CHING vs.

NICDAO
GR NO. 141181 | April 27, 2007

FACTS:
Petitioner Samson Ching, a Chinese national, instituted criminal complaints for 11 counts of
violation of BP 22 against respondent Clarita Nicdao for issuing checks amounting to 20M
knowing fully well that at the time she issued the said check she did not have sufficient funds.
Consequently, 11 Informations were filed with the First Municipal Circuit Trial Court (MCTC).

At about the same time, 14 other criminal complaints, also for violation of BP 22, were filed
against Nicdao by Emma Nuguid, said to be the common law spouse of Ching. Allegedly 14,
amounting to P1,150,000.00, were issued by Nicdao to Nuguid but were dishonored for lack of
sufficient funds.

Nicdao pleaded not guilty.

Ching preliminarily identified each of the 11 Hermosa Savings & Loan Bank (HSLB) checks that
were allegedly issued to him by Nicdao amounting to P20,950,000.00. He identified the
signatures appearing on the checks as those of Nicdao. He recognized her signatures because
Nicdao allegedly signed the checks in his presence. When Ching presented these checks for
payment, they were dishonored by the bank, HSLB, for being "DAIF" or "drawn against
insufficient funds."

Ching averred that the checks were issued to him by Nicdao as security for the loans that she
obtained from him. Their transaction began when Nicdao, proprietor/manager of Vignette
Superstore, approached him to borrow money in order for them to settle their financial
obligations. They agreed that Nicdao would leave the checks undated and that she would pay
the loans within one year. However, when Ching went to see her after the lapse of one year to
ask for payment, Nicdao allegedly said that she had no cash.

Ching claimed that he went back to Nicdao several times but every time, she would tell him that
she had no money. Then in September 1997, Nicdao allegedly got mad at him for being
insistent and challenged him about seeing each other in court. Because of Nicdao's alleged
refusal to pay her obligations, on October 6, 1997, Ching deposited the checks that she issued
to him. As he earlier stated, the checks were dishonored by the bank for being "DAIF." Shortly
thereafter, Ching, together with Emma Nuguid, wrote a demand letter to Nicdao which, however,
went unheeded. Accordingly, they separately filed the criminal complaints against the latter.

Nicdao stated that she only dealt with Nuguid. She vehemently denied the allegation that she
had borrowed money from both Ching and Nuguid in the total amount of P22,950,000.00.
Nicdao admitted, however, that she had obtained a loan from Nuguid but only for P2,100,000.00
and the same was already fully paid. As proof of such payment, she presented a Planters Bank
demand draft dated August 13, 1996 in the amount of P1,200,000.00. The annotation at the
back of the said demand draft showed that it was endorsed and negotiated to the account of
Ching.

In addition, Nicdao also presented and identified several cigarette wrappers at the back of which
appeared computations. She explained that Nuguid went to the grocery store everyday to
collect interest payments. The principal loan was P2,100,000.00 with 12% interest per day.
Nuguid allegedly wrote the payments for the daily interests at the back of the cigarette wrappers
that she gave to Nicdao.
With respect to the P20,000,000.00 check, Nicdao admitted that the signature thereon was hers
but denied that she issued the same to Ching. She was surprised to be notified by HSLB that
her check in the amount of P20,000,000.00 was just presented to the bank for payment. She
claimed that it was only then that she remembered that sometime in 1995, she was informed by
her employee that one of her checks was missing.

The MCTC rendered judgment in Criminal Cases Nos. 9433-9443 convicting Nicdao of eleven
(11) counts of violation of BP 22. RTC affirmed the MCTC in toto.

The CA, however, acquitted Nicdao. The CA declared that, based on the evidence, Nicdao had
already fully paid the loans. The CA also held that the P20,000,000.00 check was filled up by
Ching without Nicdao's authority. Further, it was incomplete and undelivered. Hence, Ching did
not acquire any right or interest therein and could not assert any cause of action founded on the
stolen checks. Under these circumstances, the CA concluded that respondent could not be held
liable for violation of BP 22.

The present petition is limited solely to the civil aspect of the case as Ching argues that
notwithstanding Nicdao's acquittal of the 11 counts of violation of BP 22, she should be held
liable to pay Ching the amounts of the dishonored checks in the aggregate sum of
P20,950,000.00.

Ching argues that notwithstanding Nicdao's acquittal by the CA, the Supreme Court has the
jurisdiction and authority to resolve and rule on her civil liability. He invokes Section 1, Rule 111
of the Revised Rules of Court which, prior to its amendment, provided, in part:

SEC. 1. Institution of criminal and civil actions. – When a criminal action is instituted, the
civil action for the recovery of civil liability is impliedly instituted with the criminal action,
unless the offended party waives the civil action, reserves his right to institute it
separately, or institutes the civil action prior to the criminal action.

Such civil action includes the recovery of indemnity under the Revised Penal Code, and
damages under Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines arising from the
same act or omission of the accused.

Ching theorized that, under Section 1, Rule 111 of the Revised Rules of Court, the civil action
for the recovery of damages under Articles 32, 33, 34, and 2176 arising from the same act or
omission of the accused is impliedly instituted with the criminal action. Moreover, under the
above-quoted Circular, the criminal action for violation of BP 22 necessarily includes the
corresponding civil action, which is the recovery of the amount of the dishonored check
representing the civil obligation of the drawer to the payee.

Ching further maintained that she had loan obligations to him totaling P20,950,000.00. The
existence of the same is allegedly established by his testimony before the MCTC. Also, he asks
the Court to take judicial notice that for a monetary loan secured by a check, the check itself is
the evidence of indebtedness.

Nicdao urged the Court to deny the petition. She argued that it is barred under Section 2(b),
Rule 111 of the Revised Rules of Court which states:
 SEC. 2. Institution of separate of civil action. - Except in the cases provided for in
Section 3 hereof, after the criminal action has been commenced, the civil action which
has been reserved cannot be instituted until final judgment in the criminal action.
(b) Extinction of the penal action does not carry with it extinction of the civil, unless the
extinction proceeds from a declaration in a final judgment that the fact from which the
civil might arise did not exist.

According to Nicdao, the assailed CA decision has already made a finding to the effect that the
fact upon which her civil liability might arise did not exist. She refers to the ruling of the CA that
the P20,000,000.00 check was stolen; hence, Ching did not acquire any right or interest over
the said check and could not assert any cause of action founded on the said check.
Consequently, the CA held that Nicdao had no obligation to make good the stolen check and
cannot be held liable for violation of BP 22. She also refers to the CA's pronouncement relative
to the ten (10) other checks that they were not issued to apply on account or for value,
considering that the loan obligations secured by these checks had already been extinguished by
her full payment thereof.

To Nicdao's mind, these pronouncements are equivalent to a finding that the facts upon which
her civil liability may arise do not exist. The instant petition, which seeks to enforce her civil
liability based on the 11 checks, is thus allegedly already barred by the final and executory
decision acquitting her.

ISSUE: Whether or not a civil action may be instituted notwithstanding the acquittal of Nicdao

SUPREME COURT:
Notwithstanding respondent Nicdao's acquittal, petitioner Ching is entitled to appeal the
civil aspect of the case within the reglementary period.

It is axiomatic that "every person criminally liable for a felony is also civilly liable." Under the
pertinent provision of the Revised Rules of Court, the civil action is generally impliedly instituted
with the criminal action.

At the time of Ching's filing of the Informations against Nicdao, Section 1, Rule 111 of the
Revised Rules of Court, quoted earlier, provided in part:

SEC. 1. Institution of criminal and civil actions. - When a criminal action is instituted, the
civil action for the recovery of civil liability is impliedly instituted with the criminal action,
unless the offended party waives the civil action, reserves his right to institute it
separately, or institutes the civil action prior to the criminal action.

Such civil action includes the recovery of indemnity under the Revised Penal Code, and
damages under Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines arising
from the same act or omission of the accused.

As a corollary to the above rule, an acquittal does not necessarily carry with it the
extinguishment of the civil liability of the accused. Section 2(b)[36] of the same Rule,
also quoted earlier, provided in part:

(b) Extinction of the penal action does not carry with it extinction of the civil, unless the
extinction proceeds from a declaration in a final judgment that the fact from which the
civil might arise did not exist.
It is also relevant to mention that judgments of acquittal are required to state "whether the
evidence of the prosecution absolutely failed to prove the guilt of the accused or merely failed to
prove his guilt beyond reasonable doubt. In either case, the judgment shall determine if the act
or omission from which the civil liability might arise did not exist.

The Court enunciated that the civil liability is not extinguished by acquittal: (a) where the
acquittal is based on reasonable doubt; (b) where the court expressly declares that the liability
of the accused is not criminal but only civil in nature; and (c) where the civil liability is not
derived from or based on the criminal act of which the accused is acquitted. Thus, under Article
29 of the Civil Code –

ART. 29. When the accused in a criminal prosecution is acquitted on the ground that his
guilt has not been proved beyond reasonable doubt, a civil action for damages for the
same act or omission may be instituted. Such action requires only a preponderance of
evidence. Upon motion of the defendant, the court may require the plaintiff to file a bond
to answer for damages in case the complaint should be found to be malicious.

If in a criminal case the judgment of acquittal is based upon reasonable doubt, the court
shall so declare. In the absence of any declaration to that effect, it may be inferred from
the text of the decision whether or not the acquittal is due to that ground.

From the foregoing, Ching correctly argued that he, as the offended party, may appeal the civil
aspect of the case notwithstanding Nicdao's acquittal by the CA. The civil action was impliedly
instituted with the criminal action since he did not reserve his right to institute it separately nor
did he institute the civil action prior to the criminal action.

Following the long recognized rule that "the appeal period accorded to the accused should also
be available to the offended party who seeks redress of the civil aspect of the decision," the
period to appeal granted to Ching is the same as that granted to the accused. With Ching's
timely filing of the instant petition for review of the civil aspect of the CA's decision, the Court
thus has the jurisdiction and authority to determine the civil liability of Nicdao notwithstanding
her acquittal.

In order for the petition to prosper, however, it must establish that the judgment of the CA
acquitting Nicdao falls under any of the three categories enumerated in Salazar and Sapiera, to
wit:

(a) where the acquittal is based on reasonable doubt as only preponderance of evidence
is required;

(b) where the court declared that the liability of the accused is only civil; and

(c) where the civil liability of the accused does not arise from or is not based upon the
crime of which the accused is acquitted.

Salazar also enunciated that the civil action based on the delict is extinguished if there is a
finding in the final judgment in the criminal action that the act or omission from which the civil
liability may arise did not exist or where the accused did not commit the act or omission imputed
to him.
The acquittal of respondent Nicdao likewise effectively extinguished her civil liability

Nicdao's acquittal likewise carried with it the extinction of the action to enforce her civil liability.
There is simply no basis to hold Nicdao civilly liable to Ching.
First, the CA's acquittal of Nicdao is not merely based on reasonable doubt. Rather, it is
based on the finding that she did not commit the act penalized under BP 22. In particular, the
CA found that the P20,000,000.00 check was a stolen check which was never issued nor
delivered by Nicdao to Ching. As such, according to the CA, Ching "did not acquire any right or
interest over Check No. 002524 and cannot assert any cause of action founded on said check,"
and that Nicdao "has no obligation to make good the stolen check and cannot, therefore, be
held liable for violation of B.P. Blg. 22."

With respect to the ten (10) other checks, the CA established that the loans secured by these
checks had already been extinguished after full payment had been made by Nicdao. In this
connection, the second element for the crime under BP 22, i.e., "that the check is made or
drawn and issued to apply on account or for value," is not present.

Second, in acquitting Nicdao, the CA did not adjudge her to be civilly liable to Ching. In fact,
the CA explicitly stated that she had already fully paid her obligations.

Clearly, adding the payments recorded at the back of the cigarette cartons by Emma Nuguid in
her own handwriting totaling P5,780,000.00 and the P1,200,000.00 demand draft received by
Emma Nuguid, it would appear that petitioner [respondent herein] had already made payments
in the total amount of P6,980,000.00 for her loan obligation of only P2,100,000.00.

On the other hand, its finding relative to the P20,000,000.00 check that it was a stolen check
necessarily absolved Nicdao of any civil liability thereon as well.

Third, while Ching attempts to show that Nicdao's liability did not arise from or was not
based upon the criminal act of which she was acquitted (ex delicto) but from her loan
obligations to him (ex contractu), however, Ching miserably failed to prove by preponderant
evidence the existence of these unpaid loan obligations.

It has been established that check no. 002524 (20M) had been missing since 1995, it is
abundantly clear that said check was never delivered to complainant Ching. Check no. 002524
was an incomplete and undelivered instrument when it was stolen and ended up in the hands of
complainant Ching.

Evidence sufficiently shows that the loans secured by the ten (10) checks involved in the cases
subject of this petition had already been paid.

After a careful examination of the records of the case, the Court holds that the existence of
Nicdao's civil liability to Ching in the amount of P20,950,000.00 representing her unpaid
obligations to the latter has not been sufficiently established by preponderant evidence. Ching
mainly relies on his testimony before the MCTC to establish the existence of these unpaid
obligations.

It is a basic rule in evidence that the burden of proof lies on the party who makes the allegations
- Et incumbit probatio, qui dicit, non qui negat; cum per rerum naturam factum negantis probatio
nulla sit (The proof lies upon him who affirms, not upon him who denies; since, by the nature of
things, he who denies a fact cannot produce any proof). In civil cases, the party having the
burden of proof must establish his case by a preponderance of evidence. Preponderance of
evidence is the weight, credit, and value of the aggregate evidence on either side and is usually
considered to be synonymous with the term "greater weight of evidence" or "greater weight of
the credible evidence." Preponderance of evidence is a phrase which, in the last analysis,
means probability of the truth. It is evidence which is more convincing to the court as worthy of
belief than that which is offered in opposition thereto. Section 1, Rule 133 of the Revised Rules
of Court offers the guidelines in determining preponderance of evidence:

SEC. 1. Preponderance of evidence, how determined. - In civil cases, the party having
the burden of proof must establish his case by a preponderance of evidence. In
determining where the preponderance or superior weight of evidence on the issues
involved lies, the court may consider all the facts and circumstances of the case, the
witnesses' manner of testifying, their intelligence, their means and opportunity of
knowing the facts to which they are testifying, the nature of the facts to which they
testify, the probability or improbability of their testimony, their interest or want of interest,
and also their personal credibility so far as the same may legitimately appear upon the
trial. The court may also consider the number of witnesses, though the preponderance is
not necessarily with the greater number.

Unfortunately, Ching's testimony alone does not constitute preponderant evidence to establish
Nicdao's civil liability to him amounting to P20,950,000.00. Apart from the discredited checks, he
failed to adduce any other documentary evidence to prove that Nicdao still has unpaid
obligations to him in the said amount. Bare allegations, unsubstantiated by evidence, are not
equivalent to proof under our Rules.

All told, as between Ching and Nicdao, the requisite quantum of evidence - preponderance of
evidence - indubitably lies with Nicdao. As earlier intimated, she cannot be held civilly liable to
Ching for her acquittal; under the circumstances which have just been discussed lengthily, such
acquittal carried with it the extinction of her civil liability as well.

WHEREFORE, premises considered, the Petition is DENIED for lack of merit.