is fundamental that every element of the offense must be alleged in the complaint or information, and must be proved beyond
reasonable doubt by the prosecution. What facts and circumstances are necessary to be stated must be determined by reference to the definitions and the
essentials of the specific crimes. 19cräläwvirtualibräry

The elements of the offense under BP 22 are (a) the making, drawing and issuance of any check to apply to account or for value; (b) the maker, drawer or
issuer 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, (c) 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. 20cräläwvirtualibräry

The ninety (90)-day period is not among these elements. Section 2 of BP 22 is clear that a dishonored check presented within the ninety (90)-day period
creates a prima facie presumption of knowledge of insufficiency of funds, which is an essential element of the offense. Since knowledge involves a state of
mind difficult to establish, the statute itself creates a prima facie presumption of the existence of this element from the fact of drawing, issuing or making a
check, the payment of which was subsequently refused for insufficiency of funds. 21 The term prima facie evidence denotes evidence which, if unexplained
or uncontradicted, is sufficient to sustain the proposition it supports or to establish the facts, or to counterbalance the presumption of innocence to warrant
a conviction. 22cräläwvirtualibräry

The presumption in Sec. 2 is not a conclusive presumption that forecloses or precludes the presentation of evidence to the contrary. 23 Neither does the
term prima facie evidence preclude the presentation of other evidence that may sufficiently prove the existence or knowledge of insufficiency of funds or
lack of credit.

Surely, the law is not so circumscribed as to limit proof of knowledge exclusively to the dishonor of the subject check when presented within the prescribed
ninety (90) day period. The deliberations on the passage of BP 22 (then known as Cabinet Bill No. 9) between the author, former Solicitor General Estelito P.
Mendoza, and Bataan Assemblyman Pablo Roman prove insightful -

MR. ROMAN: x x x x Under Section 1, who is the person who may be liable under this Section? Would it be the maker or the drawer? How about the
endorser, Mr. Speaker?
MR. MENDOZA: Liable.

MR. ROMAN: The endorser, therefore, under Section 1 is charged with the duty of knowing at the time he endorses and delivers a check . . . .

MR. MENDOZA: If the endorser is charged for violation of the Act then the fact of knowledge must be proven by positive evidence because the presumption
of knowledge arises only against the maker or the drawer. It does not arise as against endorser under the following section (italics supplied).

MR. ROMAN: But under Section 1, it says here: "Any person who shall make or draw or utter or deliver any check." The preposition is disjunctive, so that
any person who delivers any check knowing at the time of such making or such delivery that the maker or drawer has no sufficient funds would be liable
under Section 1.

MR. MENDOZA: That is correct Mr. Speaker. But, as I said, while there is liability even as against endorser, for example, the presumption of knowledge of
insufficient funds arises only against the maker or drawer under Section 2.

MR. ROMAN: Yes, Mr. Speaker. It is true; however, under Section 1, endorsers of checks or bills of exchange would find it necessary since they may be
charged with the knowledge at the time they negotiate bills of exchange they have no sufficient funds in the bank or depository.

MR. MENDOZA: In order that an endorser may be held liable, there must be evidence showing that at the time he endorsed the check he was aware that
the drawer would not have sufficient funds to cover the check upon presentation. That evidence must be presented by the prosecution. However, if the one
changed is the drawer, then that evidence need not be presented by the prosecution because that fact would be established by presumption under Section
2 (italics supplied).24cräläwvirtualibräry

An endorser who passes a bad check may be held liable under BP 22, even though the presumption of knowledge does not apply to him, if there is evidence
that at the time of endorsement, he was aware of the insufficiency of funds. It is evident from the foregoing deliberations that the presumption in Sec. 2
was 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 ninety (90) days from the date stated is that there arises no prima facie presumption of
knowledge of insufficiency of funds. But the prosecution may still prove such knowledge through other evidence. Whether such evidence is sufficient to
sustain probable cause to file the information is addressed to the sound discretion of the City Prosecutor and is a matter not controllable by certiorari.
Certainly, petitioner is not left in a lurch as the prosecution must prove knowledge without the benefit of the presumption, and she may present whatever
defenses are available to her in the course of the trial.

The distinction between the elements of the offense and the evidence of these elements is analogous or akin to the difference between ultimate facts and
evidentiary facts in civil cases. Ultimate facts are the essential and substantial facts which either form the basis of the primary right and duty or which
directly make up the wrongful acts or omissions of the defendant, while evidentiary facts are those which tend to prove or establish said ultimate facts. 25
Applying this analogy to the case at bar, knowledge of insufficiency of funds is the ultimate fact, or element of the offense that needs to be proved, while
dishonor of the check presented within ninety (90) days is merely the evidentiary fact of such knowledge.

It is worth reiterating that courts will not normally interfere with the prosecutor's discretion to file a criminal case when there is probable cause to do so.
Probable cause has been defined as the existence of such facts and circumstances as would excite the belief in a reasonable mind, acting on the facts within
the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted. 26 The prosecutor has ruled that there is
probable cause in this case, and we see no reason to disturb the finding.

WHEREFORE , the assailed Resolution of the Court of Appeals dated 26 October 1999 which dismissed the petition for review questioning the resolution of
the Office of the Regional State Prosecutor, Region IV, dated 22 April 1999, and its order dated 31 August 1999 denying reconsideration is AFFIRMED. Costs
against petitioner.

SO ORDERED.

Mendoza, Buena, and De Leon, Jr., JJ., concur.

Quisumbing, J., on official leave.

SECOND DIVISION
G.R. No. 122452 January 29, 2001
TAM WING TAK, petitioner,
vs.
HON. RAMON P. MAKASIAR (in his Capacity as Presiding Judge of the Regional Trial Court of Manila, Branch 35) and ZENON DE GUIA (in his capacity as
Chief State Prosecutor), respondents.

QUISUMBING, J.:

This is a petition for review on certiorari of the decision of the Regional Trial Court of Manila, Branch 35, dated September 14, 1995, which dismissed herein
petitioner's special civil action for mandamus and sustained the Letter-Order of respondent Chief State Prosecutor. The latter dismissed petitioner's appeal
from the resolution of the City Prosecutor of Quezon City, which, in turn, dismissed petitioner's complaint against Vic Ang Siong for violation of the
Bouncing Checks Law or B.P. Blg. 22.

The factual background of this case is as follows:

On November 11, 1992, petitioner, in his capacity as director of Concord-World Properties, Inc., (Concord for brevity), a domestic corporation, filed an
affidavit-complaint with the Quezon City Prosecutor's Office, charging Vic Ang Siong with violation of B.P. Blg. 22. Docketed by the Prosecutor as I.S. No. 93-
15886, the complaint alleged that a check for the amount of P83,550,000.00, issued by Vic Ang Siong in favor of Concord, was dishonored when presented
for encashment.

Vic Ang Siong sought the dismissal of the case on two grounds: First, that petitioner had no authority to file the case on behalf of Concord, the payee of the
dishonored check, since the firm's board of directors had not empowered him to act on its behalf. Second, he and Concord had already agreed to amicably
settle the issue after he made a partial payment of P19,000,000.00 on the dishonored check.1âwphi1.nêt

On March 23, 1994, the City Prosecutor dismissed I.S. No. 93-15886 on the following grounds: (1) that petitioner lacked the requisite authority to initiate
the criminal complaint for and on Concord's behalf; and (2) that Concord and Vic Ang Siong had already agreed upon the payment of the latter's balance on
the dishonored check.

A copy of the City Prosecutor's resolution was sent by registered mail to petitioner in the address he indicated in his complaint-affidavit. Notwithstanding
that petitioner was represented by counsel, the latter was not furnished a copy of the resolution.

On June 27, 1994, petitioner's counsel was able to secure a copy of the resolution dismissing I.S. No. 93-15886. Counting his 15-day appeal period from said
date, petitioner moved for reconsideration on July 7, 1994.

On October 21, 1994, the City Prosecutor denied petitioner's motion for reconsideration. Petitioner's counsel received a copy of the denial order on
November 3, 1994.

On November 7, 1994, petitioner's lawyer filed a motion to extend the period to appeal by an additional 15 days counted from November 3, 1994 with the
Chief State Prosecutor. He manifested that it would take time to communicate with petitioner who is a Hong Kong resident and enable the latter to verify
the appeal as procedurally required.

On November 8, 1994, petitioner appealed the dismissal of his complaint by the City Prosecutor to the Chief State Prosecutor. The appeal was signed by
petitioner's attorney only and was not verified by petitioner until November 23, 1994.

On December 8, 1994, the Chief State Prosecutor dismissed the appeal for having been filed out of time. Petitioner's lawyer received a copy of the letter-
resolution dismissing the appeal on January 20, 1995.

On January 30, 1995, petitioner moved for reconsideration.

On March 9, 1995, respondent Chief State Prosecutor denied the motion for reconsideration.

Petitioner then filed Civil Case No. 95-74394 for mandamus with the Regional Trial Court of Quezon City to compel the Chief State Prosecutor to file or
cause the filing of an information charging Vic Ang Siong with violation of B.P. Blg. 22.

On September 14, 1995, the trial court disposed of the action as follows:

WHEREFORE, for utter lack of merit, the petition for mandamus of petitioner is DENIED and DISMISSED.

SO ORDERED.1

Petitioner moved for reconsideration, but the trial court denied this motion in its order dated October 24, 1995.

Hence, the instant petition.

Before this Court, petitioner claims respondent judge committed grave errors of law in sustaining respondent Chief State Prosecutor whose action flagrantly
contravenes: (1) the established rule on service of pleadings and orders upon parties represented by counsel; (b) the basic principle that except in private
crimes, any competent person may initiate a criminal case; and (3) the B.P. Blg. 22 requirement that arrangement for full payment of a bounced check must
be made by the drawer with the drawee within five (5) banking days from notification of the check's dishonor.2

We find pertinent for our resolution the following issues:

(1) Was there valid service of the City Prosecutor's resolution upon petitioner?

(2) Will mandamus lie to compel the City Prosecutor to file the necessary information in court?

In upholding respondent Chief State Prosecutor, the court a quo held:

It is generally accepted principle in the service of orders, resolutions, processes and other papers to serve them on the party or his counsel, either in his
office, if known, or else in the residence, also if known. As the party or his counsel is not expected to be present at all times in his office or residence, service
is allowed to be made with a person in charge of the office, or with a person of sufficient discretion to receive the same in the residence.
In the case under consideration, it is not disputed that the controverted Resolution dismissing the complaint of the petitioner against Vic Ang Siong was
served on the former by registered mail and was actually delivered by the postmaster on April 9, 1994 at said petitioner's given address in the record at No.
5 Kayumanggi Street, West Triangle, Quezon City. The registered mail was in fact received by S. Ferraro. The service then was complete and the period for
filing a motion for reconsideration or appeal began to toll from that date. It expired on April 24, 1994. Considering that his motion for reconsideration was
filed only on July 7, 1994, the same was filed beyond the prescribed period, thereby precluding further appeal to the Office of the respondent.3

Petitioner, before us, submits that there is no such "generally accepted practice" which gives a tribunal the option of serving pleadings, orders, resolutions,
and other papers to either the opposing party himself or his counsel. Petitioner insists that the fundamental rule in this jurisdiction is that if a party appears
by counsel, then service can only be validly made upon counsel and service upon the party himself becomes invalid and without effect. Petitioner relies
upon Rule 13, Section 2 of the Rules of Court4 and our ruling in J.M. Javier Logging Corp. v. Mardo, 24 SCRA 776 (1968) to support his stand. In the J.M.
Javier case, we held:

[W]here a party appears by attorney, notice to the former is not a notice in law, unless service upon the party himself is ordered by the court…5

The Solicitor General, for respondents, contends that the applicable rule on service in the present case is Section 2 of the Department of Justice (DOJ) Order
No. 223,6 which allows service to be made upon either party or his counsel. Respondents argue that while a preliminary investigation has been considered
as partaking of the nature of a judicial proceeding,7 nonetheless, it is not a court proceeding and hence, falls outside of the ambit of the Rules of Court.

We agree with petitioner that there is no "generally accepted practice" in the service of orders, resolutions, and processes, which allows service upon either
the litigant or his lawyer. As a rule, notice or service made upon a party who is represented by counsel is a nullity,8 However, said rule admits of exceptions,
as when the court or tribunal order service upon the party9 or when the technical defect is waived.10

To resolve the issue on validity of service, we must make a determination as to which is the applicable rule – the on service in the Rules of Court, as
petitioner insists or the rule on service in DOJ Order No. 223?

The Rules of Court were promulgated by this Court pursuant to Section 13, Article VII of the 1935 Constitution11 (now Section 5 [5], Article VIII of the
Constitution)12 to govern "pleadings, practice and procedure in all courts of the Philippines." The purpose of the Rules is clear and does not need any
interpretation. The Rules were meant to govern court (stress supplied) procedures and pleadings. As correctly pointed out by the Solicitor General, a
preliminary investigation, notwithstanding its judicial nature, is not a court proceeding. The holding of a preliminary investigation is a function of the
Executive Department and not of the Judiciary.13 Thus, the rule on service provided for in the Rules of Court cannot be made to apply to the service of
resolutions by public prosecutors, especially as the agency concerned, in this case, the Department of Justice, has its own procedural rules governing said
service.

A plain reading of Section 2 of DOJ Order No. 223 clearly shows that in preliminary investigation, service can be made upon the party himself or through his
counsel. It must be assumed that when the Justice Department crafted the said section, it was done with knowledge of the pertinent rule in the Rules of
Court and of jurisprudence interpreting it. The DOJ could have just adopted the rule on service provided for in the Rules of Court, but did not. Instead, it
opted to word Section 2 of DOJ Order No. 223 in such a way as to leave no doubt that in preliminary investigations, service of resolutions of public
prosecutors could be made upon either the party or his counsel.

Moreover, the Constitution provides that "Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the
Supreme Court."14 There is naught in the records to show that we have disapproved and nullified Section 2 of DOJ Order No. 223 and since its validity is not
an issue in the instant case, we shall refrain from ruling upon its validity.

We hold that there was valid service upon petitioner pursuant to Section 2 of DOJ Order No. 223.

On the issue of whether mandamus will lie. In general, mandamus may be resorted to only where one's right is founded clearly in law and not when it is
doubtful.15 The exception is to be found in criminal cases where mandamus is available to compel the performance by the public prosecutor of an
ostensibly discretionary function, where by reason of grave abuse of discretion on his part, he willfully refuses to perform a duty mandated by law.16 Thus,
mandamus may issue to compel a prosecutor to file an information when he refused to do so in spite of the prima facie evidence of guilt.17

Petitioner takes the stance that it was grave abuse for discretion on the part of respondent Chief State Prosecutor to sustain the dismissal of I.S. No. 93-
15886 on the grounds that: (1) Vic Ang Siong's obligation which gave rise to the bounced check had already been extinguished by partial payment and
agreement to amicably settle balance, and (2) petitioner had no standing to file the criminal complaint since he was neither the payee nor holder of the bad
check. Petitioner opines that neither ground justifies dismissal of his complaint.

Petitioner's stand is unavailing. Respondent Chief State Prosecutor in refusing to order the filing of an information for violation of B.P. Blg. 22 against Vic
Ang Siong did not act without or in excess of jurisdiction or with grave abuse of discretion.

First, with respect to the agreement between Concord and Victor Ang Siong to amicably settle their difference, we find this resort to an alternative dispute
settlement mechanism as not contrary to law, public policy, or public order. Efforts of parties to solve their disputes outside of the courts are looked on with
favor, in view of the clogged dockets of the judiciary.

Second, it is not disputed in the instant case that Concord, a domestic corporation, was the payee of the bum check, not petitioner. Therefore, it is Concord,
as payee of the bounced check, which is the injured party. Since petitioner was neither a payee nor a holder of the bad check, he had neither the
personality to sue nor a cause of action against Vic Ang Siong. Under Section 36 of the Corporation Code18, read in relation to Section 23,19 it is clear that
where a corporation is an injured party, its power to sue is lodged with its board of directors or turstees.20 Note that petitioner failed to show any proof
that he was authorized or deputized or granted specific powers by Concord's board of director to sue Victor And Siong for and on behalf of the firm. Clearly,
petitioner as a minority stockholder and member of the board of directors had no such power or authority to sue on Concord's behalf. Nor can we uphold
his act as a derivative suit. For a derivative suit to prosper, it is required that the minority stockholder suing for and on behalf of the corporation must allege
in his complaint that he is suing on a derivative cause of action on behalf of the corporation and all other stockholders similarly situated who may wish to
join him in the suit.21 There is no showing that petitioner has complied with the foregoing requisites. It is obvious that petitioner has not shown any clear
legal right which would warrant the overturning of the decision of public respondents to dismiss the complaint against Vic Ang Siong. A public prosecutor,
by the nature of his office, is under no compulsion to file a criminal information where no clear legal justification has been shown, and no sufficient
evidence of guilt nor prima facie case has been presented by the petitioner.22 No reversible error may be attributed to the court a quo when it dismissed
petitioner's special civil action for mandamus.1âwphi1.nêt

WHEREFORE, the instant petition is DISMISSED for lack of merit. Costs against petitioner.

SO ORDERED.

Bellosillo, Mendoza, Buena, and De Leon, Jr., JJ., concur.

THIRD DIVISION
[G.R. No. 139292. December 5, 2000.]
JOSEPHINE DOMAGSANG, Petitioner, v. THE HONORABLE COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, Respondents.

DECISION
VITUG, J.:

Petitioner was convicted by the Regional Trial Court of Makati, Branch 63, of having violated Batas Pambansa ("B.P.") Blg. 22 (Anti-Bouncing Check Law), on
eighteen (18) counts, and sentenced to "suffer the penalty of One (1) Year imprisonment for each count (eighteen [18] counts)." Petitioner was likewise
"ordered to pay the private complainant the amount of P573,800.00." 1 The judgment, when appealed to the Court of Appeals (CA-G.R. CR No. 18497), was
affirmed in toto by the appellate court.chanrob1es virtua1 1aw 1ibrary

It would appear that petitioner approached complainant Ignacio Garcia, an Assistant Vice President of METROBANK, to ask for financial assistance. Garcia
accommodated petitioner and gave the latter a loan in the sum of P573,800.00. In exchange, petitioner issued and delivered to the complainant 18
postdated checks for the repayment of the loan. When the checks were, in time, deposited, the instruments were all dishonored by the drawee bank for
this reason: "Account closed." The complainant demanded payment allegedly by calling up petitioner at her office. Failing to receive any payment for the
value of the dishonored checks, the complainant referred the matter to his lawyer who supposedly wrote petitioner a letter of demand but that the latter
ignored the demand.

On 08 May 1992, Criminal Case No. 92-4465 was lodged against petitioner before the Regional Trial Court ("RTC’) of Makati. The Information
read:jgc:chanrobles.com.ph

"That on or about the 24th day of June, 1991, in the Municipality of Makati, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court,
the abovenamed accused, did then and there willfully, unlawfully and feloniously make out, draw and issue to complainant Ignacio H. Garcia, Jr., to apply on
account or for value the dated check/described below:jgc:chanrobles.com.ph

"Check No. : 149900

Drawn Against : Traders Royal Bank

In the Amount of : P50,000.00

Dated/Postdated : June 24, 1991

Payable to : Ignacio H. Garcia, Jr.

"said accused well knowing that at the time of issue thereof, she did not have sufficient funds in or credit with the drawee bank for the payment in full of
the face amount of such check 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 the reason ‘ACCOUNT CLOSED’ and despite receipt of notice of such dishonor, the accused failed to pay
said payee the face amount of said check or to make arrangement for full payment thereof within five (5) banking days after receiving notice.

"CONTRARY TO LAW." 2

Subsequent Informations, docketed Criminal Cases No. 92-4466 to No. 92-4482, inclusive, similarly worded as in Criminal Case No. 92-4465 except as to the
dates, the number, and the amounts of the checks hereunder itemized —

"Check Number Dated/Postdated Amount

TRB - No. 161181 July 18, 1991 P6,000.00

TRB - No. 149906 July 24, 1991 3,000.00

No. 182074 July 30, 1991 29,700.00

No. 182084 August 30, 1991 9,300.00

No. 182078 September 15, 1991 6,000.00

No. 161183 September 18, 1991 6,000.00

No. 161177 September 18, 1991 100,000.00

No. 182085 September 30, 1991 9,000.00

No. 182079 October 15, 1991 6,000.00

No. 182086 October 30, 1991 10,500.00

No. 182080 November 15, 1991 6,000.00

No. 182087 November 30, 1991 11,400.00

No. 182081 December 15, 1991 6,000.00

No. 182082 December 15, 1991 100,000.00

No. 182088 December 30, 1991 12,000.00

No. 182089 December 30, 1991 100,000.00

No. 182090 December 30, 1991 100,000.00" 3

were also filed against petitioner. The cases were later consolidated and jointly tried following the "not guilty" plea of petitioner when arraigned on 02
November 1992.chanrob1es virtua1 1aw 1ibrary

On 07 September 1993, petitioner filed a demurrer to the evidence, with leave of court, premised on the absence of a demand letter and that the checks
were not issued as payment but as evidence of indebtedness of petitioner or as collaterals of the loans obtained by petitioner. Opposed by the prosecution,
the demurrer was denied by the trial court. In the hearing of 17 February 1994, Petitioner, through counsel, waived her right to present evidence in her
defense. Relying solely then on the evidence submitted by the prosecution, the lower court rendered judgment convicting petitioner. The decision, as
heretofore stated, was affirmed by the Court of Appeals in its decision of 15 February 1999. Reconsideration was also denied in the resolution, dated 09 July
1999, of the appellate court.

Hence, the instant petition where petitioner raised the following issues for resolution by the Court —

"1. Whether or not an alleged verbal demand to pay sufficient to convict herein petitioner for the crime of violation of B.P. Blg. 22;

"2. Whether or not the Honorable Court of Appeals committed reversible error when it affirmed the judgment of conviction rendered by the trial court, on
the ground that a written notice of dishonor is not necessary in a prosecution for violation of B.P. Blg. 22, contrary to the pronouncement of the Supreme
Court in the case of Lao v. Court of Appeals, 274 SCRA 572; (and)

"3. Whether or not the Honorable Court of Appeals erred in considering the alleged written demand letter, despite failure of the prosecution to formally
offer the same." 4

The pertinent provisions of B.P. Blg. 22 "Bouncing Checks Law," provide:jgc:chanrobles.com.ph

"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 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 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.

"Where the check is drawn by a corporation, company or entity, the person or persons who actually signed the check in behalf of such drawer shall be liable
under this Act.

"SEC. 2. Evidence of knowledge of insufficient funds. — The making, drawing and issuance of a check payment of which is refused by the drawee because of
insufficient funds in or credit with such bank, when presented within ninety (90) days from the date of the check, shall be prima facie evidence of
knowledge of such insufficiency of funds or credit unless such maker or drawer pays the holder thereof the amount due thereon, or makes arrangements
for payment in full by the drawee of such check within five (5) banking days after receiving notice that such check has not been paid by the drawee.

"SEC. 3. Duty of drawee; rules of evidence. — It shall be the duty of the drawee of any check, when refusing to pay the same to the holder thereof upon
presentment, to cause to be written, printed or stamped in plain language thereon, or attached thereto, the reason for drawee’s dishonor or refusal to pay
the same: Provided, That where there are no sufficient funds in or credit with such drawee bank, such fact shall always be explicitly stated in the notice of
dishonor or refusal. In all prosecutions under this Act, the introduction in evidence of any unpaid and dishonored check, having the drawee’s refusal to pay
stamped or written thereon, or attached thereto, with the reason therefor as aforesaid, shall be prima facie evidence of the making or issuance of said
check, and the due presentment to the drawee for payment and the dishonor thereof, and that the same was properly dishonored for the reason written,
stamped or attached by the drawee on such dishonored check.

"Notwithstanding receipt of an order to stop payment, the drawee shall state in the notice that there were no sufficient funds in or credit with such bank
for the payment in full of such check, if such be the fact." 5 (Emphasis supplied.)

The law enumerates the elements of the crime to be (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 the 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. 6chanrob1es virtua1 1aw 1ibrary

There is deemed to be a prima facie evidence of knowledge on the part of the maker, drawer or issuer of insufficiency of funds in or credit until the drawee
bank of the check issued if the dishonored check is presented within 90 days from the date of the check and the maker or drawer fails to pay thereon or to
make arrangement with the drawee bank for that purpose. The statute has created the prima facie presumption evidently because "knowledge" which
involves a state of mind would be difficult to establish. 7 The presumption does not hold, however, when the maker, drawer or issuer of the check pays the
holder thereof the amount due thereon or makes arrangement for payment in full by the drawee bank of such check within 5 banking days after receiving
notice that such check has not been paid by the drawee bank.

In Lao v. Court of Appeals, 8 this Court explained:jgc:chanrobles.com.ph

". . . Section 2 of B.P. Blg. 22 clearly provides that this presumption arises not from the mere fact of drawing, making and issuing a bum check; there must
also be a showing that, within five banking days from receipt of the notice of dishonor, such maker or drawer failed to pay the holder of the check the
amount due thereon or to make arrangement for its payment in full by the drawee of such.

"It has been observed that the State, under this statute, actually offers the violator ‘a compromise by allowing him to perform some act which operates to
pre-empt the criminal action, and if he opts to perform it the action is abated.’ This was also compared to certain laws allowing illegal possessors of firearms
a certain period of time to surrender the illegally possessed firearms to the Government, without incurring any criminal liability.’ In this light, the full
payment of the amount appearing in the check within five banking days from notice of dishonor is a ‘complete defense.’ The absence of a notice of dishonor
necessarily deprives an accused an opportunity to preclude a criminal prosecution. Accordingly, procedural due process clearly enjoins that a notice of
dishonor be actually served on petitioner. Petitioner has a right to demand — and the basic postulates of fairness require — that the notice of dishonor be
actually sent to and received by her to afford her the opportunity to avert prosecution under B.P. Blg. 22." 9

In the assailed decision, the Court of Appeals predicated the conviction of petitioner on the supposed fact that petitioner was informed of the dishonor of
the checks through verbal notice when the complainant had called her up by telephone informing her of the dishonor of the checks and demanding
payment therefor. The appellate court said:jgc:chanrobles.com.ph
"The maker’s knowledge of the insufficiency of his funds is legally presumed from the dishonor of his check (People v. Laggui, 171 Phil. 305). The law does
not require a written notice of the dishonor of such check.

"In the instant case, appellant had knowledge that her checks were dishonored by the bank when complainant Garcia made several oral demands upon her
to pay the value of the checks in the amount of P573,800.00. Despite said demands, appellant failed and refused to pay the same. Moreover, complaining
witness further testified that his lawyer made a written demand upon appellant but the latter ignored said demand (tsn., May 27, 1993, pp. 13-14). In this
connection, appellant waived her right to present evidence or rebut complainants testimony that he made oral demands upon appellant to make good the
dishonored checks and his lawyer wrote her a demand letter.

"Likewise, appellant did not object to the admission of the complainant’s testimony with regard to the written demand by moving that it be stricken off the
record for being hearsay, hence, the same is admissible evidence. In the case of People v. Garcia, 89 SCRA 440, the Supreme court
ruled:jgc:chanrobles.com.ph

". . . (It) must be noted that neither the defendant nor his counsel below objected to the admission of the testimonies which are now being assailed as
hearsay. This is fatal to defendant-appellant’s present posture since the failure to object to hearsay evidence constitutes a waiver of the . . . right to cross-
examine the actual witness to the occurrence, rendering the evidence admissible." 10

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

While, indeed, Section 2 of B.P. Bb. 22 does not state that the notice of dishonor be in writing, taken in conjunction, however, with Section 3 of the law, i.e.,
"that where there are no sufficient funds in or credit with such drawee bank, such fact shall always be explicitly stated in the notice of dishonor or refusal,"
11 mere oral notice or demand to pay would appear to be insufficient for conviction under the law. The Court is convinced that both the spirit and letter of
the Bouncing Checks Law would require for the act to be punished thereunder not only that the accused issued a check that is dishonored, but that likewise
the accused has actually been notified in writing of the fact of dishonor. 12 The consistent rule is that penal statutes have to be construed strictly against
the State and liberally in favor of the accused. 13

Evidently, the appellate court did not give weight and credence to the assertion that a demand letter was sent by a counsel of the complainant because of
the failure of the prosecution to formally offer it in evidence. Courts are bound to consider as part of the evidence only those which are formally offered 14
for judges must base their findings strictly on the evidence submitted by the parties at the trial. 15 Without the written notice of dishonor, there can be no
basis, considering what has heretofore been said, for establishing the presence of "actual knowledge of insufficiency of funds." 16

The prosecution may have failed to sufficiently establish a case to warrant conviction, however, it has clearly proved petitioner’s failure to pay a just debt
owing to the private complainant. The total face value of the dishonored checks, to wit —

"Check Number Dated/Postdated Amount

TRB - No. 149900 June 24, 1991 P50,000.00

TRB - No. 161181 July 18, 1991 6,000.00

TRB - No. 149906 July 24, 1991 3,000.00

No. 182074 July 30, 1991 29,700.00

No. 182084 August 30, 1991 1,300.00

No. 182078 September 15, 1991 6,000.00

No. 161183 September 18, 1991 6,000.00

No. 161177 September 18, 1991 100,000.00

No. 182085 September 30, 1991 9,900.00

No. 182079 October 15, 1991 6,000.00

No. 182086 October 30, 1991 10,500.00

No. 182080 November 15, 1991 6,000.00

No. 182087 November 30, 1991 11,400.00

No. 182081 December 15, 1991 6,000.00

No. 182082 December 15, 1991 100,000.00

No. 182088 December 30, 1991 12,000.00

No. 182089 December 30, 1991 100,000.00

No. 182090 December 30, 1991 100,000.00" 17

or the sum of P563,800, has yet to be made good by petitioner. This amount, with 12% legal interest per annum from the filing of the information until the
finality of this decision, must be forthwith settled.chanrob1es virtua1 1aw 1ibrary

WHEREFORE, the decision of the Court of Appeals is MODIFIED. Petitioner Josephine Domagsang is acquitted of the crime charged on reasonable doubt. She
is ordered, however, to pay to the offended party the face value of the checks in the total amount of P563,800.00 with 12% legal interest, per annum, from
the filing of the informations until the finality of this decision, the sum of which, inclusive of the interest, shall be subject thereafter to 12%, per annum,
interest until the due amount is paid. Costs against petitioner.

SO ORDERED.

Melo, Panganiban and Gonzaga-Reyes, JJ., concur.

 Republic of the Philippines
SUPREME COURT
THIRD DIVISION

G.R. No. 140665 November 13, 2000

VICTOR TING "SENG DEE" and EMILY CHAN-AZAJAR, petitioners,
vs.
COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.

MELO, J.:

Before us is a petition for certiorari under Rule 45 seeking the reversal of the February 12, 1999 decision of the Court of Appeals which affirmed that of the
Regional Trial Court of the National Capital Judicial Region (Manila, Branch 45) finding petitioners guilty of seven (7) counts of violation of Batas Pambansa
Blg. 22.

Petitioners' version of the background events is as follows:

From 1991 to 1992, Juliet Ting "Chan Sioc Hiu" obtained loans, in the aggregate amount of P2,750,000.00, from private complainant Josefina K. Tagle for use
in Juliet's furniture business. As payment thereof, Juliet issued eleven (11) post-dated checks which, upon maturity, were dishonored for reasons of "Closed
Account" or "Drawn Against Insufficient Funds." Juliet was subsequently prosecuted for violation of Batas Pambansa Blg. 22.

Due to her financial difficulties, Juliet requested her husband Victor Ting "Seng Dee" and her sister Emily Chan-Azajar (petitioners herein) to take over her
furniture business, including the obligations appurtenant thereto. Agreeing to Juliet's request, petitioners issued nineteen (19) checks in replacement of the
eleven (11) checks earlier issued by Juliet. The planned take-over, however, never materialized since the Naga Hope Christian School, petitioner Emily Chan-
Azajar's employer in Naga, refused to let her resign to attend to her sister's business. Since the planned take-over did not take place, petitioners requested
Juliet to reassume her obligation to private complainant Tagle by replacing the checks they had previously issued to the latter. Thus, Juliet replaced the
nineteen (19) checks issued by petitioners with twenty-three (23) Far East Bank checks in favor of Tagle. Petitioners then requested private complainant
Tagle to return the nineteen (19) checks they had issued to her. Instead of returning the checks, Tagle deposited seven of the checks with MetroBank where
they were dishonored for being "Drawn Against Insufficient Funds."

On the other hand, private complainant Tagle alleged that sometime in April 1993, petitioners obtained a loan of P950,000.00 from her, issuing several
post-dated checks in payment thereof. When the checks were deposited by Tagle with MetroBank, they were dishonored for having been drawn against
insufficient funds. Tagle alleged that despite verbal and written demands, petitioners failed to pay her the value of the dishonored checks.

Consequently, seven informations for violation of Batas Pambansa Blg. 22 were filed against petitioners. Said informations are similarly worded except with
respect to the check number, the amount involved, and the date the check was issued. The information in Criminal Case No. 94-131945 (the other cases are
Criminal Case No. 94-131946, Criminal Case No. 94-131947, Criminal Case No. 94-131948, Criminal Case No. 94-131949, Criminal Case No. 94-131950, and
Criminal Case No. 94-131951) charged:

That sometime prior to May 27, 1993, in the City of Manila, Philippines, the said accused, conspiring and confederating together and mutually helping each
other, did then and there wilfully, unlawfully and feloniously make or draw and issue to JOSEPHINE K. TAGLE, to apply on account or for value Producers
Bank of the Philippines, Check No. 946072 dated May 27, 1993 payable to CASH in the amount of P250,000.00 said accused well knowing that at the time of
issue they 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 Drawn Against Insufficient
Funds and despite receipt of notice of such dishonor, said accused failed to pay said JOSEFINA K. TAGLE the amount of the check or to make arrangements
for full payment of the same within five (5) banking days after receiving said notice.

(p. 2, Original Records.)

Criminal Cases No. 94-131945 to 94-131951 were consolidated and jointly tried. When arraigned, petitioners, assisted by counsel, pleaded not guilty. During
trial, the prosecution presented only one witness, the private complainant, the testimony of Producer's Bank representative Ferdinand Lazo being
dispensed with after counsel for petitioners admitted the dishonor of the checks subject matter of the action.

On March 16, 1995, the trial court found petitioners guilty of violating Batas Pambansa Blg. 22 in each of the seven cases, disposing as follows:

WHEREFORE, in view of the foregoing, accused VICTOR TING and EMILY CHAN AZAJAR are hereby found "GUILTY" beyond reasonable doubt of all the
charges contained in Criminal Case Nos. 94-131945; 94-131946; 94-131947; 94-131948; 94-131949; 94-131950 and 94-131951 and for each count, they are
hereby sentenced to suffer the penalty of one (1) year imprisonment; to pay Josefina K. Tagle the total amount of P950,000.00; and to pay the cost.

(p. 294, Rollo.)

Aggrieved, petitioners filed an appeal with the Court of Appeals which was docketed therein as C.A.-G.R. No. 18054. However, the appellate court, on
February 12, 1999, affirmed. Petitioners' motion for reconsideration was, likewise, denied for lack of merit. Hence, the instant petition.

Petitioners claim that the Court of Appeals erred in affirming the decision of the trial court, given the absence of proof beyond reasonable doubt or in the
presence of facts creating reasonable doubt.

The petition has merit.

Section 1 of Batas Pambansa Blg. 22, otherwise known as the Bouncing Checks Law, 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 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 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.
Where the check is drawn by a corporation, company or entity, the person or persons who actually signed the check in behalf of such drawer shall be liable
under this Act.

For a violation of Batas Pambansa Blg. 22 to be committed, the following elements must be present:

(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 there are no sufficient funds in or credit with the drawee bank for the payment of
such check in full upon is 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 (Sycip, Jr. vs. CA, G.R. No. 125059, March 17, 2000).

An analysis of the evidence presented, however, shows that not all the aforementioned elements have been established by the prosecution beyond
reasonable doubt.

That the seven checks in question were issued by petitioners is beyond dispute. Not only were the dishonored checks presented in court, but petitioners
even admitted signing the checks and issuing them to private complainant. From the evidence on record, it is clear that petitioners signed and issued the
seven checks in question.

That the checks were dishonored is also clearly established. Section 3 of Batas Pambansa Blg. 22 provides that "the introduction in evidence of any unpaid
and dishonored check, having the drawee's refusal to pay stamped or written thereon, or attached thereto, with the reason therefor as aforesaid, shall be
prima facie evidence of the making or issuance of said check, and the due presentment to the drawee for payment and the dishonor thereof, and that the
same was properly dishonored for the reason written, stamped, or attached by the drawee on such dishonored check." In the instant case, the fact of the
checks' dishonor is sufficiently shown by the return slips issued by MetroBank, the depository bank, stating that the checks had been returned for the
reason "DAIF — Drawn Against Insufficient Funds." Not only are these check return slips prima facie evidence that the drawee bank dishonored the checks,
but the defense did not present any evidence to rebut these documents. In fact, counsel for petitioners even admitted the fact of the checks' dishonor,
agreeing to dispense with the presentation of the bank representative who was supposed to prove the fact of dishonor of said checks (p. 162, Rollo.).

However, for liability to attach under Batas Pambansa Blg. 22, it is not enough that the prosecution establishes that a check was issued and that the same
was subsequently dishonored. The prosecution must also prove the second element, that is, it must further show that the issuer, at the time of the check's
issuance, had knowledge that he did not have enough funds or credit in the bank for payment thereof upon its presentment. Since the second element
involves a state of mind which is difficult to verify, Section 2 of Batas Pambansa Blg. 22 creates a presumption juris tantum that the second element prima
facie exists when the first and third elements of the offense are present (Magno v. People, 210 SCRA 471 [1992]). Section 2 provides:

Section 2. Evidence of knowledge of insufficient funds.— The making, drawing, and issuance of a check payment of which is refused by the drawee because
of insufficient funds or credit with such bank, when presented within ninety days from the date of the check, shall be prima facie evidence of knowledge of
such insufficiency of funds or credit unless such maker or drawer pays the holder thereof the amount due thereon, or makes arrangements for payment in
full by the drawee of such check within five (5) banking days after receiving notice that such check has not been paid by the drawee."

In truth, this Court declared in King v. People (G.R. No. 131540, December 2, 1999) that "the prima facie presumption arises when the check is issued. But
the law also provides that the presumption does not arise when the issuer pays the amount of the check or makes arrangement for its payment 'within five
banking days after receiving notice that such check has not been paid by the drawee.' Verily, BP 22 gives the accused an opportunity to satisfy the amount
indicated in the check and thus avert prosecution… This opportunity, however, can be used only upon receipt by the accused of a notice of dishonor." Thus,
the presumption that the issuer had knowledge of the insufficiency of funds is brought into existence only after it is proved that the issuer had received a
notice of dishonor and that, within five days from receipt thereof, he failed to pay the amount of the check or to make arrangement for its payment.

King v. People, decided by this Division, involves a set of facts similar to the case at bar. In said case, the accused therein was proven to have issued eleven
checks, all of which were duly filled up and signed by her. It was also clearly established that these eleven checks were dishonored, as shown by the checks
themselves which were stamped "ACCOUNT CLOSED" and further supported by the return tickets issued by PCI Bank stating that the checks had been
dishonored. Yet, even if the prosecution had already established the issuance of the checks and their subsequent dishonor, this Court still required the
prosecution to show that the issuer knew of the insufficiency of funds by proving that he or she received a notice of dishonor and, within five banking days
thereafter, failed to satisfy the amount of the check or make arrangement for its payment.

Moreover, in Lina Lim Lao v. CA (274 SCRA 572 [1997]), we emphasized that "the full payment of the amount appearing in the check within five banking
days from notice of dishonor is a 'complete defense.' The absence of a notice of dishonor necessarily deprives an accused an opportunity to preclude a
criminal prosecution. Accordingly, procedural due process clearly enjoins that a notice of dishonor be actually served on petitioner. Petitioner has a right to
demand — and the basic postulate of fairness require — that the notice of dishonor be actually sent to and received by her to afford her the opportunity to
avert prosecution under BP 22."

To prove that petitioners received a notice of dishonor, the prosecution presented a copy of the demand letter allegedly sent to petitioners through
registered mail and its corresponding registry receipt. Private complainant Josefina Tagle, the sole witness for the prosecution, testified thus:

Q: Now, when these seven (7) checks bounced for insufficiency of funds, what step did you take?

A: I demanded the return of my money from them.

Q: Now, what was the reply of the two accused?

A: They kept on promising that they will pay but up to now they have not paid any single centavo.

Q: What other step did you take?

A: I requested my lawyer to write a demand letter.

Q: And that demand letter was sent to the accused?

A: Yes, Sir.

Q: In what manner?

A: By registered mail.
Q: Now, was that demand letter received by the two accused?

A: Yes, Sir.

Q: What is your evidence?

A: The return card.

Q: If you are shown anew the copy of the demand letter which is already marked as Exhibit B, would you be able to recognize the same?

A: Yes, Sir.

Q: Is that the one that you are referring to?

A: Yes, Sir.

Q: How about the return card, is that correct?

A: Yes, Sir, this is the one.

Q: Now, upon receipt of this letter by the two accused, did the two accused pay the amount of the said check?

A: No, Sir.

Q: So what did you do next?

A: I told my lawyer to file charges against them.

Q: You mean the present charge?

A: Yes, Sir.

Atty. Acuesta:

That is all, Your Honor.

(TSN, Aug. 24, 1994, p. 8-9.)

Aside from the above testimony, no other reference was made to the demand letter by the prosecution. As can be noticed from the above exchange, the
prosecution alleged that the demand letter had been sent by mail. To prove mailing, it presented a copy of the demand letter as well as the registry return
receipt. However, no attempt was made to show that the demand letter was indeed sent through registered mail nor was the signature on the registry
return receipt authenticated or identified. It cannot even be gleaned from the testimony of private complainant as to who sent the demand letter and when
the same was sent. In fact, the prosecution seems to have presumed that the registry return receipt was proof enough that the demand letter was sent
through registered mail and that the same was actually received by petitioners or their agents.

As adverted to earlier, it is necessary in cases for violation of Batas Pambansa Blg. 22, that the prosecution prove that the issuer had received a notice of
dishonor. It is a general rule that when service of notice is an issue, the person alleging that the notice was served must prove the fact of service (58 Am Jur
2d, Notice, § 45). The burden of proving notice rests upon the party asserting its existence. Now, ordinarily, preponderance of evidence is sufficient to prove
notice. In criminal cases, however, the quantum of proof required is proof beyond reasonable doubt. Hence, for Batas Pambansa Blg. 22 cases, there should
be clear proof of notice. Moreover, it is a general rule that, when service of a notice is sought to be made by mail, it should appear that the conditions on
which the validity of such service depends had existence, otherwise the evidence is insufficient to establish the fact of service (C.J.S., Notice, § 18). In the
instant case, the prosecution did not present proof that the demand letter was sent through registered mail, relying as it did only on the registry return
receipt. In civil cases, service made through registered mail is proved by the registry receipt issued by the mailing office and an affidavit of the person
mailing of facts showing compliance with Section 7 of Rule 13 (See Section 13, Rule 13, 1997 Rules of Civil Procedure). If, in addition to the registry receipt, it
is required in civil cases that an affidavit of mailing as proof of service be presented, then with more reason should we hold in criminal cases that a registry
receipt alone is insufficient as proof of mailing. In the instant case, the prosecution failed to present the testimony, or at least the affidavit, of the person
mailing that, indeed, the demand letter was sent.

Moreover, petitioners, during the pre-trial, denied having received the demand letter (p. 135, Rollo.). Given petitioners' denial of receipt of the demand
letter, it behooved the prosecution to present proof that the demand letter was indeed sent through registered mail and that the same was received by
petitioners. This, the prosecution miserably failed to do. Instead, it merely presented the demand letter and registry return receipt as if mere presentation
of the same was equivalent to proof that some sort of mail matter was received by petitioners. Receipts for registered letters and return receipts do not
prove themselves; they must be properly authenticated in order to serve as proof of receipt of the letters (Central Trust Co. v. City of Des Moines, 218 NW
580).

Likewise, for notice by mail, it must appear that the same was served on the addressee or a duly authorized agent of the addressee. In fact, the registry
return receipt itself provides that "[a] registered article must not be delivered to anyone but the addressee, or upon the addressee's written order, in which
case the authorized agent must write the addressee's name on the proper space and then affix legibly his own signature below it." In the case at bar, no
effort was made to show that the demand letter was received by petitioners or their agent. All that we have on record is an illegible signature on the
registry receipt as evidence that someone received the letter. As to whether this signature is that of one of the petitioners or of their authorized agent
remains a mystery. From the registry receipt alone, it is possible that petitioners or their authorized agent did receive the demand letter. Possibilities,
however, cannot replace proof beyond reasonable doubt. There being insufficient proof that petitioners received notice that their checks had been
dishonored, the presumption that they knew of the insufficiency of the funds therefor cannot arise.

As we stated in Savage v. Taypin (G.R. No. 134217, May 11, 2000), "penal statutes must be strictly construed against the State and liberally in favor of the
accused." Likewise, the prosecution may not rely on the weakness of the evidence for the defense to make up for its own blunders in prosecuting an
offense. Having failed to prove all the elements of the offense, petitioners may not thus be convicted for violation of Batas Pambansa Blg. 22.

That petitioners are civilly liable to private complainant is also doubtful. Private complainant claims that petitioners borrowed Nine Hundred Fifty Thousand
(P950,000.00) Pesos from her on or about the end of April 1993, in payment of which petitioners issued several post-dated checks in her favor. The seven
checks issued by petitioners as payment for the amount borrowed add up to P950,000.00. If private complainant is the businesswoman that she claims to
be, she should be collecting interest on the loan she granted to petitioners. In other words, the amount to be repaid by petitioners should be more than
P950,000.00, to account for interest on the loan. The checks issued by petitioners, however, do not provide for interest. It is thus more credible that the
seven checks involved in this case form part of nineteen checks issued to replace the checks issued by Juliet Ting to private complainant. This conclusion is
bolstered by private complainant's admission in her reply-affidavit that more than seven checks were issued by petitioners (p. 11, Original Records). In said
reply-affidavit, private complainant states that "respondents issued and delivered to me in Manila several checks, which partially include their seven (7)
bouncing checks herein. I say 'partially' because I will have to file additional bouncing check cases against them, as these other checks likewise bounced."
Furthermore, in the same reply-affidavit, private complainant claims that the checks in question were not replaced, allegedly because the replacement
checks must first be cleared, which did not happen in this case. By implication, had the 23 Far East Bank checks issued by Juliet Ting to replace the nineteen
checks issued by petitioners been cleared, then private complainant would have considered the checks in question as having been replaced. This only
supports our conclusion that it was Juliet Ting who owed money to private complainant, not petitioners.

Moreover, the original debtor Juliet Ting was convicted by the Regional Trial Court of Manila in Criminal Cases 93-126581-91 for eleven counts of violation
of Batas Pambansa Blg. 22. These eleven bouncing check cases involved the same obligation being sued upon by private complainant Tagle herein. The trial
court expressly acknowledged in said cases that nineteen (19) checks were issued by petitioners as payment for Juliet Ting's obligation. In its August 7, 1997
decision convicting Juliet Ting for violation of Batas Pambansa Blg. 22, the trial court declared that "to cover the additional loans, accused (Juliet Ting)
delivered 19 post-dated checks issued by Victor Ting and Emily Azajar (p. 55, Rollo.)." The trial court's decision further provides:

Since she could not fund the other checks (Exhs. B to K), she replaced the same with 19 post-dated checks of her husband Victor Ting and her sister Emily
Azajar totaling P2,450,000.00. They issued the checks as they would take over her furniture business. The intended partnership of Victor and Emily was
aborted as the latter was not allowed to resign from her teaching post in Naga City. She then replaced the checks issued by Victor and Emily with her own
checks – 23 FEB post-dated checks per list (Exh. 9) prepared by Suzanne Azajar.

Despite receipt of the replacement checks, complainant refused to return the checks of Victor and Emily and even filed cases against them.

(p. 56, Rollo.)

Not having borrowed the amount of Nine Hundred Fifty Thousand (P950,000.00) from private complainant, petitioners may not thus be held liable therefor.

WHEREFORE, premises considered, the instant petition is GRANTED and the assailed decision of the Court of Appeals dated February 12, 1999 REVERSED
and SET ASIDE. Petitioners Victor Ting "Seng Dee" and Emily Chan-Azajar are hereby ACQUITTED of the charges against them for violation of Batas
Pambansa Blg. 22, for lack of sufficient evidence to prove the offenses charged beyond reasonable doubt. No special pronouncement is made as to costs.

SO ORDERED.

Vitug, Panganiban, and Gonzaga-Reyes, JJ., concur.

THIRD DIVISION
G. R. No. 133036 - January 22, 2003
JOY LEE RECUERDO, Petitioner, vs. PEOPLE OF THE PHILIPPINES AND THE COURT OF APPEALS, Respondents.

CARPIO-MORALES, J.:

Before us for review is the July 16, 1997 decision of the Court of Appeals in CA-G.R. No. 20577 affirming that rendered by the Regional Trial Court (RTC),
Branch 150, Makati City which in turn affirmed that of the Metropolitan Trial Court (MeTC) of Makati City, Branch 67 convicting Joy Lee Recuerdo
(petitioner) for violation of Batas Pambansa Blg. 22 (The Bouncing Checks Law) on 5 counts.

From the evidence of the prosecution, the following facts are established:

Sometime in the first week of December 1993, Yolanda Floro (Yolanda) who is engaged in jewelry business sold a 3-karat loose diamond stone valued at
P420,000.00 to petitioner who gave a downpayment of P40,000.00. In settlement of the balance of the purchase price, petitioner issued 9 postdated
checks, 8 of which in the amount of P40,000.00, and 1 in the amount of P20,000.00, all drawn against her account at the Prudential Bank.1

When Yolanda deposited 8 of the 10 checks to her depository bank, Liberty Savings and Loan Association, only 3, those dated December 25, 1993, January
25, 1994, and February 25, 1994, were cleared. The remaining 5 were dishonored due to the closure of petitioners account.2

Yolanda thus went to petitioners dental clinic and advised her to change the dishonored checks to cash. Petitioner promised alright but she welshed on it.3

A demand letter4 was thereupon sent to petitioner for her to settle her obligation but she failed to heed the same,5 hence, the filing of 5 informations6
against her for violation of B. P. 22 at the Makati MeTC, the accusatory portion of the first of which reads:

That sometime in the first week of December, 1993, in the Municipality of Makati, Metro Manila, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, did then and there willfully, unlawfully and feloniously make out, drawn (sic) and issue to YOLANDA G. FLORO to apply on
account or for value the check described below:

Check No.

- 008789

Drawn Against

- Prudential Bank

In the Amount of

- P40,000.00

Postdated/dated

- July 25, 1994

Payable to

- Cash

said accused well knowing that at the time of issue thereof, said account did not have sufficient funds in or credit with the drawee bank for the payment in
full of the face amount of such check 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 the reason "ACCOUNT CLOSED" and despite receipt of notice of such dishonor, the accused failed to pay
said payee the face amount of said check or to make arrangement for full payment within five (5) banking days after receiving said notice."

Except for the check numbers and dates of maturity, the four other informations are similarly worded.

After trial, Branch 67 of the Makati MeTC convicted petitioner in a Joint Decision7 the dispositive portion of which reads:

Wherefore, in view of the foregoing, the court finds the accused guilty beyond reasonable doubt of Violation of Batas Pambansa Bilang 22 on five (5) counts
and therefore sentences the accused to suffer an imprisonment of 30 days for each count and to restitute the amount of P 200,000.00 to Miss Yolanda G.
Floro, which is the total amount of the five (5) checks, and to pay her also the amount of P20,000.00 as damages to compensate the payment of attorneys
fees.

SO ORDERED.8

As stated early on, the RTC, on appeal, affirmed the decision of the MeTC.9 And the Court of Appeals10 affirmed that of the RTC.

In the petition for review on certiorari at bar, petitioner proffers as follows:

"1. Petitioner was convicted by an invalid law which is Batas Pambansa Blg. 22 for being an unconstitutional law.

2. Petitioner was denied her constitutional right to due process for failure of the courts a quo to uphold her presumption of innocence and for convicting
her even if the prosecution evidence does not prove her guilt beyond reasonable doubt.

3. The findings of fact of the courts a quo, primarily the Court of Appeals, are based on surmises, conjectures and speculations.

4. The Court of Appeals was biased against petitioner when it denied the petition moto propio (sic) without the comment of the Office of the Solicitor
General."11

Petitioner contends that since banks are not damaged by the presentment of dishonored checks as they impose a penalty for each, only creditors/payees
are unduly favored by the law; that the law "is in essence a resurrected form of 19th century imprisonment for debt" since the drawer is coerced to pay his
debt on threat of imprisonment even if his failure to pay does not arise from malice or fraud or from any criminal intent to cause damage;12 and that the
law is a bill of attainder13 as it does not leave much room for judicial determination, the guilt of the accused having already been decided by the
legislature.14
These matters subject of petitioners contention have long been settled in the landmark case of Lozano v. Martinez15 where this Court upheld the
constitutionality of B. P. 22:

The gravamen of the offense punished by BP 22 is the act of making and issuing a worthless check or a check that is dishonored upon its presentation for
payment. It is not the non-payment of an obligation which the law punishes. The law is not intended or designed to coerce a debtor to pay his debt. The
thrust of the law is to prohibit, under pain of penal sanctions, the making of worthless checks and putting them in circulation. Because of its deleterious
effects on the public interest, the practice is proscribed by law. The law punishes the act not as an offense against property, but an offense against public
order.16 (Emphasis supplied)

The contention that B. P. 22 is a bill of attainder, one which inflicts punishment without trial and the essence of which is the substitution of a legislative for a
judicial determination of guilt,17 fails. For under B. P. 22, every element of the crime is still to be proven before the trial court to warrant a conviction for
violation thereof.

Reinforcing her thesis, petitioner cites the speech made by now Vice-President Teofisto Guingona delivered before the Philippine Bar Association wherein
he stressed the need to review the law since it has not prevented the proliferation of bouncing checks.18

As correctly argued by the Solicitor General, however, while due deference is given to the opinion of the Vice-President, the same should properly be
addressed to the legislature which is in a better position to review the effectiveness and usefulness of the law.19 As held in the case of Lozano,20 it is not
for the Court to question the wisdom or policy of the statute. It is sufficient that a reasonable nexus exists between the means and the end.

Petitioner further claims that the dishonored checks were not issued for deposit and encashment,21 nor was there consideration therefor, in support of
which she cites her alleged agreement with Yolanda that she could have the stone appraised to determine the purchase price,22 and since she found out
that it is only worth P160,000.00,23 there was no longer any need to fund the remaining checks which should be returned to her.24 Yolanda, however, so
petitioner adds, could no longer be reached.25 Petitioner thus concludes that she had already paid in full the purchase price of the stone, she having paid
P40,000.00 cash plus the P120,000.00 proceeds of the three cleared checks.26

Petitioners submission does not lie. Such alleged agreement does not inspire belief. The terms and conditions surrounding the issuance of the checks are
irrelevant.27

"A check issued as an evidence of debt, though not intended for encashment, has the same effect like any other check. It is within the contemplation of B.P.
22, which is explicit that "any person who makes or draws and issues any check to apply for an account or for value, knowing at the time of issue that he
does not have sufficient funds in or credit with the drawee bank x x x which check is subsequently dishonored x x x shall be punished by imprisonment."28
(Emphasis supplied.)

"BP 22 does not appear to concern itself with what might actually be envisioned by the parties, its primordial intention being to instead ensure the stability
and commercial value of checks as being virtual substitutes for currency. It is a policy that can be easily eroded if one has yet to determine the reason for
which checks are issued, or the terms and conditions for their issuance, before an appropriate application of the legislative enactment can be made."29
(Emphasis supplied)

Additionally, petitioner argues that as no bank representative testified as to "whether the questioned checks were dishonored due to insufficiency of funds
(sic)," such element was not clearly and convincingly proven,30 hence, the trial court failed to uphold her right to presumption of innocence when she was
convicted based on the sole testimony of Yolanda.

Whether the checks were dishonored due to insufficiency of funds, or "Account Closed" as alleged in the informations and testified on by Yolanda,31
petitioners argument is untenable.

"It is not required much less indispensable, for the prosecution to present the drawee banks representative as a witness to testify on the dishonor of the
checks because of insufficiency of funds. The prosecution may present, as it did in this case, only complainant as a witness to prove all the elements of the
offense charged. She is competent and qualified witness to testify that she deposited the checks to her account in a bank; that she subsequently received
from the bank the checks returned unpaid with a notation drawn against insufficient funds stamped or written on the dorsal side of the checks themselves,
or in a notice attached to the dishonored checks duly given to the complainant, and that petitioner failed to pay complainant the value of the checks or
make arrangements for their payment in full within five (5) banking days after receiving notice that such checks had not been paid by the drawee bank."32
(Emphasis supplied)

Yolandas testimony that when she deposited the checks to her depository bank they were dishonored due to "Account Closed"33 thus sufficed. In fact, even
petitioners counsel during trial admitted the dishonor, and on that ground.34

Finally, petitioner imputes bias on the part of the appellate court when it decided her petition for review without the comment of the Office of the Solicitor
General.

The rendition of the decision by the appellate court without the comment of the People-Appellee is not by itself proof of bias. In any event, the Office of the
Solicitor General gave its comment on petitioners Motion for Reconsideration of the appellate courts decision.

In fine, the affirmance of petitioners conviction is in order.

Under Administrative Circular No. 12-2000, imprisonment need not be imposed on those found guilty of violating B.P. Blg. 22. Administrative Circular No.
13-2001 issued on February 14, 2001 vests in the courts the discretion to determine, taking into consideration the peculiar circumstances of each case,
whether the imposition of fine alone would best serve the interests of justice, or whether forbearing to impose imprisonment would depreciate the
seriousness of the offense, work violence on the social order, or otherwise contrary to the imperatives of justice.35

In the case at bar, this Court notes that no proof, nay allegation, was proffered that petitioner was not a first time offender. Considering this and the
correctness of the case, it would best serve the interests of justice if petitioner is just fined to enable her to continue her dental practice so as not to deprive
her of her income, thus insuring the early settlement of the civil aspect of the case, not to mention the FINE.

WHEREFORE, the assailed decision of the Court of Appeals finding petitioner JOY LEE RECUERDO guilty of violating Batas Pambansa Blg. 22 is AFFIRMED with
MODIFICATION.

In lieu of imprisonment, accused-herein petitioner JOY LEE RECUERDO, is ordered to pay a FINE equivalent to double the amount of each dishonored check
subject of the five cases at bar. And she is also ordered to pay private complainant, Yolanda Floro, the amount of Two Hundred Thousand (P200,000.00)
Pesos representing the total amount of the dishonored checks.

SO ORDERED.
Puno, Panganiban, Sandoval-Gutierrez, and Corona, JJ., concur.
THIRD DIVISION
G.R. No. 129774. December 29, 1998
NARCISO A. TADEO, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

PARDO, J.:

The case before the Court is an appeal via certiorari taken by petitioner from the decision of the Court of Appeals dismissing the petition for certiorari to
annul the trial courts order denying his demurrer to evidence in eight (8) cases for violation of Batas Pambansa Bilang 22 filed against him before the
Regional Trial Court, Branch 94, Quezon City.

Complainant Ms. Luz M. Sison was the owner of commercial apartments at 731 Edsa corner Ermin Garcia, Cubao, Quezon City.1cräläwvirtualibräry

In 1985, petitioners wife leased from complainant one unit of the apartment at a monthly consideration of P7,000.00, for a period of five years. After two
years, she also leased the adjacent apartment at an additional monthly consideration of P4,000.00. However, in early 1988, petitioners wife incurred rental
arrears with complainant in the amount of P113,300.00. In order to settle the account, petitioner negotiated with complainant. He issued eight (8)
postdated checks dated February 8, 1988 to August, 1988, payable to complainant covering the unpaid rental arrears of P113,300.00. All the checks
bounced upon deposit with the drawee bank. After the last check was returned to complainant unpaid, with the notation DAIF, meaning drawn against
insufficient funds stamped thereon, on October 13, 1988, complainants counsel wrote petitioner demanding that the unpaid checks be redeemed within
three (3) days from receipt of the letter.2cräläwvirtualibräry

On October 26, 1988, petitioner wrote complainant expressing willingness to discuss the matter with her counsel. However, he did not redeem the unpaid
checks; indeed, he did not even mention any intention to pay complainant or to make arrangements for payment of the dishonored
checks.3cräläwvirtualibräry

On January 9, 1989, Assistant Prosecutor Jesus E. Bigornia, Jr. of Quezon City, filed with the Regional Trial Court, Quezon City, eight (8) Informations
charging petitioner with violation of Batas Pambansa Bilang 22, which were consolidated before Branch 94.4 Petitioner then moved to quash the
informations on the ground that the court lacked jurisdiction over the subject cases.5 On June 24, 1990, the trial court denied the motion.6 After petitioner
entered a plea of not guilty to the charges, on April 30, 1991, the trial court conducted a pre-trial at which the parties marked their respective documentary
evidence. Thereafter, the trial court declared the pre-trial of the cases closed and terminated.7cräläwvirtualibräry

On March 29, 1993, at the trial of the cases, the prosecution presented the testimony of complainant Luz Sison to prove the charges against petitioner.
After her cross-examination, the prosecution rested its case, and formally offered the documentary exhibits marked at the pre-trial.8cräläwvirtualibräry

On May 15, 1994, without prior leave of court, petitioner filed a demurrer to evidence on the ground that the prosecution failed to present sufficient
evidence proving all the elements of the offense charged. The prosecution filed an opposition thereto. On November 27, 1994, the trial court declared that
there exists a prima facie case after the prosecution has presented its evidence and rested its case and accordingly denied the demurrer to evidence for lack
of merit.9 On January 13, 1995, the trial court also denied petitioners motion for reconsideration.10cräläwvirtualibräry

On September 7, 1995, petitioner filed with the Court of Appeals a special civil action for certiorari seeking to annul the lower courts orders denying his
demurrer to evidence.11cräläwvirtualibräry

After due proceedings, on February 7, 1997, the Court of Appeals rendered decision dismissing the petition, for lack of merit.12 The Court of Appeals ruled
that certiorari does not lie to challenge the trial courts interlocutory order denying the accuseds motion to dismiss. Appeal in due time is the proper remedy
in order to have the findings of facts of the respondent judge reviewed by a superior court.

Hence, this petition.

We deny the petition. We agree with the Court of Appeals that certiorari does not lie to review a trial courts interlocutory order denying a motion to dismiss
(or to acquit), which is equivalent to a demurrer to evidence, filed after the prosecution had presented its evidence and rested its case. An order denying a
demurrer to evidence is interlocutory. It is not appealable. Neither can it be the subject of a petition for certiorari. From such denial, appeal in due time is
the proper remedy, not certiorari, in the absence of grave abuse of discretion or excess of jurisdiction, or an oppressive exercise of judicial
authority.13cräläwvirtualibräry

However, petitioner submits that the trial court acted with grave abuse of discretion when the court held that there exists a prima facie case, disregarding
the prosecutions failure to present as witness a representative of the drawee bank to testify on the dishonor of the questioned checks as an element of the
offense charged. He insists that the testimony of the banks representative is mandatory.14cräläwvirtualibräry

We do not agree.

It is not required, much less indispensable, for the prosecution to present the drawee banks representative as a witness to testify on the dishonor of the
checks because of insufficiency of funds. The prosecution may present, as it did in this case, only complainant as a witness to prove all the elements of the
offense charged.15 She is a competent and qualified witness to testify that she deposited the checks to her account in a bank; that she subsequently
received from the bank the checks returned unpaid with a notation drawn against insufficient funds stamped or written on the dorsal side of the checks
themselves, or in a notice attached to the dishonored checks duly given to complainant, and that petitioner failed to pay complainant the value of the
checks or make arrangements for their payment in full within five (5) banking days after receiving notice that such checks had not been paid by the drawee
bank.16 Otherwise stated, complainants sole testimony suffices to identify the dishonored checks with the drawee banks notation stamped or written on
the dorsal side drawn against insufficient funds or in a notice attached thereto and such notice of dishonor given to the drawer. A legal presumption arises
that petitioner had knowledge of the making of the checks, the due presentment to the drawee bank for payment, the dishonor and the reason therefor
written, stamped or notice of dishonor attached by the drawee bank to the returned checks.17 Such prima facie presumption proves that petitioner has
knowledge of the insufficiency of funds.18 Unless rebutted, the prosecution may rely on such presumption to establish that element of the offense charged.
It is for petitioner, as accused, to rebut the presumption, disputable as it is.19 Otherwise, the presumption would be sufficient basis to convict.

Consequently, in the case below, the prosecution has proved all the essential elements of the offense charged with the sole testimony of complainant Luz
Sison.

We note that petitioner did not ask the trial court for leave to file a demurrer to evidence. In such case, he loses the right to adduce evidence in his
defense.20cräläwvirtualibräry

IN VIEW WHEREOF, the Court hereby AFFIRMS the appealed decision of the Court of Appeals in CA-G. R. SP No. 37503.
We remand the records to the trial court for further proceedings consistent with this opinion, which shall be limited to the lower courts imposition of the
proper sentence on petitioner and its promulgation with notice to the parties.

Costs against petitioner.

SO ORDERED.

Romero, Kapunan and Purisima, JJ., concur.

THIRD DIVISION
[G.R. No. 75856. June 4, 1990.]
FLORECER GONZALES and LEON CAJES, JR., Petitioners, v. THE HONORABLE PRESIDING JUDGE OF BRANCH I OF THE REGIONAL TRIAL COURT OF BOHOL,
THE HONORABLE PRESIDING JUDGE OF THE 5TH MUNICIPAL CIRCUIT TRIAL COURT OF TRINIDAD-SAN MIGUEL BIEN UNIDO, BOHOL and the PEOPLE OF
THE PHILIPPINES, Respondents.

DECISION

FERNAN, C.J.:

Petitioners Florecer Gonzales and Leon Cajes, Jr. seek: [1] to annul the decision dated 16 May 1986 of the Regional Trial Court (RTC), Branch I, of Tagbilaran
City, Bohol, affirming en toto the judgment of the 5th Municipal Circuit Trial Court (MCTC) of Trinidad-San Miguel-Bien Unido, Bohol, in Criminal Case No.
1090 which convicted them of the crime of Less Serious Physical Injuries on the sole basis of the prosecution’s evidence in view of their failure to submit
counter-affidavits as required under the Rule on Summary Procedure, and [2] to remand the case to the trial court for reception of evidence for the defense
and re-promulgation of judgment. Alternatively, petitioners pray for their acquittal.

It appears that on June 5, 1985, petitioners Gonzales and Cajes, together with one Jesus Acuna, were charged with the crime of less serious physical injuries
by Juanito A. Yana before the MCTC of Trinidad, Bohol. 1 On July 15, 1985, they were served with copies of the complaint as well as the order of respondent
Presiding Judge Abundio T. Payot, notifying them that the case falls and would be tried under the Rule on Summary Procedure. 2 They were directed to
appear and submit their counter-affidavits and those of their witnesses on or before July 24, 1985, in accordance with Section 10 of said Rule. 3 Petitioners
failed to comply with the directive.

On July 24, 1985, trial proceeded for the reception of the prosecution’s evidence. Counsel for accused-petitioners participated by cross-examining the
prosecution witnesses. 4 On November 12, 1985, the prosecution rested its case and moved that the case be deemed submitted for decision without
evidence for the defense, as the latter failed to comply with paragraph 2 of Section 14 of the Rule on Summary Procedure which requires the submission of
the affidavits of witnesses before they may be allowed to testify at the hearing.

Counsel for accused-petitioners opposed the motion and asked that they be allowed to present their evidence. The trial court acceded by setting the case
for the reception of evidence for the defense on November 18, 1985. On said date, however, defense counsel Atty. Lord Marapao did not appear, allegedly
because his father died four (4) days earlier. Petitioner likewise failed to submit their affidavits or those of their witness, prompting the prosecution to
reiterate its motion to consider the case submitted for resolution without evidence for the defense. This motion was granted on November 22, 1985.

The promulgation of the decision was scheduled by the trial court on December 27, 1985 and notice to the parties was sent by registered mail. Notice to the
defense counsel was mailed as early as December 13, 1985. 5 On December 27, 1985, only accused-petitioner Gonzales and his co-accused Acuna were
present. Co-accused-petitioner Cajes and defense counsel Atty. Marapao were absent. The latter allegedly did not receive notice of the promulgation date.

To safeguard the rights of the accused, the trial court appointed Atty. Severino Estonia as counsel for the defense. He was, however, unable to enter his
appearance due to the objection of accused-petitioner Gonzales. Nevertheless, the MCTC promulgated its decision as scheduled, acquitting Jesus Acuna,
but convicting accused-petitioners Gonzales and Cajes, Jr., who were sentenced to suffer two (2) months and one (1) day imprisonment, to pay jointly the
offended party Juanito Yana the amount of One Thousand Pesos (P1,000.00) as damages and to pay proportionately the cost of the proceedings. 6 On the
same day, Accused-petitioner Gonzales filed a notice of appeal which was favorably acted upon by the court.

On the following day, the defense counsel filed an omnibus motion asking for, among others, the reopening of the case to allow the accused to present
evidence. 7 The motion was denied by the respondent judge, it being one of the prohibited motions under Section 15(c) of the Rule on Summary Procedure.

On January 3, 1986, the trial court read again the decision in the presence of accused-petitioner Cajes who appeared before the court. The trial court denied
the subsequent motion of the defense counsel to re-promulgate the judgment.

On May 16, 1985, the Regional Trial Court rendered judgment on accused-petitioner Gonzales’ appeal, affirming the decision of the trial court en toto.
Accused-petitioner Gonzales’ motion for reconsideration was denied; hence, this petition for certiorari, where Florecer Gonzales is joined by Leon Cajes, Jr.
Petitioner contends that they were denied the opportunity to present their evidence; that the promulgation of judgment against them was null and void
because the same was made in the absence of their counsel and co-defendant Leon Cajes; and that they are entitled to acquittal since their co-defendant
Jesus Acuna was acquitted. 8

Considering the foregoing factual and procedural antecedents, the Court does not find any jurisdictional error or abuse of discretion on the part of the
respondent courts. On the contrary, they acted and proceeded in accordance with the rules of procedure, at times even exercising liberality to
accommodate petitioners. Counsel for petitioners should be the last to claim denial of opportunity to present evidence after squandering several
opportunities to do so.

In the first place, petitioners through their counsel failed to comply with the July 10, 1985 order of the trial court to submit their counter-affidavits and
those of their witnesses, apparently failing to appreciate the implication of such failure despite notice that the case would be tried under the Rule on
Summary Procedure, Section 14 of which expressly prohibits any witness from testifying during trial without previously submitting his affidavit. They
continued to fail to submit the required affidavits even as their counsel actively cross-examined the witnesses of the prosecution from the initial hearing on
July 24, 1985 until the prosecution rested its case on November 16, 1985, or for a period close to five (5) months.

To the credit of the trial court, it gave the defense another chance to present evidence when it set the reception of evidence for the defense on November
18, 1985 even if accused-petitioners failed to submit their affidavits as ordered earlier. On the scheduled date, however, counsel for the defense at whose
instance the hearing was set, did not even appear or inform the court of his inability to do so as scheduled. While defense counsel may have had a valid
reason to ask for a resetting of the hearing, the court was never formally notified thereof, and it would be too much to charge the court of judicial notice of
counsel’s personal circumstance.

The case having dragged on for several months, the trial court cannot be faulted in considering the case submitted for decision on November 22, 1985,
because Section 17 of the Rule requires that hearing in summary cases, when still ordered, must be finished on the same date set therefor. Furthermore,
petitioners had another chance to present their arguments when the trial court required the parties to submit their respective memoranda; but again the
defense failed to comply.

It would not be to say that the chronicled reluctance of petitioners’ counsel to present simple affidavits and other defensive evidence betrays absence of
real and substantial defense if not a deliberate attempt to prolong and delay the otherwise expeditious and summary procedure mandated by the Rule in
simple cases of this nature.

The Court similarly finds unmeritorious the contention of petitioners that the promulgation of the judgment on December 27, 1985 was invalid because
they were not assisted by their counsel. It has been categorically held that the absence of defendant’s counsel during the reading of the judgment does not
affect the validity of the promulgation. 9 There is a valid promulgation of judgment if the decision is read in the presence of the presiding judge and the
defendant, or the latter’s attorney or representative if the conviction is for a light offense. 10

In the instant case, two of the defendants were present during the December 27, 1985 promulgation of judgment. The trial court read again the decision on
January 3, 1986 to accused petitioner Leon Cajes, Jr. when the latter appeared before the court. While the presence of counsel for the accused is desirable,
the proceedings need not be delayed to suit the whim of counsel who did not show up despite due notice. Besides, the trial court took steps to secure the
rights of the accused when it provided petitioners with a counsel whose services they refused.

As far as petitioner Gonzales is concerned, he has effectively waived any objection to the validity of the promulgation when he appealed the decision to the
regional trial court. With regard to Leon Cajes, the record shows that the court read the judgment to him on January 3, 1986 which is sufficient compliance
with the rules. At any rate, as correctly noted by the Solicitor General, there is no point in remanding the case to the trial court just for the purpose of
reading again the judgment which is already known to the petitioners.

Anent petitioners’ final contention that they are entitled to acquittal because their co-accused Jesus Acuna was acquitted by the same evidence against
them, the Court can only state that such reasoning is plainly non sequitur. It does not necessarily follow under our rules of criminal procedure that once a
co-accused is acquitted the other accused should also be exculpated because precisely the purpose of trial is to determine the liability of each of the
accused. More fundamentally, the task of reviewing the sufficiency of evidence of conviction of the petitioners in cases of this nature properly belongs to
the Court of Appeals in an ordinary appeal, not to this Court in the instant special civil action for certiorari.

Finally, the Court notes with disapproval the lackadaisical handling by Atty. Lord Marapao of his clients’ defense in the case at bar. He was lukewarm and
less than vigilant in the performance of his duties as defense counsel. He took too much for granted, in the process forfeiting his clients’ opportunities to
present evidence in their own behalf. Having wasted several chances to present evidence for the defense due to his own neglect and omission, he vainly
tried to shift to the trial court the blame for the prejudice caused thereby to his clients. For this deplorable conduct and attitude towards his clients’ welfare
and the dignity of the court, Atty. Lord Marapao is hereby ADMONISHED and WARNED that a repetition of the same or similar act in the future will be dealt
with more severely.

WHEREFORE, finding the questioned decision to be in accordance with law, the Rules and jurisprudence, the instant petition is hereby DISMISSED for lack of
merit.

SO ORDERED.

Gutierrez, Jr. and Bidin, JJ., concur.

Feliciano and Cortes, JJ., are on leave.

FIRST DIVISION
[G.R. No. L-4265. March 26, 1908. ]
THE UNITED STATES, Plaintiff-Appellee, v. LUIS PASCUAL, Defendant-Appellant.

DECISION

CARSON, J. :

Appellant was convicted of the crime of estafa, as defined and penalized in paragraph 5 of article 535 of the Penal Code.

It was at the trial, beyond a reasonable doubt, that to the prejudice of the complaining witness the accused appropriated the sum of P310 which had been
intrusted to, and received by him with the obligation of delivering it to a third person.

The only question for consideration is the contention of counsel for the appellant that "no deceit with intent to defraud" having been practiced in obtaining
the money from the complaining witness, it was error to find him guilty of the crime of estafa, because, as counsel contends, "deceit with intent to defraud"
is an essential element of all the various classes of the crime of estafa, In U. S. v. Mendezona (2 Phil. Rep., 353) and U. S. v. Leaño and Gonzalez (6 Phil. Rep.,
368).

Paragraph 5 of article 535 of the Penal Code is as follows:jgc:chanrobles.com.ph

"ART. 535. The following shall incur the penalties of the preceding articles:chanrob1es virtual 1aw library

x x x

"5. Those who, to the prejudice of another, shall appropriate or misapply any money, goods, or any kind of personal property which they may have received
as a deposit on commission for administration of in any other character producing the obligation to deliver or return the same or who shall deny having
received it."cralaw virtua1aw library

We think that these provisions clearly indicate that in this class of estafas "deceit with intent to defraud" in obtaining the money of other personal property
afterwards misappropriated is not an essential requisite. Indeed, it is clear it contemplates more especially those cases wherein the money or other
personal property has been voluntarily intrusted to the offender, without wrongdoing on his part in obtaining or receiving it.

Groizard, in commencing on this class of estafa as defined in the Penal Code of Spain, makes the following observations:jgc:chanrobles.com.ph

"Other classes of "estafa." — A new type now presents itself for study. In the four numbers which we have just commented upon, the acts therein punished
have deceit, artifice, machination, or cunning employed by the agent to obtain and defeat the confidence of the passive subject of the crime, as a common
factor and prevailing circumstance. With regard to the persons accused in the present case such fraudulent activity as is employed by the guilty in order to
obtain possession of the thing, or to effect the fraud, does not exists, or exists in but few cases and in limited proportions. Imprudence, barefacedness,
covetousness, and disloyalty employed in taking advantage of the opportunity, take here the place formerly occupied by deceit. It has been rightly stated by
the Supreme Court "that if the crime of estafa generally contains the element of deceit, the one specially defined in paragraph 5 of article 535 of that of the
Penal Code (equivalent to No. 5 of art. 535 of that for the Philippines) implies on the part of the person committing it a more or less serious abuse of
confidence, it being the purpose of the criminal to obtain a benefit, to the prejudice or fraud of third persons, availing himself of any of the means specified
in the code." (Decision of November 26, 1884;" Commentaries on the Penal Code of 1870, vol. 5, p. 16.)

And Viada, discussing this article, says:jgc:chanrobles.com.ph

"In the matter of estafa, this is unquestionably the article which is most frequently applied in practice, it being also the one that presents the most
difficulties. It is therefore advisable to take carefully into consideration the essential elements of the same. The fact of having received the thing constitutes
the first element, and in this the said crime differs from that of theft, the first element of which is the taking of the thing; it is important to bear in mind
such an essential circumstances so as not to mistake the one crime for the other; in question 11 of the commentary on article 533, we have already seen
that, by reason of having overlooked such an important distinction, the appeal in cassation interposed by the public prosecutor in the case therein dealt
with was rejected be money, goods, or any other personal property, in a word anything which, owing to its value, may be an article of trade: among which
we think are deeds and documents, the appropriation or misappropriation of which might cause a material prejudice — as for example, a deed of sale, a
promissory note, a receipt for money, etc. The third element of this crime consist in that the above stated things may have been received by virtue of
deposit, on commission the obligation to deliver or return them; That s, to deliver or to return the same thing that was received (not an equivalent thereto
in kind or quality) as happens with the deposit, commission, and administration especially dealt with in said article, and also, for example, in the contract of
commodatum by which the bailee is required to return the same thing that he received for a stated use. Finally, the fourth and last requisite essential to the
crime defined in this number, consists in the appropriation or misappropriation of the thing, by whoever received it under such a title and which obliges him
to make restitution thereof, or denying the fact that he received it. (Penal Code, vol. 5 p. 514, 3d ed.)"

It is true that it is sometimes said that "deception with intent to defraud" is an essential requisite of the crime of estafa, but while this is true as to estafas in
general, it is not true of those estafas mentioned in the article under consideration, except in so far the abuse of confidence in misappropriating the funds
or property after they have come to the hands of the offender may be said to be a fraud upon the person injured thereby.

In the case of the United States v. Mendezona, cited by counsel for the appellant, it was said that "deceit with intent to defraud" is an essential element of
the crime of estafa, but in that case in paragraph 1 of article 535, and the language of the opinion must be taken to refer more particularly to estafas of that
class; and while it is true that in the case of The United States v. Leaño and Gonzalez, wherein the accused were convicted of an estafa under paragraph 5 of
article 535, the court found that there was "deceit with intent to defraud" in procuring the deposit of a ring which was afterwards misappropriated, it will
be found that the complaint so charged and this findings was sustained by the evidence in that particular case. We think, however, that the conviction in
that case might to support this particular finding, and the language of the decision so far as it appears to lay down the doctrine that "deceit with intent to
defraud" must exist in all cases of estafa , must be understood in the sense indicated in the foregoing citation from Groizard. For while in that case "deceit
with intent to defraud" in procuring the deposit was actually proven, we are of opinion, and so hold, that "deceit with intent to defraud" in procuring the
deposit of the thing misappropriated is not an essential requisite of the estafa defined in paragraph 5 of article 535 of the Penal Code.

We find no errors in the proceedings prejudicial to the rights of the accused and the sentence imposed is within the limits prescribed by law.

The judgment of conviction and the sentence of the trial court should be, and are hereby, affirmed with the costs of this instance against the Appellant. So
ordered.

Arellano, C.J., Torres, Mapa, Johnson, Willard and Tracey, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-38948 November 18, 1933
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
TOMAS MANANSALA, ET AL., defendants.
GALICANO ALON and RICARDO CABRALES, appellants.

VICKERS, J.:

The appellants Galicano Alon (alias Grego), and Ricardo Cabrales (alias Maning), together with Tomas Manansala, Generoso Jacinto, and Isidro Mendoza,
were prosecuted in the Court of First Instance of Manila for the crime of estafa, committed as follows:

That on or about the 19th day of February, 1932, in the municipalities of Pasay and Caloocan, Province of Rizal, within two and a half miles from the city
limits and within the jurisdiction of this court, and in the City of Manila proper, Philippine Islands, the said accused conspiring and confederating together
and helping one another, did then and there wilfully, unlawfully, and feloniously defraud one Perfecto Abordo in the following manner, to wit: the said
accused by means of false and fraudulent representations which may made to the said Perfecto Abordo to the effect that they had for sale six hundred
(600) tins of opium, a prohibited drug, and that they would deliver the same to him upon paying them P600 in advance and by means of other similar
deceit, induced the said Perfecto Abordo to give and deliver to them, as in fact he gave and delivered to them, the said sum of P600, in consideration of
which the accused gave him a gasoline can which they represented to contain the 600 tins of opium, when in truth and in fact, as the said accused well
knew, the said can contained only six small tin cans containing a black substance which was not opium, the accused thereby wilfully, unlawfully, and
feloniously defrauding the said Perfecto Abordo in the sum of P600 to his damage and prejudice in said amount.

That the accused Tomas Manansala y Velasco and Galicano Alon y Ponce (alias Grego) have each once been convicted of the crime of estafa; and the
accused Ricardo Cabrales y Pelorina (alias Maning) and Isidro Mendoza y Santos Sollo are habitual delinquents, the first having been convicted once for
robbery, once for theft and three times for estafa, having served his last sentence on February 4, 1927, and the second having been convicted one of estafa
and once of robbery, having served his last sentenced on October 30, 1922, all of said convictions having been rendered by virtue of final judgments of
competent courts.

After the prosecution had rested, the information was dismissed as to the defendants Tomas Manansala, Generoso Jacinto, and Isidro Mendoza for lack of
evidence to show that they had taken part in the commission of the crime. Upon the termination of the trial, Judge Pedro Concepcion found the defendants
Galicano Alon and Ricardo Cabrales guilty of estafa, in accordance with the provisions of article 354, No. 2, of the Penal Code, as amended by Act No. 3244,
and sentenced each of them to suffer four months and one day of arresto mayor, with the accessory penalties prescribed by law, to indemnify the offended
party, Perfecto Abordo, in the sum of P600, with subsidiary imprisonment in case of insolvency, and to pay the proportionate part of the costs.

The trial judge's findings as to the facts as follows:

With respect to the other accused, Galicano Alon and Ricardo Cabrales, the evidence for the prosecution sufficiently shows that about a week prior to
February 19, 1932, the former who gave his name as "Grego" and the latter known by the name of "Maning" in company with another person whom they
called "Pepe" offered to sell Attorney Perfecto Abordo 17,000 tins of opium at P1.50 each telling him that he could sell them for P10 a tin. Tempted with the
prospect of an enormous profit, Mr. Perfecto Abordo agreed to buy the merchandise, and the accused agreed to sell it to him in lots of 1,000 tins at P600
lot. It was agreed that the delivery of P1,000 tins would take place at P5.30 p. m., at the corner of Taft Avenue Extension and Vito Cruz within the
jurisdiction of this city. Attorney Perfecto Abordo accordingly went to the place indicated with the money, and there waited for them. The accused Galicano
Alon arrived alone in an automobile and invited Abordo to go with him to the place where the 1,00 tins of opium were kept. trusting Gallicano Alon, who
always called Abordo "brother" because he claimed to be a Mason like Mr. Abordo, the latter went with him in his automobile to the rotunda of Rizal
Avenue Extension. Chauffeur Jose Jonsay was at the wheel. It was already twilight when they arrived at the rotunda, and there they met Maning, or the
accused Ricardo Cabrales, who, in company with others, was waiting for Abordo in another automobile. The accused Cabrales alighted and shortly
thereafter appeared Pepe who was ordered by Cabrales to get the tins of opium. Pepe got from a lot nearby the can Exhibit A, the top of which was ordered
by Cabrales in order to show Abordo the six tins of opium contained in a wooden box, Exhibit B, which Abordo saw when the top of said Exhibit A was
opened. Finding that said tins really contained opium, Abordo believed that the rest of the contents of the can also consisted of tins of opium. He handed
the six hundred pesos to Maning, who, after receiving the money, immediately went to the automobile where his companions were waiting. At the same
time Abordo returned to his car with the accused Galicano Alon and the person named Pepe, carrying the can. While proceeding towards Taft Avenue
Extension Abordo noticed that the accused Cabrales was following in his automobile, and that when they were nearing the corner of Taft Avenue Extension
and Vito Cruz the car in which Cabrales was riding attempted to block Abordo's way, while Galicano Alon told Attorney Abordo that those in the other
automobile were constabulary men and it would be better to get rid of the can Exhibit A. The accused Cabrales, whom Attorney Abordo was able to
recognize very well, and the companions of the former whom Abordo was not able to identify because it was already dark, approached his car saying that
they were constabulary agents and told Abordo that he was under arrest. Knowing that they were not constabulary agents and that their purpose was to
get possession of the can Exhibit A, Abordo drew his revolver and ordered his chauffeur to proceed. Cabrales and his companions again followed him in
their car and for the second time tried to head off Abordo somewhere before the intersection of F. B. Harrison and Vito Cruz streets, but Abordo proceeded
until he arrived at his house. There he opened the can Exhibit A and inside he found the wooden box Exhibit B, but the rest of the contents of the can was
sand. He bore a hole in one of the tins and found that it only contained molasses.

The accused tried to give, by their testimony and that of Miguel Rosales, who had been convicted twelve times of estafa, a long story to the effect that
Abordo engaged the accused Cabrales, through the intervention of Miguel Rosales, to prepare 1,000 tins of molasses resembling tins of opium, that on the
afternoon agreed upon for the payment of the value of said tins, Abordo refused to deliver the money on the pretext that the purchaser of said tins had not
arrived, and invited the accused to his house in Pasay in order to make the payment inasmuch as they insisted upon collecting from him; but before arriving
in Pasay Cabrales stopped Abordo's automobile and required the latter to hand over the money, at the same time placing at the side of Abordo's
automobile a sack which he said contained the 1,000 tins of molasses asked for by Abordo.

It is hardly necessary to state that this story is a sheer fabrication.

The attorney for the appellants makes the following assignments of error:

I. El Juzgado incurrio en error al declarar que las pruebas demuestran que Ricardo Cabrales y Galicano Alon, en compañia de otro individuo llamado "Pepe",
vendieron al abogado Perfecto Abordo mil latas de opio falsificado por el precio de P600.

II. El Juzgado incurrio en eror al no declarar que el supuesto ofendido, Perfecto Abordo, por medio de Miguel Rosales, encomendo a Ricardo Cabrales la
confeccion de mil latas de opio al precio de P0.60 cada lata poniendo como contenido melaza, para venderlas como opio legitimo.

III. El Juzgado incurrio en error al no declarar que aun en el supuesto de que realidad Ricardo Cabrales vendio a Perfecto Abordo dichas mil latas de opio por
el precio de P600, el acusado Galicano Alon nada tiene que ver con dicha venta.
IV. El Juzgado incurrio en error al no absolver a los acusados apelantes, apreciando cuando menos en favor de los mismos y sobre todo en favor del
apelante Galicano Alon, el beneficio de la duda racional.

The assignments of error raise only questions of fact, depending on the credibility of the witnesses. No reason has been adduced that would justify us in
disturbing the findings of the trial judge. As to the contention of the appellants, the trial judge found it to be a mere fabrication and worthy of no credit. The
witnesses for the defense were Miguel Rosales and the appellants themselves. The evidence shows that Miguel Rosales had been convicted of the
falsification of commercial documents in twelve cases. The appellant Galicano Alon had been convicted of estafa, and the other appellant, Ricardo Cabrales,
had been convicted once of robbery, once of theft, and three times of estafa. The trial judge was fully justified in disbelieving the improbable story of said
witnesses.

The crime committed by the appellants is that of estafa as defined in article 315, paragraph 1 (a) of the Revised Penal Code, which provides that any person
who shall defraud another through unfaithfulness or abuse of confidence by altering the substance, quantity, or quality of anything of value which the
offender shall deliver by virtue of an obligation to do so, even though such obligation be based on an immoral or illegal consideration. The amount of the
fraud being P600, the penalty applicable is arresto mayor in its maximum period to prison correccional in its minimum period, and it appearing that the
appellant Galicano Alon has already been convicted of estafa, he is therefore a recidivist, and the penalty applicable to him should be imposed in the
maximum degree.

It was alleged in the information that Ricardo Cabrales was a habitual delinquent because he had been convicted once of robbery, once of theft, and three
times of estafa, and that the last penalty for estafa was extinguished by him on February 4, 1927. These prior convictions were admitted by him in open
court. He is therefore a habitual delinquent, but his prior convictions can not be taken into consideration also as an aggravating circumstance for the
purpose of increasing the principal penalty, which should therefore be imposed in the medium degree.

As the additional penalty, the Solicitor-General recommends the medium degree of prision mayor in its minimum and medium periods, or from six years
and one day to seven years and four months. This is erroneous. It is apparently based upon the mistaken idea that only the prior convictions of this
appellant for estafa are to be taken into account. The correct interpretation of the law is that all prior convictions of any of the crimes of theft, robbery,
estafa, or falsification should be taken into account when a person is convicted of any one of these crimes and of being habitual delinquent. To hold
otherwise, a person might be twice convicted of each of these four crimes, and still not be a habitual delinquent.

For the foregoing reasons, the appellant Galicano Alon is sentenced to suffer one year, eight months, and one day of prision correccional, and the appellant
Ricardo Cabrales is sentenced to suffer one year and one day of prision correccional, and said defendants are jointly and severally sentenced to indemnify
the offended party in the sum of P600, with the corresponding subsidiary imprisonment in case of insolvency. The appellant Ricardo Cabrales having been
previously convicted five times of theft, robbery, or estafa, he is sentenced as a habitual delinquent to suffer an additional penalty of eleven years, six
months, and twenty-one days of prision mayor.

As thus modified, the decision appealed from is affirmed, with the costs against the appellants.

Street, Malcolm, Villa-Real, Hull, and Imperial, JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 1002 July 25, 1903
THE UNITED STATES, complainant-appellant,
vs.
SECUNDINO MENDEZONA Y MENDEZONA, defendant-appellee.

TORRES, J.:

On May 12, 1902, the Attorney-General filed the complaint appearing on page 1 of the record, and amended as shown on page 50, charging Don Secundino
Mendezona y Mendezona with the crime of estafa, committed as follows:

That on September 10, 1900, in the city of Manila, capital of the Philippines, Mendezona, sole manager of the partnership of Mendezona & Co., wilfully and
knowingly made and executed before Don Enrique Barrera y Caldes, a duly authorized notary public, a certain contract of pledge in favor of the Compañía
General de Tabacos de Filipinas, by means of public document No. 724, in which the accused sets forth and agrees advanced by the Compañía General de
Tabacos de Filipinas, as well as for those which may hereafter be advanced up to the sum of $300,000, Mendezona & Co., represented by Don Secundino
Mendezona pledged in favor of their said creditor, 20,000 bales of Sorsogon, Legaspi, Tabaco, and Lagonoy hemp, stored in their warehouses located at No.
48 Isla de Romero Street, solemnly affirming that the said 20,000 bales have been neither assigned, transferred, nor encumbered, and, in token of the
delivery of the possession thereof, the said Mendezona thereupon surrendered to the representative of the said Compañía General de Tabacos the keys of
the said warehouses in which were stored the 20,000 bales of hemp pledged.

That on the said 10th day of September, 1900, the said Mendezona delivered, in the city of Manila, to the Compañía General de Tabacos the possession of
all the hemp that day contained in the warehouses situated at No. 48 Isla de Romero Street, by surrendering to the said company the keys thereof, in
accordance with the terms of the said document No. 724.

That the facts thus set forth and affirmed by the said Mendezona in the said document were false and untrue in this particular, to wit: That the warehouses
mentioned in the said document did not contain, at the time of the making and execution of the contract of pledge, 20,000 bales of hemp, but, on the
contrary, their contents did not exceed 12,000 bales, as the said Mendezona well knew at the time.

That a considerable number of the bales specifically enumerated by marks and figures in the document referred to had no existence, but, as a matter of
fact, such bales, purporting to be designated by marks and figures, were entirely imaginary, and that this was well known to the accused, Mendezona.

That at the time of the execution of the said document and the pledging of the hemp, the said bales of hemp contained in the warehouses at No. 48 Isla de
Romero Street were not free from incumbrance, but on the contrary, a large part of the same was pledged of a loan of 200,000 Mexican pesos, the said loan
having been made on the 18th day of April, 1900, of which the said Secundino Mendezona was well aware.

That part of the said bales of hemp was pledged to the Chartered Bank of India, Australia, and China as security for another loan of 250,000 Mexican pesos,
made the 24th day of August, 1900, which was also well known to the said Secundino Mendezona.

That at the time of the execution of the said document No. 724, and the making of the said contract of pledge by the said Mendezona, the bales of hemp
contained in the said warehouses were not all the property of Mendezona & Co., but, on the contrary, a part of the same was stored in the said warehouses
subject to the disposal of Don Angel Ortiz, Don Francisco Reyes, and the widow of the Chinaman Tan-Auco, the owners thereof, all of which was well known
to the said Don Secundino Mendezona y Mendezona.

And that, by virtue an by means of the said false and fraudulent representations made by the said Secundino Mendezona y Mendezona, the latter
fraudulently obtained from the partnership of Mendezona & Co., from the said Compañía General de Tabacos, in consideration of the pledge falsely and
fraudulently made, a credit of 300,000 pesos, of which amount there was delivered the sum of 207,814.01 pesos; that by this operation, thus fraudulently
consummated, he defrauded the Compañía General de Tabacos, inasmuch as the latter, instead of having been able to recover, long before the date of the
complaint, the entire sum advanced to Mendezona & Co., together with the interest stipulated (as would have been the case if the security given had been
real and bona fide), owing to the falsity and consequent insufficiency of such security, the said Compañía General has been compelled to forego the
recovery of the stipulated interest which has accrued, and up to the date of the complaint was unable to recover the total amount actually delivered to
Mendezona & Co., there still lacking for this purpose 50 per cent of such amount; this against the statute in the case made and provided. Upon filing the
preceding complaint a preliminary investigation was had, and, notwithstanding the exception entered by the accused, the action was commenced, the
latter's demurrer being overruled by an order of June 6, 1902, and the accused being commanded to answer the charge of the day fixed.

From the documentary and oral evidence introduced in this case it appears that during the last days of August, 1900, Don Secundino Mendezona, in the
name of the partnership of Mendezona & Co., induced the general manager of the Compañía General de Tabacos de Filipinas to open an account-current
with his firm, with credit up to the sum of 300,000 pesos, and that Don Secundino Mendezona commenced to make use of the credit granted on the 27th of
the said month of August, drawing considerable sums in money and goods up to the 5th of September following, at which time his drafts from the vaults
and storehouses of the Compañía General amounted to the important sum of $171,506.52. (Pp. 162-165, record — documentary evidence.)

About September 7, 1900, at the request of the head manager of the Compañía General, it was agreed between the said company and the accused
Mendezona that the latter should execute, as security for the said credit, a contract of pledge on the 20,000 bales of hemp stored in the warehouses at No.
48 Isla de Romero Street,. and the document No. 724 was accordingly executed on September 10, 1900, before the notary public Señor Barrera, signed on
the one in the name of the firm of Mendezona & Co., by Don Secundino Mendezona y Mendezona, the manager thereof, and on the other by don Antonio
Correa y Pomar, as general manager of the Compañía General de Tabacos de Filipinas, there appearing in the said document, among others, the following
stipulations: That Mendezona & Co., represented by Don Secundino Mendezona, bound themselves to the payment, to the Compañía General de Tabacos,
of interest at the rate of per cent per annum on the outstanding balance of the account current opened with them, the said interest to begin from the date
of the first draft made, the debtors affirming that they had already received from the Compañía General, on account of the credit allowed them, the sum of
$171,506.52. The date for the termination of the contract was fixed at December 31, 1900, when the account opened with the said Mendezona & Co. would
be wholly liquidated, the said Mendezona & Co. binding themselves to return to the Compañía General, on the date referred to, any balance that might
exist in favor of the latter, and that, as security for the sums already advanced by the said Compañía General as well as for any that might thereafter be
advanced up to the said $300,000, Don Secundino Mendezona, in the name of the Mendezona & Co., pledged, in favor of their said creditor, 20,000 bales of
Sorsogon, Legaspi, Tabaco, and Lagonoy hemp, then stored in their warehouses at No. 48 Isla de Romero Street, declaring that the said 20,000 bales had
not been assigned, transferred, or in any way encumbered. In token of the delivery of the possession thereof, the said Mendezona thereupon delivered to
the representative of the Compañía General the keys of the warehouses in which were stored the 20,000 bales of hemp pledged, the marks and classes of
which are fully enumerated in the said instrument or document (record, documentary evidence, pp. 50-62) it being admitted between the parties (record,
p. 387) that the delivery of the said keys was actually accomplished, as set forth in the instrument referred to.

Some days after the execution of the above mentioned-document No. 724, dated September 10, 1900, owing to a statement by Don Carlos las Heras, the
consulting engineer of the Compañía General, made as the result of a visit with Señor Churruca, the assistant manager, to the principal warehouse on Isla
de Romero Street about the middle of that month, and of a rough calculation which he had made concerning the number of bales of hemp stored therein,
to the effect that in his opinion there were only about 12,000 of such bales, the general manager of the Compañía Tabacalera, Don Antonio Correa, ordered
the said Señor Churruca to visit Mendezona and acquaint him with the said statement of the consulting engineer, to the effect that there were not 20,000
bales of hemp in the said warehouse; that in the interview which followed between Mendezona and Señor Correa it was agreed that a recount of the bales
stored should be made in the presence of the notary public, Don Enrique Barrera, by a representative of the Compañía Tabacalera and an employee of the
firm of Mendezona & Co. — Señor Fradua, the superintendent of the warehouse. The result of this recount was embodied in a new instrument dated
September 26 of that year, and in a notarial act of the 27th of the same month.

It is to be noted that after the execution of the contract of pledge, by the instrument dated September 10, the firm of Mendezona & Co. continued to draw
goods and money from the 11th to the 20th of the said month of September, the value of the goods and money thus received reaching the sum of
$124,704.89, as appears from the running account (pp. 162, 163), which sum, added to those drawn at various times between the 31st of August and the
5th of September, makes a total of $296,211.41, without reckoning accrued interest.

In the said instrument of September 26, 1900, No. 779, it was agreed between the parties thereto, Don Secundino Mendezona, as manager of the firm of
Mendezona & Co. and Don Antonio Correa y Pomar, as manager of the Compañía Tabacalera, among other things, to exchange for the 20,000 bales of
hemp pledged in the instrument No. 724 another 20,000 bales, the classes and marks of which were to be recorded in detail as the said bales should be
counted, and that, once the recount should be confirmed and the classes and marks of the said 20,000 bales determined, the said 20,000 bales should
immediately become subject to pledge in favor of the Compañía General de Tabacos, as security for the credit mentioned in the said instrument of
September 10 of that year, in place of the 20,000 bales previously pledged; that, in order that the correctness of the said inventory might be
unquestionable, they agreed that the said notary public should be installed in the warehouse in which were stored the said bales of hemp, and should
record, in notarial acts, the number, classes, and marks of the bales delivered, and that the said notarial acts, as well as the said instrument, were to be
considered as additional to the document No. 724, and dated September 10, 1900; and that the said notary public thus installed in the warehouses of
Mendezona & Co., located at No. 48 Isla de Romero Street, accordingly proceeded, in the presence of the parties interested, to recount the said bales of
hemp delivered by Mendezona to the Compañía General de Tabacos, duly recording in the instrument the classes and marks of each bale; and it
furthermore appears that the said notary also recounted a certain lot of bales of hemp stored in the warehouses of the Compañía General de Tabacos,
which had been delivered to the latter by Mendezona, recording the classes and marks of the said bales in the instrument shown on pages 128 to 139 of the
record of documentary evidence.

The notarial act No. 782, executed September 27, 1900, by the said notary Barrera, gives the result of the continuation of the inventory of the said bales
pledged by Mendezona & Co., in favor of the Compañía General de Tabacos, as stipulated in the instrument executed the day before by the accused,
Mendezona and the general manager of the said Compañía General. Both Mendezona and the said general manager of the Compañía General were
present, as above stated, at the counting of the bales of hemp whose classes and marks are recorded in the said notarial act. It also appears from the latter
that an inventory was made of the bales contained on the lighters and boats mentioned in the said act (pp. 140-150).

The record discloses the fact that some time between the 19th and 21st of September, 1900, some ten or eleven days after the execution of the instrument
of the 10th above referred to, and the pledge of the 20,000 bales of hemp, upon an examination being made of the warehouse in which the hemp was
deposited, and after a careful calculation made by the engineer and two of the company's warehousemen it was found that there were only 10,900 bales of
hemp there, more or less. This result appears to be confirmed by the books showing the receipt and discharge of hemp in Mendezona & Co.'s warehouse on
Isla de Romero Street. It is also confirmed by the testimony of Don Ramon Caro, Mendezona's warehouseman, who examined the books and who, in view of
the result, drew up the statement of the stock of hemp which the firm of Mendezona & Co. at the time had, which statement forms part of the record.
Furthermore, Señor Garriz, one of the members of the firm, testified in the case that on the 10th of September, 1900 (p. 101), there were not 20,000 bales
of hemp in the Isla de Romero Street warehouse, and that on this account Mr. Correa, being alarmed at the insufficiency of the security, and the defendant
Mendezona having been informed thereof, of the latter undertook to complete the 20,000 bales pledged. It is also worthy of note that when Fradua, the
warehouseman, was required by Fernandez, one of the clerks of the Tabacalera Company, to show the warehouse books for the purpose of the recount
which they were about to make, the former replied that he had no book.

It also appears that a part of the hemp contained in the Isla de Romero Street warehouse — that is 2,238 bales of the hemp — was not the property of
Mendezona & Co., but that 700 bales belonged to Don Angel Ortiz, 1,081 bales to Don Francisco Reyes, and 457 to the widow of the Chinaman Tan-Auco,
this hemp having been stored in this warehouse subject to the disposal of the owners. This fact is fully established in the record by authentic documents
which show the amount of hemp received at the warehouse and also by the receipts given for the hemp belonging to the persons who had stored it there,
as well as by the testimony of the accused, Mendezona, that of Don Angel Ortiz, and that of the representatives of Don Francisco Reyes and the widow of
Tan-Auco. The same fact is established by the testimony of Don Ramon Caro, who at that time was a clerk of Mendezona & Co. He identified the warehouse
receipts given for the hemp stored in the Isla de Romero Street warehouse, and which was on hand therein on September 10, 1900. The same fact is shown
by the entries in the books showing the receipts at and shipments of hemp from the warehouse. The letters, one dated on the 7th and the other on the
19th of December, 1900 (pp. 10-12), written by Mendezona to the general manager of the Tabacalera Company, asking for authority to withdraw from the
warehouse certain bales of hemp belonging to the widow of Tan-Auco and to Messrs. Ortiz and Reyes, also clearly established this fact, the letter dated the
7th stating that the 32 bales which had been pledged to the company and which should be delivered to Don Francisco Reyes would be replaced by 32 other
bales.

It is to be observed that the hemp belonging to Francisco Reyes and Angel Ortiz and to the widow of Tan-Auco was included in the recount of the bales
recorded in the instruments of the 26th and the 27th of September. If, on the 27th of September, the hemp belonging to these persons was in the Isla de
Romero Street warehouse, and after a careful recount, effected between September 26 and October 2, 1900, all the hemp in the Isla de Romero Street
warehouse and at other places was turned over to the Tabacalera Company and the authority of the company was required for the return of this hemp to
its owners, it is unquestionable that these bales were included in the instruments found on pages 128 and 140 of the documentary evidence and were also
included in the subsequent recount made up to the 2d of October, in the course of which up to 20,414 bales of hemp were counted, which number was not
recorded in these public instruments, which show only 18,413 counted during the 26th and 27th of September, all of which appears from the testimony of
Don Baldomero Fernandez (107).

It is also a fact fully proven that Don Secundino Mendezona, by a private document dated the 18th of April, 1900, for the purpose of securing a loan of
$200,000, pledged to the Spanish-Filipino Bank 10,000 bales of hemp which he asserted were stored at his warehouses on Isla de Romero and Anloague
Streets, binding himself to hold this hemp as a deposit. this fact appears from a document shown on page 69 of the record, the authenticity of which has
been admitted by the defendant (p. 325). It is also corroborated by the testimony of Don Ramon Caro, who states that there were 2,255 bales of hemp in
the Isla de Romero Street warehouse which formed part of the 10,000 bales pledged to the Spanish-Filipino Bank, this fact appearing from the books which
had examined.

It is also a fact, proven by the evidence, that, for the purpose of securing a loan of $250,000 of the defendant Mendezona, by a public instrument of August
24, 1900, pledged to the Chartered Bank 10,002 bales of hemp, which he asserted were on deposit at the warehouse located at No. 48 Isla de Romero
Street. He delivered to the agent of the bank the keys of this warehouse and placed the hemp so pledged at the disposal of the creditor, in conformity with
the fourth clause of contract, appearing on page 63 of the record, the authenticity of which has also been admitted by Mendezona (p. 324). The fact that
the keys were actually delivered is also confirmed by the testimony of Don Baldomero Fernandez, who stated that on the morning of the 25th of
September, 1900, while engaged in recounting the hemp at the Isla de Romero Street warehouse, an Englishman came and asked the warehouseman,
Fradua, which was the lock corresponding to the key he had with him, and tried this key on the new padlocks, and not having succeeded in opening them,
went away: that between 5 and 6 in the afternoon of that day another Englishman came in and demanded the delivery of the keys of the warehouse, to
which demanded the delivery of the keys of the warehouse, to which demand the witness refused to accede; that he reported the matter to Mr. Correa, the
general manager of the Tabacalera Company, who sent his son, who spoke English, to make inquiry; that after some conversation between Correa's son and
the Englishman the latter went away, the witness adding that he subsequently learned that this man was one of the managers of the Chartered Bank. The
witness Ramon Caro, the clerk of Mendezona & Co., testified (record, pp. 136, 219) that on the 10th of September, 1900, according to the books of the
warehouse located at No. 48 Isla de Romero Street, there were at the warehouse 4,251 bales which were part of the 10,002 pledged to the Chartered Bank.
It is also a proven fact that on August 24, 1900, Don Secundino Mendezona, as manager of Mendezona & Co., pledged to the Hongkong-Shanghai Banking
Corporation, by a public instrument, 16,699 bales of hemp, which he stated were on deposit in the warehouses of Doña Cornelia Laochangco at Tanduay.
This pledge was to secure a loan of $400,000, and the keys of the Tanduay warehouse were accordingly delivered to Mr. Jones, the agent of the bank, and
the hemp pledged placed at his disposal, in accordance with clause 4 of the contract, which appears on page 70 of the documentary evidence. The
defendant Mendezona and the witness Venancio de Jesus corroborated this statement as to the delivery of the keys to the agent of the bank.

Notwithstanding the context of this instrument of September 26, the record contains sufficient evidence to show unquestionably that there was no
substitution or exchange of the 20,000 bales of hemp for 20,000 other bales which were formerly stored in the Isla de Romero Street warehouse. What was
done in the presence of the notary Barrera, in accordance with the agreement between the Mendezona, the defendant herein, and Señor Correa, the
general manager of the Tabacalera Company, was to have a recount made of the hemp in Mendezona & Co.'s warehouses, for the purpose of dissipating
the doubt or belief on the part of the creditor corporation that the warehouses did not contain the 20,000 bales of hemp pledged by the contract of
September 10; and to complete the 20,000 bales so given as security, according to the statement of Don Florencio Garriz, a member of the firm of
Mendezona & Co. (record, p. 81), in the course of making the inventory several thousand bales of hemp, part of which arrived by the steamer San Nicolas,
and part being taken from the Tanduay, Anloague, and Barrera warehouses, were taken to the Isla de Romero warehouse, apart from the 1,700 bales which
arrived on the steamer Union, and the 21 bales which were taken from a casco. All these bales of hemp, added to the 10,900, which, according to the
calculation made and according to the books of the firm, were the total amount in the warehouse September 10, 1900, the date of the pledge, made a total
of 20,414 bales, after making the recount. The fact that the hemp was taken into the Isla de Romero warehouse is shown by entries in the books
corresponding to the Tanduay, Anloague, and Barraca, warehouses, and by other documents in the record, some of which have been identified by Venancio
de Jesus, a clerk of Mendezona & Co. The fact that the hemp was so taken into the warehouse was also shown by the testimony of Don Baldomero
Fernandez, a representative of the Tabacalera Company, who took charge of the warehouses after September 10, and also by the witness Don Ramon Caro,
a clerk of Mendezona & Co.

According to the documents dated the 23rd of July and the 30th of June, 1900 (record, pp. 76, 84). Mendezona & Co., to secure two loans, one of $250,000
and another of $425,000, from the Chartered Bank, pledged a warehouse receipt issued by Messrs. Stevenson & Co. for 505 bales of hemp, and several
warehouse receipts issued by Mr. J Sloan for 22,311 bales stored in the Tanduay warehouses.

On September 20, 1900, Mendezona & Co. indorsed to the Chartered Bank several warehouse receipts signed by Mr. Sloan, representing 2,745 bales of
hemp, as security for a loan of $200,000.

On April 18, 1900, Mendezona & Co. pledged to the Spanish-Filipino Bank, as security for a loan of $200,000, 10,000 bales of hemp stored in the Anloague
and Isla de Romero warehouses; and on June 21 of the same year they pledged another 10,000 bales of hemp stored in the Tanduay warehouses, as
security for another loan $200,000. These facts are shown by documentary evidence in the record (pp. 69, 92, 93).

From the testimony of the defendant Don Secundino Mendezona and that of his partner, Don Florencio Garriz, it appears that on account of the heavy fall
in the price of hemp in the market of this city and of heavy losses suffered, the firm of Mendezona & Co. found itself heavily indebted and unable to meet
its obligations, for which reason the manager of the company, Don Secundino Mendezona, the defendant herein, after having consulted his partners
concerning the situation, on September 28, 1900, found himself compelled to suspend payments, and went to Señor Barrera, a notary public, and informed
the latter of this situation, asking him to make out the necessary statement required by the Code of Commerce. But the notary Barrera, instead of doing so,
told the defendant that he would undertake to see the managers of the banks and try to make arrangements to enable the firm to continue, and that
Barrera, in view of the defendant's determination to suspend payments, assured him that he could arrange matters.

As a result of the conferences held between the principal creditors and some of the members of the firm of Mendezona & Co., an agreement was entered
into, which was recorded in a public instrument dated October 7, 1900, in which it was stated that, in consideration of the heavy losses which had been
suffered by the firm and other special circumstances which had compelled it to suspend payments, the principal creditors, among them the Tabacalera
Company, represented by Don Antonio Correa, had decided to give their support in order that the firm of Mendezona & Co. might be able to meet its
obligations, and among other things it was determined to modify the firm of Mendezona & Co., Messrs. Juan Ormaechea and Florencio Garriz entering the
firm as partners and becoming the managers of the new firm, which was to be organized for a period of three years, to run from the 1st day of October,
1900; that these managers were to be subject to the resolutions of a board of inspection, composed of the managers of the Chartered Bank, the Hongkong-
Shanghai Banking Corporation, and the Spanish-Filipino Bank, the general manager of the Tabacalera Company, some person to be appointed by the
Community of Agustinian Fathers, and Don Isidro Arizaleta or Don Fabian Artadi, whenever the latter should be in this city, the conditions under which the
business was to be carried on being expressed in the contract. The three banks, the Tabacalera Company, and the Community of Agustinian Fathers opened
with the firm of Mendezona & Co. a credit in account-current up to the sum of $250,000, which was subsequently extended to $800,000 at 6 per cent per
annum, this amount to be paid back in equal proportions (p. 185). Eighty per cent of the indebtedness of the firm to the Chartered Bank, the Hongkong-
Shanghai Banking Corporation, the Spanish-Filipino Bank, the Tabacalera Company, and the Community of Agustinian Fathers was to be paid off, these
creditors then to share with the other creditors as to the remaining 20 per cent of their claims. By virtue of the preference granted in favor of the three
banks, the Tabacalera Company, and the Community of Agustinian Fathers, the representatives of these creditor corporations solemnly bond themselves
not to make use of the special securities held by each one of them, provided that the agreements established in this contract were enforceable and were
carried out, but, on the contrary, if for any reason the agreements were not carried out, then the preferred creditors were entitled to avail themselves of
their securities, and the waiver established in this clause of the contract was to be rescinded. Mendezona & Co., in turn, undertook to give new security to
the five preferred creditors as to 80 per cent of their claims by executing in their favor a mortgage upon all their real property, vessels, etc., the same to be
regularly recorded in the property register, and also by pledging to their said creditors all the hemp belonging to the firm in Manila and the provinces, by
means of the necessary instruments.

By an instrument dated December 12, 1900, the managing partners of the firm of Mendezona & Co., Don Juan Ormaechea and Don Florencio Garriz, acting
in accordance with the authority conferred upon them by the instrument of October 13 of that year, and the creditors of the said firm, among them the
Tabacalera Company, represented by its general manager, Don Antonio Correa y Pomar, declared that, owing to heavy losses suffered by the firm of
Mendezona & Co., of which Don Secundino Mendezona was the sole managing partner, the firm was unable to meet its obligations at their respective
maturities, and that therefore the said creditors, among them the representative of the Tabacalera Company, had agreed upon the conditions subject to
which the firm might continue its business, which conditions were expressed in a notarial act of October 7, 1900, which was made a part of the contract
now referred to; that the conditions stipulated inn that act having been complied with, the agreement was to be carried into effect, and that therefore the
representative of the Tabacalera Company canceled and annulled the security given by Mendezona & Co. in favor of the Tabacalera Company, by a pledge
of 20,000 bales of hemp, as security for a credit in account-current for $300,000, in accordance with the instrument of September 10, 1900, and modified by
another instrument of the 26th of the same month, in which, as well as in the notarial act of the following date, appeared a statement of the bales pledged;
that the managers Ormaechea and Garriz acknowledged to have received from the five principal creditors, among them the Tabacalera Company, the sum
of $800,000, and to secure this sum, as well as 80 per cent of the indebtedness of the firm to the said five principal creditors, which said 80 per cent
amounted to the sum of $3,109,344.28, they pledged to the said five creditors the bales of hemp described in the contract by marks and classes, as also the
vessels of the firm, and executed a special mortgage upon the real property described therein, as well as an interest in the business and other property
therein mentioned.
By a notarial act of the 1st of April, 1901, the managers and the several creditors of Mendezona & Co. agreed, among other things, to declare the firm of
Mendezona & Co., dissolved, and their business was thrown into liquidation, the terms upon which the liquidation was to be conducted being expressed in
the contract; that the liquidators were to be one or three; and in case the latter number should be decided upon, then two of them should be appointed by
the creditors representing two-thirds of the capital, and one by the other creditors; that on and after that date no credit should draw interest, with the
exception of the account-current of the Spanish-Filipino Bank, and it was unanimously resolved to release Messrs. Florencio Garriz, Juan Ormaechea,
Secundino Mendezona, Roman Echevarria, and Antonio Elizalde from all liability as managers and as partners.

In view of the facts established at the trial, as shown in the preceding statement thereof, can it be said that the crime of estafa, defined and punished by
article 534, paragraph 3, and article 535, paragraph 1, of the Penal Code, has been committed, as charged in the information, and as alleged in the brief of
the Solicitor-General? Our answer is in the affirmative.

Notwithstanding the fact that the defendant Secundino Mendezona pleaded not guilty to the charge of estafa brought against him, the record contains
evidence of the existence of this crime, and more than sufficient proof to fully convince the mind of the guilt of the defendant of the estafa of a large sum of
money, because, when the demand was made upon the defendant by the general manager of the Tabacalera Company to give security for the return or
payment of the credit of $300,000, upon which he had already drawn $171,506.52, he executed public instrument No. 724, dated September 10, 1900, by
which he pledged to the creditor company 20,000 bales of hemp which he pretended to have in his warehouse at No. 48 Isla de Romero Street, the fact
being that there were only 10,900 bales there, as shown by an expert calculation and by the stock books of this warehouse, which number of bales has been
confirmed by the testimony of the witness Don Ramon Caro, a clerk at that time of Mendezona & Co., who carefully examined these books; and this apart
from the fact that there were in the warehouse at that time on the storage 2,238 bales of hemp, 700 of which were the property of Don Angel Ortiz, 1,081,
of Don Francisco Reyes, and 457 of the widow of Tan-Auco, which said bales so stored should have been deducted from the 10,900 bales of hemp which
alone were in the warehouse at that time.

The existence of the crime is furthermore established by the proven facts that, on September 10, 1900, there were in the warehouse at No. 48 Isla de
Romero Street, some 2,255 bales were part of the 10,000 bales pledged to the Spanish-Filipino Bank as security for a loan evidenced by an authentic
document adduced in evidence (record, p. 69); 4,251 ales, which were part of the 10,002 bales of hemp pledged to the Chartered Bank, as security for a
loan evidenced by a public instrument produced in evidence, in which instrument it appears that the keys of the said warehouse were delivered over as a
symbol of the possession of the bales pledged; and that some 5,213 bales of said hemp had been pledged to the Chartered Bank as security for another
loan, evidenced by the document shown on page 126 of the record, the authenticity of which has been admitted by the defendant.

It is therefore unquestionable that there at least 13,957 bales of hemp in that warehouse pledge to other creditors or belonging to other persons, as this
fact is fully established by authenticity documents, of which the first two documents of pledge indicate a greater number of bales pledged, the sum total of
which show, first, the truth of the statement of the witness of Don Ramon Caro after an examination of the books of the firm, to the effect that of the
10,000 bales of hemp in stock September 10, 1900, in the warehouse at No. 48 Isla de Romero Street, only 505 bales corresponded to the marks and
countermarks of the bales pledged in the instrument of that date; and, second, that of the bales pledged to the two banks, the greater part of the hemp
supposed to be in stock at the Isla de Romero warehouse was not there as stipulated, as there should have been at least 13,957 bales, the fact being that
there were only 10,900, as stated.

It is sufficient for us to say that we neither affirm nor deny the validity and legal sufficiency of the pledges made on the 18th of April and the 20th of
September, 1900, to the Spanish-Filipino Bank and the Chartered Bank. We have referred to them solely for the purpose of showing the fraudulent conduct
of the accused when pledging 20,000 bales of hemp as security for indebtedness to the Tabacalera Company, there not being, as shown at the trial, any
such number of bales of hemp in the Isla de Romero warehouse.

For the purpose of defining the crime and weighing the evidence taken, it is a matter of indifference that in December, 1900, the firm of Mendezona & Co.
had 73,722 bales of hemp, because, as against three figures, we find others representing a larger amount of indebtedness and pledges, as security for the
considerable sums of borrowed. The question in issue is whether, on September 10, 1900, there were or were not 20,000 bales of hemp in the warehouse
at No. 48 Isla de Romero Street. The defendant has not proved that this amount was there, but, on the contrary, it has been demonstrated that there were
scarcely 10,900 bales on hand, the greater part of which were either the property of third persons or had already been pledged to other creditors.

It is true that, a suspicion having arisen as to whether there were or were not 20,000 bales of hemp in that warehouse, they proceeded to make a recount,
according to an agreement between the parties, and that the result of this operation showed that there were some 20,414 bales there, but it is also true
that during the making of this recount thousands of bales of hemp were taken into this warehouse which had been brought from the Tanduay, Anloague,
and Barraca warehouses and included in this recount, as well as several thousand other bales of hemp which had arrived on the steamers Union and San
Nicolas, and that other bales were included in the recount which were lying alongside in cascoes and lighters, these facts being evidenced by the books of
the firm, authentic documents, and the testimony of credible witnesses. The total amount of hemp included in the recount was 20,414 bales, including the
bales deposited and those pledged to other creditors.

So that it is beyond question that on September 10, 1900, the 20,000 bales of hemp pledged to the Compañía General de Tabacos as free from all
incumbrance were not in the warehouse at No. 48 Isla de Romero Street, and that consequently when Mendezona so stated in the instrument of
September 10, 1900, he made a false assertion, and pretended the existence of 20,000 bales, thereby deceiving the creditor corporation, and, by this abuse
of the confidence reposed in him, defrauding the said corporation.

If the manager, Señor Correa, had demanded recount of the bales at the time of the pledged of the 20,000 bales of hemp so agreed upon by the instrument
of September 10, before the delivery of the keys, and it had been discovered that there was no such number of bales in the Isla de Romero warehouse, but
much less, and that part of the hemp stored there was the property of others, and that the greater part was pledged to two banks as security for large loans
advanced, he would have been within his rights in demanding the completion of the number of bales agreed upon, or to suspend the delivery of the rest of
the agreed credit to the debtor, which amounted to the considerable sum of $124,704.89.

The manager of the Tabacalera Company, trusting to the security agreed upon in the instrument of September 10, and the apparent good faith of the
accused, continued to advance the latter money and the goods from the 11th to the 20th of that month on account of the credit of 300,000 pesos, up to the
sum of $296,211.41. Therefore the amount obtained by the estafa must be at least the sum mentioned of $124,704.89, the sum total of the cash and goods
delivered to Mendezona in consideration of the false security fraudulently offered by means of the instrument referred to, admitting that more than one
half of the credit, to wit, the sum of $171,506.52, had been advanced up to the 5th of September without security, and before the agreement to pledge the
20,000 bales of hemp referred to.

The best evidence that the accused has committed the crime of estafa is the demonstration of the concurrence in the consummation of the crime of the
deceit by which he proposed to commit the fraud and the damage suffered by the defrauded corporation. These two elements are indispensable for the
existence of the crime of estafa, and in support of our assertion we refer to the doctrine established by the decisions of the supreme court of Spain, which
are controlling, as they refer to the interpretation and application of the Code now in force, which is of Spanish origin.

The judgment of January 8, 1884, rendered in cassation, lays down the doctrine that the estafa defined in section 1 of article 548 of the Penal Code (535 of
the Philippine Code) is composed of two essential elements, to wit, deceit and damage, or the intent to cause it, the former being employed for the purpose
of producing the latter as a result. In another decision of November 17, 1886, the court says in effect: The essential elements of the crime of estafa, as this
court has repeatedly held, are the deceit employed for the purpose of defrauding and the damage thereby occasioned, both of which are requisites
essential to the existence of any of the cheats defined and punished in the various articles of section 2, chapter 4, title 13, of book 2 of the Penal code
(equivalent to the same section, title, and book, without the chapter, of the Philippine Code). This same doctrine is established in many other judgments of
the highest court of Spain.

The deceit, the first element of estafa, is manifest. Mendezona, when executing the instrument of pledge of September 10, in bad faith and with criminal
intent, induced the manager of the company, Señor Correa, to believe that he was in the possession, as owner, of the 20,000 bales of hemp, free from all
incumbrance and in this capacity he pledged them to the creditor as security for the credit of $300,000, it having been discovered some days afterwards
that there were only 10,900 bales of hemp in the warehouse at No. 48 Isla de Romero Street, and as warehouse receipts showed that this amount included
2,238 bales belonging to third persons, and other authentic documents show that there should have been in that warehouse at least 11,719 bales of hemp
pledged the Spanish-Filipino Bank and the Chartered Bank. It can be asserted conclusively that of the 10,900 bales of hemp in the warehouse, part were not
the property of Mendezona & Co., and the greater part were already pledged as security for the large claims of the two banks mentioned. Therefore, the
existence of the 20,000 bales of hemp pledged to the Tabacalera Company, being imaginary and fictitious, there was undoubtedly deceit in the execution of
the instrument and the giving of the pledge.

Did the accused make any attempt to prove, in the course of the trial, that he had 20,000 bales of hemp free from incumbrance in his warehouse in Isla de
Romero Street on the 10th of September, 1900? No; he did nothing more than to affirm this. Mendezona must have known that the burden was upon him
to prove that he actually did have this number of bales of unencumbered hemp, as asserted in a public instrument. The mere assertion of the accused,
unsupported by sufficient evidence, is not enough in law to overcome the overwhelming proof made by the prosecution.

The result of the recount stipulated in the instrument of September 26, 1900, although it shows 20,414 bales — a much greater number than that pledged
by the instrument of the 10th — is, nevertheless, no evidence that there were 20,000 bales of hemp there on the date of the pledge. The proof does not
show that 20,000 bales were substituted for others of equal number, but thus show during the entire operation of the recount of the bales in the
warehouses, from the 26th of September to the 2d of October, inclusive, thousands of bales of hemp were taken into the warehouse, and that there were
included in that recount several thousand bales more which had been in board two steamers and several other smaller vessels. All this shows that at that
time the warehouse did not contain the 20,000 bales pledged, and that Mendezona, when so affirming in the public instrument executed by him, acted in
bad faith and knowingly deceived his creditor. The instrument of September 26 and the notarial act of the 27th, with the recount of the hemp, have not
served to exculpate Mendezona and demonstrate his innocence, but to show clearly his guilt.

The other element of estafa, the damage, was present because the manager, Señor Correa, being deceived by the concession of an apparent security,
permitted Mendezona to continue to draw in money and goods upon the credit opened to him up to the amount of $124,704.89, in addition to the
considerable amount already received by him. This would not have occurred if the accused Mendezona had not executed the instrument of September 10,
1900, pretending to be the owner of 20,000 bales of unencumbered hemp, and pledging this amount by the delivery of the keys of the warehouse,
notwithstanding the fact that no such amount of hemp was actually in stock. If the accused had not succeeded in deceiving the manager of the Tabacalera
Company and the later had discovered that Mendezona & Co. did not have 20,000 bales of hemp in the Isla de Romero warehouse on the date mentioned,
and was therefore unable to give security for the credit of 300,000 pesos, he would have at once suspended the payments of money and the deliveries of
goods effected from the 11th to the 20th of that month, and which amounted to the sum total of $124,704.89, in which amount the capital of the
Tabacalera Company was diminished, and the debt of Mendezona's firm would have been limited to $171,506.50.

It appears, then, that the damage suffered by the Tabacalera Company by reason of the fraudulent conduct of Mendezona is demonstrated by the
irrefutable logic of numbers. Had it not been for the pledge of the 20,000 bales of hemp which the accused pretended to have in his warehouse, he would
not have succeeded in fraudulently obtaining money and goods to the amount of $124,704.89, which sum was not really secured, as believed by the
defrauded creditor at the time the pledged was made.

Irrefutable proof having demonstrated the existence of the crime of estafa, committed by fraudulent means, and to the prejudice of the Compañía General
de Tabacos, in the large sum mentioned above, the conclusion follows, from the evidence of the prosecution above related, that the accused, Secundino
Mendezona, manager of the firm of Mendezona & Co., is guilty as principal, by direct participation, of the crime charged. Notwithstanding his denial and
exculpative allegations, the record contains conclusive evidence that when demand was made upon him by the manager of the Tabacalera Company for
security for the large credit granted him, and in order that he might continue to draw money and goods from the coffers and storehouses of the company,
he pretended to have 20,000 bales of unencumbered hemp in his warehouse at No. 48 Isla de Romero Street, and pledged said bales by public writing in
legal under date of September 10, 1900, thus succeeding in obtaining the large sum of $124,704.89, in addition to the considerable amount already
received by him.

The defendant, Secundino Mendezona, in his capacity of manager of Mendezona & Co., directed the business of the firm, and he alone made all contracts
concerning the purchase and sale of hemp, and its receipt and discharge from the warehouses; he alone it was who borrowed large sums from several
creditor, and stipulated all the pledges made in the name of the firm in favor of the various creditors. This fact appears of record. Therefore, he must have
known that in his warehouse at No. 48 Isla de Romero Street there were 2,238 bales of hemp which belonged to others, and some 11,719 bales which he
had already pledged to two banks, because all this appears from documents signed by him and duly acknowledged. He also it was who sought Señor
Correa's authority for the return to their owners of the bales of hemp stored in those warehouses. The record shows that on September 10 those
warehouses contained much less than 13,957 bales (only some 10,900), and consequently there could not have been 20,000 there, and the defendant
certainly has not proved that there were.

The allegations of the defense with respect to the informality in the manner of keeping the books of the warehouses of the firm in question can not be
considered, because if there were any errors in the bookkeeping Mendezona would certainly be chargeable therewith. But the fact is that with the aid of
these books they succeeded in drawing a general statement of Mendezona & Co.'s stock of hemp; and the defense during the trial did not prove in what the
errors complained of consisted, or what where the defects in the books. Article 48, section 1, of the Code of Commerce in force provides that the books of
merchants are conclusive evidence against their owners, and that no evidence contradictory thereof will be admitted.

The agreements entered into subsequent to the instrument of September 10, 1900, dated September 28, October 7, and December 12, 1900, the waiver
made by the representative of the Tabacalera Company, among others, of his rights to the pledge of the 20,000 bales of hemp, the cancellation of the first
two instruments of September 10 and 28, 1900, in no way affect or eliminate the characteristic elements of the crime of estafa committed at the time of
the fraudulently pledge recorded in the original instrument of September 10. The contracts or compromises entered into between the parties for the
purpose of determining civil liabilities, and can not blot out a consummated crime. Moreover, estafa is a public offense, to be prosecuted and punished by
the government on its own motion, even though complete reparation should have been made for the damage suffered by the party injured. Criminality is
not affected by comromise or novation of contract. Such stipulations produce effect only with respect to the civil rights of the parties. Such is the constant
doctrine of the supreme court of Spain as laid down by its judgments of June 12, 1882, February 19, 1879, February 15, 1884, and February 9, 1885, and
many others which it is not necessary to cite.

Furthermore, article 1813 of the Civil Code provides that a civil action arising from a crime may be compromised, but the public action for the imposition of
the legal penalty shall not be extinguishes thereby; and article 897 of the Code of Commerce establishes that the fact that a bankruptcy has been declared
by a final judgment to be fortuitous is not a bar to a criminal prosecution, when, from the actions pending concerning agreements between creditors, the
acknowledgment of credits or any other incident indicia appear of the commission of acts falling within the sphere of the Penal Code, which acts at the
instance of the department of public prosecution, will be submitted to the decision of a competent court.
With the exception of crimes of a private character, the repression and punishment of public offenses such as estafa is a matter of interest to society and
one of public policy. For this reason, in the case in question the agreements and compromises entered into by the instruments of October 7 and December
12, 1900, between the defendant and his creditors, among them the representative of the Tabacalera Company, can not change or affect the essence or
character of the crime committed, or the penal action for enforcing the penalty; nor is the penal action extinguished by the waiver of the party injured, and
although he may expressly waive his right to an indemnification, nevertheless the department of public prosecution will prosecute the case and maintain
the public penal action for the punishment of the delinquent. (Arts. 17, 23, and 133 of the Penal Code; 234; 239, 240 et seq. of the Reformed Compilation of
1880, and 100, 106, 108 et seq. of the Law of Criminal Procedure of 1882.) The latter two procedural laws are cited as legal doctrines not opposed to the
present law of criminal procedure in force.

The representative of the Compañía General de Tabacos was obliged to enter into the agreements recorded in the instruments of October 7 and December
12, 1900, together with other creditors, with the accused because he became convinced that the pledge or security given him by Mendezona was illusory
and worthless, a recount of the bales of hemp having showed that part of them were not the property of the debtor firm, and that the greater part were
already encumbered or pledged in favor of other creditors.

In consequence of the agreements before referred to, this court can not enter any judgment with respect to the indemnification of the amount obtained by
the estafa in favor of the injured party, because although there has been no waiver of the right to demand a restitution of the $124,704.89 fraudulently
obtained, from the context of the instruments executed in October and December it is to be inferred that the manager of the company reserves his right to
enforce his claim upon the terms therein stipulated.

This decision, therefore, is limited to the imposition the adequate penalty prescribed by section 3 of article 534, and in the medium grade, no generic
mitigating or aggravating circumstances having concurred in the commission of the crime, as abuse of confidence is inherent in the crime of estafa.

Upon these grounds, therefore, we hold (1) that the act which is the object of this prosecution constitutes the crime of estafa in an amount superior to
6,250 pesetas, defined and punished by articles 534, paragraph 3, and 535, paragraph 1, of the Penal Code, without the concurrence of any mitigating or
aggravating circumstances; (2) that the defendant Mendezona is the sole guilty principal by direct participation; (3) that the defendant is liable to the
penalty of presidio correccional in its minimum and medium degrees, and to the accessories prescribed by article 58 of the Code, without any right to any
reduction of the penalty, he not having been a detention prisoner; and (4) that the court will not make any declaration concerning the indemnification of
the amount obtained by the estafa in favor of the Tabacalera Company, by reason of the agreements entered into between the latter and other creditors
and the accused. The defendant is, however, condemned to the payment of costs.

Therefore the judgment appealed is reversed and Don Secundino Mendezona y Mendezona is convicted and condemned to two years eleven months and
ten days of presidio correccional, with suspension from all public office, profession, trade, or right of suffrage, and to the payment of the costs of both
instances.

Arellano, C.J., Cooper and Mapa, JJ., concur.

McDonough, J., did not sit in this case.
EN BANC
[G.R. No. L-9811. April 22, 1957.]
GEORGE L. TUBB, Petitioner, v. PEOPLE OF THE PHILIPPINES and THE COURT OF APPEALS, Respondents.

DECISION

CONCEPCION, J.:

This is a petition for review by certiorari of a decision of the Court of Appeals. The facts are set forth in said decision, from which we
quote:jgc:chanrobles.com.ph

"On August 15, 1947, Accused George L. Tubb called on complainant William P. Quasha at the latter’s office at Dasmariñas St., Manila. The accused had
known Quasha earlier in the same year 1947 when he was defended by said Quasha in a court-martial case. During the meeting, Tubb talked Quasha into
investing in the rattan business, and said that rattan could be bought for P0.20 a piece in Southern Luzon and sold for P0.70 a piece in Manila. Quasha
delivered the sum of P6,000.00 to the accused on the following day, August 16th, with the understanding that the money shall be used exclusively by the
accused in the purchase of rattan for resale in Manila; that the rattan so bought shall be brought to Manila within a few days; and, that the profit to be
realized from the sale shall be divided equally between the accused and the complainant after the capital of P6,000.00 has been returned to the latter.

"The prosecution has also shown that on August 21, 1947, complainant received a telegram from the accused, who was in Calauag, Quezon province, asking
him to procure a license from the Bureau of Forestry for the purchase of forest products (Exhibit C). The complainant replied in a letter (Exhibit E, dated
August 22, 1947), saying that although a license was not required to purchase forest products, he was sending to him (Tubb) an application to cut and
gather products as a lessee or concessionaire. This letter was received by the accused, who sent back the application, duly accomplished, in a letter of the
said accused (Exhibit D, dated August 27, 1947) through defense witness Amado Resurreccion. The license was secured and same sent to the accused. On
September 16, 1947, when the complainant did not receive a word from the accused, the said complainant sent a telegram of inquiry (Exhibit G), but the
same was answered by the postmaster of Calauag, Quezon, whose telegram (Exhibit H) disclosed that the accused was no longer residing in Calauag.
Quasha went to the former office of the accused at the Samanillo Building, but he was informed that the latter had not been heard from for some time.

"Sometime in 1948, Quasha met the accused at the Manila Hotel. Quasha asked the accused what he (accused) had done with his P6,000.00. The accused
merely said that there was no use telling what happened, but that he will try to pay the complainant back as he was then working for one Gabino Angchuan
of Cebu City and could get money from his said employer. Quasha did not hear from the accused for a long time again after their chance meeting at the
Manila Hotel. The complainant wrote to the accused in Cebu City, care of Gabino Angchuan, but his letter was not answered. When the complainant heard
that the accused was in Cagayan de Oro, Oriental Misamis, the complainant wrote to him, threatening him with a criminal action if he did not pay within a
period of one month (Exhibits K and J, dated July 25, 1949, and January 28, 1950, respectively).

"The accused did not take the witness-stand, but his counsel presented Avelino Leyco, Amado Resurreccion and Joe Oberly, as his witnesses. It is argued by
the defense that the accused, together with Amado Resurreccion and with the assistance of Avelino Leyco, did buy plenty of rattan in Polillo and in Calauag,
but they get drenched in the rain due to the typhoons which visited those places, so that they become moldy and spoiled."cralaw virtua1aw library

"The trial court convicted the accused of the crime of estafa, as defined and penalized under Article 31O, subsection 1(b), of the Revised Penal Code, and
sentenced him to an imprisonment of one year of prision correccional, to indemnify the complainant in the sum of P6,000.00, with subsidiary imprisonment
in case of insolvency, and to pay the costs.

"In this appeal, the main question is whether appellant is criminally liable for estafa or civilly liable only for the principal sum of P6,000.00. In support of its
contention, the defense insists that there was a lawful partnership between the appellant and the complainant and the failure of the venture rendered the
former liable only for a liquidation of the partnership.

"After carefully going over the evidence of record, we are not at all convinced that appellant actually bought rattan out of the money entrusted to him by
the offended party for the purpose. The appellant did not advise the complainant of his whereabouts after he left Calauag, Quezon, despite the fact that he
and Amado Resurreccion allegedly returned to Manila after leaving Calauag. After complainant met the appellant by chance at the Manila Hotel, the latter
again absconded, so that despite the length of time given said appellant to repay the money received by him for a specific purpose, the complainant was
finally compelled to go to court. The unexplained conduct of the appellant indicates a guilty conscience."cralaw virtua1aw library

The conclusion reached by the Court of Appeals was:jgc:chanrobles.com.ph

"Under the above facts and circumstances, appellant is clearly guilty of estafa under Article 315, paragraph 2(a), of the Revised Penal Code, and not under
subsection 1(b) of the same Article of the Code, as correctly contended by the Solicitor General. The defense of lawful partnership can not be sustained.
There can be no legal partnership where one of the supposed partners, taking advantage of a friendship which seemed to have ripened into a relationship
of trust, represents himself to the other as one engaged in a business transaction when in fact he is not. Appellant’s request by telegram that complainant
secured a license for the purchase of products and his accomplishment of the application form for such license, with the request that the license be
procured and sent to him as soon as possible, when such license is not required to enable one to purchase forest products like rattan, was part of a scheme
to deceive the complainant. There is here, therefore, a perfect case of swindling by means of false pretenses, where formal demand is not necessary
(People v. Scott, 62 Phil. 553). The cases cited by appellant’s counsel in support of his contention that a legal partnership was created between appellant
and the complainant (People v. Clarin, 17, Phil. 84, People v. Magdaluyo, CA-G.R. No. 9131-R, May 18, 1954, and People v. Reyes, CA-G. R. No. 8902-R,
March 19, 1953) are inapplicable because in these cases the appellants therein actually invested or used the money received by them from their partners in
the venture.

"The penalty provided by the applicable law is arresto mayor in its maximum period to prision correcional in its minimum period, or from 4 months and 1
day to 2 years and 4 months. There being no modifying circumstance to consider, the medium degree of the penalty should be imposed. Applying the
Indeterminate Sentence Law, as amended, appellant should be, as he is hereby, sentenced to suffer an indeterminate penalty of from 4 months of arresto
mayor to 1 year and 1 day of prision correccional.

"Modified as above-indicated, the judgment appealed from is hereby affirmed in all other respects, with costs."cralaw virtua1aw library

Defendant-appellant assails the foregoing decision upon the ground that:chanrob1es virtual 1aw library

1. "The Court of Appeals committed a grave error of law in rendering a decision which in effect holds that a person charged in the information with estafa as
defined in Article 315, paragraph 1(b) of the Revised Penal Code may be convicted of estafa as defined in Article 815, paragraph 2(a) of the same code.

2. "The Court of Appeals gravely erred when, under the facts established or undisputed on the record, it did not acquit the petitioner herein."cralaw
virtua1aw library

It is alleged in the information in the case at bar:jgc:chanrobles.com.ph

"That on or about the 16th day of August, 1947, in the City of Manila, Philippines, the said accused did then and there wilfully, unlawfully and feloniously
defraud one William Quasha in the following manner, to wit: the said accused received from the said William Quasha the sum of P6,000.00 for the purpose
of buying for the latter rattan and other forest products from the provinces, under the express obligation of delivering the said articles, if bought on or
before August 31, 1947, or to return the said amount if unable to buy also on or before August 31, 1947, but the said accused, once in possession of the
same and far from complying with his aforesaid obligation, and in spite of repeated demands made upon him, absconded with the said amount of P6,000
and never appeared again, thereby wilfully, unlawfully and feloniously, with intent to defraud, misappropriating, misapplying and converting the said sum
to his own personal use and in the said sum of P6,000, Philippine Currency."cralaw virtua1aw library

It is clear from the foregoing that petitioner is accused of estafa under Article 315, paragraph 1(b) of the Revised Penal Code:jgc:chanrobles.com.ph

"(b) By misappropriating or converting to the prejudice of another, money, goods, or any other personal property received by the offender in trust or on
commission, or for administration, or under any other obligation involving the duty to make delivery of or to return the same, even though such obligation
be totally or partially guaranteed by a bond; . . ."cralaw virtua1aw library

In other words, petitioner is charged with the misappropriation of funds held by him in trust and with the obligation to return the same. Upon the other
hand, the Court of Appeals convicted him of swindling by means of false pretenses, under paragraph 2(a) of said Article 315, which punishes estafa
committed.

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

"(a) By using fictitious name, or falsely pretending to possess power, influence, qualifications, property, credit, agency, business or imaginary transaction or
by means of other similar deceits."cralaw virtua1aw library

This offense is, however, entirely different and distinct from that described in paragraph 1(b) quoted above. Moreover, some of the essential elements of
the offense defined in said paragraph 2(a) are not alleged in the information herein. For instance, there is no averment therein of any "false pretenses or
fraudulent acts executed prior to or simultaneously with the commission of the fraud," which distinguishes said offense from that referred to in paragraph
1(b), the main characteristic of which is "unfaithfulness or abuse of confidence", and this is the essence of the crime charged in said information. The
allegations thereof are such as not to permit petitioner’s conviction for estafa under said paragraph 2(a), without violating his constitutional right to be
informed of the nature and cause of the accusation against him.

However, the findings of fact made in the decision of the Court of Appeals clearly show that the sum of P6,000 belonging to Quasha had been
misappropriated by petitioner herein, for he disappeared soon after receipt of said sum, in August, 1947, and when, in 1948, Quasha found him at the
Manila Hotel and inquired what he had done with his (Quasha’s) money, petitioner merely said — in the words of the Court of Appeals — "that there was
no use telling what happened", but that he would try to pay it back. Had said money been invested in rattan which later on was spoiled, as appellant tried
to prove, he would have said so, instead of making to Quasha said statement, which like his conduct prior and subsequently thereto, implies that he had
misappropriated the funds entrusted to his custody.

It is urged, that there can be no estafa without a previous demand, which allegedly has not been made upon herein petitioner, but the aforementioned
query made to him by Quasha, in the Manila Hotel, was tantamount to a demand. Besides, the law does not require a demand as a condition precedent to
the existence of the crime of embezzlement. It so happens only that failure to account, upon demand for funds or property held in trust, is circumstantial
evidence of misappropriation. The same way, however, be established by other proof, such as that introduced in the case at bar.

The cases of People v. Evangelista (69 Phil., 583) and U.S. v. Bleibel (34 Phil., 227), relied upon by the petitioner, are not in point. The offense charged in the
Evangelista case was not malversation, but of estafa, through false pretenses. The Bleibel case involved a commission agent who received from his
employer, some goods, worth P538.11, with the obligation to return said goods, or the value thereof. Subsequently, the employer or principal made a
written demand for compliance with said obligation, but the letter of demand did not appear to have reached the knowledge of Bleibel. He having,
accordingly, failed to answer it, the principal filed against him a complaint for embezzlement. Soon thereafter, but before the filing of the corresponding
information, Bleibel delivered said sum of P538.11 to his principal. It was held that mere delay in accounting for said amount, without competent proof of
misappropriation thereof, does not constitute embezzlement. Besides, the principal owed Bleibel P143 for salary, and the former had no right to hold the
latter criminally liable for said P538.11, "without first having made a settlement of accounts."cralaw virtua1aw library

Apart from the fact that none of these circumstances obtains in the case at bar, a demand was, as above stated, made in the Manila Hotel upon the
petitioner, and, worse still, the latter then impliedly, but, clearly, admitted that he had spent complainant’s money for his (petitioner’s) own personal
benefit.

Wherefore, modified only in the sense that petitioner George L. Tubb is guilty of embezzlement under Article 315, paragraph 1(b), of the Revised Penal
Code, the decision appealed from is hereby affirmed in all other respects, with costs against said petitioner. It is so ordered.

Bengzon, Padilla, Montemayor, Reyes, A., Bautista Angelo, Labrador, Reyes, J.B.L., Endencia, and Felix, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-22760 November 29, 1971
JOSE T. GALVEZ, petitioner,
vs.
THE COURT OF APPEALS and THE PEOPLE OF THE PHILIPPINES, respondents.

CASTRO, J.:

The petitioner Jose T. Galvez was indicted for the crime of estafa before the Pasay City branch of the Court First Instance of Rizal; upon arraignment on
January 2, 1960, he pleaded not guilty. The trial of the case was a protracted one, spanning a period of more than two year interspersed by several
postponements granted at the behest of both the Government and the defense. It was not until February 6, 1962 that the prosecution's case came to a
close with the presentation of its last three witnesses. The defense forthwith requested the trial court for two weeks' time within which to ready its own
case, but the request was denied on the ground that the court had previously ordered a day-to-day hearing until termination of the trial. At the hearing on
the following day, February 7, the defense's reiteration of its bid for time suffered a rebuff from the court. As a result of the failure of the defense to
present its case, the court ordered Galvez to appear on the following day for pronouncement of judgment. On February 8 the defense filed a written motion
for reconsideration this was denied in open court. As a last resort, defense moved the court for deferment of the pronouncement of judgment until a
remedy could be had from a superior court, but this was rejected. The judgment of the court dated February 7 was then read, convicting the petitioner
Galvez of the crime charged and sentencing him accordingly. Immediately thereafter, the court ordered his incarceration in the Pasay City jail, but he was
freed following his filing of a notice of appeal and an appeal bond. On March 7, 1964 the respondent Court of Appeals rendered a decision, affirming the
judgment of the trial court in its entirety.

Hence, the, present appeal by certiorari on pure questions of law.

The decision of the respondent Court of Appeals, sums up the evidence for the prosecution. It appears that sometime in early 1959 Galvez offered the
husband of the complainant Feliciana Camara an exchange deal for the spouses' car. About a week later, Galvez showed the Camaras a station wagon, but
this made no impression on the latter. Subsequently, the Cameras were shown another car at the Clark Field air base which they readily liked. Before
consummating its purchase, however, the Camara spouses asked Galvez, whom they brought along to the air base, for an estimate of the customs duties
and other taxes which they would have to pay upon acquisition of the vehicle. Galvez volunteered that he could settle the tax liabilities by the application of
mere backpay certificates which could be bought with the relatively small sum of P2,000.

On April 24, 1959, following the purchase of the car, Feliciana Camara delivered to Galvez a bank check, payable to the latter, in the sum of P2,000,
representing the amount which Galvez said would be required for the purchase of backpay certificates which in turn would be used to pay for the car's tax
obligations. Galvez cashed the check shortly thereafter at the Ermita branch of the Philippine Trust Company in Manila. After some delay, Galvez gave
Feliciana Camara a certificate of registration supposedly issued by the Motor Vehicles Office (now Land Transport station Commission) and a set of plate
numbers, for the newly acquired car. Four months later, however, the Cameras got wind of information what the taxes due on their car had not been paid.
It turned out, after verification, that the Information Entry 663582 appearing in the MVO file of their car did not correspond to the proper entry number in
the Bureau of Customs files. Mrs. Camara lost no time in communicating with Galvez and demanding of the latter the return of her money. Galvez, for his
part, allegedly replied that he had given the money to another person.

The present appeal presents two questions for resolution: the first relates to the territorial competence of the court; the second relates to the right of
Galvez to a day in court.

1. At the trial of this case, the prosecution proved that the check for P2,000 was delivered to Galvez by Camara at the latter's house in Pasay City, within the
territorial jurisdiction of the trial court. The petitioner admits he cashed the same check at the Ermita branch of the Philippine Trust Company in Manila.

The petitioner Galvez now calls our attention to the phraseology of the information filed against him.

That on or about April 24, 1959, in Pasay City, Philippines, and within the jurisdiction of this Honorable Court, said accused, Jose T. Galvez, having then
induced and persuaded Feliciana Camara, thru false manifestations and fraudulent representations, to the effect that he would be able to pay the full and
legal taxes due the government from the car of Feliciana Camara, thru backpay certificates, when in truth and in fact he knew fully well that the amount of
P2,000.00 is not sufficient did then and there receive from said Feliciana Camara amount of P2,000.00 with the understanding that the herein accused
would pay to the government for and on behalf of Feliciana Camara the full and legitimate taxes due her Chevrolet station wagon, but the herein accused,
once in possession of amount and far from complying with his obligation to pay lawful and legal taxes of the said car of Feliciana Camara with the money he
had thus received in trust or for administration did then and there willfully, unlawfully and feloniously convert, misappropriate and misapply the said
amount to his personal use and benefit, and refused and still refuses to account for said money despite repeated demands made on him by Feliciana
Camara to the damage and prejudice of the latter in the aforementioned amount of P2,000.00.

The petitioner points out that, according to the evidence, the only related transaction that took place within the territorial jurisdiction of the Court of First
Instance of Rizal is the delivery of the check for P2,000 to Galvez in Pasay City. The information above-quoted, upon the other hand, does not allege that it
was a check Galvez had received and converted to his own use, something which he could have done only by negotiating the same thru indorsement. The
evident subject-matter of the information the petitioner assumes, is the conversion of the P2,000 received by Galvez in cash from the bank in Manila. The
petitioner argues, and the Solicitor General concedes, that the delivery of the check to Galvez, understood in the light of the above reasoning, is not an
essential element of the estafa charged in the information and, although occuring in Pasay City, did not bring the case within the territorial competence of
the Court of First Instance of Rizal. Finally, it is suggested that since the money allegedly converted by Galvez was actually received by him in cash in the City
of Manila, the action should have been there commenced. The petitioner's attempt at drawing a hairline distinction between the conversion of a check and
the conversion of cash in relation to the formal allegation in the information of conversion of a specific sum of money, is remarkable. We are, however, not
persuaded that the distinction materially alters the substance of the indictment, nor does it effect the efficacy of the prosecution's evidence, for the reasons
hereunder stated.

Firstly, the information alleges that Galvez had received the sum of P2,000 from Camara. The phrase "amount of P2,000.00" is broad enough to refer to
either cash or a negotiable instrument. A check, after all, while not regarded as legal tender, is normally accepted, under commercial usage, as a substitute
for cash.1 Further, the credit represented by it in stated monitary value is property capable of appropriation.2 Secondly, it is erroneous for the petitioner to
assume that he was in receipt of Camara's money only for the time when and at the place where he cash the check. Applying the principles of civil law on
payments done thru the use of bills of exchange,3 the delivery to Galvez of the check on April 24, 1959 in Pasay City, had the effect, when, the same was
subsequently cashed, of transferring as of that date and in that place, the sum covered thereby from the drawer to the payee. This although the change
from check to public notes took place at a later date and at another situs. And finally, the delivery by Camara of the check in Pasay City and its acceptance
by Galvez signified not merely the transfer to the accused of money belonging to the complainant. It also marked, as shown by the chain of events
established by the prosecution, the creation of a fiduciary relation between the parties. The existence of such relation either in the form of a trust,
commission or administration, is, of course, an essential element of the crime of estafa by misappropriation or conversion.4 To put it elsewise, estafa is a
continuing crime and the receipt by the accused of the check in Pasay City and his cashing of the same shortly thereafter in Manila form part of the events
that make up the body of the offense.5 The rule that a criminal prosecution shall be instituted in the place where the offense or any of its essential
ingredients was committed is thereby satisfied.6

2. We now come to the second question posed by the petitioner.

The lower court's rejection of the petitioner's motion for a two-week postponement following the arrival of his turn to present his evidence is here assailed
as unreasonable and as amounting to a denial of his right to be heard. First, it is contented that the lower court's order resetting the trial for February 6,
1962 and thereafter from day to day the case would be fully terminated, was given in open court on January 24, 1962 in the absence of counsel and without
subsequent written notice to him. For this reason, the petitioner argues, he was not able to anticipate the arrival of his turn to present his defense and
could not have readied himself for it. Second, it is pointed out that in any event, the accused had no notion that the prosecution would close its case on
February 6, 1962, and he would need no less than two weeks from that time to organize his evidence and secure, by court process or otherwise, the
attendance of his witnesses or the production of essential document.

The totality of the foregoing reasons, however, fails to persuade us that the petitioner was denied his day in court.

Although the order resetting the trial for February 6, 1962 and thereafter from day to day until the trial's termination was announced in open court and in
the presence of only the petitioner, it is to be assumed that his counsel had actual notice thereof for the latter appeared in court on the new date set.
Moreover, the record shows that the hearing scheduled for January 24, 1962 was ordered cancelled by the court at the instance of the petitioner himself
due to the absence of his counsel. It was the latter's duty to check with the court respecting the outcome of that hearing at which he failed to appear. In the
absence of any claim to the contrary, it is to be presumed that this he did in the exercise of the diligence required of him as an officer of the court.

As to the claim that the petitioner was deprived of the opportunity to prepare his defense thru the denial of his motion for postponement, we agree with
the respondent Court of Appeals that two years were more than enough time for this purpose. The case is one of estafa, and the transaction involved
therein is not a complicated one. The accused could be properly expected to anticipate, before his turn came, what course his defense would ultimately
take and what evidence would be required. The claim that the accused needed time to secure the attendance of his witnesses flies in the face of the fact
that he made no request for a subpoena and/or a subpoena duces tecum on February 6, 1962, the date the prosecution closed its case, or on the following
day which was the day he was scheduled to present his evidence. Furthermore, in his motion for new trial filed with this Court, the accused annexed a copy
of his affidavit revealing in detail his version of the circumstances that led to his being charged in court. A reading of the same shows that he had intended
to testify on his own behalf regarding matters peculiarly within his own personal knowledge. Yet, on the date set for the reception of his evidence, he dared
not come forward to testify. True, an accused is not bound to testify on his own behalf and his silence may not be taken against him,7 but in this case, the
petitioner's belated attempt at this very late day to have his version admitted makes him vulnerable to the charge that his application for continuance made
on February 6 and 7, 1962 was not founded on good faith. As a rule, it is only in cases of clear arbitrariness that this Court will interfere with the trial court's
exercise of discretion in granting or denying a motion for postponement.8 We do not find such arbitrariness in the present case.

All the grounds relied upon by the petitioner in his petition for new trial dated November 9, 1964 filed with this Court have all been discussed at length
above, and further comment thereon will serve no useful purpose.

ACCORDINGLY, we affirm the decision of the respondent Court of Appeals dated March 7, 1964 and consequently deny the petitioner's motion for new trial.
Costs again the petitioner.

Concepcion, C.J., Reyes, J.B.L., Makalintal, Zaldivar, Teehankee, Barredo, Villamor and Makasiar, J.J., concur.

Fernando, J., took no part.

EN BANC
[G.R. No. L-9572. July 31, 1956.]
JOAQUIN GUZMAN, Petitioner, vs. THE HONORABLE COURT OF APPEALS, Respondent.

DECISION

REYES, J.B.L., J.:

Appeal by certiorari from the decision of the Court of Appeals finding Appellant Joaquin Guzman guilty of the crime of qualified theft.

The facts, as found by the Court of Appeals, are as follows:chanroblesvirtuallawlibrary

“That accused Joaquin Guzman was a travelling sales agent of the New Life Commercial of Aparri, Cagayan. On March 2, 1903, Guzman left Manila with 45
cases of different assortments of La Tondeña wine, in a truck driven by Andres Buenaventura, with Federico Cabacungan as washing (helper), on their
return trip to Aparri, by way of Ilocos Norte. Along the route, the accused made various cash sales of wine and when they reached Ballesteros, Cagayan, at
about 3 o’clock in the afternoon of March 5, 1953, said accused had in his possession the amount of P4,873.62. Here, they parked their truck at the
Sambrano Station and the accused left his companions until supper time at past 7:chanroblesvirtuallawlibrary00 p.m. When they retired for the night, driver
Buenaventura and the accused occupied the driver’s compartment of the truck, Buenaventura lying on the driver’s seat and the accused taking the upper
deck with which the truck was provided (see photograph Exhibit A). The washing, Cabacungan, slept in the body of the truck where the wines were kept.
There was a wall between the body of the truck and the driver’s compartment; chan roblesvirtualawlibraryand on that night all the windows were locked
from inside. In the morning of March 6, 1953, accused Guzman told the driver that he lost the amount of P2,840.50, and his firearm license. Upon the
advice of the driver, said accused reported the matter to the Chief of Police of Ballesteros, who gave him a certificate of loss of his firearm license. They
were proceeding to their home journey when, at the outskirts of Ballesteros, they were met by a tax collector and policeman Mariano David who told the
accused to return to Ballesteros and execute an affidavit regarding the alleged theft. Before the accused returned to Ballesteros, he entrusted to the driver
Buenaventura, the amount of P1,630 in cash and a check for P403.12 under the proper receipt (Exhibit C), with the sales invoices, for delivery to the
manager, Enrique Go, of the company of Aparri. Driver and washing continued the trip and arrived at Aparri between 3 and 4 o’clock in the afternoon of the
same day. The driver delivered the money and invoices to Enrique Go and informed the latter of the loss. Go reported the matter to the Philippine
Constabulary. The PC investigators and Go picked the accused at his house at Aparri at 8 o’clock in the morning, on March 7, 1953, after having failed to see
him (accused) at Ballesteros the previous night. Questioned at the PC barracks as to how much money he still had, the accused stated that he had only P3,
in his person. On March 10, 1953, the accused wrote to Go, requesting him to defer the filing of the criminal complaint until March 16, 1953, on which date
he promised to refund the amount lost (Exhibit G). On March 17, 1953, the said accused paid the amount of P1,500 to Go. On April 1, 1953, the accused was
prosecuted for theft for the shortage of P804.70.” (Appellant’s Brief, pp. 13-15.)

Appellant Guzman claims, first, that under the above findings of fact, he had committed only the crime of estafa; chan roblesvirtualawlibraryand second, as
the crimes of estafa and theft are essentially different offenses, he should be acquitted of the present charge for qualified theft, although proceedings may
be filed anew against him for the proper offense.

We agree with Appellant that under the above facts, the Court of Appeals erred in holding that he “had only the material or physical possession of the said
merchandise or its proceeds, because he was not the owner thereof; chan roblesvirtualawlibraryhe was simply holding the money for and in behalf of his
employer”.

While it is true that Appellant received the proceeds of his wine sales as travelling salesman for the complainant, for and in behalf of the latter as his
principal, and that possession of the agent is possession of the principal, an agent, unlike a servant or messenger, has both the physical and juridical
possession of the goods received in agency, or the proceeds thereof, which takes the place of the goods after their sale by the agent. His duty to turn over
the proceeds of the agency depends upon his discharge, as well as the result of the accounting between him and the principal; chan
roblesvirtualawlibraryand he may set up his right of possession as against that of the principal until the agency is terminated.

The case cited by the Court of Appeals (People vs. Locson, 57 Phil., 325), in support of its theory that Appellant only had the material possession of the
merchandise he was selling for his principal, or their proceeds, is not in point. In said case, the receiving teller of a bank who misappropriated money
received by him for the bank, was held guilty of qualified theft on the theory that the possession of the teller is the possession of the bank. There is an
essential distinction between the possession by a receiving teller of funds received from third persons paid to the bank, and an agent who receives the
proceeds of sales of merchandise delivered to him in agency by his principal. In the former case, payment by third persons to the teller is payment to the
bank itself; chan roblesvirtualawlibrarythe teller is a mere custodian or keeper of the funds received, and has no independent right or title to retain or
possess the same as against the bank. An agent, on the other hand, can even assert, as against his own principal, an independent, autonomous, right to
retain the money or goods received in consequence of the agency; chan roblesvirtualawlibraryas when the principal fails to reimburse him for advances he
has made, and indemnify him for damages suffered without his fault (Article 1915, new Civil Code; chan roblesvirtualawlibraryArticle 1730, old).

As Appellant converted to his own use proceeds of sales of merchandise delivered to him as agent, which he received in trust for and under obligation to
deliver and turn over to his principal, he is guilty of the crime of estafa as defined by Article 315, paragraph 1, subparagraph (c), of the Revised Penal Code.
This has been the consistent ruling of this Court in cases where a sales agent misappropriates or fails to turn over to his principal proceeds of things or
goods he was commissioned or authorized to sell for the latter. (U. S. vs. Reyes, 36 Phil., 791; chan roblesvirtualawlibraryU. S. vs. Lim, 36 Phil., 682; chan
roblesvirtualawlibraryPeople vs. Leachon, 56 Phil., 737).

The next question is whether the present information for qualified theft alleges sufficient facts to sustain a conviction for estafa under Article 315,
paragraph 1, subparagraph (b), of the Revised Penal Code. The information reads:chanroblesvirtuallawlibrary

“The undersigned accuses Joaquin Guzman of the crime of Qualified Theft, defined and penalized under Articles 308 and 309, No. 3 in connection with
Article 310 of the Revised Penal Code, as amended by Commonwealth Acts Nos. 273 and 417 and Republic Act No. 120, committed as
follows:chanroblesvirtuallawlibrary.

That on or about the 6th day of March, 1953, in the municipality of Aparri, province of Cagayan, and within the jurisdiction of this Honorable Court, the said
accused Joaquin Guzman, while in the employ of Enrique Go and with grave abuse of confidence did then and there, willfully, unlawfully, and feloniously,
with intent to gain but without violence against or intimidation of persons nor force upon things, without the consent of the owner Enrique Go alias Ngo
Yat, take and carry away for his personal use and benefit the sum of eight hundred four pesos and seventy centavos (P804.70) to the damages and prejudice
of said Enrique Go alias Ngo Yat, in the amount of P804.70.” (Original Records p. 22.)

Article 315, paragraph 1, subparagraph (b), on the other hand, provides:chanroblesvirtuallawlibrary

“Swindling (estafa). — Any person who shall defraud another by any of the means mentioned hereinbelow shall be punished by:chanroblesvirtuallawlibrary

xxx xxx xxx

(2) With unfaithfulness or abuse of confidence, namely:chanroblesvirtuallawlibrary

xxx xxx xxx

(b) By misappropriating or converting, to the prejudice of another, money, goods, or any other personal property received by the offender in trust or on
commission, or for administration, or under any other obligation involving, the duty to make delivery of, or to return the same, even though such obligation
be totally or partially guaranteed by a bond; chan roblesvirtualawlibraryor by denying having received such money, good, or other property;

Under the above definition of estafa, it is an essential element of the crime that the money or goods misappropriated or converted by the accused to the
prejudice of another was received by him “in trust or on commission, or for administration, or under any other obligation involving the duty to make
delivery of, or to retain the same”. No such allegation appears in the above information. Consequently, we agree with Appellant that he cannot be
convicted thereunder of the crime of estafa as defined by the article above.’

Wherefore, the decision appealed from is reversed, and Appellant Joaquin Guzman acquitted of the crime of qualified theft. Appellant should, however, be
held in custody pending the filing of another information against him for estafa under Article 315, paragraph 1, subparagraph (b), of the Revised Penal Code.
Without costs in this instance. SO ORDERED.

Paras, C.J., Bengzon, Padilla, Montemayor, Reyes, A., Bautista Angelo, Labrador, Concepcion, Endencia, and Felix, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-6408 May 24, 1954
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
EPIFANIO CARULASDULASAN and NICASIO BECAREL, defendants-appellants.

REYES, J.:

Epifanio Carulasdulasan and Nicasio Becarel were accused in the Court of First Instance of Cebu and of the crime of estafa committed, according to the
information, as follows:

That during the month of December, 1950, in the municipality of Dalaguete, Province of Cebu, Philippines, and within the jurisdiction of this Court, the
above-named accused, being then tenants of Crispin Almagro, and as such had the express obligation to share one-half of whatever product they could
harvest from the land of the latter, conspiring together and helping each other and with deliberate intent to defraud said Crispin Almagro, the accused
herein having stripped 600 kilos of abaca planted on their landlord's land, of which he was entitled to one-half of this quantity or 300 kilos sold them all
without giving said Crispin Almagro his corresponding share and appropriated the proceeds thereof for their own use and benefit and despite several
demands with the aid of the police authorities of the aforesaid municipality the accused, refused and still refuse to give the offended party his share and to
his damage and prejudice in the amount of P330, the value of the 300 kilos as his rightful share.

Upon arraignment the accused asked for the dismissal of the case on the ground that the facts alleged in the information did not constitute estafa. As the
trial court granted the motion, the provincial fiscal interposed the present appeal.

We agree with the Solicitor General that the facts alleged in the information make up the crime of estafa defined in subsection 1 (b) of article 315 of the
Revised Penal Code, which refers to fraud committed —

By misappropriating or converting, the prejudice of another, money, goods, or any other personal property received by the offender in trust or on
commission, or for administration, or under any other circumstance involving the duty to make delivery of or to return the same, even though such
obligation be totally or partially guaranteed by a bond; or by denying having received such money, goods, or other property.

From the facts alleged it is clear that the accused received from the sale of the abaca harvested by them a sum of money which did not all belong to them
because one-half of it corresponds to the landlord's share of the abaca under the tenancy agreement. This half the accused were under obligation to deliver
to the landlord. They therefore held it in trust for him. But instead of turning it over to him, they appropriated it to their own use and refused to give it to
him notwithstanding repeated demands. In other words, the accused are charged with having committed fraud by misappropriating or converting to the
prejudice of another money received by them in trust or under circumstances which made it their duty to deliver it to its owner. Obviously, this is a form of
fraud specially covered by the penal provision above cited.

The learned trial Judge held the provision inapplicable on the theory that "the abaca in question was not received by the accused from anybody but had
been harvested by them, as tenants, from the plantation of the complainant." His Honor has obviously overlooked the fact that what the accused are
charged with having misappropriated is the landlord's share of the purchase price received by them for the abaca which they sold.

As authority for holding that upon the facts alleged in the information the accused could not be held guilty of estafa, the trial court cites the case of U. S. vs.
Reyes, 6 Phil., 441, which is clearly inapplicable to the case at bar. In that case the lessee of several parcels of land entered into an agreement with one
Julian Reyes for the cultivation of said land under certain conditions, one of which was that the harvest was to be divided between them share and share
alike. But when the crop was harvested Reyes sold it without giving his partner his share. Convicted of theft in the court of first instance, Reyes was, upon
appeal to this Court, acquitted of that crime, this Court holding that the unlawful disposal of his partner's share of the crop by Reyes "was undoubtedly a
violation of their contract and a trespass upon the rights of another and not an act constituting the crime of theft." It should be noted, however, that while
Reyes was acquitted of the charge of theft this Court did not hold that he was not guilty of estafa. On the contrary, this Court seems to have given thought
to the suggestion of the Solicitor General that the crime committed by Reyes was not theft but estafa, on which reason this Court, in acquitting Reyes of
theft, did so "without prejudice to the institution of any other action that may be proper" and remanded the case to the court below "for proper
procedure."

Applying the corresponding provision of the Spanish Penal Code, the Spanish Supreme Court, in its decision of December 20, 1930, sustained the conviction
for estafa of a tenant (aparcero) who sold crop gathered from the land held by him as tenant without giving the landlord his share thereof.

In any event, supposing that subsection 1 (b) of article 315 of the Revised Penal Code is not applicable, still the information alleges sufficient facts to make
the accused criminally liable under the first paragraph of article 318, which punishes "any person who shall defraud or damage another by any other deceit
not mentioned in the preceding articles of this chapter," it being averred that the accused "with deliberate intent to defraud" their landlord sold all the
abaca harvested by them from his plantation without giving the latter his share and appropriated the proceeds thereof to their own use and benefit to the
damage and prejudice of the landlord in the amount of P330.

In view of the foregoing, the order of dismissal is revoked and the case remanded to the court for further proceedings.

Paras, C.J., Pablo, Bengzon, Montemayor, Jugo, Bautista Angelo, Labrador, and Concepcion, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 80544 July 5, 1989
ROSEMARIE M. LEE, petitioner,
vs.
HON. JOSEFINA CRUZ RODIL, Judge of Regional Trial Court, Branch X, Manila and PEOPLE OF THE PHILIPPINES, respondents.

GUTIERREZ, JR., J.:

In this petition we are asked to reconsider the liability for estafa of an entrustee in a trust receipt agreement who disposes of the goods covered by it but
fails to deliver the proceeds of the sale to the bank.

Petitioner Rosemarie M. Lee was charged with estafa in an information which alleged:

That on or about July 26,1982 in the City of Manila, Philippines, the said accused, did then and there wilfully, unlawfully and feloniously defraud the
Philippine Bank of Communications, a banking institution duly organized and existing under the laws of the Republic of the Philippines, in the following
manner, to wit: the said accused, being then the duly authorized representative of C.S. Lee Enterprises, Inc., after opening letter of credit with the said bank
under L/C No. 63251 dated July 26, 1982, for the amount of P 154,711.97, coveting the purchase price of a certain merchandise consisting of 23 ctns. Lab.
Culture Media in favor of said bank, received from the latter the necessary document and thereafter the said merchandise and forthwith, executed trust
receipt for, the aforesaid merchandise dated July 26, 1982, by virtue of which, the said accused obligated herself to hold said merchandise in trust with
liberty to sell the same in cash for the account of the said bank and to account for the proceeds of the sale thereof, if sold or of returning the said
merchandise to said bank in case of failure to sell the same, on or before October 24, 1982, but the said accused, once in possession of the said
merchandise, far from complying with her aforesaid obligation and despite the lapse of a long period of time and repeated demands made upon her to that
effect, did then and there willfully, unlawfully and feloniously, with intent to defraud, misappropriate, misapply and convert the said merchandise or the
value thereof, to her own personal use and benefit, to the damage and prejudice of the said Philippine Bank of Communications in the amount of
P154,711.97, Philippine currency. (Rollo, p. 19)

The accused moved to quash this information on the ground that the facts charged do not constitute an offense. She alleges that the violation of a trust
receipt agreement does not constitute estafa notwithstanding an express provision in the "Trust Receipts Law" (P.D. 115) characterizing such violation as
estafa. She attacks P. D. 115 for being unconstitutional.

The trial court, in its order dated August 21, 1987 denied the motion to quash the information and upheld the constitutionality of P.D. No. 115.

The subsequent Motion for Reconsideration was also denied for lack of merit in an order dated October 12, 1987.

Hence, this petition.

The issue posed in this case is whether or not the violation of a trust receipt agreement constitutes the crime of estafa.

We answer in the affirmative in the light of a specific provision in P.D. No. 115.

Sec. 13 of P.D. No. 115 provides:

... Penalty clause. — The failure of an entrustee to turn over the proceeds of the sale of the goods, documents or instruments covered by a trust receipt to
the extent of the amount owing to the entruster or as appears in the trust receipt or to return said goods, documents or instruments if they were not sold
or disposed of in accordance with the terms of the trust receipt shall constitute the crime of estafa, punishable under the provisions of Article Three
Hundred and Fifteen, Paragraph One (b) of Act Numbered Three Thousand Eight Hundred and Fifteen, as amended, otherwise known as the Revised Penal
Code. If the violation or offense is committed by a corporation, partnership, association or other juridical entities, the penalty provided for in this Decree
shall be imposed upon the directors, officers, employees or other officials or persons therein responsible for the offense without prejudice to the civil
liabilities arising from the criminal offense. (Italics supplied).

The petitioner cites the cases of People v. Cuevo, (104 SCRA 312 [1981]) and Sia v. People, (121 SCRA 655 [1983]) to support her stand that the violation of a
trust receipt does not constitute estafa.

The petitioner's citation of People v. Cuevo, supra does not strengthen her case at all. Of the eleven (11) members of the Court, a majority of six (6) were
clearly of the view that the violation of a trust receipt constitutes estafa. The Chief Justice concurred with them on the issue of absence of double jeopardy.
Two Justices inhibited themselves. Only two (2) out of the eleven members strongly adhered to the view now presented by the petitioner. However, for
want of one vote needed to reverse the dismissal order of the lower court, the view of the dissenting Justices prevailed as the result in that case. Excerpts
from the majority opinion show as follows:

... (I)t is a well-entrenched rule in our jurisprudence that the conversion by the importer of the goods covered by a trust receipt constitutes estafa through
misappropriation under article 315(l) (b) of the Revised Penal Code. (People vs. Yu Chai Ho, 53 Phil. 874 and Samo vs. People, 115 Phil, 346. As to civil cases,
see National Bank vs. Viuda e Hijos de Angel Jose, 63 Phil. 814; Philippine National Bank vs. Catipon, 98 Phil. 286 and Philippine National Bank vs. Arrozal,
103 Phil. 213). xxx

xxx xxx xxx

As noted by Justice Street in People vs. Yu Chai Ho, supra, the conversion by the trustee in a trust receipt of the proceeds of the sale falls 'most literally and
directly under' the provisions of article 315(l) (b).

Thus, it was held that where, notwithstanding repeated oral and written demands by the bank, the petitioner had failed either to turn over to the said bank
the proceeds of the sale of the goods, or to return said goods if they were not sold, the petitioner is guilty of estafa under article 315 (1) (b) (Samo vs.
People, 115 Phil. 346).

In this connection, it is relevant to state that Presidential Decree No. 115, the Trust Receipts Law, regulating trust receipt transactions, was issued on
January 29,1973.

xxx xxx xxx

The enactment of the said penal provision is confirmatory of existing jurisprudence and should not be construed as meaning that, heretofore, the
misappropriation of the proceeds of a sale made under a trust receipt was not punishable under article 315. That penal provision removed any doubt as to
the criminal liability of the holder of a trust receipt who misappropriated the proceeds of the sale.

It was the lower court in the Cuevo case which ruled that violation of a trust receipt gives rise to a civil action only. This was not the ruling in the Supreme
Court's decision.

It was made quite clear in the majority opinion that the lower court erred in holding that the accused did not commit estafa under article 315 (1) (b). (104
SCRA 312, 316).

The petitioner quotes the dissenting opinion of Justice De Castro in this case that:

The parties, therefore, are deemed to have consciously entered into a purely commercial transaction that could give rise only to civil liability, never to
subject the 'entrustee' to criminal prosecution. Unlike, for instance, when several pieces of jewelry are received by a person from the owner for sale on
commission, and the former misappropriates for his personal use and benefit, either the jewelries or the proceeds of the sale, instead of returning them to
the owner as is his obligation, the bank is not in the same concept as the jewelry owner with full power of disposition of the goods, which the bank does not
have, for the bank has previously extended a loan which the L/C represents to the importer, and by that loan, the importer should be the real owner of the
goods. If under the trust receipt, the bank is made to appear as the owner, it was but an artificial expedient, more of a legal fiction than fact, for it were
really so, it could dispose of the goods in any manner it wants, which it cannot do, just to give consistency with the purpose of the trust receipt by giving a
stronger security for the loan obtained by the importer. To consider the bank as the true owner from the inception of the transaction would be to disregard
the loan feature thereof, a feature totally absent in the case of the transaction between the jewel-owner and his agent.

Equally emphatic is the dissent of then Senior Associate Justice Claudio Teehankee that:

I concur with the dissent of Mr. Justice De Castro insofar as it upholds the more liberal interpretation to the trust receipt transaction which would give rise
only to civil liability on the part of the offender. The very definition of trust receipt as given in the main opinion (at pp. 4-5), '(A) trust receipt is considered as
a security transaction intended to aid in financing importers and retail dealers who do not have sufficient funds or resources to finance the importation or
purchase of merchandise, and who may not be able to acquire credit except through utilization, as collateral, of the merchandise imported or purchased'
(53 Am. Jr. 961, cited in Samo v. People, 115 Phil. 346, 349),' sustains the lower court's rationale in dismissing the information that the contract covered by a
trust receipt is merely a secured loan. The goods imported by the small importer and retail dealer through the bank's financing remain of their own
property and risk and the old capitalist orientation of putting them in jail for estafa for non-payment of the secured loan (granted after they had been fully
investigated by the bank as good credit risks) through the fiction of the trust receipt device should no longer be permitted in this day and age.

It should, however, be noted that even as Justice de Castro filed a dissent, he also made the following observations:

The question is whether the violation of the terms of a trust receipt would constitute estafa. There is no more doubt that under P.D. 115, the violation is
defined as estafa, but before the promulgation of said decree, I have entertained grave doubts to such extent that I would acquit a person accused of the
crime allegedly committed before said decree, the promulgation of which serves to confirm my doubts. For if there had been no such doubt, especially as
some decisions had already been rendered by this Court holding that estafa is committed where there is a violation of a trust receipt, there would have
been no need for P.D. 115. (Emphasis supplied)

The dissenting opinions later became the Court's ruling on the matter when the Sia decision penned by Justice De Castro was promulgated.

In the Sia case, supra, it was held that:

Consequently, if only from the fact that the trust receipt transaction is susceptible to two reasonable interpretation(s), one as giving rise only to civil liability
for the violation of the condition thereof, and the other, as generating also criminal liability, the former should be adopted as more favorable to the
supposed offender. ...

A closer look at the two decisions cited by the petitioner shows attendant facts that are different from those in the instant case.

As noted by the Solicitor General, in the Cuevo and Sia cases, both violations of the trust receipt agreements happened in the 1960's, way before the
promulgation of P.D. 115 in 1973. (Rollo, p. 55) In the present case, the accused was charged in 1985 for an act committed in 1982.

While the Cuevo and Sia cases were decided when P.D. 115 had already been promulgated, the decree was not applied in either of the cases because the
questioned acts were committed before its effectivity.

Thus, the view held by the Court in the Sia case that violation of a trust receipt only gives rise to civil liability did not take into consideration P.D. 115, as it
ruled:

We consider the view that the trust receipt arrangement gives rise only to civil liability as the more feasible, before the promulgation of P.D. 115. (121 SCRA
655, 664) (Emphasis supplied).

Acts involving the violation of trust receipt agreements occurring after 29 January 1973 would make the accused criminally liable for estafa under paragraph
1 (b), Article 315 of the Revised Penal Code, pursuant to the explicit provision in Sec. 13 of P.D. 115. (Sia v. Court of Appeals, G.R. No. 40324, October 5,
1988).

The petitioner questions the constitutionality of Sec. 13 of P.D. 115. She contends that it is violative of the constitutional right that "No person shall be
imprisoned for debt or non-payment of a poll tax".

The petitioner has failed to make out a strong case that P.D. 115 conflicts with the constitutional prohibition against imprisonment for non-payment of
debt. A convincing showing is needed to overcome the presumption of the validity of an existing statute.

The criminal liability springs from the violation of the trust receipt.

We bear in mind the nature of a trust receipt agreement. This Court pronounced in the Vintola cases, 150 SCRA 578 (1987); G.R. No. 78671, March 25,1988
that:

... A letter of credit-trust receipt arrangement is endorsed with its own distinctive features and characteristics. Under that set-up, a bank extends a loan
covered by the letter of credit, with the trust receipt as a security for the loan. In other words, the transaction involves a loan feature represented by the
letter of credit, and a security feature which is in the covering trust receipt. (Emphasis supplied)
Therefore, the loan feature is separate and distinct from the trust receipt. The violation of a trust receipt committed by disposing of the goods covered
thereby and failing to deliver the proceeds of such sale has been squarely made to fall under Art. 315 (1) (b) of the Revised Penal Code, which provides:

... Swindling (estafa).-Any person who shall defraud another by any of the means mentioned herein below shall be punished by:

xxx xxx xxx

a. With unfaithfulness or abuse of confidence, namely:

xxx xxx xxx

b. By misappropriating or converting, to the prejudice of another, money, goods, or any other personal property received by the offender in trust or on
commission, or for administration, or under any other obligation involving the duty to make delivery of or to return the same, even though such obligation
be totally or partially guaranteed by a bond; or by denying having received such money, goods, or other property.

The fact that the bank does not become the factual owner of the goods does not make the law unconstitutional (See the Vintola cases, supra) The language
of the above- mentioned penal provision has been clarified by P.D. 115. The person who is prejudiced through the misappropriation or conversion of the
goods need not be the owner, thereof; if such had been the intention of the authors of the Code, the phrase "to the prejudice of another" would have read
"to the prejudice of the owner." (People v. Yu Chai Ho, 53 Phil. 874, 877-878).

Moreover, we agree with the Solicitor General who expressed the policy behind the law:

Verily, P.D. 115 is a declaration by the legislative authority that, as a matter of public policy, the failure of a person to turn over the proceeds of the sale of
goods covered by a trust receipt or to return said goods if not sold is a public nuisance to be abated by the imposition of penal sanctions. As held in Lozano
vs. Martinez, (146 SCRA 323,338):

... certainly it is within the authority of the lawmaking body to prescribe certain acts deemed pernicious and inimical to public welfare. Acts mala in se are
not the only acts that the law can punish. An act may not be considered by society as inherently wrong, hence, not malum in se but because of the harm
that it inflicts on the community, it can be outlawed and criminally punished as malum prohibitum. The State can do this in the exercise of its police power.

In fine, P.D. 115 is a valid exercise of police power and is not repugnant to the constitutional provision on non-imprisonment for non-payment of debt.

The undersigned ponente concurred in the Sia decision in 1983 because the allegedly criminal act was committed before the pointedly deliberate
expression of legislative intent was manifested in a statute. There were then doubts as to the susceptibility of a trust receipt transaction to two different
interpretations, one which limits the effects of a violation to civil liability and the other to include criminal responsibility. Certain factual considerations in
the Sia case strengthened the arguments for acquittal of the accused. There have been two legislatures since then — the Batasang Pambansa and the
present Congress of the Philippines — but no repeal of P.D. 115 has been made. To declare this law unconstitutional is an entirely different proposition
from merely choosing one of two reasonable alternatives.

An examination of P.D. 115 shows the growing importance of trust receipts in Philippine business, the need to provide for the rights and obligations of
parties to a trust receipt transaction, the study of the problems involved and the action by monetary authorities, and the necessity of regulating the
enforcement of rights arising from default or violations of trust receipt agreements. The legislative intent to meet a pressing need is clearly expressed. We
see no unconstitutionality in the means deliberately employed to enforce the integrity of trust receipts.

WHEREFORE, the trial court's orders are AFFIRMED and the case is remanded to the trial court for further proceedings.

SO ORDERED.

Fernan, C.J. (Chairman), Feliciano, Bidin and Cortes, JJ., concur.

EN BANC
G.R. No. L-7561 April 30, 1955
THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. PABLO ISAAC alias JOSE DE JESUS Defendants-Appellant.

REYES, A., J.:

This is an appeal from a judgment of the Court of First Instance of Manila, convicting the appellant of qualified theft. The case is before us because the
appeal raises only a question of law.chanroblesvirtualawlibrary chanrobles virtual law library

It appears that in the morning of January 19, 1955, in the City of Manila, Philippines, one Dr. Licerio Velasquez, owner of a jeepney with license plate No.
AC-2553, whose driver was on vacation and had recommended the appellant to take his place, entrusted the vehicle to the said appellant for a "pasada",
that is to say, for transporting passengers for a compensation, the vehicle being destined for that purpose as its license plate would indicate. 1 The
understanding was that appellant was to bring back the vehicle in the evening of that same day and pay P10 "in hire." But appellant never returned, and
after a search the vehicle was found in a machine shop in Tarlac, where it was left by appellant allegedly for the purpose of having it repainted. Arrested by
the police several days later, appellant voluntarily signed a statement to the effect that, though he took the vehicle for a "pasada", his real intention was
steal it, for he already had an agreement with one Mrs. Juana Lim that he would steal a jeepney and she would wait at the Balintawak
monument.chanroblesvirtualawlibrary chanrobles virtual law library

In asking for appellant's acquittal, counsel de oficio contends that, while appellant may have committed estafa, he cannot be held guilty of theft, on the
theory that as the possession of the vehicle was obtained with the consent of its owner, there has been no illegal taking.chanroblesvirtualawlibrary
chanrobles virtual law library

To this we cannot agree. In the case of U. S. vs. De Vera (43 Phil., 1000), this Court said that when the delivery of a chattel has not the effect of transferring
the juridical possession thereof, or title thereto, it is presumed that the possession of, and title to, the thing so delivered remains in the owner; and the act
of disposing thereof with intent of gain and without the consent of the owner constitutes the crime of theft. This, we think, is actually the case here. For as
we see it, appellant had only substituted for the regular driver of a vehicle devoted to the transportation of passengers for a fare or compensation and
therefore operated as a public utility; and while his arrangement with the owner was to turn in, not all the fare collected, but only a fixed sum known in the
trade as "boundary", still he cannot be legally considered a hirer or lessee, since it is ordained in section 26 of the Rules of Regulations of the Public Service
Commission that "no motor vehicle operator shall enter into any kind of contract with any person if by the terms thereof it allows the use and operation of
all any of his equipment under a fixed rental basis." 2 In the eye of the law then, appellant was not a lessee but only an employee or agent of the owner, so
that his possession of the vehicle was only an extension of that of the latter. In other words, while he had physical or material possession of the jeepney, the
juridical possession thereof remained in the owner. Under those circumstances his disposing of the jeepney with intent of gain and without the consent of
its owner makes him guilty of theft.chanroblesvirtualawlibrary chanrobles virtual law library

Quoting from Ruling Case Law, this Court has also said in the same case:

A felonious taking is necessary in the crime of larceny, and generally speaking, a taking which is done with the consent or acquiescence of the owner of the
property is not felonious. But if the owner parts with the possession thereof for a particular purpose, and the person who receives the possession avowedly
for that purpose has the fraudulent intention to make use of it as the means of converting it to his own use and does so convert it, this is larceny, for in such
case, the fraud supplies the place of the trespass in the taking, or, as otherwise stated, the subsequent felonious conversation of the property by the alleged
thief will relate back and make the taking and conversation larceny.

Under this theory, appellant, who according to this own confession, took the vehicle from its owner already with the intention of appropriating it, should
also be deemed guilty of theft. (People vs. Trinidad, 50 Phil., 65.)chanrobles virtual law library

Wherefore, the judgment appealed from is affirmed, with costs against the appellant.chanroblesvirtualawlibrary chanrobles virtual law library

Pablo, Acting C.J. Bengzon, Montemayor, Bautista Angelo, Labrador, Concepcion, and Reyes, J.B.L., JJ., concur.
EN BANC
[G.R. No. L-14313. July 26, 1960.]
DIONISIO ESGUERRA, Petitioner, v. THE PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

BARRERA, J.:

Appellant Dionisio Esguerra found by the Court of Appeals guilty of estafa, defined an penalized under Article 315, paragraph 3, 2(a) of the Revised Penal
Code, and sentenced to the penalty therein provided, has taken this appeal by certiorari upon the following assignment of errors:chanrob1es virtual 1aw
library

1. The Court of Appeals erred in convicting the accused of estafa under Art. 315, paragraph 3, 2(a), that is, estafa through false pretenses, when the trial
court, the fiscal and the private prosecutor assured the accused at the trial that he was being prosecuted for estafa under Art. 315, 1(b), that is
misappropriation of money received in trust or on commission or for administration, although in fact the information did not charge estafa under any of
those two provisions, so that the motion to quash on the ground that the information did not state an offense should have been sustained.

2. The Court of Appeals erred in holding that the accused offered to compromise the case, when the evidence to establish the alleged offer of compromise
was rejected by the trial court.

3. The Court of Appeals erred in not holding that the best evidence of the sum P2,000 allegedly given to the accused on March 11, 1952 was the receipt
being prepared therefor when the accused left to catch a passing bus if in fact such sum was received by defendant.

4. The Court of Appeals erred in not holding that on the undisputed documentary evidence of record, the obligation of the accused, if any, was civil and not
criminal.

5. The Court of Appeals erred in sentencing the accused to 2 months and 1 day of arresto mayor to 1 year and 6 months of prision correccional and
affirming the trial court’s decision in all other respects, with costs, and in not acquitting the accused.

The information filed in the trial court reads, thus:chanrob1es virtual 1aw library

INFORMATION

"The undersigned fiscal accuses Dionisio Esguerra of the crime of ‘Estafa’ defined and punished under Art. 315, 3rd paragraph (b), committed as
follows:jgc:chanrobles.com.ph

"That on or about and during the period from January 12, 1952 to March 26, 1952, in the barrio of Siain, municipality of Atimonan, province of Quezon,
Philippines, and within the jurisdiction of this Honorable Court the said accused upon representations made with Yu Yek Huy & Co., a business firm duly
organized and existing under and by virtue of the laws of the Philippines, thru the Manager of said Company, Yu Yek Bio, that the said accused had copras
ready for delivery to it, took and received from said Yu Yek Bio the sum of FOUR THOUSAND FOUR HUNDRED PESOS (P4,400.00) under the express
obligation on the part of the said accused to deliver to the said company the equivalent worth of copras at its bodega at Siain, Atimonan, Quezon as follows:
P2,400.00 worth of copras on or before January 31, 1952; and P2,000.00 worth of copras on or before fifteen days from March 11, 1952, or the same sum of
money on the respective dates aforestated but the said accused once in possession of the said sum of money and far from complying with aforesaid
obligation, despite repeated demands made upon him to do so, did then and there wilfully, unlawfully and feloniously with intent to defraud the aforesaid
company, misapply, misappropriate and convert the said amount to his own personal use and benefit to the damage and prejudice of the Yu Yek Huy & Co.,
in the aforestated amount of P4,400.00 Philippine Currency."cralaw virtua1aw library

It is to be noted that the first paragraph for the Information specifically refers to the 3rd paragraph (b) of Article 315 of the Revised Penal Code as the
provision under which the accused was being prosecuted. This particular paragraph refers to estafa committed by resorting to some fraudulent practice to
insure success in a gambling game. On the other hand, that part of the information referring to representations that the accused had copras ready for
delivery, would seem to imply that the estafa charged is that defined and penalized under paragraph 2(a) — by falsely pretending to possess . . property,
business, etc. The succeeding portion, however, of the same information which alleges failure to deliver the copra or return the money on the dates agreed,
charges the accused of misappropriation and conversion under paragraph 1(b) of the same Article 315.

In view of this ambiguity in the information, a motion to quash was filed by the accused. (The motion to quash is not before us, but from the statement of
the Court of Appeals — "whether the allegations in the information constitute an offense or multiple offenses, will be taken up in subsequent legal
incursions" — it would seem that the ground relied upon is that the allegations in the information charge no offense, or if they do, they charge multiple
offenses.) At the hearing of the motion, the fiscal and the private prosecutor both manifested that there was a clerical error in the first paragraph of the
information and stated and assured that the accused was being charged under paragraph 1(b) of Article 315. 1 The trial court admitted the correction and
the accused went to trial with that understanding and assurance. After trial in due time, the lower court found the accused guilty as thus charged under
Article 315, paragraph 1(b), and sentenced him accordingly. On appeal to the Court of Appeals, where the accused questioned the correctness of the
judgment of conviction under the information as corrected and on the facts proven, the appellate court modified the decision of the trial court and
declared:chanrob1es virtual 1aw library

x x x

"The evidence for the prosecution fully established the fact that the two sums of P2,400.00 and P2,000.00 were given to the accused on the latter’s
pretense that he had copra in his bodega which he was drying. Yu Yek Bio testifying, said:chanrob1es virtual 1aw library

A. — He told me that he had many copras in his bodega and that he will deliver to me the copras corresponding to the amount of P2,000.00 together with
the 10,000 kilos, which he promised to deliver at first.’ (t.s.n., p. 5).

But the said appellant admittedly had no such copra then. Appellant, however, insisted that he had already delivered the copra corresponding to the first
payment of P2,400.00 and to prove this delivery, he presented in evidence Exhibits 1 to 1-K, the purchase vouchers showing the receipt of copra by the
complainant company on different dates from Felix Mendoza, Diego Sulit, Diosdado Engco (2 vouchers), Jose Perez (2 vouchers) Jose Cal, Juanito Esguerra,
Juan Gonzales (2 vouchers) and Tomas Luna. They were all stamped paid. A great deal of misgiving, however, accompanies this proof; it is unbelievable.

x x x
"Anent the second amount of P2,000.00, delivered on March 11, 1952, the appellant alleged that he did not receive the same, as he was in his place at
Malasak, Atimonan, conducting a liquidation with a copra dealer Amado Villamiel in the morning and in the afternoon of the said day, he was delivering
copra to Yang, the manager of Gua Chi Gan. But the evidence of the prosecution belies these allegations in an immeasurable manner.

x x x

". . . We have no reason to doubt the veracity and truthfulness of these State witnesses who testified in a direct, positive and straightforward manner.

"While we agree with counsel that the appellant cannot be held guilty of estafa under paragraph 1-b, Art. 315 of the Revised Penal Code, we are
nevertheless of the opinion, and so hold, that appellant is responsible for a violation of paragraph 3(2-a) of the same article, which penalizes any person
who shall defraud another (2) By means of any of the following pretenses or fraudulent acts executed prior to or simultaneously with the commission of the
fraud; (a) by using fictitious name or falsely pretending to possess power, influence, qualifications, property, credit, agency, business, or imaginary
transactions or by means of other similar deceits" (italics ours). The information describes and alleges this means of committing "swindling" and the
evidence adduced, amply substantiates said allegations."cralaw virtua1aw library

Consequently, the Court of Appeals held appellant guilty of estafa under paragraph 3(2-a) of Article 315. It is from this decision that the accused has taken
this present appeal by certiorari.

The issue here is whether after denial of a motion to quash, precisely on the vagueness of the information, upon assurance by the fiscal and the private
prosecutor and accepted by the court that the offense for which the accused was being prosecuted is that of misappropriation defined in paragraph 1(b) of
Article 315, involving unfaithfulness or abuse of confidence and under which the accused entered trial, the latter could, on appeal, be convicted of an
entirely different offense with different elements, that of false pretenses of possessing property or business made prior to or simultaneously with the
commission of the fraud. The appellant submits that he could not, especially when the latter offense is not adequately alleged in the information.

We incline to agree with the appellant. It is undisputed that the information contains no allegation of misrepresentation, bad faith or false pretenses,
essential element in the crime of which appellant was found guilty by the Court of Appeals. This is so, evidently, because, as already stated, the fiscal and
the private prosecutor avowedly were prosecuting the accused for the crime of misappropriation and conversion committed with unfaithfulness and abuse
of confidence for which the appellant went to trial and was convicted by the lower court. It is true the information states that "the accused, upon
representations (not misrepresentations) that the accused had copras ready for delivery to it, took and received" the sum of P4,400.00. Nowhere does it
appear in the information that these "representations" were false or fraudulent, or that the accused had no such copra at the time he allegedly made such
"representations." The falsity or fraudulentness of the pretense or representation or act being the very constitutive element of the offense, allegation to
that effect, either in the words of the law or in any other language of similar import, must be made in the information if the right of the accused to be
informed of the nature and cause of the accusation against him is to be preserved. In this case, for instance, since the representation wherefore the money
was delivered is not being charged as false, and since, if not false, the receipt of the money on such representation does not constitute an offense, the
motion to quash the information on the ground that it did not charge an offense or the allegations therein did not constitute an offense, should have been
granted. Instead, the fiscal and the private prosecutor assured the court, and both the court and the accused depended on the assurance, that the offense
charged is not that of misrepresentation or false pretense, but that of misappropriation and conversion, of unfaithfulness and abuse of confidence. To
convict him now of the very offense which he correctly assailed was not adequately alleged in the information and with which the prosecution expressly
stated they were not charging the accused, would result not only in violating appellant’s constitutional right to be informed of the nature and cause of the
accusation against him, but in actually misleading him.

Pertinent on this point is Section 4 of Rule 116 of the Rules of Court which provides:jgc:chanrobles.com.ph

"SEC. 4. Judgment in case of variance between allegation and proof. — When there is variance between the offense charged in the complaint or
information, and that proved or established by the evidence, and the offense as charged is included in or necessarily includes the offense proved, the
defendant shall be convicted of the offense proved included in that which is charged, or of the offense charged included in that which is proved."cralaw
virtua1aw library

Stated differently, an accused may be convicted of an offense proved provided it is included in the charge, or of an offense charged which is included in that
proved. Still stated differently, an accused can be convicted of an offense only when it is both charged and proved. If it is not charged although proved, or if
it is not proved although charged, the accused can not be convicted thereof. In other words, variance between the allegation and proof cannot justify
conviction for either the offense charged or the offense proved unless either is included in the other.

On the merits, there is reason to believe that the responsibility of herein appellant is only civil in nature. Exhibit A, upon the strength of which the
prosecution mainly relies, reads:jgc:chanrobles.com.ph

"RECEIVED from Messrs. YU YEK HUY & CO., the sum of Two Thousand four hundred Pesos (P2,400.00) only representing advance payment of 10,000 kilos
of copra which I sold them and shall be delivered in their bodega at Siain, P.I., on or before Jan. 31, 1952. Jan. 12, 1952.

"(Sgd.) D. ESGUERRA

Signature of Seller"

The language of this receipt, together with the finding of the Court of Appeals that "Factually, the appellant used to supply copra not only to complainant,
but also to other copra exporters in Siain", clearly indicate, in our opinion, that the transaction was that of sale of copra for future delivery. Obviously, an
advance payment is subject to the disposal of the vendor. If the transaction fails, the liability arising therefrom is of a civil and not of a criminal nature. 2

In view of the foregoing, the decision appealed from is reversed; the accused is acquitted, with costs de oficio, and the bond given for his provisional liberty
cancelled. So ordered.

Paras, C.J., Bengzon, Padilla, Montemayor, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., Endencia and Gutierrez David, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-15923 June 30, 1960
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
BENJAMIN BENITEZ, defendant-appellant.

GUTIERREZ DAVID, J.:

This is an appeal from a decision of the Court of First Instance of Manila finding Benjamin Benitez guilty of the crime estafa and sentencing him to an
indeterminate penalty of from 2 months and 1 day of arresto mayor to 1 year and 1 day of prision correccional, with the accessory of the law, to indemnify
the offended party in the amount of P540.00 with subsidiary imprisonment in case of insolvency not to exceed 1/3 of the principal penalty, and to pay the
costs.

The facts are not disputed. The accused Benjamin Benitez was employed by Jose Cua as collector of rents of the houses owned by the latter. In the months
of July and August, 1956, the accused made several collections from his employer's tenants amounting to P540.00. Having failed to turn over said amount,
or to account for it, to his employer, upon demand, the accused offered to work in the former's establishment, the sum P100.00, to be deducted from his
salary every month until the whole amount of P540.00 is fully paid. The offer and the conditions for his employment were accepted by Jose Cua and
reduced to writing.

The accused, however, after working in Cua's establishment for only a few days, did not report or show up for work, whereupon Cua wrote to him a letter
demanding settlement of his account. The accused having failed to pay the amount of his obligation, a complaint for estafa was filed against him. He was
convicted and sentenced as stated at the beginning of this opinion. From that sentence, he appealed to the Court Appeals, contending that the lower court
erred in finding him guilty upon his mere failure to account for and turn over his collections, there being no proof of misappropriation or conversion, and in
not considering that his agreement with his employer converted his criminal liability, if any, into a mere civil obligation. The questions raised being purely
legal, the case was certified to this Court.

After going over the record, we entertain no doubt that the accused has committed estafa.

In the case of Tubb vs. People and the Court of Appeals (101 Phil., 114; 53 Off. Gaz. [18] 6096), this Court held that "the failure to account upon demand, for
funds or property held in trust is circumstancial evidence of misappropriation." In another case involving a prosecution for the same crime as in the present,
it was held that "... it is the duty of the agent to return the jewelry upon demand by the owner and the failure todo so is evidence of the conversion of the
property by the agent. (People vs. Zamora, 2 Phil., 382.)" (People vs. Limbo, CA, 51 Off. Gaz., 228.) In the case at bar, the accused admits having collected
the amount of P540.00 as rentals from the different tenants of his employer. It is likewise, admitted that he failed to account for and turn over said amount
to his employer, upon demand therefor, without giving any reason or explanation whatsoever. These circumstances, together with the fact that the accused
even obligated himself to make restitution, clearly show that the amount of P540.00, which he was duty bound to deliver to his employer, was
misappropriated by him.

As to the contention that the liability of the accused is civil only because of the written agreement between him and his employer, it is well-settled that
criminal liability for estafa is not affected by compromise or novation of contract, for it is a public offense which must be prosecuted and punished by the
Government on its own motion even though complete reparation should have been made of the damages suffered by the offended party, (U. S. vs.
Mendezona, 2 Phil., 353; U. S. vs. Ontengco, 4 Phil., 144; U. S. vs. Rodriguez, 9 Phil., 153; People vs. Leachon 56 Phil., 739; Javier vs. People, 70 Phil., 550.) As
was said in the case of People vs. Gervacio (102 Phil., 687; 54 Off. Gaz. [9] 2898), "a criminal offense is committed against the People and the offended party
may not waived or extinguish the criminal liability that the law imposes for the commission of the offense." The fact, therefore, that the accused herein had,
with the consent of the offended party, assumed the obligation of paying the rentals, which he collected, out of his own salary after he had committed the
misappropriation, does not obliterate the criminal liability already incurred.

There being no error in the judgment appealed from, the same is hereby affirmed, with costs against the accused.

Paras, C.J., Bengzon, Montemayor, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., and Barrera, JJ., concur
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-19567 February 5, 1964
PEOPLE OF THE PHILIPPINES, complainant-appellee,
vs.
SOLEDAD NERY, accused-appellant.

REYES, J.B.L., J.:

This is an appeal from a judgment of the Court of First Instance of Negros Occidental convicting Soledad Nery for estafa. The Court of Appeals certified it this
Supreme Court, the one and only issue raised in the appeal being one of law.

The accused-appellant, Soledad Nery, conforms to the following findings of fact of the trial court:

On 15 November 1954, in a market stall in Bacolod City, the said accused received from Federico Matillano two (2) diamond rings to be sold by her on
commission. The agreement was for the accused to deliver, on the following the sum of P230.00 to her principal, to whom the accused had represented
having a ready buyer, and whatever overprice price could be obtained in the sale would be retained the accused as her commission.

Soledad Nery failed to show up on the following day; after several days, in a casual encounter with Francisco Matillano, she claimed that her prospective
buyer withdrew from the transaction and that she was looking for another buyer. Days, weeks, and months passed; and, his patience exhausted, Federico
brought the matter to attention of the police authorities of Bacolod on 5 January 1955. In no time, Soledad was found and brought to the police station;
then and there, she promised, in writing (Exh. "A"), to deliver the price of the rings on 25 January 1955.

When the last-mentioned date arrived and Soledad failed to comply with her promise, the City Attorney, at the instance of Federico Matillano, filed on 12
February 1955 a complaint with the municipal court. The case was either withdrawn or dismissed, however, the accused making two payments of P20.00
each to Federico. After these payments the accused failed to pay further; hence, the fiscal filed the corresponding information dated 30 June 1958 with the
court of first instance.

On 10 October 1958, during the pendency of the case in the court of first instance, the accused, assisted by counsel, Atty. Marcos Gomez, executed a deed,
which is copied hereunder as follows:

Bacolod City
October 10, 1958

I hereby promise to pay Mr. Federico Matillano, the sum of One Hundred Ninety Pesos (P190.00) Philippine Currency, to be paid in the following manner:

For the month of Nov. 1958 — P50.00

For the month of Dec. 1958 — 40.00
For the month of Jan. 1959 — 100.00
In the event that I fail to comply with the above compromise, the complaint for estafa filed against me by Mr. Matillano will be push through.

(Sgd.) Soledad Nery

I hereby bind myself jointly and severally to the abovementioned obligation of Soledad Nery.

(Sgd.) Atty. Marcos S. Gomez

Witness:

(Sgd.) Leopoldo Lopez

During the month of March, 1959, the accused Soledad Nery tendered a P50.00-payment to Federico Matillano, which the latter accepted, but the balance
of the price of type two rings was never paid.

Finding the accused guilty beyond reasonable doubt of the crime of estafa, the trial court imposed an indeterminate sentence of no less than two (2)
months and one (1) day of arresto mayor to not more than one (1) year and one (1) day of prision correccional to indemnify Federico Matillano the sum of
P140.00, representing the unpaid balance, with subsidiary imprisonment in case of insolvency at the rate of P2.50 a day but not exceeding a third of the
principal penalty; and to pay the costs.

The only issue is defined in the appealed decision, as follows:

La cuestion mas importante que se plantea ante la consideracion del Juzgado, es si la transaccion original habida verbalmente entre la acusada y el ofendido
en la mañana del 15 de Noviembre de 1954, formalizada mas tarde el 5 de Enero de 1955, por medio del documento de compromiso, Exh. A, ha sido
movada por virtud de los dos pagos parciales de a P20. cada uno, Exhs. 1 y 2, y del otro documento de compromiso, Exh. E, de manera que la
responsabilidad criminal de la acusada originada por la infraccion de la transaccion originada ha venido a convertirse en una simple responsabilidad civil.

Borrowing from a theory expressed in four decisions of the Court of Appeals, namely, People vs. Galsim, CA-G.R. No. 531-R, Feb. 26, 1948, 45 O.G. 3466,
Aug. 1949; People vs. Trinidad, 53 O.G. 731, Feb. 15, 1957; People vs. Doniog, CA-G.R. No. 16993-R, 53 O.G. No. 15, 4500; and People vs. De Rama, CA-G.R.
No. 17677-R, May 21, 1958, the accused in the present case insists that there is no prohibition in our law to prevent the parties to a contract to novate it so
that any incipient criminal liability under the first is thereby avoided.

The novation theory may perhaps apply prior to the filing of the criminal information in court by the state prosecutors because up to that time the original
trust relation may be converted by the parties into an ordinary creditor-debtor situation, thereby placing the complainant in estoppel to insist on the
original trust. But after the justice authorities have taken cognizance of the crime and instituted action in court, the offended party may no longer divest the
prosecution of its power to exact the criminal liability, as distinguished from the civil. The crime being an offense against the state, only the latter can
renounce it (People vs. Gervacio, 54 Off. Gaz. 2898; People vs. Velasco, 42 Phil. 76; U.S. vs. Montañes, 8 Phil. 620).

It may be observed in this regard that novation is not one of the means recognized by the Penal Code whereby criminal liability can be extinguished; hence,
the role of novation may only be to either prevent the rise of criminal or to cast doubt on the true nature of the original petition, whether or not it was such
that its breach would not give rise to penal responsibility, as when money loaned is made to appear as a deposit, or other similar disguise is resorted to (cf.
Abeto vs. People, 90 Phil. 581; Villareal, 27 Phil. 481).
Even in Civil Law the acceptance of partial payments, without further change in the original relation between the complainant and the accused, can not
produce novation. For the latter to exist, there must be proof of intent to extinguish the original relationship, and such intent can not be inferred from the
mere acceptance of payments on account of what is totally due. Much less can it be said that the acceptance of partial satisfaction can effect the
nullification of a criminal liability that is fully matured, and already in the process of enforcement. Thus, this Court has ruled that the offended party's
acceptance of a promissory note for all or part of the amount misapplied does not obliterate the criminal offense (Camus vs. Court of Appeals, 48 Off. Gaz.
3898).1äwphï1.ñët

The Court of Appeals decisions conform to the views here expressed. In the Galsim case, the principal had accepted the sub-agent to answer for the jewelry,
thereby releasing the agent. In the case of Trinidad, the Court expressly found that the compromise had taken place "immediately after the loss of the
money in question, and long before the case was brought to court". In the case before us, however, the alleged novation occurred after the criminal case
had been instituted, and while it was pending trial. In fact, the novation theory advanced by the accused has been rejected, time and again, by this Supreme
Court, in a legion of decisions. Of late, we stated:

..., it is well-settled that criminal liability for estafa is not affected by compromise or novation of contract, for it is a public offense which must be prosecuted
and punished by the Government on its own motion though complete reparation should have been made of the damage suffered by the offended party
(U.S. vs. Mendozona, 2 Phil. 353; U.S. vs. Ontengco, 4 Phil, 144; U.S. vs. Rodriguez, 9 Phil. 153; People vs. Leachon, 56 Phil. 739; Javier vs. People, 70 Phil.
550). As was said in the case of People vs. Gervacio (G.R. No. L-7705, December 24, 1957), "a criminal offense is committed against the People and the
offended party may not waive or extinguish the criminal liability that the law imposes for the commission of the offense". The fact, therefore, that the
accused herein had, with the consent of the offended party, assumed the obligation of paying the rentals, which he collected, out of his own salary after he
had committed the misappropriation, does not obliterate the criminal liability already incurred (People vs. Benitez, L-15923, June 30, 1960).

Nor is the case altered by the dismissal of the first charge in the municipal court, since under the law in force in 1955 (Rep. Act 296) that court had no
jurisdiction over the offense, which was properly cognizable in the courts of first instance that had original jurisdiction in all criminal cases in which the
penalty is more that six months or fine of more than P20.00 [sec. 44 (f)].

IN VIEW OF THE FOREGOING, the appealed decision should be, as it is hereby, affirmed, with costs against the accused-appellant.

Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Barrera, Paredes, Dizon, Regala and Makalintal, JJ., concur.
FIRST DIVISION
G.R. No. Nos. L-49607-13 August 26, 1985
BENJAMIN LU HAYCO, petitioner-appellant, vs. THE HONORABLE COURT OF APPEALS, Respondents-Appellees.

GUTIERREZ, JR., J.:

In these two (2) petitions for review on certiorari, petitioner Benjamin Lu Hayco questions the decisions of the respondent Court of Appeals, now
Intermediate Appellate Court, affirming the decisions of Branches I and III of the Court of First Instance of Manila convicting him of nineteen counts of
estafa.chanroblesvirtualawlibrarychanrobles virtual law library

The facts are undisputed.chanroblesvirtualawlibrarychanrobles virtual law library

Lu Chiong Sun and his son, Lu Chiong Pee are the owners of the Units Optical Supply Company.chanroblesvirtualawlibrarychanrobles virtual law library

On October 17, 1972, petitioner Benjamin Lu Hayco was able to obtain a special power of attorney from Lu Chiong Sun to manage the Units Optical Supply
Company. The special power of attorney authorized the petitioner:chanrobles virtual law library

1. ...chanroblesvirtualawlibrary chanrobles virtual law library

2. ...chanroblesvirtualawlibrary chanrobles virtual law library

3. ...chanroblesvirtualawlibrarychanrobles virtual law library

4. To deposit and withdraw funds in the name of the company to be used in its business and to do anything in connection with the business of the said
company.chanroblesvirtualawlibrarychanrobles virtual law library

However, from October 2, 1972 to December 30, 1972, the petitioner deposited monies amounting to One Hundred Thirty-Nine Thousand Pesos
(P139,000.00) paid by customers of the Units Optical Supply Company, not in the company's banks but in his own personal accounts with the Equitable
Banking Corporation and the Associated Banking Corporation.chanroblesvirtualawlibrarychanrobles virtual law library

On December 23, 1972 and January 2, 1973, Lu Chiong Sun and Lu Chiong Pee as owners of the Units Optical Supply Company sent two (2) letters of
demand to the petitioner asking for an accounting of the properties entrusted to his care.chanroblesvirtualawlibrarychanrobles virtual law library

When the petitioner failed to comply, a criminal complaint for estafa thru falsification of a public document was filed against him with Branch II of the Court
of First Instance of Manila. The case was docketed as Criminal Case No. 14968. On March 17, 1975, the criminal case was dismissed and the petitioner
acquitted of the crime charged. The special power of attorney was declared valid.chanroblesvirtualawlibrarychanrobles virtual law library

On January 3, 1973, Atty. Francisco Koh as administrator of the Units Optical Supply Company filed Civil Case No. 89373 for accounting and recovery of a
sum of money against the petitioner before Branch XIV of the Court of First Instance of Manila. Trial was, however, suspended and the case remained
pending as the petitioner manifested his willingness to settle his liability although he asked for time to look for funds needed to settle his
obligations.chanroblesvirtualawlibrarychanrobles virtual law library

On March 14, 1974, the petitioner was again charged with seventy-five (75) counts of estafa before two different salas of the Court of First Instance of
Manila. Thirteen (13) of the cases were assigned to Branch I, to wit: Criminal Cases Nos. F164503 to F-164509 and F-164548 to F-164553. Six (6) other cases,
to wit: Criminal Cases Nos. 164536 to
F-164541 were assigned to Branch III of the same court.chanroblesvirtualawlibrarychanrobles virtual law library

The monies involved in Criminal Cases Nos. F-164503 to F164506, F-164536 to F-164541 and F-164548 to F-164554 were deposited in the personal accounts
of the petitioner with the Associated Banking Corporation while those in Criminal Cases Nos. F-164507 to F-164509 were deposited in his personal account
with the Equitable Banking Corporation.chanroblesvirtualawlibrarychanrobles virtual law library

On January 15, 1976, the Court of First Instance of Manila, Branch I convicted the petitioner in Criminal Cases Nos. F164548 to F-164553 of the crime of
estafa, The dispositive portion of the decision reads:

WHEREFORE, in the light of the above considerations the Court finds the herein accused, Benjamin Lu Hayco, guilty beyond reasonable doubt of the crime
of estafa imputed to him in the Informations corresponding to the six (6) above-numbered cases, and hereby sentences him to suffer in each of the first five
cases from SIX (6) MONTHS OF ARRESTO MAYOR, as minimum, to ONE (1) YEAR, EIGHT (8) MONTHS and TWENTY (20) DAYS OF PRISION CORRECCIONAL, as
maximum; and in the last numbered case, from ONE (1) YEAR, EIGHT (8) MONTHS and TWENTY (20) DAYS OF PRISION CORRECCIONAL, as minimum, to TWO
(2) YEARS, ELEVEN (11) MONTHS and TEN (10) DAYS, as maximum, also of PRISION CORRECCIONAL and to indemnify the offended party, the Units Optical
Supply Co. in the following amounts, to wit:

P1,080.00 (Crim. Case No. F-164548);

P1,960.00 (Crim. Case No. F-164549);
P4,372.50 (Crim. Case No. F-164550);
P892.50 (Crim. Case No. F-164551);
P232.81 (Crim. Case No. F-164552); and
P10,190.85 (Crim. Case No. F-164553):chanrobles virtual law library

and to pay the costs of the proceedings. The bonds of the accused, if any, for his provisional liberty, are ordered
cancelled.chanroblesvirtualawlibrarychanrobles virtual law library

On July 19, 1976, Branch III of the Court of First Instance of Manila convicted the petitioner of another six (6) counts of estafa in Criminal Cases Nos. F-
164536 to F-164541. The dispositive portion of the decision reads:

WHEREFORE, under the facts and evidence, the Court finds the accused Benjamin Lu Hayco criminally liable for the offense charged in all the six (6)
informations beyond reasonable doubt and hereby sentences him as follows:

1. In Criminal Cases Nos. F-164536 and F-164539, to suffer the penalty, of four (4) months and twenty (20) days of arresto mayor in each case;chanrobles
virtual law library

2. In Criminal Cases Nos. F-164537, F-164538, F-164540 and F-16454 1, to suffer the indeterminate penalty of from four (4) months of arrests mayor to one
(1) year and one (1) day of prision correccional in each case;
3. To indemnity the complainant in the sum of P102.00 in Criminal Case
No. 164536; P3,200.00 in Criminal Case No. F164537; P1,596.40 in Criminal Case No.
F-164538; P113.50 in Criminal Case No. F-164540; and P3,545,00 in Criminal Case no.
F-164541; andchanrobles virtual law library

4. With all the accessories of the law and costs in all six (6) instances.chanroblesvirtualawlibrarychanrobles virtual law library

And again, on August 30, 1976 Judge Rosario R. Veloso of the Court of First Instance of Manila, Branch III likewise convicted the petitioner of still another six
(6) counts of estafa in Criminal Cases Nos. F-164503 to F-164509. The dispositive portion of the decision reads:chanrobles virtual law library

WHEREFORE, the Court finds the herein accused, BENJAMIN LU HAYCO, guilty beyond reasonable doubt of the crime of Estafa he is charged with in the
above-numbered SEVEN (7) cases and sentences him to suffer in Criminal Case:chanrobles virtual law library

No. F-164503-FOUR (4) MONTHS of ARRESTO MAYOR, as minimum, to ONE (1) YEAR, TWO (2) MONTHS, and TWENTY- ONE (21) days of prision
correccional, as maximum, and to indemnify the offended parties in the sum of P2,452.50, and to pay the costs;chanrobles virtual law library

No. F-164504-FOUR (4) MONTHS of ARRESTO MAYOR, as minimum, to ONE (1) YEAR, TWO (2) MONTHS, and TWENTY- ONE (21) DAYS OF PRISION
CORRECCIONAL, as maximum, and to indemnify the offended parties in the sum of P1,67 1.00, and to pay the costs;chanrobles virtual law library

No. F-164505-FOUR (4) MONTHS of ARRESTO MAYOR, as minimum, to ONE (1) YEAR, TWO (2) MONTHS, and TWENTY- ONE DAYS (21) of PRISION
CORRECCIONAL, as maximum, and to indemnify the offended parties in the sum of P1,347.00 and to pay the costs;chanrobles virtual law library

No. F-164506-FOUR (4) months of ARRESTO MAYOR, as minimum, to ONE (1) YEAR, TWO (2) MONTHS and TWENTY- ONE (21) DAYS of PRISION
CORRECCIONAL, as maximum, and to indemnify the offended parties in the sum of P1,460.00 and to pay the costs;chanrobles virtual law library

No. F-164507-FOUR (4) MONTHS of ARRESTO MAYOR, as minimum, to ONE (1) YEAR, TWO (2) MONTHS and TWENTY- ONE (21) DAYS of PRISION
CORRECCIONAL, as maximum, and to indemnify the offended parties in the sum of P245.00 and to pay the costs;chanrobles virtual law library

No. F-164508-FOUR (4) MONTHS of ARRESTO MAYOR as minimum, to ONE (1) YEAR, TWO (2) MONTHS and TWENTY- ONE (21) DAYS of PRISION
CORRECCIONAL, as maximum, and to indemnify the offended parties in the sum of P3,848.50 and to pay the costs;chanrobles virtual law library

No. F-164509-FOUR (4) MONTHS of ARRESTO MAYOR, as minimum, to ONE (1) YEAR, TWO (2) MONTHS and TWENTY- ONE (21) DAYS of PRISION
CORRECCIONAL, as maximum, and to indemnify the offended parties in the sum of P2,149.50 and to pay the costs.chanroblesvirtualawlibrarychanrobles
virtual law library

The petitioner appealed the judgment of conviction in Criminal Cases Nos. F-164548 to F-164553 and F-164536 to F164541 to the respondent Court of
Appeals. The appeals were docketed as CA-G.R. Nos. 19861-19866-CR and CA-G.R. Nos. 20061-20066-CR respectively. The petitioner likewise appealed the
judgment of conviction in Criminal Cases Nos. F-164503 to F-164509 to the appellate court and these were docketed as CA-G.R. Nos. 20827-20833-
CR.chanroblesvirtualawlibrarychanrobles virtual law library

On November 6, 1978, the Court of Appeals affirmed in toto the decisions in Criminal Cases Nos. F-164503 to F-164509. This decision is now the subject
matter of G.R. Nos. L- 4960713.chanroblesvirtualawlibrary chanrobles virtual law library

On October 30, 1980, the appellate court likewise affirmed the judgments of conviction in Criminal Cases Nos. F-164536 to F-164541 and F-164548 to F-
164553, but modified the penalties imposed. The dispositive portion of the decision reads:chanrobles virtual law library

WHEREFORE, finding the guilt of the accused-appellant to have been proved beyond reasonable doubt, the judgment of conviction in all the
aforementioned 12 cases are hereby AFFIRMED and accused-appellant is hereby sentenced as follows:chanrobles virtual law library

In Criminal Cases Nos. F-164536, F-164539, to 3 months and 1 day of arresto mayor;

In Criminal Cases Nos. F-164537, F-164538, F-164540, F164541, F-164548,

F-164549, F-164550, F-164551 and F-164552, to an indeterminate penalty of 4 months and 1 day of arresto mayor as the minimum to 1 year and 1 day of
prision correccional as the maximum;chanrobles virtual law library

In Criminal Case No. F-164553, to an indeterminate penalty of 4 months and 1 day of arresto mayor as the minimum to 1 year 8 months and 21 days of
prision correccional as the maximum.chanroblesvirtualawlibrarychanrobles virtual law library

Except with the foregoing MODIFICATIONS all the judgments appealed from are hereby AFFIRMED in all other
respects.chanroblesvirtualawlibrarychanrobles virtual law library

Motions for reconsideration in both cases were denied by the appellate court.chanroblesvirtualawlibrarychanrobles virtual law library

In G.R. No. L-55775-86 and G.R. No. 49667-13 the petitioner raises similar assignments of errors:

Ichanrobles virtual law library

THE RESPONDENT COURT OF APPEALS' JUDGMENT OF CONVICTION IS VOID. IT IS THE CARDINAL RULE THAT A JUDGMENT MUST CONFORM TO AND BE
SUPPORTED BY BOTH THE PLEADINGS AND THE PROOFS, AND SHOULD BE IN ACCORDANCE WITH THE THEORY OF THE ACTION ON WHICH THE PLEADINGS
WERE FRAMED AND THE CASE WAS TRIED (SECUNDUM ALLEGATA ET PROBATA).

(Republic of the Philippines vs. de los Angeles et al., SC-G.R. No. L-26112, October 4, 1971).

IIchanrobles virtual law library

RESPONDENT COURT OF APPEALS ERRED IN UPHOLDING THE JUDGMENT OF CONVICTION OF PETITIONER BENJAMIN LU HAYCO BY THE CITY COURT, THUS
(A) RESULTING IN A VIOLATION OF HIS CONSTITUTIONAL RIGHT AGAINST DOUBLE JEOPARDY OR (B) AT THE VERY LEAST THE PENDENCY OF THE CIVIL SUIT
FOR ACCOUNTING AND RECOVERY (I.E. CIVIL CASE NO. 89373) A PREJUDICIAL QUESTION TO THE CONTINUED PROSECUTION OF THE INSTANT
CHARGE.chanroblesvirtualawlibrarychanrobles virtual law library

IIIchanrobles virtual law library

RESPONDENT COURT OF APPEALS LIKE THE CITY COURT ERRED IN FINDING THE PRESENCE OF THE ELEMENT OF CONVERSION AND CONSEQUENTLY FINDING
THE PETITIONER GUILTY OF ESTAFA.

The petitioner submits that a comparison of the first prosecution in criminal case No. 14968 with the instant prosecutions for seventy-five (75) counts of
estafa, shows that both are essentially the same in material respects. Both prosecutions are directed against the same accused by the same complainant for
the same act of misappropriating or converting monies received by the Units Supply Optical Company under the same special power of
attorney.chanroblesvirtualawlibrarychanrobles virtual law library

The respondents on the other hand submit that the petitioner is not placed in double jeopardy because Criminal Case No. 14968 is separate and distinct
from the subsequent seventy- five (75) counts of estafa filed against him.chanroblesvirtualawlibrarychanrobles virtual law library

The petitioner's contentions have no merit. In People v. Militante (117 SCRA 910), we laid down the following requisites for the protection against double
jeopardy to benefit the accused:chanrobles virtual law library

... (1) A valid Complaint or Information or other formal charge sufficient in form and substance to sustain a conviction; (2) a competent Court; (3) the
defendant had pleaded to the charge; (4) the defendant had been convicted, or acquitted, or the case against him dismissed or otherwise terminated
without his express consent; (5) the second offense charged is the same as the first, or is an attempt to commit the same or a frustration thereof, or that
the second offense necessarily includes or is necessary included in the offense or information.chanroblesvirtualawlibrarychanrobles virtual law library

And in People v. Alger (92 Phil. 227), we held that:chanrobles virtual law library

... In order that a former conviction may be a bar to another prosecution, it is important to determine if the accused is newly prosecuted either for the same
offense or for any offense which necessarily includes or is necessarily included in the offense charged. Stated in another way, the new charge should refer
to the same offense or to any other necessarily included in it.chanroblesvirtualawlibrarychanrobles virtual law library

In the cases at bar, the petitioner cannot invoke double jeopardy because he is not being prosecuted for the same offense which resulted in his earlier
acquittal.chanroblesvirtualawlibrarychanrobles virtual law library

In the earlier criminal case for estafa thru falsification of public document filed against the petitioner, the information charged that:chanrobles virtual law
library

... in or about and during the period October 17, 1972 and October 20, 1972, ... said accused did then and there willfully, unlawfully and feloniously commit
acts of falsification upon a public document in the following manner, to wit: the said accused prepared, forged and falsified a Special Power of Attorney; ...
that once said document was prepared, forged and falsified, ... the said accused, by means of false manifestations and fraudulent representations which he
made to the management of the Equitable Banking Corporation ... succeeded in inducing the management of the said Equitable Banking Corporation to
encash Check No. 12097675, dated October 19, 1972, payable to Cash, in the amount of P16,465.12, which check said accused, drew, issued, and made out
by virtue of the falsified Special Power of Attorney ... and that said manifestations and representations were made for the sole purpose of obtaining, as in
fact he did obtain the said amount of P16,465.12, which, once in his possession, with intent to defraud, he did then and there willfully, unlawfully and
feloniously misappropriate, misapply and convert the same to his own personal use and benefit, to the damage and prejudice of said Lu Chiong Sun in the
aforesaid amount of P16,465.12 ... .chanroblesvirtualawlibrarychanrobles virtual law library

The information in Criminal Case No. 14968 is very clear. The petitioner was prosecuted for his alleged act of falsifying the special power of attorney and
after the alleged falsification for using the same document in encashing Check No. 12097675 in the amount of P16,465.12 which amount he
misappropriated, misapplied and converted to his own personal use and benefit. These acts were allegedly done sometime between October 17, 1972 to
October 20, 1972.chanroblesvirtualawlibrarychanrobles virtual law library

In the case at bar, except as to the dates and amounts of conversion, the informations commonly charged that:chanrobles virtual law library

... the said accused, being then an employee of the Units Optical Supply Company ... and having collected and received from customers of the said company
the sum of ... in payment for goods purchased from it under the express obligation on the part of the said accused to immediately account for and deliver
the said collection so made by him to the Units Optical Supply Company ... far from complying with his aforesaid obligation and despite repeated demands
... to do so, did then and there willfully, unlawfully and feloniously misappropriate, misapply and convert the said sum ... to his own personal use and
benefit by depositing the said amount in his own name and personal account ... and thereafter withdrawing the same for his own use and benefit, to the
damage and prejudice, of the said Units Optical Supply Company.chanroblesvirtualawlibrarychanrobles virtual law library

More particularly, the dates and amounts of conversions in the nineteen (19) counts of estafa now under review are as follows:

CRIMINAL CASE NUMBER

AMOUNTS INVOLVED

DEPOSIT SLIPS DATES

1. F-164503

P 2,52.50

October 3 & 4, 1972

2. F-164504

1,71.40

October 5, 1972

3. F-164505

1,47.00

October 2, 1972

4. F-164506
1,60.00

October 3, 1972

5. F-164507

245.00

October 22, 1972

6. F-164508

1,849.50

October 30, 1972

7. F-164509

2,149.50

October 31, 1972

8. F-164536

102.00

November 3, 1972

9. F-164537

3,200.00

November 4, 1972

10. F-164538

1,596.40

November 6, 1972

11. F-164539

113.50

November 7, 1972

12. F-164540

860.00

November 8, 1972

13. F-164541

3,545.00

November 10, 1972

14. F-164548

1,079.25

November 22 1972

15. F-164549

1,862.00

November 23, 1972

16. F-164550

4,372.50

November 24, 1972

17. F-164551

892.50

November 27, 1972

18. F-164552
295.81

November 28, 1972

19. F-164553

10,190.85

November 30, 1972

chanrobles virtual law library

It is apparent therefore, that the petitioner is not being prosecuted for the same offense. In Criminal Case No. 14968, the petitioner was prosecuted for his
act of allegedly falsifying the special power of attorney and of using the same in withdrawing the amount of P16,465.12 from the bank account of Lu Chiong
Sun sometime between October 17, 1972 to October 20, 1972. In the instant prosecution for nineteen (19) counts of estafa, the petitioner is being
prosecuted for his act of converting the monies he received from the customers of the Units Optical Supply Company by depositing the same to his own
personal bank accounts and, thereafter, withdrawing the same for his own use and benefit. It should be noted that in these nineteen (19) counts of estafa,
the petitioner deposited the monies not within the period covered by Criminal Case No. 14968 which is from October 17, 1972 to October 20, 1972 but on
various other dates. Thus, the nineteen (19) counts of estafa which are now under review do not include the acts which were the subject of the first
prosecution for estafa.chanroblesvirtualawlibrarychanrobles virtual law library

The petitioner-appellant also argues that the pendency of Civil Case No. 89373 for accounting and recovery of a sum of money before Branch XIV of the
Court of First Instance of Manila, was a prejudicial question which should have stopped the prosecution of the seventy-five (75) counts of estafa. The
petitioner submits that the resolution of these criminal cases depends to a large extent on the decision to be rendered in the civil case because if the
petitioner's accounting before the Court of First Instance of Manila, Branch XIV is found satisfactory, then the charges against him will have no
basis.chanroblesvirtualawlibrary chanrobles virtual law library

The argument is beside the point.chanroblesvirtualawlibrarychanrobles virtual law library

In People v. Aragon (94 Phil. 357), we defined a prejudicial question as one "which arises in a case, the resolution of which (question) is a logical antecedent
of the issue involved in said case, and the cognizance of which pertains to another tribunal." In Librodo v. Coscolluela, Jr. (116 SCRA 303), we ruled that
prejudicial question:chanrobles virtual law library

... comes into play generally in a situation where a civil action and a criminal action are both pending and there exists in the former an issue which must be
preemptively resolved before the criminal action may proceed, because however the issue raised in the civil action is resolved would be determinative juris
et de jure of the guilt or innocence of the accused in the criminal case.chanroblesvirtualawlibrarychanrobles virtual law library

The issues in the civil case for accounting and recovery of sums of money are not determinative of the innocence or guilt of the petitioner in the prosecution
of the seventy-five (75) counts of estafa. In the civil case for accounting and recovery of a sum of money, Lu Chiong Sun alleged that thru fraud, deceit and
machinations, the petitioner was able to secure a general power of attorney in his favor to manage the Units Optical Supply Company and by virtue of the
said special power of attorney, was able to close existing bank accounts with the Equitable Banking Corporation and to open new bank accounts with the
same bank and the Associated Banking Corporation in his name and that of the Units Optical Supply Company with himself as the sole authorized signatory.
Lu Chiong Sun further alleged that the petitioner deceitfully disposed of stocks, supplies, and equipment amounting to P250,000.00 without the consent of
Lu Chiong Sun and that the petitioner was able to transfer approximately P200,000.00 from the bank accounts of Lu Chiong Sun and the Units Optical
Supply Company to his own personal bank account with the Equitable Banking Corporation and the Associated Banking Corporation. Finally, Lu Chiong Sun
sought an order from Branch XIV of the Court of First Instance of Manila for the petitioner to render an accounting and to return (1) all funds received by
him thru the management of the Units Optical Supply Company, including the proceeds of the sale he effected of all stocks, supplies and equipment and (2)
all funds transferred by him from Lu Chiong Sun's and the Units Optical Supply Company's bank accounts to his own personal bank
account.chanroblesvirtualawlibrarychanrobles virtual law library

On the other hand, the only question to be resolved in the criminal cases for estafa is whether or not the petitioner's acts of receiving and collecting monies
from the customers in payment for goods purchased, and failing to immediately account for and deliver the said collections having deposited them in his
own personal bank accounts constitute estafa under Article 315(1-b) of the Revised Penal Code.chanroblesvirtualawlibrary chanrobles virtual law library

It is readily apparent that a finding in the civil case for accounting and recovery of a sum of money is not juris et de jure determinative of the innocence of
the petitioner in the subsequent seventy-five (75) criminal cases of estafa filed against him.chanroblesvirtualawlibrary chanrobles virtual law library

Furthermore a promise of payment made to the prejudiced party and such subsequent agreements as may be entered into between the author of the
estafa and the injured party after its commission, do not affect the existence of the estafa nor the liability of the guilty person (U.S. v. Rodriguez, 9 Phil.
153).chanroblesvirtualawlibrarychanrobles virtual law library

Finally, the petitioner-appellant argues that there is no estafa since the element of misappropriation or conversion was not proven. He claims that the mere
act of depositing company funds in his own personal bank accounts cannot constitute conversion.chanroblesvirtualawlibrary chanrobles virtual law library

Again, we see no merit in this argument.chanroblesvirtualawlibrarychanrobles virtual law library

We have consistently held that the disturbance in property rights caused by misappropriation, though only temporary, is itself sufficient to constitute injury
within the meaning of Article 315(l -b) of the Revised Penal Code. In U.S. v. Goyenechea (8 Phil. 117), the defendant pledged a typewriter belonging to
McCullough and Company to the American Loan Company. Because of said act, the typewriter was seized by the police, and afterwards taken into court.
Throughout the trial, McCullough and Company was placed in a doubtful position as to its right over the typewriter. We held that:chanrobles virtual law
library

... all of which are facts duly brought out in the case and which show conclusively that McCullough & Co. at least suffered disturbance in its property rights
in the said typewriter and in the possession thereof. This fact, by itself, and without it being necessary to deal with any other considerations of material fact
herein, always constitutes real and actual damage, and is positive enough under rule of law to produce one of the elements constituting the offense, the
crime of estafa.chanroblesvirtualawlibrarychanrobles virtual law library

In the case at bar, surely, there was at least a disturbance in the property rights of Lu Chiong Sun. While the funds received by the petitioner were all
deposited in his own personal bank accounts with the Equitable Banking Corporation and the Associated Banking Corporation, Lu Chiong Sun and the Units
Optical Supply Company could not dispose of the said amounts. At least, this could be considered as a temporary prejudice suffered by Lu Chiong Sun which
is sufficient to constitute conversion in the context of Article 315 (1-b) of the Revised Penal Code. We agree with the observation of the Solicitor General
that:chanrobles virtual law library
... when appellant deposited company funds in his personal account, his act constitutes conversion because the money is no longer under the unimpeded
disposal of the owners. They could not withdraw their money without the consent of accused. Even here, there already existed a disturbance of property
rights to the prejudice of the owners, which constitutes damage.chanroblesvirtualawlibrarychanrobles virtual law library

On the argument that it was not the intention of the petitioner to misappropriate the funds himself, such intention may not exist in cases of this nature.
Furthermore, it is not a necessary element of the crime. In U.S. v. Sevilla (43 Phil. 186), we held that:chanrobles virtual law library

Fraudulent intent in committing the conversion or diversion is very evidently not a necessary element of the form of estafa here discussed: the breach of
confidence involved in the conversion or diversion of trust funds takes the place of fraudulent intent and is in itself sufficient. The reason for this is obvious:
Grave as the offense is, comparatively few men misappropriate trust funds with the intention of defrauding the owner; in most cases the offender hopes to
be able to restore the funds before the defalcation is discovered ...".chanroblesvirtualawlibrarychanrobles virtual law library

WHEREFORE, the petitions for review are hereby DISMISSED for lack of merit. The decisions appealed from are AFFIRMED.

Melencio-Herrera, Plana, Relova, and De la Fuente, JJ., concur.chanroblesvirtualawlibrarychanrobles virtual law library

Teehankee (Chairman), and Alampay, JJ., took no part.

 Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 76647 September 30, 1987
CECILIO J. AMORSOLO, petitioner,
vs.
PEOPLE OF THE PHILIPPINES, respondent.

PARAS, J.:

Before Us is a Petition for Review on certiorari of the decision 1 of the Court of Appeals, dated September 26, 1986 affirming in toto the decision 2 of the
trial court finding the petitioner guilty of the crime of estafa under Section 315, par. 1(b) of the Revised Penal Code, allegedly committed as follows:

That on or about the 23rd of March 1983, in the Municipality of Makati Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, received in trust from one Raul Isidro two (2) acrylic paintings in the total amount of P19,000.00 to be sold on commission basis,
with the express obligation on the part of the accused to account for the proceeds and/or to return the said acrylic paintings if not sold, but the accused
once in the possession of said paintings, far from complying with his obligation, with intent to gain, grave abuse of confidence, and to defraud said Raul
Isidro, did then and there wilfully, unlawfully and feloniously misapply, misappropriate and convert to his own personal use and benefit the proceeds and
despite repeated demands failed and refused and still fails and refuses to return the same/or the proceeds thereof, to the damage and prejudice of said
Raul Isidro, in the aforementioned total amount of P19,000.00. (p. 9, Rollo)

In open court, complainant Raul Isidro was the lone witness for the prosecution, while accused Cecilio Amorsolo was the lone witness for the defense. After
considering their testimonies, the trial court declared —

From the foregoing evidence the court finds that on April 11, 1983, Isidro entrusted his two paintings to accused to be sold for P9,500.00 each with the
latter being entitled to a commission of 30% (exh.1). The agreement was for the accused to remit the proceeds of the paintings if sold or return them if not
sold. There was no time limit to the agreement. Accused was not prohibited from consigning the paintings.

After first offering them on said date to a Jorge Teehankee who did not like the paintings, accused on the following day brought them to the Heritage
Gallery of Mario Alcantara, (sic) where they were consigned to be sold (Exhs. 3 and 2-A).

When Isidro learned in May 1983 that accused had already sold the paintings to Alcantara (tsn., pp. 12, 16-18, 30, June 21, 1984), he (Isidro) caused his
lawyer Atty. Armando S. Leyva, Jr., to send accused a letter dated May 18, 1983 demanding remittance of the payment for the two paintings at P9,500.00
each or a total of P19,000.00 within ten (10) days from receipt of the letter (Exh. B). The letter was received on June 20, 1983 (Exh. B-1). Obviously, accused
was unable to remit the money or return the paintings as a charge of estafa was subsequently filed by Isidro against the (accused) (sic) in the fiscal's office.

On July 28, 1983, accused was able to pull out one of the paintings entitled "shadows" from the gallery and brought it to the fiscal's office where he offered
to return it. Isidro refused to accept, insisting that accused return both paintings. As of August 9, 1983, accused could not return the other painting alleging
that it was still with the art patrons of Alcantara. He undertook to return it to Isidro the moment he was assured that the art patrons of Alcantara would not
buy it. He further committed that in the event it would be sold, the payment would be remitted to him by Alcantara and in turn, accused would remit it to
Isidro. (counter Affidavit of accused subscribed and sworn to before an assistant fiscal on August 9, 1983; Exhs. D & D-1, also (Exhs. 5 & 5-A).

On August 15, 1983, accused was able to retrieve the other painting with yellow motiff from Alcantara who referred him to J. P. Lomotan who bought the
same, paying accused with a Metro-bank check dated August 15, 1983 payable to accused for P6,500.00 (Exh. "4") and promising to pay the balance of
P3,000.00 in cash after 15 days. The check, deposited by accused on August 15, 1985, bounced the next day for the reason "account closed" (Exh- "4-B").
Accused kept (on) trying to collect from Lomotan but the check was not made good and the cash (sic) not paid.

On October 9, 1984, Isidro accepted the painting that accused had earlier offered to return, plus the amount of P4,000.00. Accused was willing to pay the
balance of P5,500.00, obviously from the sale of the other painting he sold to Lomotan (tsn., pp. 26-29, February 7, 1985). But he never did.

Where a property is delivered to an agent for sale on commission, and no time is fixed within which he is to make the sale or return the property, it is the
duty of the agent to return it upon the demand of the owner, and the failure to do so is evidence of the conversion by the agent (Aquino on the Revised
Penal Code, p. 1579), Vol. 3, 1976, ed.).

On June 20, 1983, accused received the formal demand to Isidro to return the painting within ten (10) days. As he could not immediately push them out
from Alcantara's gallery by virtue of the consignment, the accused may not be faulted for the delay (pp. 156970, Id.) in recovering one painting only on July
28, 1983. When however, on August 15, 1983, he was able to retrieve the other painting, and instead of return (sic) it to the owner as he had committed to
do, accused, for having failed to return the same or pay its value to Isidro, committed estafa. Appropriating to one's own use includes not only conversion to
one's personal advantage but every attempt to dispose of the property of another without right (Francisco on the Revised Penal Code, p. 1130, Book 2, Par.
2, 2nd ed.). Accused no longer had any right to dispose of the painting when he recovered it on August 15, 1985.

The partial payment of accused on October 9, 1984, in the amount of P4,000.00, made subsequent to the commission of the crime of estafa does not alter
the nature of the crime committed nor does it relieve accused from the penalty prescribed by law (p. 1199, Id.). (Decision, pp. 13-15. Rollo)

Premises considered, the trial court ruled:

WHEREFORE, the Court finds accused guilty beyond reasonable doubt of the crime charged and hereby sentences him to suffer four (4) months and twenty-
one (21) days of arresto mayor to one (1) year, eight (8) months and twenty-one (21) days of prison correccional to indemnify the offended party in the
amount of P5,500.00 and to pay the costs.

SO ORDERED. (p. 15, Rollo)

Accused appealed to the Intermediate Appellate Court, now known as the Court of Appeals, with the following assigned alleged errors:

The Court a quo gravely erred in holding that the accused-appellant converted and misappropriated the property of private complainant for his own
personal use and benefit.

II

The court a quo gravely erred in convicting the accused-appellant of the crime of estafa despite the lack of evidence to support it.
After deliberating on the evidence for both parties, the appellate court rendered a decision the pertinent portions reading as follows:

There is no dispute that the appellant received two paintings worth P9,500.00 each, or in the total amount of P19,000.00 (Exh. C). There is also no dispute
that proper demand was made upon the appellant for the remittance of the aforesaid amount within ten (10) days from receipt of the letter-demanded
dated May 18, 1983 (Exh. B and Exh. D-1) Exhibit B reads, as follows:

"Our client, Mr. Raul G. Isidro, has referred to us for necessary action the matter of your non- remittance of the payment for two (2) pieces of paintings at
P9,500.00 each or in the total amount of NINETEEN THOUSAND PESOS (Pl9,000.00) which he entrusted to you on consignment basis.

"Although we received a definite instruction from our client to file the corresponding complaint in court, after he had confirmed your transaction with Atty.
Mario Alcantara followed by several (sic) demands for you to remit the above amount, we took it upon ourselves to defer the same with hope that you
might come forward to settle your account.

"Hence, we demand from you to remit immediately the above amount either to our client or to our office within ten (10) days from receipt of this letter,
otherwise, should you fail to do so, we win be constrained to file the necessary action against you with all the attendant damages recoverable without
further notice.

"We trust that you will see your way clear towards an amicable settlement and, thus avoid further difficulties and inconvenience on your part.

"Your earlier settlement of the above is deeply appreciated. "

There is also no dispute that the appellant failed to pay the price of the paintings or to return the paintings within the period stated in the demand.

The appellant would insist that in spite of the fact that he received the paintings and failed to return them, or to pay the price thereof upon demand, there
were "circumstances surrounding the failure of appellant to return the paintings or its value to Isidro. At the time the demand for the paintings was made, it
was already in the hand of a buyer, Mr. J. P. Lomotan. This fact was known to Mr. Isidro. As a matter of fact, Mr. Isidro saw the check issued by Mr. Lomotan
to appellant in payment of the painting, which unfortunately bounced, for reason of "account closed," "... ... ... " Appellant therefore may not be blamed or
faulted for its failure to return the painting or its value ... (p. 4, Brief for the Appellant).

The appellant argues that his liability should be civil in nature, and not penal.

The crime for which the appellant is charged, was duly proved. He had received the paintings, in trust, from the private complainant to be sold on
commission basis, with the express obligation on the part of the appellant to account for the proceeds thereof, or to return the said paintings, if not sold.
Demand for the return of, or for the proceeds of, the paintings, was undisputably made upon the appellant. He failed to remit the proceeds of, or to return,
the paintings, within the time frame stated in the letter of demand which he had unequivocally received on June 20, 1983 (Exh. B-1). His guilt for the crime
of estafa was duly proved.

WHEREFORE, the judgment appealed from is hereby AFFIRMED in toto. No costs.

SO ORDERED. (pp. 31-33, Rollo)

Hence, the instant petition for review on certiorari filed by accused with the following issues presented for Our resolution:

"Whether or not the acts of petitioner constituted the crime of estafa under Article 315, paragraph 1(b) of the Revised Penal Code and whether or not said
crime has been duly proved by the prosecution, despite the appellate court's decision finding him guilty beyond reasonable doubt of estafa. "

It is the position of petitioner that the fact of misappropriation or conversion has not been duly established by the complainant, Raul Isidro. Petitioner
contends that he has not converted the paintings in question as the same were not devoted to a purpose or use different from that agreed upon. Likewise,
he has not misappropriated the same or the proceeds thereof, as the same were not taken for his own use and benefit. Petitioner invites the court's
attention to the circumstances surrounding the failure of the petitioner to return one of the paintings or its value to complainant, particularly the fact that
at the time the demand for the return of the second painting was made, it was already in the hands of a prospective buyer, Mr. Lomotan, whose check (in
payment of the painting) bounced. This fact was made known to the complainant and therefore petitioner should not be faulted for his failure to return the
painting or pay for its value.

Petitioner further contends that his act of paying from his own pocket the amount of P4,000.00 to private complainant as partial payment of the painting
covered by the bounced check of Mr. Lomotan is not in itself an admission of misappropriation. He was merely answering for the shortcomings of Mr.
Lomotan, at that he could not pay private complainant the full value of the unreturned painting in the amount of P9,500.00. At most his liability is only Civil
(so he contends) as the fact of misappropriation, an essential element of estafa, has not been convincingly proven.

Petitioner's allegations merit consideration.

It is well-settled that the essence of estafa thru misappropriation is the appropriation or conversion of money or property received to the prejudice of the
owner (U.S. vs. Ramirez, 9 Phil. 67). The words "convert" and "misappropriated" connote an act of using or disposing of another's property as if it were
one's own, or of devoting it to a purpose or use different from that agreed upon. To misappropriate for one's own use includes, not only conversion to one's
personal advantage, but also every attempt to dispose of the property of another without right (U.S. vs. Panes, 37 Phil. 118).

In the instant case, complainant delivered his paintings to the accused due to his trust in him since he is the brother of a fellow artist-painter and also
because of a previous business transaction he had had with him. When accused-petitioner consigned the same paintings to a third entity (Heritage Gallery)
which is not known to complainant, accused did not commit an abuse of the confidence reposed upon him by the complainant. Petitioner assumed (and the
assumption was correct) that he could do this in view of the authorization given him to sell the property and certainly this could include a sale by
consignation.

While it is true that accused had an opportunity to return the second painting, still it was his desire to continue with the sale because he believed that in Mr.
Lomotan he had a ready buyer who could make possible the accomplishment in full of the agency to sell what had been entrusted to him. There was no
desire to appropriate anything for himself, no intent to defraud or prejudice in any way the complainant. Truth to ten, he gave Lomotan's check to Isidro.
The fact that it bounced is not the fault of the accused. Moreover, accused paid Isidro with the former's own check, even if partially, and he recognized his
obligation to pay the balance. Under the premises, it is obvious that no criminal intent or liability exists. Thus, his liability is plainly merely a civil one, as
manifested in the letter of demand dated May 18, 1983, sent to the accused by Isidro's counsel.

PREMISES CONSIDERED, accused is hereby ACQUITTED of the crime with which he was charged, but as he himself admits he should pay Isidro the balance of
the unpaid selling price MINUS his agreed upon commission. Thus, he should pay the net amount of P2,650.00.
SO ORDERED.

Teehankee, C.J., Narvasa and Cruz, JJ., concur.

Gancayco, J., is on leave.

EN BANC
[G.R. No. 1131. April 23, 1903. ]
THE UNITED STATES, Complainant-Appellee, v. NICASIO SEVILLA, Defendant-Appellant.

DECISION

TORRES, J. :

On the 26th of April, 1902, Charles E. Manison, inspector of Constabulary, together with Pablo del Rosario, Pablo Reyes, and Cayetano Bacleon,
Constabulary soldiers, together with a spy, went to a place called Caignin, near the town of Caloocan, to a house in which a man called Andres was living, for
the purpose of arresting the latter This was at about 7 o’clock in the morning. They did not succeed in arresting Andrea because the latter, who, at the time
of their approach, was eating, jumped up, and, seizing a revoker, ran away, jumping to the ground from the porch of the house. They were unable to
overtake him, although he u-as followed. They returned to the house and arrested all whom they found there and proceeded to conduct theta to this city.
On the road, however, at a place called Matalahip, they were attacked at a street corner which they were passing by several Men, among whom they
recognized Andrea, the accused, Nicasio Sevilla and Marcelo Magsalin, who fired at them several times, the result of the Shooting being the death of
Cayetano Bacleon.

The facts constituted the crime of homicide, defined in article 401 together with an armed attack upon agents of the authorities in the exercise of the duties
of their office, defined and Punished in articles 249 and 250 of the Penal Code, although the latter offense does not appear to be charged in the information
filed by the provincial fiscal. The offense was committed by several men, who armed with carbines or guns, intercepted five members of the Constabulary
who were returning to this city from the place where they had attempted to arrest one Andres who succeeded in Making his escape and attacked them by
repeatedly firing upon the officers, the result of the attack being the death of Cayetano Bacleon by a gunshot wound received in the head.

The record discloses the fact that Andres, immediately after having succeeded in escaping from the police who were attempting to arrest him undertook to
attack the latter, in company with the other aggressors, among the accused, Nicasio Sevilla, with the purpose of preventing his companions, who had been
arrested in the house, from being taken to this city or to revenge himself for his own attempted arrest This was upon an express agreement, even if entered
into upon the spur of the moment all of them having United for the exclusive purpose of attacking the police. To that end they Stationed themselves at the
corner of the street, through which the police were passing and attacked them, each assisting and cooperating with the others, with the express intent to
commit the said crimes of attack upon the authorities and homicide, the latter being the only one which is- now the subject of this prosecution. Therefore,
there was no confused and tumultuous quarrel or array, nor was there a reciprocal aggression between both parties, inasmuch as the police simply
defended themselves from the simultaneous and uniform attack upon them by the aggressors, each one of whom, therefore, became responsible for the
homicide in question, as all of them, with malicious intent to do harm, took part in the aggression upon the said policemen, one of whom was killed.

Consequently this was not homicide in a confused and tumultuous affray, as the court below rewarded the crime charged. The violent killing of the
policeman, Cayetano Bacleon, constitutes the offense of homicide, of which the accused, Nicasio Sevilla, is one of the persons responsible, as he, in
company with Andrea and Marcelo Magsalin, took direct part in the attack which they together, and by means of firearms, made upon the said police. In
the commission of the offense we must consider the aggravating circumstance of the use of prohibited arms, which private parties are not allowed to have
in their possession. There are no mitigating circumstances, and therefore the proper penalty should be imposed in the maximum degree.

On these grounds we are therefore of the opinion that the judgment below should be reversed and that Nicasio Sevilla, as guilty of the offense of homicide,
should be convicted and sentenced to seventeen years four months and one day of reclusion temporal. together with the accessories designated in article
59 of the Code, to the payment of one thousand Mexican pesos to the widow and heirs of the deceased, and to the payment of the costs in both instances.

Arellano, C.J., Cooper, Willard, Mapa and Ladd, JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-45490 November 20, 1978
THE PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HON. JOSE SABIO, SR., City Judge of Cagayan de Oro and RANULFO M. SALAZAR, respondents.

CONCEPCION JR., J.:

For review on certiorari are: (1) the order of the City Court of Cagayan de Oro dated January 6, 1977 which granted the motion to quash the information for
estafa filed against the accused in Criminal Case No. 33867, "People of the Philippines vs. Ranulfo Salazar" (L-45490); (2) the decision of the Court of Appeals
in Case CA-G.R. No. 16195-Cr, "People of the Philippines vs. Tan Tao Liap" (L-45711) which affirmed the decision of the City Court of Pasay City convicting
the accused of the crime of estafa, and (3) the order of the Court of First Instance of Davao City in Criminal Case No. 2023, entitled "People of the
Philippines vs. Daylinda Lagua" (L-42971) dated December 23, 1975 which denied petitioner's motion to quash. These cases are jointly considered in view of
the similarity of the issue involved and which is whether or not the issuance of a postdated check, which is subsequently dishonored for insufficiency of
funds, in payment of a pre-existing obligation constitutes estafa as defined and penalized under Article 315, par. 2(d) of the Revised Penal Code as amended
by Republic Act No. 4885 and Presidential Decree No. 818.

G.R. No. L-45490

The circumstances leading to this case are brief and undisputed. On May 29,1975, the complainants, Ramon Yap and Tommy Pacana, leased to the accused,
Ranulfo Salazar, the "Tanguili Night Club" situated in Cagayan de Oro City, for the monthly rental of P2,000.00. On May 23, 1976, Ranulfo Salazar paid
P500.00 in cash and P1,500.00 in check (PBC Check No. C179-4555 postdated May 31, 1976) to Ramon Yap for the rental of the premises corresponding to
the period from April 15 to May 15, 1976. However, when the check was presented to the bank for payment, the same was dishonored for lack of funds to
cover the same. For failure of Ranulfo Salazar to make good his obligation, complainants instituted a suit for estafa against him, and on June 10, 1976, the
First Assistant City Fiscal of Cagayan de Oro City filed with the City Court of Cagayan de Oro (for preliminary investigation) the following information:

That on or about May 23, 1976, in Cagayan de Oro City, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, by means
of false pretenses or fraudulent acts executed prior to or simultaneously with the commission of the fraud, with intent to defraud and knowing that he had
no money to pay, did then and there wilfully, unlawfully and feloniously issue a Philippine Banking Corporation Check No. C179 for P1,500.00 in favor of
Ramon Yap dated May 31, 1976, in payment of and/or representing accused monthly rental of the Tanguili Night Club for April 15, 1976 to May 15, 1976,
knowing fully well that said accused had no funds in the bank or the funds deposited by him is not sufficient to cover the amount of said check as evidence
by the fact that when said check was presented for encashment, it bounces or was dishonored for reason that there is no funds available and despite
demands made, accused failed and refused and still fails and refuses to make good or pay the same, to the damage and prejudice of the offended party in
the aforementioned sum of P1,500.00, Philippine Currency. 1

On August 6, 1976, Ranulfo Salazar filed a motion to quash the information alleging:

1. That the facts charged do not constitute an offense; and

2. That the accused is not the drawer or the person who issued PBC Check No. C179-4555 in the amount of P1,500.00 subject matter of this litigation in
favor of the complainant. 2

An opposition to the said motion to quash was filed by the prosecution and after the parties were heard in oral argument, the City Court issued an order
dated January 6, 1977 granting the motion to quash by ruling that since the check was issued in payment of a pre-existing obligation, no estafa was
committed. Petitioner now seeks the nullity of said order on the ground that the same is not in accord with law, being an erroneous interpretation of the
provision of Article 315, paragraph 2(d) of the Revised Penal Code and of Rule 112 of the Rules of Court.

G.R. No. L-45711:

The record shows that the petitioner Tan Tao Liap and the complainant were old friends. On several occasions from January to July, 1972, Tan Tao Liap
borrowed money from Ngo Cheng which amounted to P9,000.00. It was only in the early part of August, 1972 that Ngo Cheng demanded from Tan Tao Liap
the payment of his indebtedness plus the sum of P500.00 as interest. 3 Tan Tao Liap informed Ngo Cheng that he did not have sufficient funds to pay but
that he might possibly be able to settle the debt about the end of the month as he was then expecting to receive some money at that time. Tan Tao Liap
further proposed to pay the loan on a staggered basis and Ngo Cheng agreed to this proposal on the condition, however, that Tan Tao Liap would issue him
three (3) checks, namely: (1) Cheek No. 7-442560 dated August 24, 1972 for P3,000.00; (2) Check No. 7442561 dated August 31, 1972 for P3,000.00 and (3)
Check No. 7442562 dated September 1, 1972, for P3,500.00, all drawn against his account with the Consolidated Bank and Trust Company at Soler St.,
Manila. 4 The first check was deposited by Ngo Cheng with the Associated Bank at Pasay City and it was duly paid and cleared by the Consolidated Bank as
Tan Tao Liap was able to deposit sufficient funds to cover the same. 5 Subsequently, however, Tan Tao Liap suffered business reverses and so what he did
was to inform Ngo Cheng not to deposit the second and third checks which were to mature on August 31, 1972 and September 1, 1972, respectively,
because of his inability to raise the amounts to cover said checks. As an alternative, Tan Tao Liap proposed to pay the balance in monthly installments of
P300.00 until such time that he could raise enough funds. Ngo Cheng, however, turned down the offer and even told Tan Tao Liap that he was going to file a
criminal case against him if he failed to deposit the amount for the two remaining checks. 6 At the instance of Ngo Cheng, Tan Tao Liap was charged by the
City Fiscal of Pasay City with the crime of estafa on January 24, 1973 for issuing the third check (No. 7-442562, dated September 1, 1972, for P3,500.00)
which was dishonored for lack of funds.

On November 9, 1973, the City Court rendered its decision convicting Tan Tao Liap of the crime of estafa despite its finding that the check was issued in
payment of a pre-existing obligation. 7 Subsequently, Tan Tao Liap appealed the said decision to the Court of Appeals. However, on October 26, 1976, the
Court of Appeals rendered judgment affirming that of the City Court of Pasay City. Not satisfied with the decision of the Court of Appeals, Tan Tao Liap now
seeks a review thereof by this Court alleging that:

THE COURT OF APPEALS ERRED IN CONSTRUING ARTICLE 315 OF THE REVISED PENAL CODE AS HOLDING PETITIONER LIABLE FOR ESTAFA FOR HAVING
ISSUED A BAD CHECK EVEN IF THE CHECK HAD BEEN ISSUED IN PAYMENT OF A PRE-EXISTING DEBT.

G.R No. L-42971:

The petitioner, Daylinda A. Lagua, is engaged in the logging business in Davao City under the business name "Manuel P. Lagua Logging Enterprises". Since
October of 1973, the Lagua Enterprises had been buying their logging supplies and hardware on credit from the Gempesaw Hardware in Davao City,
managed by Marcos Chua. The items delivered on credit to the Lagua Enterprises by the Gempesaw Hardware for the period from October, 1973 to June
20, 1974 amounted to P28,601.54. Demands were made for its payment and sometime in July, 1974, Daylinda Lagua issued Equitable Banking Corporation
Check No. 22711219A, in the amount of P30,000.00, payable to Marcos Chua and postdated August 24, 1974, the difference in the amount being the
accrued interests on the amount of P28,601.54, in payment of the obligation. Upon presentment after its due date, the said check was dishonored by the
drawee bank for insufficient funds. Accordingly, a letter was sent to Daylinda Lagua demanding payment therefor, but she failed to pay. Consequently, an
information was filed before the Court of First Instance of Davao City charging her with estafa, defined and penalized under Article 315, par. 2(d) of the
Revised Penal Code, as amended by Republic Act No. 4885, committed as follows:

That on or about August 24, 1974, in the City of Davao, Philippines, and within the jurisdiction of this Honorable Court, the above-mentioned accused, well
knowing that she did not have sufficient funds in the bank, did then and there willfully, unlawfully and feloniously and with intent to gain issue and made
out an Equitable Banking Corporation Check No. 22711219A dated August 24, 1974 in the amount of P30,000.00 in payment of an obligation from the
Gempesaw Hardware owned by Marcos Chua; that upon presentation of the above-mentioned check to the bank for encashment, the same was
dishonored for insufficiency of funds and despite repeated demands made upon said accused to make good the above-mentioned check, the same refused
and failed to make payment, to the damage and prejudice of the said Gempesaw Hardware owned by Marcos Chua in the aforementioned amount of
P30,000.00. 8

The case was docketed in the Court of First Instance of Davao City as Criminal Case No. 2023.

Upon arraignment, Daylinda Lagua pleaded not guilty. Thereafter, trial proceeded and the prosecution adduced its evidence, after which the accused filed a
motion to dismiss the case, 9 claiming that upon the facts adduced in the case, it would appear that the postdated check was issued in payment of a pre-
existing obligation and, therefore, no estafa was committed according to the rule enunciated in the cases of People vs. Lilius 10 and People vs. Fortuno. 11

The prosecution opposed the motion alleging that the rule stated in the Lilius case been superseded by Republic Act No. 4885, so that the crime of estafa is
committed upon the issuance of a postdated check, subsequently dishonored, whether the issuance be in payment of a pre-existing obligation, or for an
obligation contracted at the time the check was issued, when the issuance is attended by deceit constituting false pretense or fraudulent act. 12

The motion to dismiss the case was denied on December 23, 1975,13 and the motion for its reconsideration 14 was also denied on February 2, 1976. 15
Whereupon, Daylinda Lagua instituted the present petition.

As stated, the issue for determination is whether or not the issuance of a postdated check, which is subsequently dishonored for insufficiency of funds, in
payment of a pre-existing obligation, constitutes estafa as defined and penalized under Article 315, par. 2(d) of the Revised Penal Code, as amended by
Republic Act No. 4885 and Presidential Decree No. 818.

Prior to its amendment, Article 315, par. 2(d) of the Revised Penal Code, read:

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

xxx xxx xxx

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

xxx xxx xxx

(d) By postdating a check, or issuing a check in payment of an obligation the offender knowing that at the time he had no funds in the bank, or the funds
deposited by him were not sufficient to cover the amount of the check, and without informing the payee of such circumstances.

Under said provisions, it was the rule that the mere issuance of a check with knowledge on the part of the drawer that he had no funds to cover its amount
and without informing the payee of such circumstances, does not constitute the crime of estafa if the check was intended as payment of a pre-existing
obligation. The reason for the rule is that deceit, to constitute estafa, should be the efficient cause of the defraudation and as such should either be prior to,
or simultaneous with the act of fraud.16

In 1967, the law was amended by Republic Act No. 4885, eliminating the phrases "the offender knowing that at the time he had no funds in the bank" and "
without informing the payee of such circumstances. " However, a presumption was included. The pertinent provisions of the law, as amended, now reads:

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

xxx xxx xxx

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

xxx xxx 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.

A comparative analysis of the two provisions will readily show that what has been established under the amendment is the prima facie evidence of deceit
constituting false pretense or fraudulent act in case the drawer fails to deposit the necessary amount within three (3) days from notice of dishonor from the
bank and/or payee or holder of the check. Likewise, the amendment has eliminated the requirement under the previous provision for the drawer to inform
the payee that he had no funds in the bank or the funds deposited by him were not sufficient to cover the amount of the check. 17 Moreover, what is
significant to note is that the time or occasion for the commission of the false pretense or fraudulent act has not at all been changed by the amendment.
The false pretense or fraudulent act must be executed prior to or simultaneously with the commission of the fraud. Thus, under Article 315, paragraph 2(d)
of the Revised Penal Code, as amended by Republic Act No. 4885, the following are the elements of estafa: (1) postdating or issuance of a check in payment
of an obligation contracted at the time the cheek was issued; (2) lack or insufficiency of funds to cover the check; and (3) damage to the payee thereof.
Now, it is asked: Is there deceit and damage when a bad check is issued in payment of a pre-existing obligation? It is clear that under the law, the false
pretense or fraudulent act must be executed prior to or simultaneously with the commission of the fraud. To defraud is to deprive some right, interest, or
property by deceitful device. 18 In the issuance of a check as payment for a pre-existing debt, the drawer derives no material benefit in return as its
consideration had long been delivered to him before the check was issued. In short, the issuance of the check was not a means to obtain a valuable
consideration from the payee. Deceit, to constitute estafa should be the efficient cause of the defraudation. 19 Since an obligation has already been
contracted, it cannot be said that the payee parted with his property or that the drawer has obtained something of value as a result of the postdating or
issuance of the bad check in payment of a pre-existing obligation. 20

Finally, considering the absence of an express provision in the law, the postdating or issuance of a bad check in payment of a pre-existing obligation cannot
be penalized as estafa by means of deceit, otherwise, the legislature could have easily worded the amendatory act to that effect. Since the language of the
law is plain and unambiguous, We find no justification in entering into further inquiries for the purpose of ascertaining the legislative intent. 21 Moreover,
laws that impose criminal liability are strictly construed. 22 The rule, therefore, that the issuance of a bouncing check in payment of a pre-existing obligation
does not constitute estafa has not at all been altered by the amendatory act. 23

The issue of jurisdiction was also raised by the petitioner in the case of People vs. Sabio, G.R. No. L-45490. It is contended that the City Court, acting
pursuant to its authority to conduct preliminary investigations, cannot dismiss the case as a motion to quash can only be availed of in a regular trial where
the court has jurisdiction to try the offense. It is further alleged that the purpose of a preliminary investigation is merely to determine a probable cause and
not to rule on difficult questions of law. We see no merit in these contentions. There is no dispute that the information was filed before the City Court for
purposes of preliminary investigation only, as the offense falls under the exclusive jurisdiction of the Court of First Instance. The check involved amounts to
P1,500.00, hence, the imposable penalty for the offense is prision mayor in its medium period or an imprisonment ranging from eight (8) years and one (1)
day to ten (10) years. 24 Under Section 78 of Republic Act No. 521, as amended by Republic Act No. 3969, the City Court of Cagayan de Oro City is
authorized to conduct preliminary investigation. 25 When a power is conferred upon a court or judicial officer, it is deemed that all the means necessary to
carry it into effect are included therein. 26 The power, therefore, conferred upon the City Court of Cagayan de Oro City to conduct preliminary
investigations carries with it the power to draw a conclusion after the investigation. It has been held that in the preliminary investigation proper, the Justice
of the Peace may discharge the defendant if he finds no probable cause to hold the defendant for trial. But if he finds a probable cause, it is his duty to bind
over the defendant to the Court of First Instance for trial on the merits. 27 Moreover, the purpose of a preliminary investigation is to secure the innocent
against hasty, malicious and oppressive prosecutions, and to protect him from open and public accusation of a crime. 28 The City Court, therefore, acted
within its jurisdiction in granting the motion to quash the information filed in this case.

WHEREFORE, in view of all the foregoing, judgment is hereby rendered:

1. Dismissing the petition in case G.R. No. L-45490 for lack of merit;

2. Reversing the decision of the Court of Appeals in case G.R. No. L-45711, and acquitting the petitioner of the crime charged; and

3. Dismissing Criminal Case No. 2023, entitled "People vs. Daylinda Lagua."

No pronouncement as to costs.

SO ORDERED.

Castro, C.J., Teehankee, Muñoz Palma, Aquino, Santos, Fernandez and Guerrero, JJ., concur.

Makasiar, J., joins Justice Barredo in his concurring and dissenting opinion as well as Justice Antonio in his dissent.
 Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 76262-63 March 16, 1989
PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HON. PEDRO G. LAGGUI, Presiding Judge of Branch XXXIV of the Regional Trial Court of Pampanga and ELISEO SORIANO, respondents.

GRIÑO-AQUINO, J.:

The private respondent Eliseo F. Soriano issued a postdated check that bounced. He was charged by the Provincial Fiscal in two separate informations, for
violation of B.P. Blg. 22 (Crim. Case No. 2934) and estafa (Crim. Case No. 3007). After a joint trial of the two cases, respondent Judge Pedro Laggui of the
Regional Trial Court of Pampanga promulgated a joint decision on September 24, 1986, (1) dismissing the information in Criminal Case No. 2934 (for
violation of B.P. Blg. 22) for being "fatally defective" (p. 63, Rollo), and (2) convicting the accused of estafa in Criminal Case No. 3007.

The accused appealed the decision in Criminal Case No. 3007 to the Court of Appeals, which on July 26, 1988, reversed and set aside the judgment of the
Regional Trial Court, thereby acquitting the accused Eliseo Soriano, "without prejudice to the person entitled to (sic) the civil action for restitution of the
thing and reparation or indemnity for the damage suffered" (CA-G.R. No. 0.4096, p. 615, Records in Criminal Case No. 2934, Vol. II.)

The State filed the instant petition for certiorari and mandamus assailing the dismissal of the allegedly defective information in Criminal Case No. 2934 and
praying that the trial court be ordered to reinstate the case and render judgment as the law and the evidence warrant.

Respondent Judge filed his own Comments on the petition to defend his order in the case. The accused adopted the Judge's comments as his own.

The only issue raised by the petition is a legal one: whether or not the information in Criminal Case No. 2934 is indeed "fatally defective." The information
reads as follows:

The undersigned Acting Provincial Fiscal and Assistant Provincial Fiscal accuse ELISEO F. SORIANO of felony of Violation of Batas Pambansa Bilang 22,
committed as follows:

That sometime in October 1983, in the municipality of San Fernando, Province of Pampanga, Philippines, and within the jurisdiction of this Honorable Court,
the above named accused ELISEO F. SORIANO, with intent to defraud, by means of deceit, knowing fully well that he had no funds and/or sufficient funds in
the bank, for value received did then and there wilfully, unlawfully and feloniously issue and make out Banco Filipino Check No. 1679962 postdated July 18,
1984, in the amount of TWO HUNDRED FIFTY THOUSAND (P250,000.00) PESOS, Philippine Currency, drawn against his current account with Banco Filipino,
Malolos Branch, Bulacan, payable to Lolita 0. Hizon in payment of an obligation and when the said check was presented for encashment, said check was
dishonored and returned, with the information that the said check is drawn against 'CLOSE ACCOUNT' and in spite of repeated demands made of the
accused to redeem said check or settle the said amount, accused failed and refused and still fails and refuses to comply with said demands, to the damage
and prejudice of Lolita 0. Hizon, in the total amount of P250,000.00 Philippine Currency.

All contrary to law. (Annex A, p. 21, Rollo.)

Upon arraignment, Soriano pleaded not guilty to the information.

During the pre-trial, the prosecution and the defense admitted the following:

l. That at the instance of the private complainant Lolita 0. Hizon, Unity Savings and Loan Association Inc. Cashier Check No. 0623 dated October 4, 1983 in
the amount of P250,000 (Exh. A) was issued by the said bank drawn against the Metropolitan Bank and Trust Company, San Fernando, Pampanga Branch,
and the said check was endorsed by the daughter of Lolita 0. Hizon with authority from the latter in favor of the accused Eliseo Soriano;

2. That the said Check (Exh. A) was thereafter endorsed by the accused in favor of Dr. Zoilo Pangilinan as payment of the accused's indebtedness to the
former and the check was thereafter encashed by the bank;

3. That the said check (Exh. A) after its encashment by the bank, was returned to the private complainant Lolita 0. Hizon;

4. That more or less on the date when Cashier Check No. 0623 (Exh. A) was issued, the accused issued Banco Filipino Check No. 1679962 (Exh. B) dated July
18, 1984 in the amount of P 250,000 in favor of the private complainant Lolita 0. Hizon. According to the accused this Banco Filipino chock (Exh. B) was
undated, while according to the private complainant Lolita 0. Hizon, the said check (Exh. B), was dated July 18, 1984;

5. That when Banco Filipino Check (Exh. B) was deposited by the private complainant with the Union Bank of the Philippines, San Fernando, Pampanga on
July 18, 1984, the check was dishonored by the bank because the account of the accused with the drawee bank was already closed as of July 10, 1984 (Exh.
B-1);

6. That because the check (Exh. B) was dishonored by the bank, a demand letter dated August 24, 1984 (Exh. C) was received by the accused from the
counsel of the private complainant (Exh. C-1).' (p. 23, Rollo.)

The other facts which were established at the trial are:

The accused (now private respondent) Eliseo F. Soriano is a minister of the "Church of God in Jesus Christ, the Pillar and Ground of the Truth in the
Philippines." (p. 28, Rollo.) He first met the offended party Lolita 0. Hizon in July or August, 1983, when her godson, Arcadio Malla who is a member of
Soriano's congregation, introduced the latter to her. HIZON became interested in Soriano's religious group and became a member thereof on November 27,
1983.

In the second week of August 1983, Soriano confided to Hizon his worries about his indebtedness of P 250,000 to Dr. and Mrs. Zoilo Pangilinan. The
obligation was secured by a mortgage on the congregation's property which would mature on October 4, 1983. Hizon offered to help. She agreed to lend
P250,000 in cash to Soriano who would issue a post-dated check to her for the same amount.

To raise the P 250,000, Hizon borrowed against her time deposit at the Unity Savings and Loan Association, Inc. (USLA). Since she and her husband were
leaving for the United States on a short trip in August 1983, she signed the necessary papers for the loan before their departure. She also executed a special
power of attorney authorizing her daughter, Rose Anne Hizon, to receive from USLA the P250,000 check representing the proceeds of her loan and to
endorse and deliver it to Soriano upon Soriano's issuing to her a post-dated check for the same amount of P250,000. Accordingly, on October 4, 1983, Rose
Anne got the P250,000 check from the USLA endorsed it to Soriano who issued, in exchange therefor, his Banco Filipino check for the same amount. His
check was undated.
When Lolita Hizon arrived from her trip on October 16, 1983, she asked Soriano why his check bore no date. Soriano told her to date it "July 18, 1984" (pp.
26-27, Rollo) so he would have sufficient time to fund it. When Hizon deposited the check on that date, the drawee bank dishonored it because Soriano's
account with it had been closed as of July 10, 1984, or one week before the due date of the check.

During the trial on the merits, Soriano admitted that when he issued the check he did not have enough funds in the bank, and that he failed to deposit the
needed amount to cover it. He alleged that he issued the check as "a temporary receipt for what he had received" (pp. 20-21, t.s.n., December 2, 1985; pp.
10 and 35, RTC Decision, p. 30, Rollo).

Despite repeated demands to make good his check, or to replace it with cash, Soriano did neither.

In its decision dated September 1, 1986, the trial court ruled that the accused could not be convicted of a violation of the Bouncing Checks Law, B.P. Blg. 22,
because the information failed to allege that he knew, when be issued the check, that he would not have sufficient funds for its payment in full upon its
presentment to the drawee bank. In the opinion of the trial judge, the information did not charge an offense, hence, he dismissed it.

In this petition for certiorari and mandamus, the State alleges that the information is sufficient, hence, respondent Judge committed an error of law, and/or
gravely abused his discretion, in dismissing Criminal Case No. 2934. We agree.

The accused was charged with having violated Batas Pambansa Blg. 22, which 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 in full upon 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 (30) days but not more than on (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. (Emphasis supplied.)

The elements of the offense are:

1. the making, drawing and issuance of any check to apply to account or for Value,

2. the maker, drawer or issuer 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.

The "defect" which respondent Judge perceived in the information was the failure to allege that the accused, as maker or drawer of the check at the time of
issue, knew of the insufficiency of his funds in the bank for payment of the check in full "upon its presentment" (p. 56, Rollo). In the court's opinion, it was
not enough for the information to have alleged that the accused knew when he issued the check that he then did not have sufficient funds in the bank; the
information should have alleged that the accused knew that he would not have sufficient funds in the bank to pay the check in full "upon its presentment".
It believed that the absence of an allegation that the accused foresaw or had foreknowledge of the insufficiency of his bank account upon presentment of
the check for payment, was fatal to the information.

The interpretation is erroneous. Section 2 of the law provides:

Section 2. Evidence of knowledge of insufficient funds.-The making, drawing and issuance of a check payment of which is refused by the drawee because of
insufficient funds in or credit with such bank, when presented within ninety (90) days from the date of the check, shall be prima facie evidence of
knowledge of such insufficiency of funds or credit unless such maker or drawer pays the holder thereof the amount due thereon, or makes arrangements
for payment in full by the drawee of such check within five (5) banking days after receiving notice that such cheek has not been paid by the drawee
(Emphasis supplied.)

In other words the presence of the first and third elements of the offense constitutes prima facie evidence that the second element exists. The maker's
knowledge of the insufficiency of his funds is legally presumed from the dishonor of his check for insufficiency of funds. This Court has ruled that:

Violation of the bad checks act is committed when one 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' or 'having sufficient funds in or credit with the drawee bank . . . shall fail to keep sufficient funds or to maintain a
credit 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. (People vs. Manzanilla, 156 SCRA 279, 282.)

The gravamen of the offense under B.P. Blg. 22 is the act of making and issuing a worthless check or a check that is dishonored upon its presentment for
payment. The law has made the mere act of issuing a bum check a malum prohibitum an act proscribed by legislature for being deemed pernicious and
inimical to public welfare. (Lozano vs. Martinez, Lobaton vs. Cruz, Datuin vs. Pano, Violago vs. Pano, Abad vs. Gerochi Aguiluz vs. Isnani Hojas vs. Peñaranda,
People vs. Nitafan, G.R. Nos. L-63419, 66839-42, 71654, 74524-25, 75122-49, 75812-13, 75765-67 & 75789, December 18, 1986, 146 SCRA 323).

Since the information in Criminal Case No. 2934 did allege that the accused, for value received, unlawfully and feloniously issued the postdated check
"knowing fully well that he had no funds and/or insufficient funds in the bank . . . and when the said check was presented for encashment, said check was
dishonored and returned with the information that the said check is drawn against 'CLOSE ACCOUNT' . . . (pp. 2 122, Rollo) the information satisfies the legal
definition of the offense under Section 1, B.P. Blg. 22. It is sufficient. The trial court erred in dismissing it.

However, although its decision is erroneous, that decision may not be annulled or set aside because it amounted to a judgment of acquittal. It became final
and executory upon its promulgation. The State may not appeal that decision for it would place the accused twice in jeopardy of punishment for the offense
in violation of his constitutional right against double jeopardy (Art. III, Sec. 21, 1987 Constitution).

This case is somewhat similar to the case of US vs. Yam Tung Way, 21 Phil. 67, where this Court ruled that the defendant, after having been discharged by a
competent court, cannot again be put on trial for the same offense "whether his discharge be the result of formal acquittal or of a ruling of the court upon
some question of law arising at the trial; no appeal lies in such case on behalf of the government." The accused therein was charged with infringement of
literary rights. After trial, he moved for the dismissal of the information on the ground that the evidence of the Government did not establish the
commission of the offense charged. The Court reserved its judgment on the motion and required the defendant to submit his evidence. Afterwards, it
discharged him on the ground that no copyright law existed then in the Philippines. The Government appealed. The Supreme Court held that the
Government had no right to appeal:
Defendant was regularly arraigned, pleaded not guilty, put upon his trial by the calling of the government's witness against him, and thereafter discharged
by the trial court. It is true that the court made no express finding as to whether the defendant did or did not commit the specific acts set out in the
information, and that the dismissal of the information was based on the court's conclusion of law that there being no copyright law in force in these Islands,
the acts which it is alleged were committed by the defendant do not constitute the crime with which he was charged, nor any other offense defined and
penalized by law. But the reasoning and authority of the opinion of the Supreme Court of the United States in the case of Kepner vs. United States, supra, is
conclusively against the right of appeal by the government from a judgment discharging the defendant in a criminal case after he has been brought to trial,
whether defendant was acquitted on the merits or whether defendant's discharge was based upon the trial court's conclusion of law that the trial had failed
for some reason to establish the guilt of the defendant as charged.

As indicated in the opinion in that case, the protection afforded by the prohibition against the putting of any person twice in jeopardy for the same offense,
is a protection not merely against the peril of second punishment, but against being tried a second time for the same offense. In that case the court
expressly held that:

It follows that Military Order No. 58, as amended by Act of the Philippine Commission, No. 194, insofar as it undertakes to permit an appeal by the
Government after acquittal, was repealed by the Act of Congress of July, 1902, providing immunity from second jeopardy for the same criminal offense.

But the reasoning of the opinion goes further and denies the right to the Government to procure the reversal of erroneous proceedings and commence
anew, save only in those cases in which the first proceeding did not create legal jeopardy. So that, without his own consent, a defendant who has once been
brought to trial in a court of competent jurisdiction cannot be again put on trial for the same offense after the first trial has terminated by a judgment
directing his discharge, whether his discharge be the result of a formal acquittal, or of a ruling of the court upon some question of law arising at the trial.
(US vs. Yam Tung Way, 21 Phil. 67, 70-71.)

Since in the present case the accused Eliseo Soriano had been arraigned, pleaded "not guilty," and was tried upon a valid and sufficient information
(although the lower court erroneously thought otherwise) and the case against him was dismissed by decision of the trial court (hence, without his consent
and not upon his motion), he has been placed in jeopardy or danger of punishment for the offense charged. For this Court to re-assess the evidence against
him pursuant to the Government's appeal, would place him twice in jeopardy of punishment for the same offense.

Although the dismissal of the information against him may constitute a miscarriage of justice, the erroneous dismissal by the trial court may not be
disturbed for it would violate his basic constitutional right to be exemp t from double jeopardy.

WHEREFORE, the petition for review of the trial court's decision dismissing the information in Criminal Case No. 2934, is denied.

SO ORDERED.

Narvasa, Cruz, Gancayco and Medialdea, JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 75217-18 September 21, 1987
VICTOR QUE, petitioner,
vs.
PEOPLE OF THE PHILIPPINES and INTERMEDIATE APPELLATE COURT, respondents.

RESOLUTION

PARAS, J.:

Before Us is a Motion for Reconsideration of Our minute resolution 1 dated September 22, 1986 denying the main Petition for Review on certiorari of the
decision 2 and resolution 3 of the respondent Court of Appeals which affirmed the judgment 4 of the Regional Trial Court of Quezon City convicting herein
petitioner of the crime of violating Batas Pambansa Blg. 22 on two (2) counts.

In the main Petition filed on August 25, 1986, petitioner seeks a review by certiorari of the appellate court's decision dated January 14, 1986 and the
resolution denying petitioner's motion for reconsideration of the same, on the grounds that respondent appellate court not only decided a substantial
question of jurisdiction not in accordance with law and applicable jurisprudence but also sanctioned the departure by the lower court from the accepted
judicial procedures on the issue of jurisdiction.

In his Motion for Reconsideration, petitioner raises the following grounds:

1. That the denial of the petition by way of a minute resolution is for no stated reason except for "lack of merit. "

2. That the respondent-appellate court erred in not considering material facts as well as the principal element of the crime charged showing that the lower
court had no jurisdiction to try the instant case.

3. The respondent-appellate court erred in failing to consider that one of the most important elements of the offense charged under Batas Pambansa Blg.
22 which is the place of the issuance of the check is clearly absent in the instant case.

Or simply stated, the issue is whether the decision of both the trial court and appellate court and the denial of the Petition for Review are in accordance
with law and evidence.

The motion is without merit.

There is no question that the Regional Trial Court of Quezon City had jurisdiction over the case as provided for in Secs. 10 and 15 (a) Rule 110 of the New
Rules of Court. The findings of fact of the trial court reveal that the checks in question were issued at Quezon City as admitted by petitioner himself in his
answer when he was sued by the complainant on his civil liability. Thus, the trial court held:

In his answer (Exhibit "H") to the civil complaint for collection of sum of money, docketed as Civil Case No. Q-32445 of the Court of First Instance, Branch IX,
Quezon City (Exhibit "G"), the accused inferentially admitted that the purchases and issuance of the check in question were made at Francis Hill Supply
located at No. 194 Speaker Perez Street, Sta. Mesa Heights, Quezon City. (Exhibit "G-1" and Exhibit "H-1"). (p. 4, Dec.) (p. 62, Rollo)

It is of no moment whether the said checks were deposited by the complainant in a bank located outside of Quezon City. The determinative factor is the
place of issuance which is in Quezon City and thus within the court's jurisdiction.

The argument on petitioner's second issue has likewise no leg to stand on. On this argument that he issued the checks in question merely to guarantee the
payment of the purchases by Powerhouse Supply, Inc. of which he is the Manager, We give our stamp of approval on the findings of the appellate court, to
wit:

Neither may appellant's claim in his second assignment of error that the accused issued the checks in question merely to guarantee the payment of the
purchases by Powerhouse Supply, Inc. serve to exculpate accused from criminal liability for his act of issuing the checks in question.

It is now settled that Batas Pambansa Bilang 22 applies even in cases where dishonored checks are issued merely in the form of a deposit or a guarantee.
The enactment in question does not make any distinction as to whether the checks within its contemplation are issued in payment of an obligation or
merely to guarantee the said obligation. In accordance with the pertinent rule of statutory construction, inasmuch as the law has not made any distinction
in this regard, no such distinction can be made by means of interpretation or application. Furthermore, the history of the enactment of subject statute
evinces the definite legislative intent to make the prohibition all- embracing, without making any exception from the operation thereof in favor of a
guarantee. This intent may be gathered from the statement of the sponsor of the bill (Cabinet Bill No. 9) which was enacted later into Batas Pambansa
Bilang 22, when it was introduced before the Batasan Pambansa, that the bill was introduced to discourage the issuance of bouncing checks, to prevent
checks from becoming "useless scraps of paper" and to restore respectability to checks, all without distinction as to the purpose of the issuance of the
checks. The legislative intent as above said is made all the more clear when it is considered that while the original text of Cabinet Bill No. 9, supra, had
contained a proviso excluding from the coverage of the law a check issued as a mere guarantee, the final version of the bill as approved and enacted by the
Committee on the Revision of Laws in the Batasan deleted the abovementioned qualifying proviso deliberately for the purpose of making the enforcement
of the act more effective (Batasan Record, First Regular Session, December 4, 1978, Volume II, pp- 1035-1036).

Consequently, what are important are the facts that the accused had deliberately issued the checks in question to cover accounts and that the checks were
dishonored upon presentment regardless of whether or not the accused merely issued the checks as a guarantee. (pp. 4-5. Dec. IAC (pp. 37-38, Rollo)

From the aforequoted paragraphs, it is clear that is the intention of the framers of Batas Pambansa Bilang 22 to make the mere act of issuing a worthless
check malum prohibitum and thus punishable under such law.

Finally, We now come to the third argument regarding the denial of the petition by a minute resolution. Although, petitioner in his Reply, thru his counsel,
Atty. Joanes G. Caacbay has never questioned the power of this Court to deny petition for review by the issuance of a mere minute resolution as there is no
violation whatsoever of the provisions of the Constitution and at the same time, same counsel disowns having knowledge or a hand in the preparation of
the motion for reconsideration which was prepared by a certain Atty. Victor T. Avena, We deemed it worthwhile to mention here the case of In Re:
Almacen, 31 SCRA 562, 574 where We held that.

Six years ago in Novino, et al. vs. Court of Appeals, et al., L-21098, May 31, 1963 (60 O.G. 8099), this Court through the then Chief Justice Cesar Bengzon,
articulated its considered view on this matter. There, the petitioner's counsel urged that a "lack of merit" resolution violates Section 12 of Article VIII of the
Constitution. Said Chief Justice Bengzon:
In connection with Identical short resolutions, the same question has been raised before; and we held that these 'resolutions' are not 'decisions' within the
above constitutional requirement. They merely hold that the petition for review should not be entertained in view of the provisions of Rule 46 of the Rules
of Court; and even ordinary lawyers have all this time so understood it. It should be remembered that a petition to review the decision of the Court of
Appeals is not a matter of right, but of sound judicial discretion; and so there is no need to fully explain the court's denial. For one thing, the facts and the
law are already mentioned in the Court of Appeals' opinion.

WHEREFORE, premises considered. the motion for reconsideration of the denial of the instant petition for certiorari, is hereby DENIED.

Fernan, Gutierrez, Jr., Padilla, Bidin and Cortes, JJ., concur.

SECOND DIVISION
G.R. No. 131714. November 16, 1998
EDUARDO R. VACA and FERNANDO NIETO, Petitioners, v. COURT OF APPEALS and the PEOPLE OF THE PHILIPPINES, Respondents.

DECISION

MENDOZA, J.:

Petitioners seek a review of the decision, dated October 25, 1996,1 and the resolution, dated December 2, 1997,2 of the Court of Appeals, affirming their
conviction by the Regional Trial Court of Quezon City (Branch 100) for violation of B.P. Blg. 22, otherwise known as the Bouncing Checks Law.

The facts are as follows:

Petitioner Eduardo R. Vaca is the president and owner of Ervine International, Inc. (Ervine), which is engaged in the manufacture and sale of refrigeration
equipment, while his son-in-law, petitioner Fernando Nieto, is the firms purchasing manager. On March 10, 1988, petitioners issued a check for P10,000.00
to the General Agency for Reconnaissance, Detection, and Security, Inc. (GARDS) in partial payment of the security services rendered by GARDS to Ervine.
The check was drawn on the China Banking Corporation (CBC). When deposited in the Philippine Commercial International Bank (PCIBank) branch at Shaw
Boulevard, Mandaluyong, the check was dishonored for insufficiency of funds.

On March 29, 1988, GARDS wrote Ervine a letter in which it demanded payment in cash of the amount of the check within seven days from notice. The
letter was received by Ervine on the same day, but petitioners did not pay within the time given.

On April 13, 1988, petitioners issued a check for P19,860.16 to GARDS. The check was drawn on the Associated Bank. The voucher accompanying it stated
that the check was to replace the dishonored check, the P9,860.16 balance being partial payment for Ervines outstanding account. The check and the
voucher were received by a GARDS messenger, Nolan C. Pena, on April 15, 1988, but GARDS did not return the dishonored check.

On April 14, 1988, GARDS Operations Manager Jovito C. Cabusara filed a criminal complaint against petitioners for violation of B.P. Blg. 22. After preliminary
investigation, an information was filed in the Regional Trial Court of Quezon City (Branch 97). However, the case was dismissed by the court on May 11,
1989, upon motion of the prosecution, on the ground that Ervine had already paid the amount of the check.

On September 18, 1989, GARDS, through its Acting Operations Manager Eduardo B. Alindaya, filed another complaint for violation of B.P. Blg. 22 against
petitioners. This resulted in the filing of an information against petitioners in the Regional Trial Court of Quezon City (Branch 100). After trial, petitioners
were found guilty of the charge and each was sentenced to suffer one (1) year imprisonment and to pay a fine of P10,000.00 and the costs.

On appeal, the Court of Appeals affirmed the decision. It subsequently denied petitioners motion for reconsideration. Hence, this petition. Petitioners
contend:

A. Respondent Court gravely erred in not holding that the prosecution failed to prove petitioners guilt beyond reasonable doubt.

B. Respondent Court gravely erred in basing conviction on the alleged weakness of the evidence of the defense rather than on the strength of the evidence
of the prosecution.

C. Respondent Court erred in not acquitting petitioners on grounds of mistake of fact and lack of knowledge.

Petitioners pray that the case against them be dismissed or, in the alternative, that the decision of the trial court be modified by sentencing each to an
increased fine but without imprisonment.

By supplemental petition, dated January 29, 1998, petitioners submitted an affidavit of desistance executed by GARDS president Dominador R. Santiago
which states that the case arose from a mere accounting difference between petitioners and GARDS, that the latter had not really suffered any damage as a
result of the issuance of the check in question and, that GARDS was no longer interested in prosecuting the case.

On May 28, 1998, petitioners filed another supplemental petition, this time invoking the recent decision in Lao v. Court of Appeals,3 in which this Court
reversed a conviction for violation of B.P. Blg. 22 upon a showing that the accused had no knowledge of the insufficiency of funds.

The Solicitor General opposes the appeal. He contends that the facts of Lao v. Court of Appeals are different from those of the case at bar and that the
affidavit of desistance of Dominador Santiago is of no moment, such affidavit having been made only after petitioners conviction.

After due review of the decision in this case, we find that petitioners conviction for violation of B.P. Blg. 22 is well founded.

First. The elements of the offense penalized under B.P. Blg. 22 are: (1) making, drawing, and issuance of any check to apply to account or for value; (2)
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
the check in full upon its presentment; and (3) subsequent dishonor of the check by the drawee bank for insufficiency of funds or credit, or dishonor of the
check for the same reason had not the drawer, without any valid cause, ordered the bank to stop payment.4 The makers knowledge is presumed from the
dishonor of the check for insufficiency of funds.5 Thus, 2 of B.P. Blg. 22 expressly provides:

SECTION 2. Evidence of knowledge of insufficient funds. - The making, drawing and issuance of a check payment of which is refused by the drawee because
of insufficient funds in or credit with such bank, when presented within ninety (90) days from the date of the check, shall be prima facie evidence of
knowledge of such insufficiency of funds or credit unless such maker or drawer pays the holder thereof the amount due thereon, or makes arrangements
for payment in full by the drawee of such check within five (5) banking days after receiving notice that such check has not been paid by the drawee.

In this case, after being notified on March 29, 1988 of the dishonor of their previous check, petitioners gave GARDS a check for P19,860.16. They claim that
this check had been intended by them to replace the bad check they had previously issued to the GARDS. Based on the testimony of a GARDS accountant,
however, the Court of Appeals found that the check was actually payment for two bills, one for the period of January 16 to January 31, 1988 in the amount
of P9,930.08 and another one for the period of March 16 to March 31, 1988 in the same amount. But even if such check was intended to replace the bad
one, its issuance on April 13, 1988 15 days after petitioners had been notified on March 29, 1988 of the dishonor of their previous check cannot negate the
presumption that petitioners knew of the insufficiency of funds to cover the amount of their previous check. Sec. 2 of B.P. Blg. 22 requires that such check
be given within five (5) days from the notice of dishonor to them.

Petitioners contend that, in accordance with the ruling in Lao v. Court of Appeals,6 they should be acquitted because the preparation of checks is the
responsibility of the company accountant and all they do is sign the checks. They claim that they rely on the word of the accountant that there are sufficient
funds in the bank to pay for the checks.
In the Lao case, the accused, as the Court found, had merely been made by her employer, Premiere Investment House, to countersign checks in blank. The
accused was a mere employee who did not have anything to do with the issuance of checks for the company. She did not know to whom the checks would
be paid as the names of payees were written only later by the head of operations. Moreover, no notice of dishonor was given to her as required by B.P. Blg.
22, 2. It could thus rightly be concluded that the accused issued checks to apply to account not knowing that at the time of issuance funds were insufficient
to pay for the checks.

Petitioners in this case cannot pretend ignorance of the insufficiency of funds. While it may be true that it was the companys accountant who actually
prepared the rubber check, the fact remains that petitioners are the owners and officers of the company. Sec. 1 of B.P. Blg. 22 provides that Where the
check is drawn by a corporation, company, or entity, the person or persons who actually signed the check in behalf of such drawer shall be liable under this
Act.

In fact, petitioner Nieto testified that after the check in question was dishonored, he instructed their company accountant to prepare a replacement check.7
This belies petitioners claim that they had no hand in the preparation of checks8 and shows that petitioners were in control of the finances of the company.

Second. The affidavit of desistance of the GARDS president deserves no more than passing mention. The claim that this case was simply the result of a
misunderstanding between GARDS and petitioners and that the former did not really suffer any damage from the dishonor of the check is flimsy. After
prosecuting the case below with tenacity, complainants going so far as to file another complaint after their first one had been dismissed, it is trifling with
this Court for complainants to now assert that the filing of their case was simply a mistake. It is for reasons such as this that affidavits of desistance, like
retractions, are generally disfavored.9 The affidavit in this case, which was made after petitioners conviction, is nothing but a last-minute attempt to save
them from punishment. Even if the payee suffered no damage as a result of the issuance of the bouncing check, the damage to the integrity of the banking
system cannot be denied. Damage to the payee is not an element of the crime punished in B.P. Blg. 22.

Third. Petitioners pray that, in the alternative, the penalty be modified by deleting the sentence of imprisonment and, in lieu thereof, a fine in an increased
amount be imposed on them. In support of their plea, they allege that they do not have any record of prior conviction; that Eduardo Vaca is of advanced
age (late 60s); and, that they come from good families. Petitioners claim that with their family background and social standing there is no reason why they
will refuse to pay a due and demandable debt of only P10,000.00. It is precisely because of their founded belief that the subject obligation has been paid
that they refused to be intimidated by a criminal charge.

The Court of Appeals dismissed these allegations as irrelevant to the question of petitioners guilt. We think so ourselves. However, we believe that they can
be considered in determining the appropriate penalty to impose on petitioners.

B.P. Blg. 22, 1, par. 1 provides a penalty of 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. Petitioners are first-time offenders. They are Filipino entrepreneurs who presumably contribute to the national economy.
Apparently, they brought this appeal, believing in all good faith, although mistakenly, that they had not committed a violation of B.P. Blg. 22. Otherwise,
they could simply have accepted the judgment of the trial court and applied for probation to evade a prison term. It would best serve the ends of criminal
justice if in fixing the penalty within the range of discretion allowed by 1, par. 1, the same philosophy underlying the Indeterminate Sentence Law is
observed, namely, that of redeeming valuable human material and preventing unnecessary deprivation of personal liberty and economic usefulness with
due regard to the protection of the social order.10 In this case we believe that a fine in an amount equal to double the amount of the check involved is an
appropriate penalty to impose on each of the petitioners.

WHEREFORE, the decision of the Court of Appeals is AFFIRMED with the modification that the sentence of imprisonment is deleted and petitioners are each
ordered to pay a fine of P20,000.00 equivalent to double the amount of the check.

SO ORDERED.

Melo (Acting Chairman) and Puno, JJ., concur.

Martinez, J., on official leave.

 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-26957 September 2, 1927
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
SIMEON YUSAY, defendant-appellant.

VILLA-REAL, J.:

This is an appeal taken by Simeon Yusay from the judgment of the Court of First Instance of Iloilo convicting him of the crime of theft, in accordance with
the information, and sentencing him to one year, eight months and twenty-one days presidio correccional, with the accessories of the law, and to pay the
costs of the action. And as the jewels redeemed by the accused were recovered by the owner, the latter is ordered to reimburse him in the sum of P80 with
which he redeemed the same, with the interest on the loan.

In support of his appeal, the appellant makes the following assignments of error as committed by the trial court in its judgment to wit: (1) The lower court
erred in convicting the accused under the facts stated in the information; (2) in holding that the evidence presented by the prosecution was sufficient to
sustain a conviction; and (3) in convicting the accused of theft when the facts presented, even if true, constituted estafa.

The prosecution tried to prove the following facts to the satisfaction of the trial court: Towards the end of March, 1926, Leonor Gil de Lazaro, the offended
party herein, wishing to redeem certain jewels which she had pawned through Elpidio Ledesma, her cook, and Primitivo Magante, a friend, in the pawnshop
of C. N. Hodges in the municipality of La Paz, Iloilo, took the corresponding pawn tickets, Exhibit C and D from her wardrobe. As she first had to prepare her
husband's meal, she gave said tickets to her trusted servant, Remigia Mediavilla, so that the latter might take care of them, and afterwards completely
forgot about them. One morning a week later, the servant asked her mistress's permission to visit her brother who was ill, taking the son of Leonor Gil de
Lazaro for whom she acted as maid, with her. As the boy saw some guavas in a store underneath a house, which he wanted to eat, the servant went into
said store to buy them, and there met the accused. On opening her purse for the money with which to pay for the guavas, the edges of the pawn tickets
protruded, and the accused, seeing them, took then and, with a smile, said to the servant: "What have you here in this paper?" at the same time he
unfolded and examined them. The servant replied that they were papers which her mistress had given her to keep for her. The accused, with the same
smile on his lips and in a honeyed tone switched off the conversation saying: 'Don't you know that your brother is lodging at my house? Don't you want to
see him? He is upstairs in my house right now." As her object in asking permission was to see her brother, she went upstairs, taking the child with her,
leaving the paper with the accused. After having visited her brother, and as the child wished to go home, Remigia went downstairs, meeting the accused
below who inquired of her: "Where are you going?," and she answered that she was going home. After having gone a certain distance from the house, the
servant remembered the two tickets and went back for them. The accused did not want to return them and said to her: "But what are you going to do with
those good-for-nothing tickets?" The servant insisted upon their return and said: "Be that as it may, Simeon, you have to give them to me." The accused,
still smiling, told her not to trouble herself as the tickets had been long overdue, and that he could not return them as he did not remember where he had
put them and that perhaps the wind had blown them away. The accused also advised her to run away if her mistress scolded her for the disappearance of
said tickets, to run away because he would give her a share. When the servant saw that all efforts to secure the return of the tickets were futile, she
returned to her mistress house, and though at first she did not know what to do, at last she decided to make a clean breast of the matter to Leonor Gil de
Lazaro. When her mistress learned what had happened, she told the servant to go back to the accused's house and get the tickets from him at any cost. The
servant went to see the accused again and asked him to return the tickets to her. The only answer the accused gave her was that, if her mistress tried to
beat her, she should escape because she was mean, and, if said mistress resorted to the courts, not to be afraid because being a lawyer, he would save her
in case of necessity. In view of the fact that the accused did not want to return the tickets, Leonor Gil de Lazaro ordered her jewels redeemed, which
consisted of two pairs of gold earrings set with diamonds, valued at P600, Exhibits A and B; but the pawnshop informed her that they had already been
redeemed by the accused. Indeed, the accused had already presented himself at the pawnshop pretending to be the owner of the jewels, and redeemed
them, identifying said jewels by means of the pawn ticket numbers, though he did not present them, stating that they had been torn, he being identified by
other persons, who together with himself signed the receipts Exhibits E and F. When the Lieutenant of the Constabulary, Jugo V. Cunanan, presented
himself at the accused's house with a search-warrant, the latter gave him Exhibits, A, B, C, and D.

The corresponding pawn tickets, Exhibits C and D, respectively, read as follows:

EXHIBIT C

E. LOPEZ, JARO, ILOILO

Dec. 7, 1925

PAWNSHOP

C. N. HODGES, Prop.

The goods mentioned below have been deposited in this pawnshop as security for the sum of P30.00 taken as loan One pair earring six diamonds.

Said sum shall be paid on or before the end of ninety days with interest at THREE (3%) a month; failure to comply with this condition will render said articles
the absolute property of the Pawnshop, which will dispose of them at public or private sale, as it may deem fit for the payment of the above-mentioned
sum.

No. 840635 By ......................................

NOTE. — This may be renewed by paying the interest due one month after the date of this pledge. A fraction of a month shall be considered one month.

EXHIBIT D

E. LOPEZ, JARO, ILOILO

Jan. 16, 1926

PAWNSHOP

C. N. HODGES, Prop.

The goods mentioned below have been deposited in this pawnshop as security for the sum of P50.00 taken as loan One pair earrings ten diamonds.
Said sum shall be paid on or before the end of ninety days with interest at THREE (3%) a month; failure to comply with this condition will render said articles
the absolute property of the Pawnshop, which will dispose of them at public or private sale, as it may deem fit for the payment of the above-mentioned
sum.

No. 845683 By ......................................

NOTE. — This may be renewed by paying the interest due one month after the date of this pledge. A fraction of a month after the date of this pledge. A
fraction of a month shall be considered one month.

The accused, testifying in his own behalf, said, in substance, that on November 25, 1925, Leonor Gil de Lazaro had borrowed P567 from him, giving him the
corresponding receipt Exhibit 2; that he had several times requested the offended party to make payment but she did not; that about April 14, 1926, Leonor
Gil de Lazaro's maid, named Remigia Mediavilla, came to his house bringing with her two pawn tickets belonging to her mistress which she offered to sell to
him; that Leonor Gil de Lazaro knew that he was looking for some diamonds for a scarfpin; that the servant asked him P600 for said tickets, saying that with
the proceeds of the sale her mistress wished to pay him the P567 which she owed him; that the accused did not wish to accept the proposition because
besides paying the P600, he would have to redeem the jewels from the pawnshop; that in view of all this, the accused said to the servant: "You may tell
your mistress, Señora Leonor, that if she is willing to accept P367, I will buy tickets; at all events, I shall have to see what kind of jewels they are, and if they
suit me or not;" that the servant left, and later returned saying that her mistress was willing to accept the sum of P367, which he has offered for said tickets,
the period of redemption of which was about to expire; that the accused said to the servant: "Then leave these two tickets with me, because to-morrow I
shall go to the pawnshop to redeem them; and as soon as I have redeemed them I shall send word to your mistress, Señora Leonora;" that the servant did
so, and he, being a cautious and methodical man, immediately made a note of the numbers of said tickets, as also of the respective dates on which they
were pawned, and the respective sum for which they had been pledged; that as he was very busy that day he mislaid the tickets; that on the following day
he searched the house high and low for the tickets in order to take them to the pawnshop; that as his aunt, Paz Yusay, saw him very much troubled, she
advised him to go to the shop even without the tickets, since he had noted down the numbers, the sums and the dates of the tickets; that in obedience to
this suggestion he went to the pawnshop to redeem said jewels, stating that he had mislaid the tickets, but that he made a note of the numbers, the dates
and the amounts; that the pawnshop did not question his honesty and let him redeem the jewels; that after having redeemed said Jewels, stating he sent
word to the offended party, Leonor Gil de Lazaro that the pawn tickets she had sold were already redeemed, and that she could now arrange the receipts
she had in his favor for what she owed him; that due to the confidence he had in the servant, and because being a very lenient man with his debtors, he
gave her the receipt for the sum of P567, which said Leonor Gil de Lazaro owed him, with he injunction to deliver it to her mistress and tell her to renew it
issuing a receipt for P200 in lieu thereof; that later on the servant returned bringing with her the note Exhibit 2, in which he had asked to be allowed to
dispose of the P200; that two days later, Leonora Gil de Lazaro went to his house to ratify the sale of the two tickets, and taking advantage of the
opportunity, he asked her to give him a receipt for the P200 and she replied that there was no need for it because the sum was a small one, adding that if
she had been able to pay a debt of P600 to Isabel Araneta, she could also pay the sum of P200; that Leonor Gil de Lazaro also said to him: "Do not tell Lope
of this transaction lest he might inform Cuyong about it;" that after many demands for the payment of the P200 she told him that she was not disposed to
pay him, and that if he brought the matter before the courts, she would be glad of it, as that would give her a chance to recover her jewels without paying a
cent, and at the same time the debt would be paid.

In cross-examination, the accused testified that when he learned that Leonor Gil de Lazaro was going to file a complaint against him, he made every effort
to locate said tickets, and found them in one of his books and made the following remark to the person who had brought him the news: "Tell Señora Leonor
that in this case there is no estafa, because I have the receipts here and, theoretically, the holder of a receipt is the owner thereof."

In rebuttal Leonor Gil de Lazaro and her servant Remigia Mediavilla denied everything asserted by the accused with respect to the sale of the tickets in
question.

There is no question that the accused-appellant, without presenting the corresponding pawn tickets, making use only of their respective numbers and
claiming to be the owner of the pawned jewels, succeeded in redeeming them after having himself identified. The only question of fact to determine is
whether, as the prosecution contends, the accused-appellant took the said tickets from Remigia Mediavilla without the consent or the will of the same or of
the owner of said tickets, or, as the defense contends said tickets were sold by the owner, Leonor Gil de Lazaro, to the accused through the servant of the
former, for the sum of P367, which was applied to the account of the debt of the offended party to Simeon Yusay, and which amounted to the sum of P600.

Of course, Leonor Gil de Lazaro flatly denied the existence of said debt and the supposed sale of the tickets, being corroborated by her servant Remigia
Mediavilla, who denied having taken the tickets in question for their sale to the accused on instruction of her mistress. Paz Yusay, aunt of the accused,
attempted to corroborate her nephew in the supposed sale; but the trial serious and irreconcilable contradictions. The fact that the accused, in order to
redeem the jewels, had to pretend he was the owner, stating that the tickets had been torn, that he did not remember anything but the numbers, and that
he went to the trouble of getting two persons to identify him shows that the pretended sale was false. If Leonor Gil de Lazaro had really been indebted to
the accused and, in payment of her debt, had sold him the pawn tickets referred to, the accused could not have been under the necessity of making natural
and easier for him to have told the pawnshop people that he had bought the tickets of the owner, and having requested the presentation of the same
without result, it would have been much easier for him to find the person who had sold them to him, and to bring her to the pawnshop, than to appeal to
other persons to identify him.

Briefly, then, it appears that the accused-appellant took the pawn tickets without the consent of the person who had them at the time of taking the same,
or of the owner of the same, and without making use of said tickets, but only of their respective numbers, and representing himself to be the owner of the
pawned jewels, he succeeded in redeeming them, signing the corresponding certificates of redemption.

The information filed in the present case in accordance with which the trial court found the accused-appellant guilty, reads as follows:

The undersigned Provincial Fiscal of Iloilo accuses Simeon Yusay of the crime of theft, committed as follows:

That on or about March 31, 1926, in the municipality of Iloilo, Province of Iloilo, P. I. the said accused did willfully, unlawfully, and feloniously, and with
intent to gain; steal and take possession of two pairs of gold earrings set with diamonds, valued at P600, belonging to Leonor Gil, without the consent of the
latter. Contrary to art. 517, paragraph 1, of the Penal Code.

Iloilo, Iloilo, P. I., August 12, 1926.

F. BORROMEO VELOSO Provincial Fiscal of Iloilo

The accused in this appeal contends that the facts alleged in the information and proved at the trial, constitute the crime of estafa and not of theft.

Article 517, case No. 1, of the Penal Code, reads as follows:

ART. 517. The following are guilty of theft:

1. Any person who, with intent to gain, but without the use of violence or intimidation against any person or the use of force upon anything, shall take
anything which is the personal property of another without the latter's consent.
According to Viada, there are five essential elements which constitute the crime of theft, namely: (1) Taking of personal property; (2) that said property
belongs to another; (3) that said taking be done with intent to gain; (4) that, further, it be done without the owners consent; and (5) finally, that it be
accomplished without the use of violence or intimidation against persons, nor of force upon things.

Article 535, case No. 1 of the same Code is of the following tenor:

The penalties prescribed by the next preceding article shall be imposed upon:

1. Any person who shall defraud another by the use of any fictitious name, or by falsely pretending to possess any power, influence, qualification, property,
credit, agency, or business, or by means of any similar deceit other than those hereinafter enumerated.

Viada, commenting on this article, says:

The estafa provided for and penalized in this article consists of profiting to the damage of another, employing fraudulent means with abuse of his
confidence. These means consist in the use of a fictitious name or in pretending to possess power, influence, or other qualities which one does not possess,
or to make a false showing of property, credit, commission, enterprise or imaginary negotiations, or to make use of any other similar deceit not expressed in
the following number of article. (3 Viada, 486; decision of the Supreme Court of Spain of November 17, 1886.)

Let us now see whether the facts found come under either of the two legal provisions above quoted, or under both of them.

In the first place, we have the taking of the pawn tickets without the consent of the servant who had them, nor of the owner thereof. The accused took said
ticket with intent to gain, inasmuch as he promised the servant a share, and he knew that since the tickets were payable to bearer, — for they did not bear
the name of the owner — they were negotiable and the holder would be considered as the owner thereof and also of the jewels which they covered, and to
which effect he sent word to real owner, when he learned that the latter was going to file a complaint against him.

The taking of the pawn tickets by the accused-appellant without the consent of the owner, with intent to gain, without violence or intimidation against
persons, or force upon things, by itself constitutes the crime of theft as provided for in article 517, case No. 1, of the Penal Code, above cited. In other
words, the taking alone of the psychological circumstances already expressed, was sufficient for the consummation of the crime of theft.

But the accused — appellant went further, — pretending that he was the owner of the pawned jewels, and without making use of the corresponding pawn
tickets other than their respective numbers, he succeeded in redeeming them through the identification of his person.

Now then, what crime has Simeon Yusay committed by these acts?

There can be no doubt that the accused-appellant deceived the pawnshop in order to redeem the jewels, as, if he had not pretended to the owner of the
same and had not had himself identified, while he, himself, identified the jewels by the numbers of the pawn tickets, he could not have made the
redemption. Of course mere deceit is not sufficient to constitute estafa as provided for in case No. 1, of article 535 of the Penal Code; it is also essential that
there be defraudation or damage. In the present case, the pawnshop was obliged to return the jewels to Leonor Gil de Lazaro, when the latter presented
herself to redeem them, otherwise, it would have to pay the value which constitutes a damage.

The redemption then, of the jewels in question, made by the accused- appellant through deceit consisting in having pretended to be the owner of the
jewels and with damage to the pawnshop, constitutes the crime of estafa as provided for in case No. 1 of article 535 of the Penal Code.

In a case of theft of a Monte de Piedad pass book, and of the collection of the sum shown therein by the thief, pretending to be the owner of said pass
book, the Supreme Court of Spain, in its decision of November 22, 1883, held that:

Considering that the act of Jose Garcia Carballeira, in taking from Ramona Fernandez's trunk her personal cedula and a Monte de Piedad pass book, showing
a deposit of 1,578 pesetas, constitutes the crime of theft: Considering that Carballeira's other acts in making collection from the Monte upon said pass
book, may be held to have been done in furtherance and as a consequence of the theft, without constituting, independently of it, another crime on account
of the lack of elements necessary for it, etc.

In another case in which the accused took a Monte de Piedad pass book and collected the sum deposited by the owner thereof, the Supreme Court of Spain
held such an act constituted theft and not estafa, because with an evident intent to gain they took personal property without the consent of the owner, it
being immaterial to this qualification of the crime that in order to collect the amount of the pass book they had made use of deceit, because this fact,
subsequent to the taking that constituted the crime of theft, although it had the character of estafa, was really the necessary means which they employed
in order to get the benefit of the effects of the crime, which profited them all, they having distributed the amount shown in the stolen pass book among
themselves. (2 Hidalgo, 658.)

It must be noted that in the two cases decided by the Supreme Court of Spain the pass books were of no value and could not be of any value to those who
stole them from their respective owners except so far as they were the means of collecting the money deposited from the Monte de Piedad. The accused
could not have gained anything from the taking of the pass books had they not been able to collect the deposits shown therein, and that is why the
Supreme Court of Spain considered that while they made use of deceit in order to collect the amount shown in the pass books, yet the acts done by them,
although they had the character of estafa, were no more than the furtherance and consequence of the theft.

In the present case, as we have said, the accused-appellant did not have to redeem the pawned jewels by presenting the stolen pawn tickets in order to
gain by the theft, since, as said tickets were payable to bearer, he could have sold them and thus profited by the sale. The fact that Simeon Yusay preferred
to redeem the jewels rather than to sell the pawn tickets, does not change the nature and juridical aspect of his act of taking the tickets, which, surrounded
as it is, by all the essential psychological circumstances, has all the characteristics of the crime of theft. This is so certain that even had he not redeemed the
jewels, he would still have been liable for theft. But when he made use of the pawn tickets numbers in order to obtain, by deceit and with damage to the
pawnshop, the redemption of the aforementioned jewels, he converted the theft of the tickets into a necessary means to commit estafa, because without
the numbers of the stolen pawn tickets, he could not have identified the jewels and, consequently, would not have been able to redeem them.

Briefly, then we find that when Simeon Yusay took possession of the pawn tickets in question, which were issued to bearer, with intent to gain and without
the consent of the servant who had them, nor of their owner, and without using force, violence or intimidation, he committed the crime of theft defined in
article 517, case No. 1, of the Penal Code; when he succeeded in redeeming the pawned jewels, claiming to be the owner thereof, to the damage of the
pawnshop, he committed the crime of estafa provided for in article 535, case No. 1, of the same Code; and in making use of the numbers of the stolen
tickets without presenting them, in order to identify the jewels, he converted the theft into a necessary means to commit the estafa.

The accused, then, committed the crimes of theft and estafa, the former being a necessary means for the commission of the latter.

Let us now see whether the accused-appellant may be convicted, under the information herein, of both crimes of theft and estafa, or either of them.
In the information filed, Simeon Yusay is charged with having stolen and taken possession, with intent to gain, of two pairs of gold earrings set with
diamonds, valued at P600, belonging to Leonor Gil de Lazaro, without her consent.

The facts proven show that the accused took and stole two pawn tickets issued to bearer, without the consent of Leonor Gil de Lazaro, and using the
numbers of said tickets, but without presenting them, and misrepresenting himself to be the owner of the jewels mentioned in said pawn tickets,
succeeded in redeeming them from the pawnshop in which they were pledged. If the pawn tickets were taken and stolen and not the jewels, which were
voluntarily delivered to the accused by the pawnshop, although through false statements of the accused, said delivery cannot be qualified as theft under
the provisions of the Penal Code now in force. And as it was not proved that the jewels were taken without the consent of the pawnshop in which they
were pledged, nor of the owner, the accused cannot be convicted under said information in which he is charged with the crime of theft of said jewels,
because to do so would be infringing upon the constitutional right of the accused "to demand the nature and cause of the accusation against him." (Sec. 3.
Jones Law.)

On account of the discrepancy between the facts alleged in the information and those proven at the trial, said information must be dismissed and the
accused acquitted, and another information should be filed in accordance with the facts proven.

For the foregoing, the judgment appealed is reversed, and the accused is acquitted of the charge, which is hereby dismissed with costs de oficio, the
prosecuting attorney being required to present another information in accordance with the findings herein set forth. So ordered.

Johnson, Malcolm, Johns, Romualdez and Villa-Real, JJ., concur.

FIRST DIVISION
[G.R. No. 7520. November 23, 1912. ]
THE UNITED STATES, Plaintiff-Appellee, v. JOSE ABAD, Defendant-Appellant.

DECISION

CARSON, J. :

The defendant and appellant in this case was charged with the crime of estafa upon an information which reads as follows:jgc:chanrobles.com.ph

"That on or about December 10, 1910, in the municipality of Cavite, Province of Cavite, P. I., the above-named accused entered the bicycle renting
establishment, named ’Ligaya," located in Plaza Soledad of said municipality, pretended that his name was Jose de los Santos and that he lived at No. 111
Calle Paseo, and rented from the proprietor of said establishment, named Leoncio Pangilinan, an Iver Johnson bicycle, No. 169787, with the private marks
No. 10 and the initials L. P., agreeing to the sum of 50 centavos an hour, and to return it after one hour; but having taken away said bicycle he did not return
it at the time agreed or pay the rental thereof, but he did willfully, illegally, and maliciously and against the will he did willfully, illegally, and maliciously and
against the will of its owner take possession of it for himself and for the sake of gain, keeping it in his possession until January 29, 1911, when the said
bicycle was found in the possession of the said accused in the town of Imus, Province of Cavite, P. I."cralaw virtua1aw library

Accepting, as we do, the findings of the trial court as to the credibility and the lack of credibility of the different witnesses for the prosecution and for the
defense, the evidence of record conclusively establishes the guilt of the defendant and appellant of the crime of estafa charged in the information, and
defined and penalized in section 5 of article 535 of the Penal Code, read together with section 1 of article 534.

Counsel for the appellant contends that since the information fails expressly to allege that the bicycle in question had a specific definite value, and to set
forth just what that value was, a judgment of conviction upon this information should not be sustained. But while it is true that a conviction of the crime of
estafa cannot be sustained in the absence of proof that the subject matter of the fraud perpetrated by the accused had some value, and while in good
practice a complaint or information charging the commission of the crime of estafa should specifically allege the monetary value of the subject matter of
the fraud where that is possible, we hold that the mere omission of an allegation of the specific value of the bicycle mentioned in the information did not
render it fatally defective, because the facts alleged in the complaint, when proven, establish beyond any reasonable doubt that the bicycle had some value.
The information alleges that the bicycle was the property of one Leoncio Pangilinan; that it was in use, at the time when the crime was committed, in his
bicycle renting establishment; and that the defendant rented it from the owner and agreed to pay him 50 cents per hour for its use. We think that these
allegations are sufficient, when proven, to sustain and justify a finding that the bicycle in question had some value, and that it was the personal property of
the complaining witness; and it appearing that this bicycle had been converted or misappropriated by the defendant, in violation of the provisions of
subsection 5 of article 535, the finding that the bicycle was personal property of some value is sufficient to sustain a conviction under the provisions of
subsection 1 of article 534, which prescribes the penalty to be imposed where the value of the subject matter of the fraud is not shown to be in excess of
250 pesetas. In the case of the U.S. v. De la Cruz (12 Phil. Rep., 87), wherein defendant was convicted of the crime of robbery of a watch, the specific value
of which was not set out expressly in the complaint, we said that: "Since the crime of robbery is complete when all the other requisites set out in the
definition of the code concur, if the property taken has even the smallest value, we think we would be justified in holding that the watch taken had
sufficient value to sustain a conviction of robbery, unless it affirmatively appeared that it was absolutely worthless, for without testimony to the contrary a
watch, which the owner valued enough to carry, may fairly be presumed to have some value, however insignificant that value may be."cralaw virtua1aw
library

We agree, however, with counsel for the appellant that the trial court erred in convicting the defendant of the misappropriation or conversion of property
of the value of more than 250 and less than 6,000 pesetas. It is true that of the witnesses testified that the bicycle in question was worth some P75, and
that, if this testimony could be taken into consideration for the purpose of classifying the estafa committed by the defendant with those penalized under
the provisions of subsection 2 of article 534, the judgment of conviction should not be disturbed. But the information does not charge that the value of the
property taken was more than 250 and less than 6,000 pesetas, and while we hold that its allegations amount to a charge that a bicycle of some value was
taken, we would not be justified in declaring that these allegations amount to a charge that the bicycle had a value of more than 250 pesetas. Under the
code provisions the misappropriation or conversion of property valued at less than 250 pesetas, and an entirely different and distinct penalty, and an
entirely different and distinct penalty is prescribed for the two offenses. We have frequently held that in no case can a conviction be sustained for a higher
offense than that charged in the information, nor for a different offense, unless it is necessarily included in the offense charged. It is manifest therefore that
the conviction in this case for the higher offense must be reversed.

Counsel for the prosecution contends that the failure of the information to allege specifically that the bicycle had a value of 250 pesetas was cured by the
undisputed evidence of record showing that its was in fact worth P75, or 375 pesetas. But this contention can not be maintained; in the first place, because
it is in direct conflict with the general rule whereby we have uniformly declined to sustain convictions for higher offenses than those charged in the
information, which has its foundation in the constitutional right of the accused to be advised at the outset of the proceedings as to the precise nature of the
charge against him; and, in the second place, because timely objection was made to the introduction of the evidence as to the specific value of the bicycle,
and under elementary rules of evidence, the testimony in this connection should have been excluded, at least in so far as it was offered for the purpose of
establishing a higher or a different offense from that charged in the complaint.

Of course we are not to be understood as holding that in every case of this kind the admission of such evidence would necessarily be erroneous. Cases may
arise wherein testimony of this character would be probably admitted for the purpose of corroborating the testimony of a particular witness or the like. But
in such cases its uses as evidence must be strictly limited to the legitimate object for which it might properly be admitted, and it can never be taken into
consideration for the purpose of maintaining a conviction for an offense higher than that charged in the information.

The judgment of the court below convicting and sentencing the defendant should be and is hereby reversed. The defendant and appellant is, nevertheless,
adjudged guilty of the offense charged in the information, that is to say, of the crime of estafa as defined and penalized in section 5 of article 535 of the
Penal Code, read together with section 1 of article 534, and there being no evidence as to the existence of aggravating or extenuating circumstances, we
sentence him to the prescribed penalty in its medium degree, that is to say, to two months and one day of arresto mayor, and to pay the costs in both
instances. The bicycle having been recovered by its owner, there is no need for a specific order for its restoration. So ordered.

Arellano, C.J., Torres, Mapa, Johnson, and Trent, JJ., concur.