THIRD DIVISION[G. R. No. 148233. June 8, 2004]

PEOPLE OF THE PHILIPPINES, appellee, vs. LUISITO D. BUSTINERA, appellant.D E C I S I O N

CARPIO MORALES, J.:

From the decision[1] of the Regional Trial Court, Branch 217, Quezon City finding appellant Luisito D. Bustinera guilty beyond reasonable doubt of qualified theft[2] for the unlawful taking of a Daewoo Racer GTE Taxi and sentencing him to suffer the penalty of reclusion perpetua, he comes to this Court on appeal.

In an information[3] dated June 17, 1997, appellant was indicted as follows:

The undersigned accuses LUISITO D. BUSTINERA of the crime of Qualified Theft, committed as follows:

That on or about the 25th day of December up to the 9th day of January, 1997, in Quezon City, Philippines, the said accused being then employed as one [of] the taxi Drivers of Elias S. Cipriano, an Operator of several taxi cabs with business address at corner 44 Commonwealth Avenue, iliman (sic), this City, and as such has free access to the taxi he being driven, did then and there willfully, unlawfully and feloniously with intent to gain, with grave abuse of confidence reposed upon him by his employer and without the knowledge and consent of the owner thereof, take, steal and carry away a Daewoo Racer GTE Taxi with Plate No. PWH-266 worth P303,000.00, Philippine Currency, belonging to Elias S. Cipriano, to the damage and prejudice of the said offended party in the amount of P303,000.00.

CONTRARY TO LAW.

Upon arraignment[4] on March 27, 2000, appellant, assisted by counsel de oficio, entered a plea of not guilty. Thereafter, trial on the merits ensued.

From the evidence for the prosecution, the following version is established.

Sometime in 1996, Edwin Cipriano (Cipriano), who manages ESC Transport, the taxicab business of his father, hired appellant as a taxi driver and assigned him to drive a Daewoo Racer with plate number PWH-266. It was agreed that appellant would drive the taxi from 6:00 a.m. to 11:00 p.m, after which he would return it to ESC Transport’s garage and remit the boundary fee in the amount of P780.00 per day.[5]

On December 25, 1996, appellant admittedly reported for work and drove the taxi, but he did not return it on the same day as he was supposed to.

Q: Now, Mr. Witness, on December 25, 1996, did you report for work?

A: Yes, sir.

Q: Now, since you reported for work, what are your duties and responsibilities as taxi driver of the taxi company?

A: That we have to bring back the taxi at night with the boundary .

Q: How much is your boundary?

A: P780.00, sir.

Q: On December 25, 1996, did you bring out any taxi?

A: Yes, sir.

Q: Now, when ever (sic) you bring out a taxi, what procedure [do] you follow with that company?

A: That we have to bring back the taxi to the company and before we leave we also sign something, sir.

Q: What is that something you mentioned?

A: On the record book and on the daily trip ticket, sir.

Q: You said that you have to return your taxi at the end of the day, what is then the procedure reflect (sic) by your company when you return a taxi?

A: To remit the boundary and to sign the record book and daily trip ticket.

Q: So, when you return the taxi, you sign the record book?

A: Yes, sir.

Q: You mentioned that on December 25, 1996, you brought out a taxi?

A: Yes, sir.

Q: What kind of taxi?

A: Daewoo taxi, sir.

Q: Now did you return the taxi on December 25, 1996?

A: I was not able to bring back the taxi because I was short of my boundary, sir.[6]

The following day, December 26, 1996, Cipriano went to appellant’s house to ascertain why the taxi was not returned.[7] Arriving at appellant’s house, he did not find the taxi there, appellant’s wife telling him that her husband had not yet arrived.[8] Leaving nothing to chance, Cipriano went to the Commonwealth Avenue police station and reported that his taxi was missing.[9]

On January 9, 1997, appellant’s wife went to the garage of ESC Transport and revealed that the taxi had been abandoned in Regalado Street, Lagro, Quezon City.[10] Cipriano lost no time in repairing to Regalado Street where he recovered the taxi.[11]

Upon the other hand, while appellant does not deny that he did not return the taxi on December 25, 1996 as he was short of the boundary fee, he claims that he did not abandon the taxi but actually returned it on January 5, 1997;[12] and that on December 27, 1996, he gave the amount of P2,000.00[13] to his wife whom he instructed to remit the same to Cipriano as payment of the boundary fee [14] and to tell the latter that he could not return the taxi as he still had a balance thereof.[15]

Appellant, however, admits that his wife informed him that when she went to the garage to remit the boundary fee on the very same day (December 27, 1996),[16] Cipriano was already demanding the return of the taxi.[17]

Appellant maintains though that he returned the taxi on January 5, 1997 and signed the record book,[18] which was company procedure, to show that he indeed returned it and gave his employer P2,500.00[19] as partial payment for the boundary fee covering the period from December 25, 1996 to January 5, 1997.

Continuing, appellant claims that as he still had a balance in the boundary fee, he left his driver’s license with Cipriano;[20] that as he could not drive, which was the only work he had ever known, without his driver’s license, and with the obligation to pay the balance of the boundary fee still lingering, his wife started working on February 18, 1997 as a stay-in maid for Cipriano, with a monthly salary of P1,300.00,[21] until March 26, 1997 when Cipriano told her that she had worked off the balance of his obligation; [22] and that with his obligation extinguished, his driver’s license was returned to him.[23]

Brushing aside appellant’s claim that he returned the taxi on January 5, 1997 and that he had in fact paid the total amount of P4,500.00, the trial court found him guilty beyond reasonable doubt of qualified theft by Decision of May 17, 2001, the dispositive portion of which is quoted verbatim:

WHEREFORE, judgment is hereby rendered finding accused guilty beyond reasonable doubt as charged, and he is accordingly sentenced to suffer the penalty of Reclusion Perpetua and to pay the costs.

In the service of his sentence, accused is ordered credited with four-fifths (4/5) of the preventive imprisonment undergone by him there being no showing that he agreed in writing to abide by the same disciplinary rules imposed upon convicted prisoners.

SO ORDERED.[24] (Emphasis and italics in the original)

Hence, the present appeal anchored on the following assigned errors:

I.

THE COURT A QUO GRAVELY ERRED IN CONCLUDING WITHOUT CONCRETE BASIS THAT THE ACCUSED-APPELLANT HAS INTENT TO GAIN WHEN HE FAILED TO RETURN THE TAXI TO ITS GARAGE.

II.

THE COURT A QUO GRAVELY ERRED IN FINDING ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF QUALIFIED THEFT.[25]

It is settled that an appeal in a criminal proceeding throws the whole case open for review, and it becomes the duty of the appellate court to correct such errors as may be found in the judgment even if they have not been specifically assigned.[26]

Appellant was convicted of qualified theft under Article 310 of the Revised Penal Code, as amended for the unlawful taking of a motor vehicle. However, Article 310 has been modified, with respect to certain vehicles,[27] by Republic Act No. 6539, as amended, otherwise known as "AN ACT PREVENTING AND PENALIZING CARNAPPING.”

When statutes are in pari materia[28] or when they relate to the same person or thing, or to the same class of persons or things, or cover the same specific or particular subject matter,[29] or have the same purpose or object,[30] the rule dictates that they should be construed together – interpretare et concordare leges legibus, est optimus interpretandi modus.[31] Every statute must be so construed and harmonized with other statutes as to form a uniform system of jurisprudence,[32] as this Court explained in City of Naga v. Agna,[33]viz:

. . . When statutes are in pari materia, the rule of statutory construction dictates that they should be construed together. This is because enactments of the same legislature on the same subject matter are supposed to form part of one uniform system; that later statutes are supplementary or complimentary to the earlier enactments and in the passage of its acts the legislature is supposed to have in mind the existing legislation on the same subject and to have enacted its new act with reference thereto. Having thus in mind the previous statutes relating to the same subject matter, whenever the legislature enacts a new law, it is deemed to have enacted the new provision in accordance with the legislative policy embodied in those prior statutes unless there is an express repeal of the old and they all should be construed together. In construing them the old statutes relating to the same subject matter should be compared with the new provisions and if possible by reasonable construction, both should be so construed that effect may be given to every provision of each. However, when the new provision and the old relating to the same subject cannot be reconciled the former shall prevail as it is the latter expression of the legislative will . . . [34] (Emphasis and underscoring supplied; citations omitted)

The elements of the crime of theft as provided for in Article 308 of the Revised Penal Code are: (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.[35]

Theft is qualified when any of the following circumstances 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.[36]

On the other hand, Section 2 of Republic Act No. 6539, as amended defines “carnapping” as “the taking, with intent to gain, of a motor vehicle belonging to another without the latter's consent, or by means of violence against or intimidation of persons, or by using force upon things.” The elements of carnapping are thus: (1) the taking of a motor vehicle which belongs to another; (2) the taking is without the consent of the owner or by means of violence against or intimidation of persons or by using force upon things; and (3) the taking is done with intent to gain.[37]

Carnapping is essentially the robbery or theft of a motorized vehicle,[38] the concept of unlawful taking in theft, robbery and carnapping being the same.[39]

In the 2000 case of People v. Tan [40] where the accused took a Mitsubishi Gallant and in the later case of People v. Lobitania [41] which involved the taking of a Yamaha motorized tricycle, this Court held that the unlawful taking of motor vehicles is now covered by the anti-carnapping law and not by the provisions on qualified theft or robbery.

There is no arguing that the anti-carnapping law is a special law, different from the crime of robbery and theft included in the Revised Penal Code. It particularly addresses the taking, with intent to gain, of a motor vehicle belonging to another without the latter's consent, or by means of violence against or intimidation of persons, or by using force upon things. But a careful comparison of this special law with the crimes of robbery and theft readily reveals their common features and characteristics, to wit: unlawful taking, intent to gain, and that personal property belonging to another is taken without the latter's consent. However, the anti-carnapping law particularly deals with the theft and robbery of motor vehicles. Hence a motor vehicle is said to have been carnapped when it has been taken, with intent to gain, without the owner's consent, whether the taking was done with or without the use of force upon things. Without the anti-carnapping law, such unlawful taking of a motor vehicle would fall within the purview of either theft or robbery which was certainly the case before the enactment of said statute.[42] (Emphasis and underscoring supplied; citations omitted.)

It is to be noted, however, that while the anti-carnapping law penalizes the unlawful taking of motor vehicles, it excepts from its coverage certain vehicles such as roadrollers, trolleys, street-sweepers, sprinklers, lawn mowers, amphibian trucks and cranes if not used on public highways, vehicles which run only on rails and tracks, and tractors, trailers and tractor engines of all kinds and used exclusively for agricultural purposes. By implication, the theft or robbery of the foregoing vehicles would be covered by Article 310 of the Revised Penal Code, as amended and the provisions on robbery, respectively.[43]

From the foregoing, since appellant is being accused of the unlawful taking of a Daewoo sedan, it is the anti-carnapping law and not the provisions of qualified theft which would apply as the said motor vehicle does not fall within the exceptions mentioned in the anti-carnapping law.

The designation in the information of the offense committed by appellant as one for qualified theft notwithstanding, appellant may still be convicted of the crime of carnapping. For while it is necessary that the statutory designation be stated in the information, a mistake in the caption of an indictment in designating the correct name of the offense is not a fatal defect as it is not the designation that is controlling but the facts alleged in the information which determines the real nature of the crime.[44]

In the case at bar, the information alleges that appellant, with intent to gain, took the taxi owned by Cipriano without the latter’s consent.[45] Thus, the indictment alleges every element of the crime of carnapping,[46] and the prosecution proved the same.

Appellant’s appeal is thus bereft of merit.

That appellant brought out the taxi on December 25, 1996 and did not return it on the same day as he was supposed to is admitted.[47]

Unlawful taking, or apoderamiento, is the taking of the motor vehicle without the consent of the owner, or by means of violence against or intimidation of persons, or by using force upon things; it is deemed complete from the moment the offender gains possession of the thing, even if he has no opportunity to dispose of the same.[48]

While the nature of appellant’s possession of the taxi was initially lawful as he was hired as a taxi driver and was entrusted possession thereof, his act of not returning it to its owner, which is contrary to company practice and against the owner’s consent transformed the character of the possession into an unlawful one.[49] Appellant himself admits that he was aware that his possession of the taxi was no longer with Cipriano’s consent as the latter was already demanding its return.

Q: Also you said that during your direct testimony that when you gave your wife the P2,500.00, you also told her to go to the company to ask the company for permission for you to use the taxi since you were then still short of the boundary. Alright, after telling that to your wife and after seeing your wife between December 27, 1996 and January 5, 1997, did you ask your wife what was the answer of the company to that request of yours?

A: He did not allow me, sir, and he even [got] angry with me.

Q: So, when did you learn that the company was not agreeable to your making use of the taxicab without first returning it to the company?

A: Before the new year, sir.

Q: When you said new year, you were referring to January 1, 1997?

A: Either December 29 or December 30, 1996, sir.

Q: So, are you telling us that even if you knew already that the company was not agreeable to your making use of the taxicab continually (sic) without returning the same to the company, you still went ahead and make (sic) use of it and returned it only on January 5, 1997.

A: Yes, sir.[50] (Emphasis and underscoring supplied)

Appellant assails the trial court’s conclusion that there was intent to gain with the mere taking of the taxi without the owner’s consent. He maintains that his reason for failing to return the taxi was his inability to remit the boundary fee, his earnings that day not having permitted it; and that there was no intent to gain since the taking of the taxi was not permanent in character, he having returned it.

Appellant’s position does not persuade.

Intent to gain or animus lucrandi is an internal act, presumed from the unlawful taking of the motor vehicle.[51] Actual gain is irrelevant as the important consideration is the intent to gain. [52] The term “gain” is not merely limited to pecuniary benefit but also includes the benefit which in any other sense may be derived or expected from the act which is performed.[53]Thus, the mere use of the thing which was taken without the owner’s consent constitutes gain.[54]

In Villacorta v. Insurance Commission[55] which was reiterated in Association of Baptists for World Evangelism, Inc. v. Fieldmen’s Insurance Co, Inc.,[56] Justice Claudio Teehankee (later Chief Justice), interpreting the theft clause of an insurance policy, explained that, when one takes the motor vehicle of another without the latter’s consent even if the motor vehicle is later returned, there is theft, there being intent to gain as the use of the thing unlawfully taken constitutes gain:

Assuming, despite the totally inadequate evidence, that the taking was “temporary” and for a “joy ride”, the Court sustains as the better view[57] that which holds that when a person, either with the object of going to a

certain place, or learning how to drive, or enjoying a free ride, takes possession of a vehicle belonging to another, without the consent of its owner, he is guilty of theft because by taking possession of the personal property belonging to another and using it, his intent to gain is evident since he derives therefrom utility, satisfaction, enjoyment and pleasure. Justice Ramon C. Aquino cites in his work Groizard who holds that the use of a thing constitutes gain and Cuello Calon who calls it “hurt de uso . ”[58] (Emphasis and underscoring supplied; citation omitted)

Besides, the trial court did not believe appellant’s claim that he in fact returned the taxi on January 5, 1997.

The Court can not (sic) believe accused’s assertion that he returned the subject vehicle on January 5, 1997 to the garage and that he had in fact paid the amount of P4,500.00 in partial payment of his unremitted “boundary” for ten (10) days. He could not even be certain of the exact amount he allegedly paid the taxicab owner. On direct-examination, he claimed that he paid Edwin Cipriano on December 27, 1996 the amount of P2,000.00 and it was his wife who handed said amount to Cipriano, yet on cross-examination, he claimed that he gave P2,500.00 to his wife on that date for payment to the taxicab owner.[59]

The rule is well-entrenched that findings of fact of the trial court are accorded the highest degree of respect and will not be disturbed on appeal absent any clear showing that the trial court had overlooked, misunderstood or misapplied some facts or circumstances of weight and significance which, if considered, would alter the result of the case.[60] The reason for the rule being that trial courts have the distinct advantage of having heard the witnesses themselves and observed their deportment and manner of testifying or their conduct and behavior during the trial.[61]

Other than his bare and self-serving allegations, appellant has not shown any scintilla of evidence that he indeed returned the taxi on January 5, 1997.

Q: You said that you returned the taxi on January 5, 1997, correct?

A: Yes, sir.

Q: Now, Mr. Witness, did you sign any record when you returned the taxi?

A: Yes, sir.

Q: Do you have any copy of that record?

A: They were the one (sic) in-charge of the record book and I even voluntarily left my driver’s license with them, sir.

Q: You said that you did not return the taxi because you were short of (sic) boundary, did you turn over any money to your employer when you returned the taxi?

A: I gave them [an] additional P2,500.00, sir.

Q: At the time when you returned the taxi, how much was your short indebtedness (sic) or short boundary (sic)?

A: I was short for ten (10) days, and I was able to pay P4,500.00.

Q: Do you have any receipt to show receipt of payment for this P4,500.00?

A: They were the ones having the record of my payment, and our agreement was that I have to pay the balance in installment.[62] (Emphasis supplied)

While appellant maintains that he signed on January 5, 1997 the record book indicating that he returned the taxi on the said date and paid Cipriano the amount of P4,500.00 as partial payment for the boundary fee, appellant did not produce the documentary evidence alluded to, to substantiate his claim. That such alleged record book is in the possession of Cipriano did not prevent him from producing it as appellant has the right to have compulsory process issued to secure the production of evidence on his behalf.[63]

The trial court having convicted appellant of qualified theft instead of carnapping, it erred in the imposition of the penalty. While the information alleges that the crime was attended with grave abuse of confidence, the same cannot be appreciated as the suppletory effect of the Revised Penal Code to special laws, as provided in Article 10 of said Code, cannot be invoked when there is a legal impossibility of application, either by express provision or by necessary implication.[64]

Moreover, when the penalties under the special law are different from and are without reference or relation to those under the Revised Penal Code, there can be no suppletory effect of the rules, for the application of penalties under the said Code or by other relevant statutory provisions are based on or applicable only to said rules for felonies under the Code.[65]

Thus, in People v. Panida[66] which involved the crime of carnapping and the penalty imposed was the indeterminate sentence of 14 years and 8 months, as minimum, to 17 years and 4 months, as maximum, this Court did not apply the provisions of the Revised Penal Code suppletorily as the anti-carnapping law provides for its own penalties which are distinct and without reference to the said Code.

The charge being simple carnapping, the imposable penalty is imprisonment for not less than 14 years and 8 months and not more than 17 years and 4 months. There can be no suppletory effect of the rules for the application of penalties under the Revised Penal Code or by other relevant statutory provisions based on, or applicable only to, the rules for felonies under the Code. While it is true that the penalty of 14 years and 8 months to 17 years and 4 months is virtually equivalent to the duration of the medium period of reclusion temporal , such technical term under the Revised Penal Code is not given to that penalty for carnapping. Besides, the other penalties for carnapping attended by the qualifying circumstances stated in the law do not correspond to those in the Code. The rules on penalties in the Code, therefore, cannot suppletorily apply to Republic Act No. 6539 and special laws of the same formulation. For this reason, we hold that the proper penalty to be imposed on each of accused-appellants is an indeterminate sentence of 14 years and 8 months, as minimum, to 17 years and 4 months, as maximum.[67] (Emphasis and underscoring supplied; citations omitted)

Appellant being then culpable for carnapping under the first clause of Section 14 of Republic Act No. 6539, as amended, the imposable penalty is imprisonment for not less than 14 years and 8 months, not more than 17 years and 4 months,[68] for, as discussed above, the provisions of the Revised Penal Code cannot be applied suppletorily and, therefore, the alleged aggravating circumstance of grave abuse of confidence cannot be appreciated.

Applying Section 1 of Act No. 4103,[69] as amended, otherwise known as the Indeterminate Sentence Law, if the offense is punishable by a special law, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum term shall not be less than the minimum prescribed by the same – the penalty imposed being a range.[70]

WHEREFORE, the judgment of the Regional Trial Court of Quezon City, Branch 217, in Crim Case No. Q-97-71956, finding appellant Luisito D. Bustinera guilty beyond reasonable doubt of qualified theft, is REVERSED and SET ASIDE, and another judgment entered in its place, finding him guilty beyond reasonable doubt of the crime of carnapping under Republic Act No. 6539, as amended and sentencing him to an indeterminate penalty of Fourteen (14) Years and Eight (8) Months, as minimum, to Seventeen (17) Years and Four (4) Months, as maximum.

SO ORDERED.

Vitug, (Chairman), Sandoval-Gutierrez, and Corona, JJ., concur.

ART. 310. Qualified theft. – The crime of theft shall be punished by the penalties next higher by two degrees than those respectively specified in the next preceding article, if committed by a domestic servant, or with grave abuse of confidence, or if the property stolen is motor vehicle, mail matter or large cattle or consists of coconuts taken from the premises of a plantation, fish taken from a fishpond or fishery or if property is taken on the occasion of fire, earthquake, typhoon, volcanic eruption, or any other calamity, vehicular accident or civil disturbance.

Section 2 of Republic Act No. 6539 as amended defines motor vehicle as follows:

“Motor vehicle” is any vehicle propelled by any power other than muscular power using the public highways, but excepting road rollers, trolley cars, street-sweepers, sprinklers, lawn mowers, bulldozers, graders, fork-lifts, amphibian trucks, and cranes if not used on public highways, vehicles, which run only on rails or tracts, and tractors, trailers and reaction engines of all kinds used exclusively for agricultural purposes. Trailers having any number of wheels, when propelled or intended to be propelled by attachment to a motor vehicle, shall be classified as separate motor vehicle with no power rating.

In Santos v. People, 181 SCRA 487, 492 (1990), this Court distinguished between theft and estafa to wit:

Theft should not be confused with estafa. According to Chief Justice Ramon C. Aquino in his book on the Revised Penal Code, “The principal distinction between the two crimes is that in theft the thing is taken while in estafa the accused receives the property and converts it to his own use or benefit. However, there may be theft even if the accused has possession of the property. If he was entrusted only with the material or physical (natural) or de facto possession of the thing, his misappropriation of the same constitutes theft, but if he has the juridical possession of the thing, his conversion of the same constitutes embezzlement or estafa . (Emphasis and underscoring supplied; citation omitted)

Republic of the PhilippinesSUPREME COURT

ManilaFIRST DIVISION

G.R. No. 155076 February 27, 2006LUIS MARCOS P. LAUREL, Petitioner, vs.HON. ZEUS C. ABROGAR, Presiding Judge of the Regional Trial Court, Makati City, Branch150, PEOPLE OF THE PHILIPPINES& PHILIPPINE LONG DISTANCE TELEPHONE COMPANY, Respondents. D E C I S I O NCALLEJO, SR., J.:Before us is a Petition for Review on Certiorari of the Decision1 of the Court of Appeals (CA) in CA-G.R. SP No. 68841 affirming the Order issued by Judge Zeus C. Abrogar, Regional Trial Court (RTC), Makati City, Branch 150, which denied the "Motion to Quash (With Motion to Defer Arraignment)" in Criminal Case No. 99-2425 for theft.

Philippine Long Distance Telephone Company (PLDT) is the holder of a legislative franchise to render local and international telecommunication services under Republic Act No. 7082.2 Under said law, PLDT is authorized to establish, operate, manage, lease, maintain and purchase telecommunication systems,

including transmitting, receiving and switching stations, for both domestic and international calls. For this purpose, it has installed an estimated 1.7 million telephone lines nationwide. PLDT also offers other services as authorized by Certificates of Public Convenience and Necessity (CPCN) duly issued by the National Telecommunications Commission (NTC), and operates and maintains an International Gateway Facility (IGF). The PLDT network is thus principally composed of the Public Switch Telephone Network (PSTN), telephone handsets and/or telecommunications equipment used by its subscribers, the wires and cables linking said telephone handsets and/or telecommunications equipment, antenna, the IGF, and other telecommunications equipment which provide interconnections.31avvphil.net

PLDT alleges that one of the alternative calling patterns that constitute network fraud and violate its network integrity is that which is known as International Simple Resale (ISR). ISR is a method of routing and completing international long distance calls using International Private Leased Lines (IPL), cables, antenna or air wave or frequency, which connect directly to the local or domestic exchange facilities of the terminating country (the country where the call is destined). The IPL is linked to switching equipment which is connected to a PLDT telephone line/number. In the process, the calls bypass the IGF found at the terminating country, or in some instances, even those from the originating country.4

One such alternative calling service is that offered by Baynet Co., Ltd. (Baynet) which sells "Bay Super Orient Card" phone cards to people who call their friends and relatives in the Philippines. With said card, one is entitled to a 27-minute call to the Philippines for about ¥37.03 per minute. After dialing the ISR access number indicated in the phone card, the ISR operator requests the subscriber to give the PIN number also indicated in the phone card. Once the caller’s identity (as purchaser of the phone card) is confirmed, the ISR operator will then provide a Philippine local line to the requesting caller via the IPL. According to PLDT, calls made through the IPL never pass the toll center of IGF operators in the Philippines. Using the local line, the Baynet card user is able to place a call to any point in the Philippines, provided the local line is National Direct Dial (NDD) capable.5

PLDT asserts that Baynet conducts its ISR activities by utilizing an IPL to course its incoming international long distance calls from Japan. The IPL is linked to switching equipment, which is then connected to PLDT telephone lines/numbers and equipment, with Baynet as subscriber. Through the use of the telephone lines and other auxiliary equipment, Baynet is able to connect an international long distance call from Japan to any part of the Philippines, and make it appear as a call originating from Metro Manila. Consequently, the operator of an ISR is able to evade payment of access, termination or bypass charges and accounting rates, as well as compliance with the regulatory requirements of the NTC. Thus, the ISR operator offers international telecommunication services at a lower rate, to the damage and prejudice of legitimate operators like PLDT.6

PLDT pointed out that Baynet utilized the following equipment for its ISR activities: lines, cables, and antennas or equipment or device capable of transmitting air waves or frequency, such as an IPL and telephone lines and equipment; computers or any equipment or device capable of accepting information applying the prescribed process of the information and supplying the result of this process; modems or any equipment or device that enables a data terminal equipment such as computers to communicate with other data terminal equipment via a telephone line; multiplexers or any equipment or device that enables two or more signals from different sources to pass through a common cable or transmission line; switching equipment, or equipment or device capable of connecting telephone lines; and software, diskettes, tapes or equipment or device used for recording and storing information.7

PLDT also discovered that Baynet subscribed to a total of 123 PLDT telephone lines/numbers.8 Based on the Traffic Study conducted on the volume of calls passing through Baynet’s ISR network which bypass the IGF toll center, PLDT incurred an estimated monthly loss of P10,185,325.96.9 Records at the Securities and Exchange Commission (SEC) also revealed that Baynet was not authorized to provide international or domestic long distance telephone service in the country. The following are its officers: Yuji Hijioka, a Japanese national (chairman of the board of directors); Gina C. Mukaida, a Filipina (board member and president); Luis Marcos P. Laurel, a Filipino (board member and corporate secretary); Ricky Chan Pe, a Filipino (board member and treasurer); and Yasushi Ueshima, also a Japanese national (board member).

Upon complaint of PLDT against Baynet for network fraud, and on the strength of two search warrants10 issued by the RTC of Makati, Branch 147, National Bureau of Investigation (NBI) agents searched its office at the 7th Floor, SJG Building, Kalayaan Avenue, Makati City on November 8, 1999. Atsushi Matsuura, Nobuyoshi Miyake, Edourd D. Lacson and Rolando J. Villegas were arrested by NBI agents while in the act of manning the operations of Baynet. Seized in the premises during the search were numerous equipment and devices used in its ISR activities, such as multiplexers, modems, computer monitors, CPUs, antenna, assorted computer peripheral cords and microprocessors, cables/wires, assorted PLDT statement of accounts, parabolic antennae and voltage regulators.

State Prosecutor Ofelia L. Calo conducted an inquest investigation and issued a Resolution11 on January 28, 2000, finding probable cause for theft under Article 308 of the Revised Penal Code and Presidential Decree No. 40112 against the respondents therein, including Laurel.

On February 8, 2000, State Prosecutor Calo filed an Information with the RTC of Makati City charging Matsuura, Miyake, Lacson and Villegas with theft under Article 308 of the Revised Penal Code. After conducting the requisite preliminary investigation, the State Prosecutor filed an Amended Information impleading Laurel (a partner in the law firm of Ingles, Laurel, Salinas, and, until November 19, 1999, a member of the board of directors and corporate secretary of Baynet), and the other members of the board of directors of said corporation, namely, Yuji Hijioka, Yasushi Ueshima, Mukaida, Lacson and Villegas, as accused for theft under Article 308 of the Revised Penal Code. The inculpatory portion of the Amended Information reads:

On or about September 10-19, 1999, or prior thereto, in Makati City, and within the jurisdiction of this Honorable Court, the accused, conspiring and confederating together and all of them mutually helping and aiding one another, with intent to gain and without the knowledge and consent of the Philippine Long Distance Telephone (PLDT), did then and there willfully, unlawfully and feloniously take, steal and use the international long distance calls belonging to PLDT by conducting International Simple Resale (ISR), which is a method of routing and completing international long distance calls using lines, cables, antennae, and/or air wave frequency which connect directly to the local or domestic exchange facilities of the country where the call is destined, effectively stealing this business from PLDT while using its facilities in the estimated amount of P20,370,651.92 to the damage and prejudice of PLDT, in the said amount.

CONTRARY TO LAW.13

Accused Laurel filed a "Motion to Quash (with Motion to Defer Arraignment)" on the ground that the factual allegations in the Amended Information do not constitute the felony of theft under Article 308 of the Revised Penal Code. He averred that the Revised Penal Code, or any other special penal law for that matter, does not prohibit ISR operations. He claimed that telephone calls with the use of PLDT telephone lines, whether domestic or international, belong to the persons making the call, not to PLDT. He argued that the caller merely uses the facilities of PLDT, and what the latter owns are the telecommunication infrastructures or facilities through which the call is made. He also asserted that PLDT is compensated for the caller’s use of its facilities by way of rental; for an outgoing overseas call, PLDT charges the caller per minute, based on the duration of the call. Thus, no personal property was stolen from PLDT. According to Laurel, the P20,370,651.92 stated in the Information, if anything, represents the rental for the use of PLDT facilities, and not the value of anything owned by it. Finally, he averred that the allegations in the Amended Information are already subsumed under the Information for violation of Presidential Decree (P.D.) No. 401 filed and pending in the Metropolitan Trial Court of Makati City, docketed as Criminal Case No. 276766.

The prosecution, through private complainant PLDT, opposed the motion,14 contending that the movant unlawfully took personal property belonging to it, as follows: 1) intangible telephone services that are being offered by PLDT and other telecommunication companies, i.e., the connection and interconnection to their telephone lines/facilities; 2) the use of those facilities over a period of time; and 3) the revenues derived in connection with the rendition of such services and the use of such facilities.15

The prosecution asserted that the use of PLDT’s intangible telephone services/facilities allows electronic voice signals to pass through the same, and ultimately to the called party’s number. It averred that such service/facility is akin to electricity which, although an intangible property, may, nevertheless, be appropriated and be the subject of theft. Such service over a period of time for a consideration is the business that PLDT provides to its customers, which enables the latter to send various messages to installed recipients. The service rendered by PLDT is akin to merchandise which has specific value, and therefore, capable of appropriation by another, as in this case, through the ISR operations conducted by the movant and his co-accused.

The prosecution further alleged that "international business calls and revenues constitute personal property envisaged in Article 308 of the Revised Penal Code." Moreover, the intangible telephone services/facilities belong to PLDT and not to the movant and the other accused, because they have no telephone services and facilities of their own duly authorized by the NTC; thus, the taking by the movant and his co-accused of PLDT services was with intent to gain and without the latter’s consent.

The prosecution pointed out that the accused, as well as the movant, were paid in exchange for their illegal appropriation and use of PLDT’s telephone services and facilities; on the other hand, the accused did not pay a single centavo for their illegal ISR operations. Thus, the acts of the accused were akin to the use of a "jumper" by a consumer to deflect the current from the house electric meter, thereby enabling one to steal electricity. The prosecution emphasized that its position is fortified by the Resolutions of the Department of Justice in PLDT v. Tiongson, et al. (I.S. No. 97-0925) and in PAOCTF-PLDT v. Elton John Tuason, et al. (I.S. No. 2000-370) which were issued on August 14, 2000 finding probable cause for theft against the respondents therein.

On September 14, 2001, the RTC issued an Order16 denying the Motion to Quash the Amended Information. The court declared that, although there is no law that expressly prohibits the use of ISR, the facts alleged in the Amended Information "will show how the alleged crime was committed by conducting ISR," to the damage and prejudice of PLDT.

Laurel filed a Motion for Reconsideration17 of the Order, alleging that international long distance calls are not personal property, and are not capable of appropriation. He maintained that business or revenue is not considered personal property, and that the prosecution failed to adduce proof of its existence and the subsequent loss of personal property belonging to another. Citing the ruling of the Court in United States v. De Guzman,18Laurel averred that the case is not one with telephone calls which originate with a particular caller and terminates with the called party. He insisted that telephone calls are considered privileged communications under the Constitution and cannot be considered as "the property of PLDT." He further argued that there is no kinship between telephone calls and electricity or gas, as the latter are forms of energy which are generated and consumable, and may be considered as personal property because of such characteristic. On the other hand, the movant argued, the telephone business is not a form of energy but is an activity.

In its Order19 dated December 11, 2001, the RTC denied the movant’s Motion for Reconsideration. This time, it ruled that what was stolen from PLDT was its "business" because, as alleged in the Amended Information, the international long distance calls made through the facilities of PLDT formed part of its business. The RTC noted that the movant was charged with stealing the business of PLDT. To support its ruling, it cited Strochecker v. Ramirez,20 where the Court ruled that interest in business is personal property capable of appropriation. It further declared that, through their ISR operations, the movant and his co-accused deprived PLDT of fees for international long distance calls, and that the ISR used by the movant and his co-accused was no different from the "jumper" used for stealing electricity.

Laurel then filed a Petition for Certiorari with the CA, assailing the Order of the RTC. He alleged that the respondent judge gravely abused his discretion in denying his Motion to Quash the Amended Information.21 As gleaned from the material averments of the amended information, he was charged with stealing the international long distance calls belonging to PLDT, not its business. Moreover, the RTC failed to

distinguish between the business of PLDT (providing services for international long distance calls) and the revenues derived therefrom. He opined that a "business" or its revenues cannot be considered as personal property under Article 308 of the Revised Penal Code, since a "business" is "(1) a commercial or mercantile activity customarily engaged in as a means of livelihood and typically involving some independence of judgment and power of decision; (2) a commercial or industrial enterprise; and (3) refers to transactions, dealings or intercourse of any nature." On the other hand, the term "revenue" is defined as "the income that comes back from an investment (as in real or personal property); the annual or periodical rents, profits, interests, or issues of any species of real or personal property."22

Laurel further posited that an electric company’s business is the production and distribution of electricity; a gas company’s business is the production and/or distribution of gas (as fuel); while a water company’s business is the production and distribution of potable water. He argued that the "business" in all these cases is the commercial activity, while the goods and merchandise are the products of such activity. Thus, in prosecutions for theft of certain forms of energy, it is the electricity or gas which is alleged to be stolen and not the "business" of providing electricity or gas. However, since a telephone company does not produce any energy, goods or merchandise and merely renders a service or, in the words of PLDT, "the connection and interconnection to their telephone lines/facilities," such service cannot be the subject of theft as defined in Article 308 of the Revised Penal Code.23

He further declared that to categorize "business" as personal property under Article 308 of the Revised Penal Code would lead to absurd consequences; in prosecutions for theft of gas, electricity or water, it would then be permissible to allege in the Information that it is the gas business, the electric business or the water business which has been stolen, and no longer the merchandise produced by such enterprise.24

Laurel further cited the Resolution of the Secretary of Justice in Piltel v. Mendoza,25 where it was ruled that the Revised Penal Code, legislated as it was before present technological advances were even conceived, is not adequate to address the novel means of "stealing" airwaves or airtime. In said resolution, it was noted that the inadequacy prompted the filing of Senate Bill 2379 (sic) entitled "The Anti-Telecommunications Fraud of 1997" to deter cloning of cellular phones and other forms of communications fraud. The said bill "aims to protect in number (ESN) (sic) or Capcode, mobile identification number (MIN), electronic-international mobile equipment identity (EMEI/IMEI), or subscriber identity module" and "any attempt to duplicate the data on another cellular phone without the consent of a public telecommunications entity would be punishable by law."26 Thus, Laurel concluded, "there is no crime if there is no law punishing the crime."

On August 30, 2002, the CA rendered judgment dismissing the petition.27 The appellate court ruled that a petition for certiorari under Rule 65 of the Rules of Court was not the proper remedy of the petitioner. On the merits of the petition, it held that while business is generally an activity

which is abstract and intangible in form, it is nevertheless considered "property" under Article 308 of the Revised Penal Code. The CA opined that PLDT’s business of providing international calls is personal property which may be the object of theft, and cited United States v. Carlos28 to support such conclusion. The tribunal also cited Strochecker v. Ramirez,29 where this Court ruled that one-half interest in a day’s business is personal property under Section 2 of Act No. 3952, otherwise known as the Bulk Sales Law. The appellate court held that the operations of the ISR are not subsumed in the charge for violation of P.D. No. 401.

Laurel, now the petitioner, assails the decision of the CA, contending that -

THE COURT OF APPEALS ERRED IN RULING THAT THE PERSONAL PROPERTY ALLEGEDLY STOLEN PER THE INFORMATION IS NOT THE "INTERNATIONAL LONG DISTANCE CALLS" BUT THE "BUSINESS OF PLDT."

THE COURT OF APPEALS ERRED IN RULING THAT THE TERM "BUSINESS" IS PERSONAL PROPERTY WITHIN THE MEANING OF ART. 308 OF THE REVISED PENAL CODE.30

Petitioner avers that the petition for a writ of certiorari may be filed to nullify an interlocutory order of the trial court which was issued with grave abuse of discretion amounting to excess or lack of jurisdiction. In support of his petition before the Court, he reiterates the arguments in his pleadings filed before the CA. He further claims that while the right to carry on a business or an interest or participation in business is considered property under the New Civil Code, the term "business," however, is not. He asserts that the Philippine Legislature, which approved the Revised Penal Code way back in January 1, 1932, could not have contemplated to include international long distance calls and "business" as personal property under Article 308 thereof.

In its comment on the petition, the Office of the Solicitor General (OSG) maintains that the amended information clearly states all the essential elements of the crime of theft. Petitioner’s interpretation as to whether an "international long distance call" is personal property under the law is inconsequential, as a reading of the amended information readily reveals that specific acts and circumstances were alleged charging Baynet, through its officers, including petitioner, of feloniously taking, stealing and illegally using international long distance calls belonging to respondent PLDT by conducting ISR operations, thus, "routing and completing international long distance calls using lines, cables, antenna and/or airwave frequency which connect directly to the local or domestic exchange facilities of the country where the call is destined." The OSG maintains that the international long distance calls alleged in the amended information should be construed to mean "business" of PLDT, which, while abstract and intangible in form, is personal property susceptible of appropriation.31 The OSG avers that what was stolen by petitioner and his co-accused is the business of PLDT providing international long distance calls which, though intangible, is personal property of the PLDT.32

For its part, respondent PLDT asserts that personal property under Article 308 of the Revised Penal Code comprehends intangible property such as electricity and gas which are valuable articles for merchandise, brought and sold like other personal property, and are capable of appropriation. It insists that the business of international calls and revenues constitute personal property because the same are valuable articles of merchandise. The respondent reiterates that international calls involve (a) the intangible telephone services that are being offered by it, that is, the connection and interconnection to the telephone network, lines or facilities; (b) the use of its telephone network, lines or facilities over a period of time; and (c) the income derived in connection therewith.33

PLDT further posits that business revenues or the income derived in connection with the rendition of such services and the use of its telephone network, lines or facilities are personal properties under Article 308 of the Revised Penal Code; so is the use of said telephone services/telephone network, lines or facilities which allow electronic voice signals to pass through the same and ultimately to the called party’s number. It is akin to electricity which, though intangible property, may nevertheless be appropriated and can be the object of theft. The use of respondent PLDT’s telephone network, lines, or facilities over a period of time for consideration is the business that it provides to its customers, which enables the latter to send various messages to intended recipients. Such use over a period of time is akin to merchandise which has value and, therefore, can be appropriated by another. According to respondent PLDT, this is what actually happened when petitioner Laurel and the other accused below conducted illegal ISR operations.34

The petition is meritorious.

The issues for resolution are as follows: (a) whether or not the petition for certiorari is the proper remedy of the petitioner in the Court of Appeals; (b) whether or not international telephone calls using Bay Super Orient Cards through the telecommunication services provided by PLDT for such calls, or, in short, PLDT’s business of providing said telecommunication services, are proper subjects of theft under Article 308 of the Revised Penal Code; and (c) whether or not the trial court committed grave abuse of discretion amounting to excess or lack of jurisdiction in denying the motion of the petitioner to quash the amended information.

On the issue of whether or not the petition for certiorari instituted by the petitioner in the CA is proper, the general rule is that a petition for certiorari under Rule 65 of the Rules of Court, as amended, to nullify an order denying a motion to quash the Information is inappropriate because the aggrieved party has a remedy of appeal in the ordinary course of law. Appeal and certiorari are mutually exclusive of each other. The remedy of the aggrieved party is to continue with the case in due course and, when an unfavorable judgment is rendered, assail the order and the decision on appeal. However, if the trial court issues the order denying the motion to quash the Amended Information with grave abuse of discretion amounting to excess or lack of jurisdiction, or if such order is patently erroneous, or null and void for being contrary to the Constitution, and the remedy of appeal would not afford adequate and expeditious relief, the accused may resort to the extraordinary remedy of certiorari.35 A special civil action for certiorari is also available where there are special circumstances clearly demonstrating the inadequacy of an appeal. As this Court held in Bristol Myers Squibb (Phils.), Inc. v. Viloria:36

Nonetheless, the settled rule is that a writ of certiorari may be granted in cases where, despite availability of appeal after trial, there is at least a prima facie showing on the face of the petition and its annexes that: (a) the trial court issued the order with grave abuse of discretion amounting to lack of or in excess of jurisdiction; (b) appeal would not prove to be a speedy and adequate remedy; (c) where the order is a patent nullity; (d) the decision in the present case will arrest future litigations; and (e) for certain considerations such as public welfare and public policy.37

In his petition for certiorari in the CA, petitioner averred that the trial court committed grave abuse of its discretion amounting to excess or lack of jurisdiction when it denied his motion to quash the Amended Information despite his claim that the material allegations in the Amended Information do not charge theft under Article 308 of the Revised Penal Code, or any offense for that matter. By so doing, the trial court deprived him of his constitutional right to be informed of the nature of the charge against him. He further averred that the order of the trial court is contrary to the constitution and is, thus, null and void. He insists that he should not be compelled to undergo the rigors and tribulations of a protracted trial and incur expenses to defend himself against a non-existent charge.

Petitioner is correct.

An information or complaint must state explicitly and directly every act or omission constituting an offense38 and must allege facts establishing conduct that a penal statute makes criminal;39 and describes the property which is the subject of theft to advise the accused with reasonable certainty of the accusation he is called upon to meet at the trial and to enable him to rely on the judgment thereunder of a subsequent prosecution for the same offense.40 It must show, on its face, that if the alleged facts are true, an offense has been committed. The rule is rooted on the constitutional right of the accused to be informed of the nature of the crime or cause of the accusation against him. He cannot be convicted of an offense even if proven unless it is alleged or necessarily included in the Information filed against him.

As a general prerequisite, a motion to quash on the ground that the Information does not constitute the offense charged, or any offense for that matter, should be resolved on the basis of said allegations whose truth and veracity are hypothetically committed;41 and on additional facts admitted or not denied by the prosecution.42 If the facts alleged in the Information do not constitute an offense, the complaint or information should be quashed by the court.43

We have reviewed the Amended Information and find that, as mentioned by the petitioner, it does not contain material allegations charging the petitioner of theft of personal property under Article 308 of the Revised Penal Code. It, thus, behooved the trial court to quash the Amended Information. The Order of the trial court denying the motion of the petitioner to quash the Amended Information is a patent nullity.

On the second issue, we find and so hold that the international telephone calls placed by Bay Super Orient Card holders, the telecommunication services provided by PLDT and its business of providing said services are not personal properties under Article 308 of the Revised Penal Code. The construction by the

respondents of Article 308 of the said Code to include, within its coverage, the aforesaid international telephone calls, telecommunication services and business is contrary to the letter and intent of the law.

The rule is that, penal laws are to be construed strictly. Such rule is founded on the tenderness of the law for the rights of individuals and on the plain principle that the power of punishment is vested in Congress, not in the judicial department. It is Congress, not the Court, which is to define a crime, and ordain its punishment.44 Due respect for the prerogative of Congress in defining crimes/felonies constrains the Court to refrain from a broad interpretation of penal laws where a "narrow interpretation" is appropriate. The Court must take heed to language, legislative history and purpose, in order to strictly determine the wrath and breath of the conduct the law forbids.45However, when the congressional purpose is unclear, the court must apply the rule of lenity, that is, ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.46

Penal statutes may not be enlarged by implication or intent beyond the fair meaning of the language used; and may not be held to include offenses other than those which are clearly described, notwithstanding that the Court may think that Congress should have made them more comprehensive.47 Words and phrases in a statute are to be construed according to their common meaning and accepted usage.

As Chief Justice John Marshall declared, "it would be dangerous, indeed, to carry the principle that a case which is within the reason or

mischief of a statute is within its provision, so far as to punish a crime not enumerated in the statute because it is of equal atrocity, or of kindred character with those which are enumerated.48 When interpreting a criminal statute that does not explicitly reach the conduct in question, the Court should not base an expansive reading on inferences from subjective and variable understanding.49

Article 308 of the Revised Penal Code defines theft as follows:

Art. 308. Who are liable for theft.– Theft is committed by any person who, with intent to gain but without violence, against or intimidation of persons nor force upon things, shall take personal property of another without the latter’s consent.

The provision was taken from Article 530 of the Spanish Penal Code which reads:

1. Los que con ánimo de lucrarse, y sin violencia o intimidación en las personas ni fuerza en las cosas, toman las cosas muebles ajenas sin la voluntad de su dueño.50

For one to be guilty of theft, the accused must have an intent to steal (animus furandi) personal property, meaning the intent to deprive another of his ownership/lawful possession of personal property which intent is apart from and concurrently with the general criminal intent which is an essential element of a felony of dolo (dolus malus).

An information or complaint for simple theft must allege the following elements: (a) the taking of personal property; (b) the said property belongs to another; (c) the taking be done with intent to gain; and (d) the taking be accomplished without the use of violence or intimidation of person/s or force upon things.51

One is apt to conclude that "personal property" standing alone, covers both tangible and intangible properties and are subject of theft under the Revised Penal Code. But the words "Personal property" under the Revised Penal Code must be considered in tandem with the word "take" in the law. The statutory definition of "taking" and movable property indicates that, clearly, not all personal properties may be the proper subjects of theft. The general rule is that, only movable properties which have physical or material existence and susceptible

of occupation by another are proper objects of theft.52 As explained by Cuelo Callon: "Cosa juridicamente es toda sustancia corporal, material, susceptible de ser aprehendida que tenga un valor cualquiera."53

According to Cuello Callon, in the context of the Penal Code, only those movable properties which can be taken and carried from the place they are found are proper subjects of theft. Intangible properties such as rights and ideas are not subject of theft because the same cannot be "taken" from the place it is found and is occupied or appropriated.

Solamente las cosas muebles y corporales pueden ser objeto de hurto. La sustracción de cosas inmuebles y la cosas incorporales (v. gr., los derechos, las ideas) no puede integrar este delito, pues no es posible asirlas, tomarlas, para conseguir su apropiación. El Codigo emplea la expresión "cosas mueble" en el sentido de cosa que es susceptible de ser llevada del lugar donde se encuentra, como dinero, joyas, ropas, etcétera, asi que su concepto no coincide por completo con el formulado por el Codigo civil (arts. 335 y 336).54

Thus, movable properties under Article 308 of the Revised Penal Code should be distinguished from the rights or interests to which they relate. A naked right existing merely in contemplation of law, although it may be very valuable to the person who is entitled to exercise it, is not the subject of theft or larceny.55 Such rights or interests are intangible and cannot be "taken" by another. Thus, right to produce oil, good will or an interest in business, or the right to engage in business, credit or franchise are properties. So is the credit line represented by a credit card. However, they are not proper subjects of theft or larceny because they are without form or substance, the mere "breath" of the Congress. On the other hand, goods, wares and merchandise of businessmen and credit cards issued to them are movable properties with physical and material existence and may be taken by another; hence, proper subjects of theft.

There is "taking" of personal property, and theft is consummated when the offender unlawfully acquires possession of personal property even if for a short time; or if such property is under the dominion and control of the thief. The taker, at some particular amount, must have obtained complete and absolute possession and control of the property adverse to the rights of the owner or the lawful possessor thereof.56 It is not necessary that the property be actually carried away out of the physical possession of the lawful possessor or that he should have made his escape with it.57 Neither asportation nor actual manual possession of property is required. Constructive possession of the thief of the property is enough.58

The essence of the element is the taking of a thing out of the possession of the owner without his privity and consent and without animus revertendi.59

Taking may be by the offender’s own hands, by his use of innocent persons without any felonious intent, as well as any mechanical device, such as an access device or card, or any agency, animate or inanimate, with intent to gain. Intent to gain includes the unlawful taking of personal property for the purpose of deriving utility, satisfaction, enjoyment and pleasure.60

We agree with the contention of the respondents that intangible properties such as electrical energy and gas are proper subjects of theft. The reason for this is that, as explained by this Court in United States v. Carlos61 and United States v. Tambunting,62 based on decisions of the Supreme Court of Spain and of the courts in England and the United States of America, gas or electricity are capable of appropriation by another other than the owner. Gas and electrical energy may be taken, carried away and appropriated. In People v. Menagas,63 the Illinois State Supreme Court declared that electricity, like gas, may be seen and felt. Electricity, the same as gas, is a valuable article of merchandise, bought and sold like other personal property and is capable of appropriation by another. It is a valuable article of merchandise, bought and sold like other personal property, susceptible of being severed from a mass or larger quantity and of being transported from place to place. Electrical energy may, likewise, be taken and carried away. It is a valuable commodity, bought and sold like other personal property. It may be transported from place to place. There is nothing in the nature of gas used for illuminating purposes which renders it incapable of being feloniously taken and carried away.

In People ex rel Brush Electric Illuminating Co. v. Wemple,64 the Court of Appeals of New York held that electric energy is manufactured and sold in determinate quantities at a fixed price, precisely as are coal, kerosene oil, and gas. It may be conveyed to the premises of the consumer, stored in cells of different capacity known as an accumulator; or it may be sent through a wire, just as gas or oil may be transported either in a close tank or forced through a pipe. Having reached the premises of the consumer, it may be used in any way he may desire, being, like illuminating gas, capable of being transformed either into heat, light, or power, at the option of the purchaser. In Woods v. People,65 the Supreme Court of Illinois declared that there is nothing in the nature of gas used for illuminating purposes which renders it incapable of being feloniously taken and carried away. It is a valuable article of merchandise, bought and sold like other personal property, susceptible of being severed from a mass or larger quantity and of being transported from place to place.

Gas and electrical energy should not be equated with business or services provided by business entrepreneurs to the public. Business does not have an exact definition. Business is referred as that which occupies the time, attention and labor of men for the purpose of livelihood or profit. It embraces everything that which a person can be employed.66 Business may also mean employment, occupation or profession. Business is also defined as a commercial activity for gain benefit or advantage.67 Business, like services in business, although are properties, are not proper subjects of theft under the Revised Penal Code because the same cannot be "taken" or "occupied." If it were otherwise, as claimed by the respondents, there would be no juridical difference between the taking of the business of a person or the services provided by him for gain, vis-à-vis, the taking of goods, wares or merchandise, or equipment comprising his business.68 If it was its intention to include "business" as personal property under Article 308 of the Revised Penal Code, the Philippine Legislature should have spoken in language that is clear and definite: that business is personal property under Article 308 of the Revised Penal Code.69

We agree with the contention of the petitioner that, as gleaned from the material averments of the Amended Information, he is charged of "stealing the international long distance calls belonging to PLDT" and the use thereof, through the ISR. Contrary to the claims of the OSG and respondent PLDT, the petitioner is not charged of stealing P20,370,651.95 from said respondent. Said amount of P20,370,651.95 alleged in the Amended Information is the aggregate amount of access, transmission or termination charges which the PLDT expected from the international long distance calls of the callers with the use of Baynet Super Orient Cards sold by Baynet Co. Ltd.

In defining theft, under Article 308 of the Revised Penal Code, as the taking of personal property without the consent of the owner thereof, the Philippine legislature could not have contemplated the human voice which is converted into electronic impulses or electrical current which are transmitted to the party called through the PSTN of respondent PLDT and the ISR of Baynet Card Ltd. within its coverage. When the Revised Penal Code was approved, on December 8, 1930, international telephone calls and the transmission and routing of electronic voice signals or impulses emanating from said calls, through the PSTN, IPL and ISR, were still non-existent. Case law is that, where a legislative history fails to evidence congressional awareness of the scope of the statute claimed by the respondents, a narrow interpretation of the law is more consistent with the usual approach to the construction of the statute. Penal responsibility cannot be extended beyond the fair scope of the statutory mandate.70

Respondent PLDT does not acquire possession, much less, ownership of the voices of the telephone callers or of the electronic voice signals or current emanating from said calls. The human voice and the electronic voice signals or current caused thereby are intangible and not susceptible of possession, occupation or appropriation by the respondent PLDT or even the petitioner, for that matter. PLDT merely transmits the electronic voice signals through its facilities and equipment. Baynet Card Ltd., through its operator, merely intercepts, reroutes the calls and passes them to its toll center. Indeed, the parties called receive the telephone calls from Japan.

In this modern age of technology, telecommunications systems have become so tightly merged with computer systems that it is difficult to know where one starts and the other finishes. The telephone set is highly computerized and allows computers to communicate across long distances.71 The instrumentality at

issue in this case is not merely a telephone but a telephone inexplicably linked to a computerized communications system with the use of Baynet Cards sold by the Baynet Card Ltd. The corporation uses computers, modems and software, among others, for its ISR.72

The conduct complained of by respondent PLDT is reminiscent of "phreaking" (a slang term for the action of making a telephone system to do something that it normally should not allow by "making the phone company bend over and grab its ankles"). A "phreaker" is one who engages in the act of manipulating phones and illegally markets telephone services.73 Unless the phone company replaces all its hardware, phreaking would be impossible to stop. The phone companies in North America were impelled to replace all their hardware and adopted full digital switching system known as the Common Channel Inter Office Signaling. Phreaking occurred only during the 1960’s and 1970’s, decades after the Revised Penal Code took effect.

The petitioner is not charged, under the Amended Information, for theft of telecommunication or telephone services offered by PLDT. Even if he is, the term "personal property" under Article 308 of the Revised Penal Code cannot be interpreted beyond its seams so as to include "telecommunication or telephone services" or computer services for that matter. The word "service" has a variety of meanings dependent upon the context, or the sense in which it is used; and, in some instances, it may include a sale. For instance, the sale of food by restaurants is usually referred to as "service," although an actual sale is involved.74 It may also mean the duty or labor to be rendered by one person to another; performance of labor for the benefit of another.75 In the case of PLDT, it is to render local and international telecommunications services and such other services as authorized by the CPCA issued by the NTC. Even at common law, neither time nor services may be taken and occupied or appropriated.76A service is generally not considered property and a theft of service would not, therefore, constitute theft since there can be no caption or asportation.77 Neither is the unauthorized use of the equipment and facilities of PLDT by the petitioner theft under the aforequoted provision of the Revised Penal Code.78

If it was the intent of the Philippine Legislature, in 1930, to include services to be the subject of theft, it should have incorporated the same in Article 308 of the Revised Penal Code. The Legislature did not. In fact, the Revised Penal Code does not even contain a definition of services.

If taking of telecommunication services or the business of a person, is to be proscribed, it must be by special statute79 or an amendment of the Revised Penal Code. Several states in the United States, such as New York, New Jersey, California and Virginia, realized that their criminal statutes did not contain any provisions penalizing the theft of services and passed laws defining and penalizing theft of telephone and computer services. The Pennsylvania Criminal Statute now penalizes theft of services, thus:

(a) Acquisition of services. --

(1) A person is guilty of theft if he intentionally obtains services for himself or for another which he knows are available only for compensation, by deception or threat, by altering or tampering with the public utility meter or measuring device by which such services are delivered or by causing or permitting such altering or tampering, by making or maintaining any unauthorized connection, whether physically, electrically or inductively, to a distribution or transmission line, by attaching or maintaining the attachment of any unauthorized device to any cable, wire or other component of an electric, telephone or cable television system or to a television receiving set connected to a cable television system, by making or maintaining any unauthorized modification or alteration to any device installed by a cable television system, or by false token or other trick or artifice to avoid payment for the service.

In the State of Illinois in the United States of America, theft of labor or services or use of property is penalized:

(a) A person commits theft when he obtains the temporary use of property, labor or services of another which are available only for hire, by means of threat or deception or knowing that such use is without the consent of the person providing the property, labor or services.

In 1980, the drafters of the Model Penal Code in the United States of America arrived at the conclusion that labor and services, including professional services, have not been included within the traditional scope of the term "property" in ordinary theft statutes. Hence, they decided to incorporate in the Code Section 223.7, which defines and penalizes theft of services, thus:

(1) A person is guilty of theft if he purposely obtains services which he knows are available only for compensation, by deception or threat, or by false token or other means to avoid payment for the service. "Services" include labor, professional service, transportation, telephone or other public service, accommodation in hotels, restaurants or elsewhere, admission to exhibitions, use of vehicles or other movable property. Where compensation for service is ordinarily paid immediately upon the rendering of such service, as in the case of hotels and restaurants, refusal to pay or absconding without payment or offer to pay gives rise to a presumption that the service was obtained by deception as to intention to pay; (2) A person commits theft if, having control over the disposition of services of others, to which he is not entitled, he knowingly diverts such services to his own benefit or to the benefit of another not entitled thereto.

Interestingly, after the State Supreme Court of Virginia promulgated its decision in Lund v. Commonwealth,80declaring that neither time nor services may be taken and carried away and are not proper subjects of larceny, the General Assembly of Virginia enacted Code No. 18-2-98 which reads:

Computer time or services or data processing services or information or data stored in connection therewith is hereby defined to be property which may be the subject of larceny under § § 18.2-95 or 18.2-96, or embezzlement under § 18.2-111, or false pretenses under § 18.2-178.

In the State of Alabama, Section 13A-8-10(a)(1) of the Penal Code of Alabama of 1975 penalizes theft of services:

"A person commits the crime of theft of services if: (a) He intentionally obtains services known by him to be available only for compensation by deception, threat, false token or other means to avoid payment for the services …"

In the Philippines, Congress has not amended the Revised Penal Code to include theft of services or theft of business as felonies. Instead, it approved a law, Republic Act No. 8484, otherwise known as the Access Devices Regulation Act of 1998, on February 11, 1998. Under the law, an access device means any card, plate, code, account number, electronic serial number, personal identification number and other telecommunication services, equipment or instrumentalities-identifier or other means of account access that can be used to obtain money, goods, services or any other thing of value or to initiate a transfer of funds other than a transfer originated solely by paper instrument. Among the prohibited acts enumerated in Section 9 of the law are the acts of obtaining money or anything of value through the use of an access device, with intent to defraud or intent to gain and fleeing thereafter; and of effecting transactions with one or more access devices issued to another person or persons to receive payment or any other thing of value. Under Section 11 of the law, conspiracy to commit access devices fraud is a crime. However, the petitioner is not charged of violation of R.A. 8484.

Significantly, a prosecution under the law shall be without prejudice to any liability for violation of any provisions of the Revised Penal Code inclusive of theft under Rule 308 of the Revised Penal Code and estafa under Article 315 of the Revised Penal Code. Thus, if an individual steals a credit card and uses the same to obtain services, he is liable of the following: theft of the credit card under Article 308 of the Revised Penal Code; violation of Republic Act No. 8484; and estafa under Article 315(2)(a) of the Revised Penal

Code with the service provider as the private complainant. The petitioner is not charged of estafa before the RTC in the Amended Information.

Section 33 of Republic Act No. 8792, Electronic Commerce Act of 2000 provides:

Sec. 33. Penalties.— The following Acts shall be penalized by fine and/or imprisonment, as follows:

a) Hacking or cracking which refers to unauthorized access into or interference in a computer system/server or information and communication system; or any access in order to corrupt, alter, steal, or destroy using a computer or other similar information and communication devices, without the knowledge and consent of the owner of the computer or information and communications system, including the introduction of computer viruses and the like, resulting on the corruption, destruction, alteration, theft or loss of electronic data messages or electronic documents shall be punished by a minimum fine of One hundred thousand pesos (P100,000.00) and a maximum commensurate to the damage incurred and a mandatory imprisonment of six (6) months to three (3) years.

IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The assailed Orders of the Regional Trial Court and the Decision of the Court of Appeals are REVERSED and SET ASIDE. The Regional Trial Court is directed to issue an order granting the motion of the petitioner to quash the Amended Information.

SO ORDERED.

ROMEO J. CALLEJO, SR.

Associate Justice

WE CONCUR:

(No part)ARTEMIO V. PANGANIBAN

Chief JusticeChairperson

CONSUELO YNARES-SANTIAGO, MA. ALICIA AUSTRIA-MARTINEZAssociate Justice Associate Justice

(On leave)MINITA V. CHICO-NAZARIO*

Associate JusticeC E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above decision were reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

ARTEMIO V. PANGANIBANChief Justice

SECOND DIVISION[G.R. No. 109595. April 27, 2000]

CRISTETA CHUA-BURCE, petitioner, vs. COURT OF APPEALS AND PEOPLE OF THE PHILIPPINES, respondents.

D E C I S I O NQUISUMBING, J.:

Subject of the present appeal by certiorari is the decision dated November 27, 1992 of the Court of Appeals in CA-G.R. CR No. 12037, (a) affirming in toto the trial court’s decision finding petitioner guilty of estafa, and (b) denying her Motion for Reconsideration in a Resolution dated March 25, 1993. The Regional Trial Court, Calapan, Oriental Mindoro, Branch 40, rendered a joint decision finding petitioner guilty of estafa under Article 315, par. 1 (b) of the Revised Penal Code, in Criminal Case No. C-2313, and likewise found petitioner liable for the amount of P150,000.00 in Civil Case No. R-3733. Only the criminal case is before us for review. Â h Y

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

On August 16, 1985, Ramon Rocamora, the Manager (of Metropolitan Bank and Trust Company, Calapan Branch, Oriental Mindoro) requested Fructuoso Peñaflor, Assistant Cashier, to conduct a physical bundle count of the cash inside the vault, which should total P4,000,000.00, more or less. During this initial cash count, they discovered a shortage of fifteen bundles of One Hundred Pesos denominated bills totalling P150,000.00. The One Hundred Peso bills actually counted was P3,850,000.00 as against the balance of P4,000,000.00 in the Cash in Vault (CIV) Summary Sheet, or a total shortage of P150,000.00. The next day, to determine if there was actually a shortage, a re-verification of the records and documents of the transactions in the bank was conducted. There was still a shortage of P150,000.00.

The bank initiated investigations totalling four (4) in all. The first was by Ramon Rocamora, the Manager. The second was by the bank’s internal auditors headed by Antonio Batungbakal. Then, the bank’s Department of Internal Affairs conducted an independent investigation. Thereafter, the National Bureau of Investigation (NBI) came in to investigate. All of these investigations concluded that there was a shortage of P150,000.00, and the person primarily responsible was the bank’s Cash Custodian, Cristeta Chua-Burce, the herein accused. Jksm

On November 4, 1985, unable to satisfactorily explain the shortage of P150,000.00, the accused’s service with the bank was terminated.

To recover the missing amount, Metropolitan Bank and Trust Company (Metrobank) filed a Civil Case for Sum of Money and Damages with Preliminary Attachment and Garnishment docketed as Civil Case No. R-3733 against petitioner and her husband, Antonio Burce. Esm

Prior to the filing of the Answer, the following Information for Estafa was filed against petitioner:

"That on or about the 16th day of August 1985, and for a period prior and subsequent thereto, the above-named accused, with unfaithfulness or abuse of confidence, and with intent to defraud, did then and there wilfully, unlawfully, and feloniously, in her capacity as Cash Custodian of the Metrobank, Calapan Branch, take from the Bank’s Vault the amount of ONE HUNDRED FIFTY THOUSAND (P150,000.00) PESOS, which is under her direct custody and/or accountability, misappropriate and convert to her own personal use and benefit, without the knowledge and consent of the offended party, despite repeated demands for her to account and/or return the said amount, she refused and failed, and still fails and refuses to the damage and prejudice of the Metrobank, Calapan Branch, in the aforementioned amount of ONE HUNDRED FIFTY THOUSAND (P150,000.00) PESOS.

Contrary to Article 315 of the Revised Penal Code.

Calapan, Oriental Mindoro, November 27, 1985."[1]

Both civil and criminal cases were raffled to the same branch of the Regional Trial Court of Calapan, Oriental Mindoro, Branch 40. Esmsc

Thereafter, petitioner moved for the suspension of the criminal case on the ground of the existence of a prejudicial question, viz., that the resolution of the civil case was determinative of her guilt or innocence in the criminal case.[2] The trial court, over the vehement opposition of the private and public prosecutors, granted the motion and suspended the trial of the criminal case.[3] On petition for certiorari to the Court of Appeals, the appellate court ruled that there was no prejudicial question.[4]

Petitioner was arraigned and assisted by counsel de parte, entered a plea of not guilty.[5] While the trial of the criminal case was suspended, the trial of the civil case continued. At the time of arraignment, the civil case was already submitted for decision. Hence, during the pre-trial conference of the criminal case, the parties agreed to adopt their respective evidence in the civil case as their respective evidence in the criminal case.[6] The trial court ordered the parties to submit their written agreement pursuant to Section 4 of Rule 118 of the Rules of Court.[7] Thereafter, petitioner, duly assisted by her counsel, with the conforme of the public prosecutor, entered into the following pre-trial agreement:[8]

"COMES NOW, the accused, assisted by counsel, and unto this Honorable Court most respectfully submits this Pre-Trial agreement:

1. That the evidence already adduced by the plaintiff in Civil Case No. R-3733 will be adopted by the prosecution as its evidence in Criminal Case No. C-2313;

2. That the evidence to be adduced by the defendant in Civil Case No. R-3733 will also be adopted as evidence for the defense in Criminal Case No. C-2313.

WHEREFORE, premises considered, it is prayed that the foregoing pre-trial agreement be admitted in compliance with the Order of this Court dated April 19, 1988.

RESPECTFULLY SUBMITTED.Calapan, Oriental Mindoro, August 20, 1990.CRISTETA CHUA-BURCE (sgd.)AccusedAssisted By:RODRIGO C. DIMAYACYAC (sgd.)Defense CounselSan Vicente, CalapanOriental MindoroIBP O.R. No. 292575May 11, 1990Quezon CityWith Conformity:EMMANUEL S. PANALIGAN (sgd.)Prosecuting Fiscal

Pursuant to the pre-trial agreement, the public prosecutor filed a Motion to Adopt Evidence.[9] Both the pre-trial agreement and said Motion were granted by the trial court.[10]

On March 18, 1991, the trial court rendered a consolidated decision[11] finding petitioner (a) guilty of estafa under Article 315 (1) (b) of the Revised Penal Code in the criminal case, and (b) liable for the amount of P150,000.00 in the civil case. The dispositive portion of decision provides -

- In Criminal Case No. C-2313 -

WHEREFORE, the Court hereby finds the accused Cristeta Chua-Burce guilty beyond reasonable doubt of the crime of Estafa, punishable under Art. 315, paragraph 1 (b) of the Revised Penal Code, which imposes a penalty of prision correccional in its maximum period to prision mayor in its minimum period but considering that the amount involved exceeds P22,000.00, the penalty provided for shall be imposed in its maximum period, adding one year for each additional P10,000.00, but the total amount not to exceed twenty years. Esmmis

Applying the Indeterminate Sentence Law, the imposable penalty shall be one degree lower as minimum of arresto mayor with a penalty range of One Month and One Day to Six Months, as minimum to prision mayor in its maximum period, as maximum, or a penalty of Six years to Twelve Years. Considering the mitigating circumstance of voluntary surrender, the court hereby imposes upon the accused to suffer imprisonment from SIX (6) MONTHS of arresto mayor in its maximum period, as minimum, to EIGHT (8) YEARS of prision mayor, in its minimum period, as maximum. The civil liability shall not be imposed in this case due to a separate civil action. Esmso

- In Civil Case No. R-3733 -

WHEREFORE, judgment is hereby rendered in favor of the plaintiff Metrobank, ordering defendants Cristeta Chua-Burce and Antonio Burce, spouses, to pay Metrobank the amount of P150,000.00 representing the amount misappropriated with the legal rate of six percent (6%) per annum from August 15, 1985 until fully paid and to pay the costs of suit.

SO ORDERED."

Petitioner seasonably appealed her conviction in the criminal case to the Court of Appeals. Petitioner filed a separate appeal in the civil case.

In a decision dated November 27, 1992,[12] the Court of Appeals affirmed the trial court’s decision in toto. Petitioner’s Motion for Reconsideration was likewise denied.[13] Hence, the recourse to this Court. Msesm

Petitioner raises the following issues:[14]

1. IS THE RESULT OF POLYGRAPH EXAMINATION ADMISSIBLE IN EVIDENCE?

2. CAN THE PRESIDING JUDGE OF THE REGIONAL TRIAL COURT ADMIT IN EVIDENCE THE EVIDENCE WHICH WAS ALREADY DENIED ADMISSION IN THE ORDER OF THE FORMER JUDGE OF THE SAME COURT?

3. DOES PRIMA FACIE PRESUMPTION OF MISAPPROPRIATION OR CONVERSION EXISTS (sic) AGAINST THE PETITIONER WHEN THERE WERE OTHER PERSONS WHO HAD DIRECT AND GREATER ACCESS IN THE CASH-IN-VAULT?

4. IS RULE 111 SECTION 2 (a) OF THE REVISED RULES ON CRIMINAL PROCEDURE APPLICABLE IN (sic)THE CASE AT BAR?

5. WAS THERE A VALID PROCEEDING WHEN THE FISCAL WAS NOT ACTUALLY PRESENT AND DID NOT CONTROL AND SUPERVISE THE PROSECUTION OF THE CASE? Exsm

In gist, (1) petitioner contends that the trial court erred in taking into account the results of the polygraph examination as circumstantial evidence of guilt considering the inherent unreliability of such tests, and the fact that the previous trial judge who handled the case already ruled such evidence as inadmissible; (2) petitioner insists that there can be no presumption of misappropriation when there were other persons who had access to the cash in vault; and (3) petitioner questions the validity of the trial of criminal case considering that the pre-trial agreement dispensed with the intervention of the public prosecutor in a full-blown trial of the criminal case. Kyle

The Office of the Solicitor General, for the State, contends that the guilt of petitioner has been proven beyond reasonable doubt by the following facts which were duly established during trial - first, petitioner was the cash custodian who was directly responsible and accountable for the cash-in-vault. Second, the other persons who had access to the vault facilities never used the duplicate keys to open the safety deposit boxes and the cash safe from where the P100.00 bill denominations were located. In fact, the duplicate keys were offered in evidence still in their sealed envelopes. Third, alterations and superimposition on the cash-in-vault summary sheet were made by petitioner to cover the cash shortage. Lastly, there was a valid joint trial of the civil and criminal cases.

The crucial issues, in our mind, are (1) whether there was a valid trial of the criminal case, and (2) whether the elements of the crime of estafa under Article 315 (1) (b) of the Revised Penal Code were duly proven beyond reasonable doubt. Kycalr

First, petitioner assails the validity of the proceedings in the trial court on the ground that the public prosecutor did not intervene and present any evidence during the trial of the criminal case. The records clearly show that the pre-trial agreement was prepared by petitioner with the conforme of the public prosecutor. Thereafter, petitioner filed a consolidatedmemorandum for both civil and criminal cases. Section 5 of Rule 110[15] requires that all criminal actions shall be prosecuted under the direction and control of the public prosecutor. The rationale behind the rule is "to prevent malicious or unfounded prosecutions by private persons."[16] The records show that the public prosecutor actively participated in the prosecution of the criminal case from its inception. It was during pre-trial conference when the parties agreed to adopt their respective evidence in the civil case to the criminal case. This is allowed under Section 2 (e) of Rule 118 of the Rules of Court[17] which provides that during pre-trial conference, the parties shall consider "such other matters as will promote a fair and expeditious trial." The parties, in compliance with Section 4 of Rule 118,[18] reduced to writing such agreement. Petitioner, her counsel, and the public prosecutor signed the agreement. Petitioner is bound by the pre-trial agreement, and she cannot now belatedly disavow its contents.[19]

On the second issue. Petitioner was charged with the crime of estafa under Article 315 (1) (b) of the Revised Penal Code.[20] In general, the elements of estafa are: (1) that the accused defrauded another (a) by abuse of confidence or (b) by means of deceit; and (2) that damage or prejudice capable of pecuniary estimation is caused to the offended party or third person.[21] Deceit is not an essential requisite of estafa with abuse of confidence, since the breach of confidence takes the place of the fraud or deceit, which is a usual element in the other estafas.[22]

The elements of estafa through conversion or misappropriation under Art. 315 (1) (b) of the Revised Penal Code are:[23]

(1) that personal property is received in trust, on commission, for administration or under any other circumstance involving the duty to make delivery of or to return the same, even though the obligation is guaranteed by a bond;

(2) that there is conversion or diversion of such property by the person who has so received it or a denial on his part that he received it;

(3) that such conversion, diversion or denial is to the injury of another and

(4) that there be demand for the return of the property.

Have the foregoing elements been met in the case at bar? We find the first element absent. When the money, goods, or any other personal property is received by the offender from the offended party (1) in trust or (2) on commission or (3) for administration, the offender acquires both material or physical possession and juridical possession of the thing received.[24] Juridical possession means a possession which gives the transferee a right over the thing which the transferee may set up even against the owner.[25] In this case, petitioner was a cash custodian who was primarily responsible for the cash-in-vault. Her possession of the cash belonging to the bank is akin to that of a bank teller, both being mere bank employees. Calrky

In People v. Locson,[26] the receiving teller of a bank misappropriated the money received by him for the bank. He was found liable for qualified theft on the theory that the possession of the teller is the possession of the bank. We explained in Locson that -

"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 grave abuse of confidence, removed the money and appropriated it to his own use without the consent of the bank, there was the taking orapoderamiento contemplated in the definition of the crime of theft."[27]

In the subsequent case of Guzman v. Court of Appeals,[28] a travelling sales agent misappropriated or failed to return to his principal the proceeds of things or goods he was commissioned or authorized to sell. He was, however, found liable for estafa under Article 315 (1) (b) of the Revised Penal Code, and not qualified theft. In the Guzman case, we explained the distinction between possession of a bank teller and an agent for purposes of determining criminal liability -

"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; the 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 money or goods received in consequence of the agency; as when the principal fails to reimburse him for advances he has made, and indemnify him for damages suffered without his fault (Article 1915, [N]ew Civil Code; Article 1730, old)." Mesm

Petitioner herein being a mere cash custodian had no juridical possession over the missing funds. Hence, the element of juridical possession being absent, petitioner cannot be convicted of the crime of estafa under Article 315, No. 1 (b) of the Revised Penal Code.[29]

WHEREFORE, the petition is hereby granted and petitioner is ACQUITTED of the crime of estafa under Article 315 (1) (b) of the Revised Penal Code. Petitioner is ordered RELEASED from custody unless she is being held for some other lawful cause. No costs. Slx

SO ORDERED.

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

Republic of the PhilippinesSUPREME COURT

ManilaTHIRD DIVISION

G.R. No. 149472 October 15, 2002JORGE SALAZAR, petitioner, vs.PEOPLE OF THE PHILIPPINES, respondent.

D E C I S I O NPUNO, J.:

In an information dated January 21, 1987, petitioner Jorge Salazar was charged with estafa under Article 315 paragraph 1(b) of the Revised Penal Code. The information reads:

"That on or about the 10th date of January 1986 in the Municipality of Makati, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, being the Vice President and Treasurer of Aurora/Uni-Group, Inc., received from Olivier Philippines and Skiva International, Inc. as represented by Teresita M. Tujan the amount of $41,300.00 for the sole purpose of meeting the cost of textile and labor in the manufacture of seven hundred dozen stretch twill jeans which he (accused) is duty bound to deliver to said complainant, and the accused once in possession of the same, far from complying from his

obligation, with unfaithfulness and abuse of confidence and to defraud said complainant, did, then and there willfully and unlawfully and feloniously misappropriate, misapply and convert the same for his own personal use and benefit despite repeated demands to return the said amount, failed and refused and still fails and refuses to do so, to the damage and prejudice of said complainant, in the aforementioned amount of $41,300.00 or its equivalent in Philippine currency.

Contrary to law."1

On arraignment, petitioner pleaded "not guilty" to the charge.

It appears that Skiva International, Inc. ("Skiva") is a New York-based corporation which imports clothes from the Philippines through its buying agent, Olivier (Philippines) Inc. ("Olivier"). Aurora Manufacturing & Development Corporation ("Aurora") and Uni-Group Inc. ("Uni-Group") are domestic corporations which supply finished clothes to Skiva. Mr. Werner Lettmayr is the President of both Aurora and Uni-Group while the petitioner, Jorge Salazar, is the Vice-President and Treasurer of Uni-Group and a consultant of Aurora.

Skiva, through its buying agent, Olivier, has been purchasing finished clothes from Aurora and Uni-Group. When an order is procured for the delivery of clothes, Olivier, issues to the local supplier, Aurora/Uni-Group, a "Purchase Contract" and Olivier issues to Skiva a "Sales Contract". In these transactions, payment is usually made by way of a letter of credit wherein the supplier is paid only upon the presentation of the proper shipping documents to the designated bank.2

In December 1985, Skiva informed Olivier that it needs ladies jeans to be delivered sometime in January 1986. Olivier, in turn, through its Officer-in-Charge, Ms. Teresita Tujan, contacted Aurora and Uni-Group to supply the jeans. 3 Thus, a Purchase Contract dated December 18, 1985 was issued by Olivier to Uni-Group wherein Uni-Group was to supply 700 dozens of three (3) different designs of "Ladies Basic 5 Pockets Stretch Twill Jeans" payable by means of a letter of credit at sight.4 The Purchase Contract was confirmed by Mr. Lettmayr on December 30, 1985 .5 A Sales Contract was also issued by Olivier to Skiva containing the same terms and conditions as the Purchase Contract and was confirmed by Mr. Jack Chehebar of Skiva.6

On January 7, 1986, the parties agreed that Skiva will advance to Aurora/Uni-Group the amount of US$41,300.00 (then equivalent to P850,370.00 at the exchange rate of P20.59 to US$1.00) as Aurora/Uni-Group did not have sufficient funds to secure raw materials to manufacture the jeans.7 It was also agreed that the amount advanced by Skiva represents advance payment of its order of 700 dozens of ladies jeans. 8 Skiva then issued a check in the said amount payable to Uni-Group. 9 However, due to the length of time needed for the check to be cleared, the parties made arrangements to remit the funds instead by way of telegraphic transfer. 10 Thus, the check issued by Skiva was returned by Mr. Lettmayr11 and as agreed, the funds were remitted by Skiva from its bank in New York, the Israel Discount Bank, to the joint account of Mr. and Mrs. Jorge Salazar and Mr. and Mrs. Werner Lettmayr at Citibank N.A.12

On January 16, 1986, petitioner, who had possession and control of the passbook of the said joint account, withdrew the amount of US$21,675.2113 and on January 22, 1986, petitioner withdrew the amount of US$20,000.00.14 The prosecution also presented evidence that subsequent to said withdrawals, the amounts of US$71.70 and US$63.99 were deducted from the joint account as telegraphic transfer fee and commission for the remittance of the funds to another account.15

In the meantime, Ms. Tujan contacted Aurora/Uni-Group to follow up on the production of the jeans. She learned that only 3,000 meters out of the 10,000 meters of Litton fabrics required for the order were purchased from Litton Mills by the petitioner.16 3,000 meters of Litton fabrics are enough to produce only 200 dozens of ladies jeans - an amount insufficient to satisfy the order of Skiva of 700 dozens of ladies twill jeans.17 Upon inquiry with Mr. Lettmayr, the latter advised Ms. Tujan that the query be directed to petitioner as petitioner is in charge of securing the materials. 18 However, Ms. Tujan could not locate the petitioner.19

Consequently, in a letter dated March 13, 1986, demand was made upon Aurora/Uni-Group through its President, Mr. Lettmayr, to return the money advanced in the amount of US$41,300.00.20

For failure of Aurora/Uni-Group to deliver the ladies jeans or to account for the US$41,300.00 despite demand, Skiva, through its local agent represented by Ms. Tujan, filed a criminal complaint for estafa against Mr. Lettmayr and petitioner. After preliminary investigation, the Public Prosecutor dismissed the complaint against Mr. Lettmayr and an information was filed against petitioner.21

After trial, the lower court convicted herein petitioner of estafa under Article 315 paragraph 1 (b) of the Revised Penal Code, sentencing him to suffer the indeterminate penalty of imprisonment of eight (8) years and one (1) day of prision mayor as the minimum to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal as the maximum and to pay Uni-Group and Aurora the amount of P595,259.00. 22 On March 13, 1997, the lower court denied petitioner’s Motion for Reconsideration. 23 On appeal, the Court of Appeals affirmed in toto the decision of the trial court and denied petitioner’s Motion for Reconsideration.24

Aggrieved by the aforementioned rulings, petitioner files the instant petition for review.

The petition is bereft of merit.

The following are the elements of estafa under Article 315 paragraph 1 (b) of the Revised Penal Code: a) that money, goods or other personal property is 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; b) that there be misappropriation or conversion of such money or property by the offender; or denial on his part of such receipt; c) that such misappropriation or conversion or denial is to the prejudice of another; and d) there is demand made by the offended party to the offender.25

We agree with the trial court’s finding that the contract between Skiva and Aurora/Uni-Group was one of sale.26Thus, upon remittance by Skiva of its advance payment in the amount of US$41,300.00, ownership thereof was transferred to Aurora/Uni-Group and Aurora/Uni-Group had no obligation to account or deliver the money to Skiva, its only obligation under the contract of sale being to deliver the 700 dozens of ladies jeans. However, petitioner, as an employee of Aurora/Uni-Group who was aware of the specific purpose of the remittance, upon receipt of the amount, had the obligation to account for the proceeds thereof to Aurora/Uni-Group.

The records establish that: 1) the amount of US$41,300.00 was remitted by telegraphic transfer to the joint account of the petitioner and his wife and Mr. and Mrs. Werner Lettmayr;27 2) the said amount was remitted as advance payment by Skiva for the jeans it ordered;28 and 3) the amount of US$21,675.21 was withdrawn by petitioner on January 16, 1986 and the amount of US$20,000.00 was withdrawn by petitioner on January 22, 1986.29 In fact, petitioner himself admits having withdrawn from the joint account on two occasions after the remittance was made.30 Petitioner further admits having made such withdrawal for the purpose of purchasing materials to be used for the jeans ordered by Skiva and a portion thereof to be given to Aurora.31 Thus, upon withdrawal by petitioner of the amounts advanced by Skiva, petitioner received the same in trust with an obligation to return the funds or account for the proceeds thereof.

With respect to the element of conversion or misappropriation of the amount received, petitioner claims that a portion of the amount was used to purchase 3,000 meters of Litton fabrics and the balance was returned to Aurora.32 However, upon cross-examination, petitioner was unable to recall the amount paid for the purchase of the fabrics or the amount given to Aurora nor was petitioner able to identify whether payment for the purchase of fabric or the return of funds to Aurora was made in cash or in check.33

In fact, except for his bare testimony, petitioner failed to present evidence to support his defense that payment for the purchase of fabrics had been made or that the balance of the amount received by petitioner was given to Aurora. The only reason why the Court is inclined to believe that 3,000 meters of Litton fabrics

were purchased for the manufacture of the jeans is because the witness for the prosecution, Ms. Tujan, independently verified the purchase of the said materials from Litton Mills.34

To support petitioner’s claim that the remainder of the amount withdrawn was returned to Aurora, petitioner presents a letter dated October 15, 1986 from the Philippine Veterans Investment Development Corporation (PHIVIDEC) addressed to Mr. Werner Lettmayr, President of Aurora, regarding the financial audit of Aurora, wherein the amount of P850,780.00 is indicated as an amount "due to Uni-Group."35 Atty. Cesar Singson, witness for the defense, testified that the amount of P850,780.00 indicated in the said letter represents the peso equivalent of the advance payment of US$41,300.00 made by Skiva to Uni-Group.36

We agree with the trial court that the probative value of the said letter is nil. The trial court correctly ruled:

"The court doubts the probative value of the contents of [the letter] because the person who testified thereon, a certain Atty. Cesar Singson, was not the one who prepared the document. He was only one [of] those who was furnished a copy thereof. Moreover, when said piece of evidence was presented, there were inconsistencies in the testimony of the [petitioner] as to how he was able to procure said documents. In a hearing he testified that he personally procured said letter from the records of PHIVIDEC and the person who certified said copy signed the same in his presence. On cross examination, he testified that he did not personally obtain said letter and he was not there when the person who authenticated said letter signed it and that it was only given to him by his former counsel. This is further muddled when Atty. Singson testified that he was the one who authenticated said document on December 7, 1987 from his copy upon the request of the accused. Atty. Singson has already severed his ties with PHIVIDEC on the latter part of the year 1986. This means that Atty. Singson was no longer connected with PHIVIDEC when he authenticated said document based on his copy which implies that the document was not obtained from the records of PHIVIDEC."37

Further, even assuming that the letter may be given credence, we are unable to see any indication that the amount of P850,780.00 or at least a portion thereof (assuming that the said amount represents the advance payment made by Skiva) has been received by Aurora and/or Uni-Group from petitioner. At most, what said letter indicates is that Aurora acknowledges liability to Uni-Group in the said amount or that said amount has been received by Uni-Group from Skiva as advance payment which Uni-Group may have, in turn, assigned to Aurora. The glaring fact remains that nowhere can it be seen from the said letter that there was actual receipt by Aurora from petitioner of the amount indicated therein, or at least a portion thereof, after deduction of the cost of the materials purchased to manufacture the jeans ordered.

Moreover, the prosecution was able to establish that upon withdrawal of the said amounts, petitioner caused the telegraphic transfer of the amount to another account prior to petitioner’s receipt of the amount in pesos.38 In fact, upon being confronted by the prosecution with Exhibits "R" and "T" which are account debit forms showing that certain amounts were deducted by Citibank N.A. from the joint account as telegraphic transfer fee for the amounts withdrawn by petitioner, petitioner admitted that upon withdrawal, "the dollars was converted by the bank, remitted abroad, and given to me in pesos."39 The act committed by petitioner of remitting the funds abroad constitutes an act of conversion or misappropriation. This Court has previously held that even a temporary disturbance of property rights constitutes misappropriation.40 The words "convert" and "misappropriate" as used in Article 315 paragraph 1 (b) of the Revised Penal Code, 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" a thing of value 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.41 Thus, when petitioner caused the remittance of the amount withdrawn to another account, such act constituted conversion or misappropriation or unauthorized disposition of the property, contrary to the purpose for which the property was devoted.

Petitioner also claims that the third element of estafa is not present as the party prejudiced, in accordance with the findings of the trial court and the Court of Appeals, is Skiva, when petitioner had no obligation to account to Skiva the proceeds of the amount withdrawn. Petitioner argues that consistent with the ruling of

the lower court that Aurora is the owner of the sum remitted as advance payment, petitioner had the obligation to account for the proceeds thereof to Aurora and not to Skiva. 42 Thus, petitioner maintains that a conviction for estafa will not hold as no damage to Aurora was alleged in the information nor did the prosecution present any proof of damage to Aurora.

We are not persuaded.

As held in the case of First Producers Holdings Corporation v. Co,43 in estafa, the person prejudiced or the immediate victim of the fraud need not be the owner of the goods misappropriated. Thus, Article 315 of the Revised Penal Code provides that "any person who shall defraud another by any means mentioned [in Article 315]" may be held liable for estafa. The use by the law of the word "another" instead of the word "owner" means that as an element of the offense, loss should have fallen upon someone other than the perpetrator of the crime.44 Thus, the finding of the trial court that Skiva, the party prejudiced, is not the owner of the sum misappropriated will not nullify the conviction of the petitioner.

Petitioner claims that the element of demand is absent as no demand was made by Skiva on petitioner. Petitioner argues that although demand was made by Skiva to Aurora/Uni-Group and/or Mr. Lettmayr, no demand was shown to have been made on petitioner himself.

We hold that the element of demand was satisfied when demand was made upon Aurora/Uni-Group. To require Skiva to make a demand on petitioner himself would be superfluous and would serve no other additional purpose. We note that at the time when Ms. Tujan was following up on the delivery of the jeans, except for the advice of Mr. Lettmayr to direct her queries to petitioner who was in charge of procuring the materials for the jeans, Ms. Tujan could not have known that petitioner may be primarily responsible for the non-delivery of the jeans. As far as Skiva/Olivier was concerned, it was the obligation of Aurora/Uni-Group to deliver the jeans, which at the time of demand, was not complied with. Thus, Skiva/Olivier acted appropriately when it demanded from Aurora/Uni-Group the return of the amount advanced.

To require that demand should have been made by Skiva/Olivier upon petitioner himself to uphold the conviction of the trial court is to sustain a blind application of the law. In the case of United States v. Ramirez,45 this Court held:

"The consummation of the crime of estafa … does not depend on the fact that a request for the return of the money is first made and refused in order that the author of the crime should comply with the obligation to return the sum misapplied. The appropriation or conversion of money received to the prejudice of the owner thereof are the sole essential facts which constitute the crime of estafa, and thereupon the author thereof incurs the penalty imposed by the Penal Code."

Further, in Tubbs v. People and Court of Appeals46 this Court ruled that "the law does not require a demand as a condition precedent to the crime of embezzlement. It so happens only that failure to account, upon demand for funds and property held in trust, is circumstantial evidence of misappropriation."

In Benito Sy y Ong v. People and Court of Appeals,47 we also held that in a prosecution for estafa, demand is not necessary when there is evidence of misappropriation.

Petitioner likewise maintains that Skiva has no authority to institute the present action as estafa was not committed against Skiva but against Aurora/Uni-Group on the basis of the finding that the transaction between Skiva and Aurora/Uni-Group was one of sale. Thus, petitioner argues that pursuant to Section 3, Rule 110 of the Rules on Criminal Procedure,48 the complaint should not have been instituted by Skiva as it is not the "offended party" contemplated by the Rules and petitioner had no obligation to account to Skiva the proceeds of the amount withdrawn from the joint account.49

The "complaint" referred to in Rule 110 contemplates one that is filed in court to commence a criminal action in those cases where a complaint of the offended party is required by law, instead of an information which is generally filed by a fiscal.50 It is not necessary that the proper "offended party" file a complaint for purposes of preliminary investigation by the fiscal. The rule is that unless the offense subject of the complaint is one that cannot be prosecuted de oficio, any competent person may file a complaint for preliminary investigation.51

Thus, as a general rule, a criminal action is commenced by a complaint or information, both of which are filed in court. If a complaint is filed directly in court, the same must be filed by the offended party and in case of an information, the same must be filed by the fiscal. However, a "complaint" filed with the fiscal prior to a judicial action may be filed by any person.52 Thus, in the case at bar, the complaint was validly filed by Skiva despite the finding of the lower court that petitioner had no obligation to account to Skiva.

WHEREFORE, the instant petition is DENIED and the appealed judgment of the court a quo finding petitioner guilty beyond reasonable doubt of the crime of Estafa under Article 315 paragraph 1 (b) of the Revised Penal Code is AFFIRMED. Costs against appellant.

SO ORDERED.

Panganiban, Sandoval-Gutierrez, Corona, and Carpio-Morales, JJ., concur.

Republic of the PhilippinesSUPREME COURT

Manila

SPECIAL THIRD DIVISION

G.R. No. 149472 August 18, 2004JORGE SALAZAR, petitioner, vs.PEOPLE OF THE PHILIPPINES, respondent.

RESOLUTIONPUNO, J.:

For resolution is petitioner's Second Motion for Reconsideration filed on February 6, 2003,1 seeking reversal of the Court's Decision2 affirming his conviction by the Court of Appeals3 for estafa under Article 315, par. (b) of the Revised Penal Code. The Solicitor General, in his Manifestation in Lieu of Comment,4 joined petitioner's reiterated plea for acquittal. In light of the joint pleas of petitioner and the Office of the Solicitor General (OSG), and considering that the right to liberty of an individual is involved, we deem it wise to re-examine our Decision convicting petitioner of estafa.

In our Decision, we stated the facts of the case as follow:

It appears that Skiva International, Inc. ("Skiva") is a New York-based corporation which imports clothes from the Philippines through its buying agent, Olivier (Philippines) Inc. ("Olivier"). Aurora Manufacturing & Development Corporation ("Aurora") and Uni-Group Inc. ("Uni-Group") are domestic corporations which supply finished clothes to Skiva. Mr. Werner Lettmayr is the President of both Aurora and Uni-Group while the petitioner, Jorge Salazar, is the Vice-President and Treasurer of Uni-Group and a consultant of Aurora.

Skiva, through its buying agent, Olivier, has been purchasing finished clothes from Aurora and Uni-Group. When an order is procured for the delivery of clothes, Olivier, issues to the local supplier, Aurora/Uni-Group, a "Purchase Contract" and Olivier issues to Skiva a "Sales Contract." In these transactions, payment is usually made by way of a letter of credit wherein the supplier is paid only upon the presentation of the proper shipping documents to the designated bank.5

In December 1985, Skiva informed Olivier that it needs ladies jeans to be delivered sometime in January 1986. Olivier, in turn, through its Officer-in-Charge, Ms. Teresita Tujan, contacted Aurora and Uni-Group to supply the jeans.6 Thus, a Purchase Contract dated December 18, 1985 was issued by Olivier to Uni-Group wherein Uni-Group was to supply 700 dozens of three (3) different designs of "Ladies Basic 5 Pockets Stretch Twill Jeans" payable by means of a letter of credit at sight.7 The Purchase Contract was confirmed by Mr. Lettmayr on December 30, 1985.8 A Sales Contract was also issued by Olivier to Skiva containing the same terms and conditions as the Purchase Contract and was confirmed by Mr. Jack Chehebar of Skiva.9

On January 7, 1986, the parties agreed that Skiva will advance to Aurora/Uni-Group the amount of US$41,300.00 (then equivalent to P850,370.00 at the exchange rate of P20.59 to US$1.00) as Aurora/Uni-Group did not have sufficient funds to secure raw materials to manufacture the jeans.10 It was also agreed that the amount advanced by Skiva represents advance payment of its order of 700 dozens of ladies jeans.11 Skiva then issued a check in the said amount payable to Uni-Group.12 However, due to the length of time needed for the check to be cleared, the parties made arrangements to remit the funds instead by way of telegraphic transfer.13 Thus, the check issued by Skiva was returned by Mr. Lettmayr14 and as agreed, the funds were remitted by Skiva from its bank in New York, the Israel Discount Bank, to the joint account of Mr. and Mrs. Jorge Salazar and Mr. and Mrs. Werner Lettmayr at Citibank N.A.15

On January 16, 1986, petitioner, who had possession and control of the passbook of the said joint account, withdrew the amount of US$21,675.2116 and on January 22, 1986, petitioner withdrew the amount of US$20,000.00.17 The prosecution also presented evidence that subsequent to said withdrawals, the amounts of US$71.70 and US$63.99 were deducted from the joint account as telegraphic transfer fee and commission for the remittance of the funds to another account.18

In the meantime, Ms. Tujan contacted Aurora/Uni-Group to follow up on the production of the jeans. She learned that only 3,000 meters out of the 10,000 meters of Litton fabrics required for the order were purchased from Litton Mills by the petitioner.19 3,000 meters of Litton fabrics are enough to produce only 200 dozens of ladies jeans - an amount insufficient to satisfy the order of Skiva of 700 dozens of ladies twill jeans.20 Upon inquiry with Mr. Lettmayr, the latter advised Ms. Tujan that the query be directed to petitioner as petitioner is in charge of securing the materials.21 However, Ms. Tujan could not locate the petitioner.22

Consequently, in a letter dated March 13, 1986, demand was made upon Aurora/Uni-Group through its President, Mr. Lettmayr, to return the money advanced in the amount of US$41,300.00.23

For failure of Aurora/Uni-Group to deliver the ladies jeans or to account for the US$41,300.00 despite demand, Skiva, through its local agent represented by Ms. Tujan, filed a criminal complaint for estafa against Mr. Lettmayr and petitioner. After preliminary investigation, the Public Prosecutor dismissed the complaint against Mr. Lettmayr and an information was filed against petitioner.24

After trial, the lower court convicted herein petitioner of estafa under Article 315, paragraph 1 (b) of the Revised Penal Code, sentencing him to suffer the indeterminate penalty of imprisonment of eight (8) years and one (1) day of prision mayor as the minimum to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal as the maximum and to pay Uni-Group and Aurora the amount of P595,259.00.25 On March 13, 1997, the lower court denied petitioner's Motion for Reconsideration.26 On appeal, the Court of Appeals affirmed in toto the decision of the trial court and denied petitioner's Motion for Reconsideration.27

The Court denied petitioner's motion for reconsideration in a Resolution dated December 18, 2002.

In his Second Motion for Reconsideration, petitioner raises the following arguments:

I. In a pure contract of sale, failure of the seller to deliver the goods purchased will not give rise to criminal liability.

x x x

II. The assailed Decision states that the property rights of Aurora was disturbed by the petitioner and that the trust and confidence that Aurora reposed on the petitioner were betrayed despite the fact that Aurora never claimed so.

x x x

III. The demand made by Skiva to Aurora could never be treated as a demand to the petitioner because such demand was not relayed to the petitioner.

x x x

IV. The case of Saddul, Jr. vs. CA (192 SCRA 277) squarely applies to the instant case.28

On the other hand, the OSG, in its Manifestation in Lieu of Comment, contends:

I. The transaction between Skiva and Aurora was one of sale. Thus, if the transaction fails, the obligation to return the advance payment is of civil nature only. Moreover, as correctly held, petitioner had no obligation to account to Skiva.

x x x

II. Aurora/Uni-Group never claimed it was damaged by the petitioner simply because funds were duly accounted for. Raw materials were bought and the jeans were manufactured. Delivery was delayed because of circumstances beyond the control of petitioner. Moreover, petitioner turned over the rest of the money to Uni-Group/Aurora.

x x x

III. No evidence to prove that petitioner defrauded Aurora; prosecution witness, Mr. Lettmayr, admitted that all the required raw materials had been purchased; jeans were not shipped on account of intervening events.

x x x

IV. Testimonial and documentary evidence confirm that Aurora asked for offsetting, Skiva having unpaid accounts with the former.

x x x

V. Absent intent, no criminal act is committed. Likewise, without abuse of confidence, no estafa under paragraph 1(b) of Article 315 of the Revised Penal Code is committed.

x x x

VI. The evidence presented does not prove petitioner's guilt beyond reasonable doubt.29

We find merit in the new motion.

The elements of estafa under Article 315, par. 1 (b) of the Revised Penal Code are the following: (a) that money, goods or other personal property is 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; (b) that there be misappropriation or conversion of such money or property by the offender, or denial on his part of such receipt; (c) that such misappropriation or conversion or denial is to the prejudice of another; and (d) there is demand by the offended party to the offender.

We reiterate that the contract between Skiva and Aurora was one of sale. After the perfection of the contract of sale, Mr. Werner Lettmayr, representing Aurora/Uni-Group, requested Skiva for advance payment in order to procure the raw materials needed for the 700-dozen ladies' jeans. It was also Mr. Lettmayr who suggested that the advance payment be made to the joint account of himself and his wife, together with petitioner and his wife. As requested, $41,300.00 was transmitted by Skiva as advance payment. Despite the payment, there was delay in the performance of contract on the part of Aurora/Uni-Group. Petitioner and the OSG contend that under these facts, Skiva has no cause to complain that petitioner committed estafa. We agree. In Abeto vs. People,30 we held that "an advance payment is subject to the disposal of the vendee. If the transaction fails, the obligation to return the advance payment ensues but this obligation is civil and not of criminal nature." In fine, the remedy of Skiva against Aurora/Uni-Group for breaching its contract is a civil, not a criminal suit.

The next question is the liability of petitioner, if any, to Aurora/Uni-Group. We shall now re-examine the specific acts of petitioner alleged to be constitutive of estafa by the prosecution. The evidence shows that petitioner is a part owner of Aurora, and its Vice President and Treasurer. Its President was Mr. Lettmayr. Petitioner and his wife, and Mr. and Mrs. Lettmayr maintained a joint account. The facts reveal that it was Mr. Lettmayr who suggested to Skiva that its advance payment should be transmitted to this joint account in order to facilitate payment.31Petitioner was able to withdraw from the joint account $21,675.21 on January 16, 198632 and $20,000.00 on January 22, 1986.33 The dollars were remitted abroad, converted into pesos and transmitted to petitioner. According to the OSG, the rationale behind the exchange of dollars into pesos was to pay local salaries and Litton Mills in pesos as per their contract.34 It appears that petitioner used part of the money when he purchased 3,000 meters of textile from Litton Mills, which was good for the production of 200 dozens of ladies' jeans. Petitioner claimed that he returned the balance of the money to the accountant of Aurora.35

Given these facts, we cannot hold that the acts of petitioner constitute misappropriation or conversion of the advance payment to Aurora/Uni-Group. First, petitioner had nothing to do with the transmittal of the advance payment to the joint account held by him and his wife together with Mr. and Mrs. Lettmayr. It was Mr. Lettmayr himself who suggested the transmittal to the joint account in order to facilitate payment. The transmittal to the joint account cannot therefore be considered as a scheme to get the money and later misappropriate it. Second, the remittance abroad of the money and its conversion into pesos were also properly explained by the parties. Petitioner stated that the dollars were converted into pesos "because that was the contract with Litton Mills."36Petitioner claims his act was done with the authority of Aurora/Uni-Group and in line with his duty as Vice- President and Treasurer of Uni-Group. The Solicitor General affirmed the claim of petitioner.37 Third, the evidence also shows that petitioner used part of the advance money to purchase 3,000 meters of textile from Litton Mills and returned its balance to the accountant of Aurora. There is no question that the use of the money to purchase textile materials from Litton Mills is in accord with the contract of sale by and between Skiva and Aurora/Uni-Group. The evidence, however, is not too certain on whether petitioner returned the remainder of the money to Aurora/Uni-Group, thru its accountant. Petitioner stated that he could not produce the receipt of its turn over as he no longer had access to the records of Aurora/Uni-Group after the labor strike in 1986 and after he fell out of the graces of Mr. Lettmayr. We note that the prosecution could have easily rebutted these claims of petitioner thru the presentation of the accountant or other officers of Aurora/Uni-Group. Unfortunately, the prosecution utterly failed to make this rebuttal. With this failure, the evidence of the prosecution that petitioner misappropriated for himself the advance money to the prejudice of Aurora/Uni-Group stands on sinking sand.

In truth, the evidence shows that Aurora/Uni-Group has not claimed that it was damaged by the acts of petitioner. It did not even blame petitioner for their delay in delivering the complete order of Skiva. In his Counter-Affidavit,38Mr. Lettmayr himself enumerated the following causes that brought about the delay, viz:

b. When mass production started, Skiva/Olivier changed the styling and assembly of the waist band, and consequently, mass production had to be stopped and 50% of the work force had to go on [un]scheduled leave, and when Skiva/Olivier approved the corrected samples, 90% of the work force could not immediately come back because of the snap presidential election and Aurora was given an extension of the delivery date to February 25, 1986;

c. On February 21 to 25, the revolution took place, the employees did not return to work until March 3, but this was followed by a strike without notice which remains unresolved up to the present;

d. Also, Mr. Salazar informed that Litton Mills had sold part of the fabrics for Aurora/Uni-Group, no fabrics were immediately available for production.39

In light of these facts, we hold that petitioner could not be held guilty of estafa under Article 315, par. 1 (b) of the Revised Penal Code. In joining petitioner's plea for acquittal, the OSG deserves commendation for once again, it has shown fealty to the ideal that its duty is to prosecute but to prosecute only those whose guilt can be established beyond reasonable doubt. Indeed, its greatest victory is achieved not only in securing the conviction of the guilty but in preventing the incarceration of the innocent when the evidence is scarce.

IN VIEW WHEREOF, the Court's Decision of December 18, 2002 is set aside and petitioner is acquitted of the charge of violation of Article 315, par. 1 (b) of the Revised Penal Code.

SO ORDERED.

Panganiban, J., Chairman, Corona, and Carpio Morales, JJ. concur.Sandoval-Gutierrez, on official leave

FIRST DIVISION[G.R. No. 146211. August 6, 2002]

MANUEL NAGRAMPA, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.

D E C I S I O N

DAVIDE, JR., C.J.:

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

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

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

CHECK NOS. AMOUNT POSTDATED473477 P75,000.00 August 31, 1989

473478 P75,000.00 September 30, 1989

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

CONTRARY TO LAW.[1]

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

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

Contrary to law.[2]

The information in Criminal Case No. Q-90-15799 is similarly worded as in Criminal Case No. Q-90-15798 except as to the date and number of the check.

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

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

Federico Santander testified that on 28 July 1989, Corseno Bote, FEDCOR’s Sales Manager, brought to FEDCOR petitioner Manuel Nagrampa (hereafter NAGRAMPA), General Manager of the Nagrampa Asphalt Plant in Montalban, Rizal. NAGRAMPA purchased a Yutani Poclain Backhoe Excavator Equipment for P200,000 from FEDCOR and paid in cash the down payment of P50,000. To cover the balance of P150,000, he issued Check No. 473477[3] postdated 31 August 1989 and Check No. 473478[4] postdated 30 September 1989 in the amount of P75,000 each. The checks were drawn against the Security Bank and Trust Company. Upon the assurance of FEDCOR’s salesman that the checks were good, FEDCOR delivered to petitioner the equipment.[5]

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

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

For his part, petitioner testified that on 28 July 1989, he bought from Corseno Bote a backhoe and paid P50,000 cash, as evidenced by an acknowledgment receipt[10] signed by Corseno Bote. In addition, he issued and handed to Corseno Bote two checks in the amount of P75,000 each, dated 31 August 1989[11] and 30 September 1989.[12] The agreement with Corseno Bote was that petitioner would replace the two checks with cash if the backhoe would be in good running condition. The backhoe was delivered at petitioner’s jobsite on 29 July 1989. After five to seven days of use, the backhoe broke down. Such fact was reported to Ronnie Bote, and the backhoe was thus repaired. After one day of using it, the backhoe broke down again. Petitioner again reported the matter to Ronnie Bote, who told him that the equipment should be brought to the latter’s office for repair. As evidence of the return of the equipment, petitioner presented a letter dated 3 October 1989[13] addressed to Electrobus Consolidated, Inc., requesting the release of the backhoe to Ronnie Bote for repair, with the alleged signature[14] of Ronnie Bote appearing at the bottom thereof to attest to his receipt of the equipment. After a week, petitioner demanded from Ronnie Bote the return of the backhoe, the P50,000 cash and the two postdated checks, but to no avail. [15] On cross-examination, he admitted that during the pendency of the case he paid, upon the advice of his counsel, the amount of P15,000, which he handed to FEDCOR’s counsel Atty. Orlando Paray.[16]

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

Petitioner appealed the decision to the Court of Appeals. The appeal was docketed as CA-G.R. CR. No. 18082. Upon noticing that the 30 September 1993 Decision of the trial court did not resolve the issue of petitioner’s liability for estafa, the Court of Appeals issued on 19 May 1998 a resolution[18] ordering the return of the entire records of the case to the trial court for the latter to decide the estafa case against petitioner.

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

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

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

Alternatively, petitioner prays that in the event that his conviction for violations of B.P. Blg. 22 is sustained, the rulings in Vaca v. Court of Appeals[22] and Lim v. People [23] should be given retroactive effect in his favor so that only a fine may be imposed on him as penalty.

In arguing that petitioner’s conviction for two counts of violation of B.P. Blg. 22 is correct, the Office of the Solicitor General relies heavily on the testimony of Felix Mirano that the account of petitioner had been closed way back in May 1985, or four years prior to the issuance of the subject checks to FEDCOR. The date when the checks were encashed or deposited is immaterial because there was no more existing bank account against which they were drawn, and their dishonor was therefore certain even if the checks were presented for payment within the 90-day period from their issuance. With respect to petitioner’s plea to impose on him the penalty of fine in the event that his conviction is affirmed, the OSG maintains that the penalty of imprisonment is appropriate considering petitioner’s act of issuing worthless checks which showed his culpable violation of B.P. Blg. 22.

Petitioner’s argument that the element of damage to private complainant FEDCOR is lacking is disputed by the OSG by pointing out petitioner’s failure to prove the return of the backhoe to FEDCOR. Ronnie Bote, the person to whom the backhoe was allegedly returned, was not presented as a witness to corroborate petitioner’s testimony. But even grantingarguendo that the backhoe was indeed received by Ronnie Bote, there is no showing that he acted for, and on behalf of, FEDCOR in doing so considering that he was not an employee of FEDCOR.

The petition is without merit.

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

SECTION 1. Checks without sufficient funds. -- Any person who makes or draws and issues any check to apply on account or for value, knowing at the time of issue that he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment, which check is subsequently dishonored by the drawee bank for insufficiency of funds or credit or would have been dishonored for the same reason had not the drawer, without any valid reason, ordered the bank to stop payment, shall be punished by imprisonment of not less than thirty days but not more than one (1) year or by a fine of not less than but not more than double the amount of the check which fine shall in no case exceed Two Hundred Thousand Pesos, or both such fine and imprisonment at the discretion of the court.

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

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

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

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

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

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

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

(1) The making, drawing and issuance of any check to apply for account or for value;

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

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

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

The fact that the checks were presented beyond the 90-day period provided in Section 2 of B.P. Blg. 22 is of no moment. We held in Wong v. Court of Appeals [27] that the 90-day period is not an element of the offense but merely a condition for the prima facie presumption of knowledge of the insufficiency of funds; thus:

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

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

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

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

Petitioner’s alternative prayer for the modification of penalty by retroactively applying Vaca v. Court of Appeals[30] and Lim v. People[31] must likewise be denied. We quote Administrative Circular No. 13-2001 clarifying Administrative Circular No. 12-2000; thus:

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

The pursuit of this purpose clearly does not foreclose the possibility of imprisonment for violators of B.P. Blg. 22. Neither does it defeat the legislative intent behind the law.

Thus, Administrative Circular No. 12-2000 establishes a rule of preference in the application of the penal provisions of B.P. Blg. 22 such that where the circumstances of both the offense and the offender clearly indicate good faith or a clear mistake of fact without taint of negligence, the imposition of a fine alone should be considered as the more appropriate penalty. Needless to say, the determination of whether the circumstances warrant the imposition of a fine alone rests solely upon the Judge. Should the Judge decide that imprisonment is the more appropriate penalty, Administrative Circular No. 12-2000 ought not be deemed a hindrance.

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

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

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

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

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

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

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

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

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

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

Q You delivered the money to Engr. Federico Santander?

A To you Atty. Paray.

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

A Yes, sir.[36]

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

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

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

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

Petitioner NAGRAMPA defrauded FEDCOR in the amount of P135,000 (P150,000 [value of the checks] minus P15,000 [payment made by petitioner during the pendency of these cases]). Applying P.D. No. 818 and the Indeterminate Sentence Law, the maximum penalty shall be reclusion temporal in its maximum period, plus one year for each additional P10,000 of the amount of the fraud; and the minimum shall be prision mayor, which is the penalty next lower to that prescribed for the offense without first considering any modifying circumstances or the incremental penalty for the amount of fraud in excess of P22,000.[38]

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

SO ORDERED.

Vitug, Kapunan, Ynares-Santiago, and Austria-Martinez, JJ., concur.

THIRD DIVISION[G.R. No. 131540. December 2, 1999]

BETTY KING, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.D E C I S I O N

PANGANIBAN, J.:

Under Batas Pambansa Blg. 22 (BP 22), the prosecution must prove not only that the accused issued a check that was subsequently dishonored. It must also establish that the accused was actually notified that the check was dishonored, and that he or she failed, within five banking days from receipt of the notice, to pay the holder of the check the amount due thereon or to make arrangement for its payment. Absent proof that the accused received such notice, a prosecution for violation of the Bouncing Checks Law cannot prosper.

The Case

Before this Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court assailing the January 30, 1997 Decision[1] of the Court of Appeals[2] (CA) in CA-GR CR No. 18226 and its November 5, 1997 Resolution[3] denying reconsideration. The CA affirmed the June 14, 1994 Decision[4] of the Regional Trial Court (RTC) of Makati, Metro Manila[5] in Criminal Case Nos. 93-3335 to 93-3345 which convicted petitioner of 11 counts of violation of BP 22, otherwise known as the Bouncing Checks Law.

On April 28, 1993, Second Assistant Provincial Prosecutor Jaime A. Adoc filed against petitioner eleven separate Informations,[6] which are identically worded, except for the check number, the amount and the date, as follows:

“That in or about the month of January, 1992 in the Municipality of Las Piñas, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, did, then and there willfully, unlawfully and feloniously make or draw and issue to EILEEN FERNANDEZ herein represented by ________ to apply on account or for value the check described below:

EQUITABLE BANKCheck No. 021711In the amount of P50,000.00Postdated July 24, 1992

said accused well knowing that at the time of issue she/he 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 their presentment, which check when presented for payment within ninety (90) days from the date thereof were subsequently dishonored by the drawee bank for the reason ‘Account Closed’ and despite receipt of notice of such dishonor the accused failed to pay the face amount thereof or make arrangement for the full payment thereof within five (5) working days after receiving notice.”[7]

When arraigned, petitioner, assisted by counsel, pleaded not guilty. After the prosecution presented its evidence and rested its case, petitioner filed a Demurrer to Evidence without leave of court, on the ground that the prosecution failed to prove her guilt beyond reasonable doubt. The trial court denied the Demurrer in its assailed Decision, the dispositive portion of which reads:

“WHEREFORE, premises considered, the demurrer to evidence without prior leave of court is DENIED for lack of merit.

Since accused has waived her right to present evidence, judgment is hereby rendered finding accused guilty beyond reasonable doubt of Violation of Batas Pambansa Bilang 22 in the eleven (11) above-entitled cases and is ordered to:

1. Suffer imprisonment for thirty (30) days, to pay a fine in the amount of P50,000.00, and to pay complainant Eileen Fernandez the amount of P50,000.00 as actual damages in Criminal Case No. 93-3335;

2. Suffer imprisonment for thirty (30) days, to pay a fine in the amount of P50,000.00, and to pay complainant Eileen Fernandez the amount of P50,000.00 as actual damages in Criminal Case No. 93-3336;

3. Suffer imprisonment for thirty (30) days, to pay a fine in the amount of P50,000.00, and to pay complainant Eileen Fernandez the amount of P50,000.00 as actual damages in Criminal Case No. 93-3337;

4. Suffer imprisonment for thirty (30) days, to pay a fine in the amount of P64,200.00, and to pay complainant Eileen Fernandez the amount of P64,200.00 as actual damages in Criminal Case No. 93-3338;

5. Suffer imprisonment for thirty (30) days, to pay a fine in the amount of P66,000.00, and to pay complainant Eileen Fernandez the amount of P66,000.00 as actual damages in Criminal Case No. 93-3339;

6. Suffer imprisonment for thirty (30) days, to pay a fine in the amount of P100,000.00, and to pay complainant Eileen Fernandez the amount of P100,000.00 as actual damages in Criminal Case No. 93-3340;

7. Suffer imprisonment for thirty (30) days, to pay a fine in the amount of P150,000.00, and to pay complainant Eileen Fernandez the amount of P150,000.00 as actual damages in Criminal Case No. 93-3341;

8. Suffer imprisonment for thirty (30) days, to pay a fine in the amount of P150,000.00, and to pay complainant Eileen Fernandez the amount of P150,000.00 as actual damages in Criminal Case No. 93-3342;

9. Suffer imprisonment for thirty (30) days, to pay a fine in the amount of P130,000.00, and to pay complainant Eileen Fernandez the amount of P130,000.00 as actual damages in Criminal Case No. 93-3343;

10. Suffer imprisonment for thirty (30) days, to pay a fine in the amount of P130,000.00, and to pay complainant Eileen Fernandez the amount of P130,000.00 as actual damages in Criminal Case No. 93-3344; and,

11. Suffer imprisonment for thirty (30) days, to pay a fine in the amount of P130,000.00, and to pay complainant Eileen Fernandez the amount of P130,000.00 as actual damages in Criminal Case No. 93-3345.”[8]

As already stated, the Court of Appeals affirmed the RTC in this wise:[9]

“WHEREFORE, the appealed decision is hereby affirmed [I]N TOTO. Costs against appellant.”

Hence, this Petition.[10]

The FactsEvidence for the Prosecution

The Office of the Solicitor General[11] summarized the facts, as viewed by the prosecution, in this wise:

“On several occasions in January, 1992, at Las Piñas, Metro Manila, petitioner discounted with complainant Ellen Fernandez several Equitable Bank checks postdated from July 23 to 29, 1992 in the total amount of P1,070,000.00 in exchange for cash in the amount of P1,000,000.00. When the checks were deposited for payment, they were dishonored by the drawee bank because they were drawn against an account without sufficient funds. Petitioner failed to make good the checks despite demand. (Memorandum dated April 7, 1993 of Assistant Provincial Prosecutor to the Rizal Provincial Prosecutor)

“During the hearing on the merits of this case on September 17, 1998, the prosecution offered in evidence its documentary evidence. Petitioner admitted the genuineness and due execution of the documents presented.”[12]

Evidence for the Defense

As noted earlier, petitioner filed a Demurrer to Evidence without leave of court. In doing so, she waived her right to present evidence and submitted the case for judgment on the basis of the documentary exhibits adduced by the prosecution.[13]

Ruling of the Court of Appeals

In affirming the trial court, the Court of Appeals explained that the prosecution proved all the elements of the crime. The CA also pointed out that the failure of petitioner to sign the pretrial order was not fatal to the prosecution, because her conviction was based on the evidence presented during the trial.

The Issues

Petitioner submits the following issues for the Court's consideration:

“I

Whether or not the trial court and the Court of Appeals gravely erred in admitting in evidence all the documentary evidence of the prosecution though their due execution and genuineness were not duly established in evidence pursuant to the provisions of the Rules of Court and prevailing jurisprudence;

“II

Whether or not the trial court and the Court of Appeals gravely erred in declaring that Rule 118, Section 4 of the Rules of Court, as applied in the case of Fule vs. Court of Appeals, 162 SCRA 446, which states that no agreement or admission made or entered during the pre-trial conference shall be used in evidence against the accused unless reduced to writing and signed by him and his counsel, is inapplicable in the case at bar;

“III

Whether or not the trial court and the Court of Appeals gravely erred in ruling that the burden of evidence has already been shifted from the prosecution to the defense despite the definite factual issues in the pre-trial order; and

“IV

Whether or not the trial court and the Court of Appeals erred in ruling that the prosecution has proven the guilt of the accused beyond reasonable doubt albeit the prosecution did not produce any evidence.”[14]

In the main, the resolution of the Petition hinges on (1) the admissibility and (2) the sufficiency of the prosecution evidence.

This Court’s Ruling

The Petition has merit insofar as it contends that the elements of the crime charged have not all been proven beyond reasonable doubt.

First Issue:Admissibility of Documentary Evidence

Because the first, the second and the third issues raised by petitioner all refer to the same matter, they will be discussed together. She contends that the pieces of documentary evidence presented by the prosecution during pretrial are inadmissible, because she did not sign the pretrial agreement as required under Section 4 of Rule 118 of the Rules of Court.[15] Hence, she argues that there is no basis for her conviction.

True, a pretrial agreement not signed by a party is inadmissible. However, the conviction of petitioner was based not on that agreement but on the documents submitted during the trial, all of which were admitted without any objection from her counsel. During the hearing on September 17, 1993, the prosecution offered as evidence the dishonored checks, the return check tickets addressed to private complainant, the notice from complainant addressed to petitioner that the checks had been dishonored, and the postmaster’s letter that the notice had been returned to sender. Petitioner's counsel did not object to their admissibility. This is shown by the transcript of stenographic notes taken during the hearing on September 17, 1993:

“COURT:

You have no objection to the admissibility, not that the Court will believe it.

ATTY. MANGERA

No, Your Honor.

COURT:

Exhibits ‘A’ to ‘A’ to ‘K’ are admitted.

ATTY. MAKALINTAL:

We offer Exhibit ‘L’, the return-check ticket dated July 27, 1992, relative to checks No. 021745 and 021746 indicating that these checks were returned DAIF, drawn against insufficient funds; Exh. M, returned check ticket dated July 28, 1992, relative to Check No. 021727, 021711 and 021720 likewise indicating the said checks to have been drawn against insufficient funds, Your Honor. Exhibit N, returned check ticket dated July 29, 1992, relative to Check Nos. 021749 and 021748, having the same indications;

Exhibits O, returned check ticket dated July 29, 1992 relative to Check Nos. 021750 and 021753, with the same indications;

Exhibits P, returned check ticket dated August 4, 1992 relative to Check No. 021752, having the same indication as being drawn against insufficient funds;

Exhibit Q, the demand letter sent to the accused by Atty. Horacio Makalintal dated August 3, 1992;

Exhibit R, the letter-request for certification addressed to the Postmaster General sent by the same law office dated 17 September 1992, showing that the said letter was dispatched properly by the Central Post Office of Makati;

Exhibit S, 1st Indorsement of the Makati Central Post Office dated 21 September 1992;

Exhibit T, the Philippine Postal Corporation Central Post Office letter dated 24 September 1992, addressed to this representation showing that there were 3 notices sent to the herein accused who received the said letter.

COURT:

Let’s go to the third check slip; any objection to the third slip?

ATTY. MANGERA:

We have no objection as to the due execution and authenticity.

COURT:

Admitted.

ATTY. MAKALINTAL:

We are offering Exhibits Q, R, S and T, for the purpose of showing that there was demand duly made on the accused and that the same had been appropriately served by the Central Post Office Services of Manila.

ATTY. MANGERA:

We admit as to the due execution and authenticity only as to that portion, Your Honor.

COURT:

We are talking of admissibility now, so admitted. In other words, at this point, he makes an offer and the Court will either grant admission, [admit] it in evidence or deny it. It can deny admission if it is not properly identified etcetera.

ATTY. MANGERA:

I think it is already provided.

COURT:

So, admitted.

ATTY. MAKALINTAL:

With the admission of our offer, Your Honor, the prosecution rests.”[16]

From the foregoing, it is clear that the prosecution evidence consisted of documents offered and admitted during the trial. In view of this, the CA correctly ruled that Fule v. Court of Appeals[17] would not apply to the present controversy. In that case, a hearing was conducted during which the prosecution presented three exhibits. However, Fule's conviction was “based solely on the stipulation of facts made during the pre-trial on August 8, 1985, which was not signed by the petitioner, nor by his counsel.” Because the stipulation was inadmissible in evidence under Section 4 of Rule 118, the Court held that there was no proof of his guilt.

In the present case, petitioner’s conviction was based on the evidence presented during trial, and not on the stipulations made during the pretrial. Hence, petitioner’s admissions during the trial are governed not by the Fule ruling or by Section 4 of Rule 118, but by Section 4 of Rule 129 which reads:

“SEC. 4. Judicial Admissions. --- An admission, verbal or written, made by a party in the course of the proceedings in the same case, does not require proof. The admission may be contradicted only by showing that it was made through palpable mistake or that no such admission was made.”

Hence, the trial court and the Court of Appeals did not err in taking cognizance of the said documentary evidence.

Second Issue:Sufficiency of Prosecution Evidence

Petitioner argues that the prosecution failed to prove beyond reasonable doubt the elements of the offense. After a careful consideration of the records of this case, we believe and so rule that the totality of the evidence presented does not support petitioner’s conviction for violation of BP 22.

Section 1 of BP 22 defines the offense as follows:

“Section 1. Checks without sufficient funds. -- Any person who makes or draws and issues any check to apply on account or for value, knowing at the time of issue that he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment, which check is subsequently dishonored by the drawee bank for insufficiency of funds or credit or would have been dishonored for the same reason had not the drawer, without any valid reason, ordered the bank to stop payment, shall be punished by imprisonment of not less than thirty days but not more than one (1) year or by a fine of not less than but not more than double the amount of the check which fine shall in no case exceed Two hundred thousand pesos, or both such fine and imprisonment at the discretion of the court.

“The same penalty shall be imposed upon any person who having sufficient funds in or credit with the drawee bank when he makes or draws and issues a check, shall fail to keep sufficient funds or to maintain a credit 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.”

Accordingly, this Court has held that the elements of the crime are as follows:[18]

1. The accused makes, draws or issues any check to apply to account or for value.

2. The check is subsequently dishonored by the drawee bank for insufficiency of funds or credit; or it would have been dishonored for the same reason had not the drawer, without any valid reason, ordered the bank to stop payment.

3. The accused knows at the time of the issuance that he or she does not have sufficient funds in, or credit with, drawee bank for the payment of the check in full upon its presentment.

We shall analyze the evidence, purportedly establishing each of the aforementioned elements which the trial and the appellate courts relied upon.

Issuance of the Questioned Checks

Contending that the prosecution failed to prove the first element, petitioner maintains that she merely signed the questioned checks without indicating therein the date and the amount involved. She adds that they were

improperly filled up by Eileen Fernandez. Thus, she concludes, she did not “issue” the dishonored checks in the context of the Negotiable Instruments Law, which defines “issue” as the “first delivery of the instrument complete in form to a person who takes it as a holder.”[19]Petitioner’s contentions are not meritorious. The questioned checks, marked as Exhibits “A” to “K,” contained the date of issue and the amount involved. In fact, petitioner even admitted that she signed those checks. On the other hand, no proof was adduced to show that petitioner merely signed them in blank, or that complainant filled them up in violation of the former's instructions or their previous agreement. The evidence on record is clear that petitioner issued eleven checks, all of which were duly filled up and signed by her.

Checks Dishonored

Neither are we persuaded by petitioner’s argument that “there appears no evidence on record that the subject checks were unpaid and dishonored.”[20] Under Section 3 of BP 22, “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 present case, the fact that the checks were dishonored was sufficiently shown by the checks themselves, which were stamped with the words “ACCOUNT CLOSED.” This was further supported by the returned check tickets issued by PCI Bank, the depository bank, stating that the checks had been dishonored.Clearly, these documents constitute prima facie evidence that the drawee bank dishonored the checks. Again, no evidence was presented to rebut the prosecution’s claim.

Knowledge of Insufficiency of Funds

To hold a person liable under BP 22, it is not enough to establish that a check issued was subsequently dishonored. It must be shown further that the person who issued the check knew “at the time of issue that 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.” Because this element involves a state of mind which is difficult to establish, Section 2 of the law creates a prima facie presumption of such knowledge, as follows:[21]

“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.”

In other words, the prima facie presumption arises when a 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. As the Court held in Lozano v. Martinez, the aforecited provision serves to “mitigate the harshness of the law in its application.”[22] This opportunity, however, can be used only upon receipt by the accused of a notice of dishonor. This point was underscored by the Court in Lina Lim Lao v. Court of Appeals:[23]

“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 preempt 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 BP 22.”

Thus, in order to create the prima facie presumption that the issuer knew of the insufficiency of funds, it must be shown 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.

To prove that petitioner knew of the insufficiency of her funds, the prosecution presented Exhibits “Q” to “T.” Based on these documents, the Court of Appeals concluded that “[p]rivate complainant sent a demand letter to appellant to make good said checks x x x. Appellant failed to pay the face value of the eleven checks or make arrangement for the full payment thereof within 90 days after receiving the notice.”[24]

Upon closer examination of these documents, we find no evidentiary basis for the holding of the trial court and the Court of Appeals that petitioner received a notice that the checks had been dishonored.

True, complainant sent petitioner a registered mail, as shown in Exhibit "Q," informing the latter that the checks had been dishonored. But the records show that petitioner did not receive it. In fact, Postmaster Wilfredo Ulibarri’s letter addressed to complainant’s counsel certified that the “subject registered mail was returned to sender on September 22, 1992 x x x.”[25]

Notwithstanding the clear import of the postmaster’s certification, the prosecution failed to adduce any other proof that petitioner received the post office notice but unjustifiably refused to claim the registered mail. It is possible that the drawee bank sent petitioner a notice of dishonor, but the prosecution did not present evidence that the bank did send it, or that petitioner actually received it. It was also possible that she was trying to flee from complainant by staying in different addresses. Speculations and possibilities, however, cannot take the place of proof. Conviction must rest on proof beyond reasonable doubt. Clearly, the evidence on hand demonstrates the indelible fact that petitioner did not receive notice that the checks had been dishonored. Necessarily, the presumption that she knew of the insufficiency of funds cannot arise.

Be that as it may, the Court must point out that it cannot rule on petitioner’s civil liability, for the issue was not raised in the pleadings submitted before us.

We must stress that BP 22, like all penal statutes, is construed strictly against the State and liberally in favor of the accused.[26] Likewise, the prosecution has the burden to prove beyond reasonable doubt each element of the crime. Hence, the prosecution’s case must rise or fall on the strength of its own evidence, never on the weakness or even absence of that of the defense.

WHEREFORE, the assailed Decision of the Court of Appeals is hereby REVERSED and SET ASIDE. Petitioner Betty King is ACQUITTED for failure of the prosecution to prove all the elements of the crimes charged. No pronouncement as to costs.

SO ORDERED.

Melo, (Chairman), Vitug, Purisima, and Gonzaga-Reyes, 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.

D E C I S I O NVITUG, 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. chanrobles virtual law library

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. chanrobles virtual law library

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

"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 above-named 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: chanrobles virtual law library

"Check No. : 149900 chanrobles virtual law library

Drawn Against : Traders Royal Bank chanrobles virtual law library

In the Amount of : P50,000.00 chanrobles virtual law library

Dated/Postdated : June 24, 1991 chanrobles virtual law library

Payable to : Ignacio H. Garcia, Jr. chanrobles virtual law library

"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. chanrobles virtual law library

"CONTRARY TO LAW."2 chanrobles virtual law library

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 - chanrobles virtual law library

"Check Number Dated/Postdated Amount chanrobles virtual law libraryTRB No. 161181 July 18, 1991 P6,000.00 chanrobles virtual law libraryTRB No. 149906 July 24, 1991 3,000.00 chanrobles virtual law libraryNo. 182074 July 30, 1991 29,700.00 chanrobles virtual law libraryNo. 182084 August 30, 1991 9,300.00 chanrobles virtual law libraryNo. 182078 September 15, 1991 6,000.00 chanrobles virtual law libraryNo. 161183 September 18, 1991 6,000.00 chanrobles virtual law libraryNo. 161177 September 18, 1991 100,000.00 chanrobles virtual law libraryNo. 182085 September 30, 1991 9,000.00 chanrobles virtual law libraryNo. 182079 October 15, 1991 6,000.00 chanrobles virtual law libraryNo. 182086 October 30, 1991 10,500.00 chanrobles virtual law libraryNo. 182080 November 15, 1991 6,000.00 chanrobles virtual law libraryNo. 182087 November 30, 1991 11,400.00 chanrobles virtual law libraryNo. 182081 December 15, 1991 6,000.00 chanrobles virtual law libraryNo. 182082 December 15, 1991 100,000.00 chanrobles virtual law libraryNo. 182088 December 30, 1991 12,000.00 chanrobles virtual law libraryNo. 182089 December 30, 1991 100,000.00 chanrobles virtual law libraryNo. 182090 December 30, 1991 100,000.00"[3 chanrobles virtual law library

were also filed against petitioner. The cases were later consolidated andintly tried following the "not guilty" plea of petitioner when arraigned on 02 November 1992. chanrobles virtual law library

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. chanrobles virtual law library

Hence, the instant petition where petitioner raised the following issues for resolution by the Court - chanrobles virtual law library

"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; chanrobles virtual law library

"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 vs. Court of Appeals, 274 SCRA 572; (and) chanrobles virtual law library

"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 chanrobles virtual law library

The pertinent provisions of B.P. Blg. 22 "Bouncing Checks Law," provide: chanrobles virtual law library

"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. chanrobles virtual law library

"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. chanrobles virtual law library

"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. chanrobles virtual law library

"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. chanrobles virtual law library

"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 facieevidence 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. chanrobles virtual law library

"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 (Underscoring supplied.) chanrobles virtual law library

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.[6 chanrobles virtual law library

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 with 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. chanrobles virtual law library

In Lao vs. Court of Appeals,[8 this Court explained: chanrobles virtual law library

x x x. 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 check. chanrobles virtual law library

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 preempt 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 chanrobles virtual law library

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: chanrobles virtual law library

"The maker's knowledge of the insufficiency of his funds is legally presumed from the dishonor of his check (People vs. Laggui, 171 Phil. 305). The law does not require a written notice of the dishonor of such check. chanrobles virtual law library

"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 complainant's testimony that he made oral demands upon appellant to make good the dishonored checks and his lawyer wrote her a demand letter. chanrobles virtual law library

"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 vs. Garcia, 89 SCRA 440, the Supreme court ruled: chanrobles virtual law library

"`x x x (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 x x right to cross-examine the actual witness to the occurrence, rendering the evidence admissible.'"10 chanrobles virtual law library

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

While, indeed, Section 2 of B.P. Blg. 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 a mere oral notice or demand to pay would appear to be insufficient for conviction under the law. The Court is convinced that both the spirit and letter of the Bouncing Checks Law would require for the act to be punished thereunder not only that the accused issued a check that 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 chanrobles virtual law library

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 chanrobles virtual law library

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- chanrobles virtual law library

Check Number Dated/Postdated Amount chanrobles virtual law libraryTRB No. 149900 June 24, 1991 P50,000.00 chanrobles virtual law libraryTRB No. 161181 July 18, 1991 6,000.00 chanrobles virtual law libraryTRB No. 149906 July 24, 1991 3,000.00 chanrobles virtual law libraryNo. 182074 July 30, 1991 29,700.00 chanrobles virtual law libraryNo. 182084 August 30, 1991 1,300.00 chanrobles virtual law libraryNo. 182078 September 15, 1991 6,000.00 chanrobles virtual law libraryNo. 161183 September 18, 1991 6,000.00 chanrobles virtual law libraryNo. 161171 September 18, 1991 100,000.00 chanrobles virtual law libraryNo. 182085 September 30, 1991 9,900.00 chanrobles virtual law libraryNo. 182079 October 15, 1991 6,000.00 chanrobles virtual law libraryNo. 182086 October 30, 1991 10,500.00 chanrobles virtual law libraryNo. 182080 November 15, 1991 6,000.00 chanrobles virtual law libraryNo. 182087 November 30, 1991 11,400.00 chanrobles virtual law libraryNo. 182081 December 15, 1991 6,000.00 chanrobles virtual law libraryNo. 182082 December 15, 1991 100,000.00 chanrobles virtual law libraryNo. 182088 December 30, 1991 12,000.00 chanrobles virtual law libraryNo. 182089 December 30, 1991 100,000.00 chanrobles virtual law libraryNo. 182090 December 30, 1991 100,000.00"[17 chanrobles virtual law library

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. chanrobles virtual law library

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. chanrobles virtual law library

SO ORDERED. chanrobles virtual law library

Melo, (Chairman), Panganiban, and Gonzaga-Reyes, JJ., concur .

THIRD DIVISION[G.R. No. 142762. March 04, 2005]

LILANY YULO y BILLONES, petitioner, vs. THE PEOPLE OF THE PHILIPPINES, respondent.

D E C I S I O N

SANDOVAL-GUTIERREZ, J.:

Before us is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, as amended, seeking to reverse the Decision [1] of the Court of Appeals dated January 31, 1997 in CA-G.R. CR No. 17513 and its Resolution[2] dated March 16, 2000.

The facts, as culled from the findings of the trial court and affirmed by the Court of Appeals are:

Sometime in August 1992, Lilany B. Yulo, petitioner, and Josefina Dimalanta went to the house of Myrna Roque, private complainant, in Caloocan City. Josefina, introduced to Myrna petitioner Yulo as her best friend and a good payer. Josefina told Myrna that petitioner wanted her checks encashed. In view of Josefina’s assurance that petitioner is trustworthy, Myrna agreed to encash the checks. Petitioner then issued to Myrna three checks: (a) Equitable Bank (EB) Check No. 237936 in the amount of P40,000.00, postdated September 30, 1992; (b) EB Check No. 237941 in the amount of P16,200.00; and (c) Bank of the Philippine Islands (BPI) Check No. 656602 in the amount of P40,000.00, postdated November 18, 1992.

When Myrna presented the checks for payment to the drawee banks, they were dishonored. The EB checks were “Drawn Against Insufficient Funds,” while the BPI check was stamped “Account Closed.”

As Myrna did not know petitioner’s address, she immediately informed Josefina about the dishonored checks. The latter told Myrna not to worry and repeated her assurance that petitioner is her best friend and a good payer. Myrna tried to get petitioner’s address from Josefina, but the latter refused and instead made the assurance that she will inform petitioner that the checks were dishonored.

When no payment was forthcoming, Myrna lodged a complaint against petitioner with the Office of the City Prosecutor of Caloocan City.

On August 23, 1993, three (3) Informations were filed by the Caloocan City Prosecutor with the Regional Trial Court, Branch 130, same city, for violation of Batas Pambansa Blg. 22, docketed as Criminal Cases Nos. C-44774, 44775, and 44776.

When arraigned with the assistance of counsel de parte, petitioner pleaded not guilty to the charges. The cases were then consolidated and jointly heard.

Petitioner admitted having issued the checks in question but claimed that she merely lent them to Josefina. In turn, Josefina delivered the checks to her friend who showed them to a jeweler as “show money.” It was understood that the checks were not to be deposited. Petitioner vehemently denied having any transaction with Myrna.

Petitioner also claimed that that when she issued the checks, she knew she had no funds in the banks; and that she was aware that the checks would be dishonored if presented for payment.

After hearing, the trial court rendered its Decision, the dispositive portion of which reads:

WHEREFORE, the Court finds the accused LILANY YULO y BILLONES, guilty beyond reasonable doubt of a violation of Batas Pambansa Blg. 22, and is hereby sentenced as follows:

(1) In Criminal Case No. C-44774, to an imprisonment of ONE (1) YEAR, and to indemnify the offended party Myrna Roque in the amount of P16,200.00, representing the face value of Equitable Bank Check No. 227941, and to pay the costs;

(2) In Criminal Case No. C-44775, to an to an imprisonment of ONE (1) YEAR, and to indemnify the offended party Myrna Roque in the amount of P40,000.00, representing the face value of Bank of the Philippine Islands Check No. 656602, and to pay the costs;

(3) In Criminal Case No. C-44776, to an imprisonment of ONE (1) YEAR, and to indemnify the offended party Myrna Roque in the amount of P40,000.00, representing the face value of Equitable Bank Check No. 237936, and to pay the costs.

Pursuant to Rule 114, Section 2(a) of the Rules of Court, as amended, the bail bond of the accused is cancelled and the accused is hereby committed to the City Jail.

SO ORDERED.[3]

Upon appeal, docketed as CA-G.R. CR No. 17513, the Court of Appeals affirmed in toto the Decision of the trial court.

Petitioner filed a motion for reconsideration but was denied.

Hence, the instant petition raising the following assignments of error:

“I. WHETHER OR NOT THE PETITIONER WAS DEPRIVED OF HER RIGHT TO SPEEDY DISPOSITION OF CASES;

II. WHETHER OR NOT THE COURT OF APPEALS ERRED IN AFFIRMING THE CONVICTION FOR VIOLATION OF BATAS PAMBANSA BLG. 22. EVEN IF THE REQUISITES THEREFORE ARE NOT COMPLETE;

III. WHETHER OR NOT THE COURT OF APPEALS ERRED IN AFFIRMING THE DECISION OF THE TRIAL COURT ALTHOUGH THE LATTER’S DECISION WAS BASED ON THE UNCORROBORATED, INCREDIBLE, AND UNNATURAL STATEMENTS OF THE COMPLAINANT AND ALTHOUGH THE TESTIMOMY OF THE ACCUSED WAS SUPPORTED BY CORROBORATING EVIDENCE.[4]

The issues for our resolution are: (1) whether the Court of Appeals violated petitioner’s right to a speedy trial; and (2) whether the same court erred in holding that the prosecution has proved petitioner’s guilt beyond reasonable doubt.

On the first issue, petitioner contends that the Court of Appeals resolved her motion for reconsideration only after three (3) years from its filing. Such inaction violates her right to a speedy disposition of her case.

In his comment, the Solicitor General counters that the Appellate Court has explained satisfactorily why petitioner’s motion for reconsideration was not resolved immediately.

Article III, Section 16 of the Constitution provides:

SEC.16. All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies.

Under the foregoing provision, any party to a case has the right to demand on all officials tasked with the administration of justice to expedite its disposition. However, the concept of speedy disposition is a relative term and must necessarily be a flexible concept. [5] A mere mathematical reckoning of the time involved is not sufficient.[6] In applying the Constitutional guarantee, particular regard must be taken of the facts and circumstances of each case.

The right to a speedy disposition of a case, like the right to speedy trial, [7] is deemed violated only when the proceedings are attended by vexatious, capricious, and oppressive delays, or when unjustified postponements of the trial are asked for and secured, or when without cause or justifiable motive a long period of time is allowed to elapse without the party having his case tried. [8] To determine whether the right has been violated, the following factors may be considered: (1) the length of the delay; (2) the reasons for such delay; (3) the assertion or failure to assert such right by the accused; and (4) the prejudice caused by the delay.[9]

In the instant case, we agree with the Solicitor General that the delay was sufficiently explained by the Court of Appeals. The ponente of the decision in CA-G.R. CR No. 17513, Associate Justice Jainal D. Rasul, retired during the pendency of petitioner’s motion for reconsideration filed on March 4, 1997. However, the case was assigned to Associate Justice Mercedes Gozo-Dadole only on February 28, 2000 and brought to her attention on March 2, 2000. We note that it took Justice Gozo-Dadole only two (2) weeks from notice to resolve the motion. Clearly, she did not incur any delay. We, therefore, rule that there has been no violation of the petitioner’s right to a speedy trial.

On the second issue, petitioner submits that the prosecution failed to prove her guilt beyond reasonable doubt. Not all the elements of the offense of violation of Batas Pambansa Blg. 22 were adequately

established. For one, Myrna Roque, private complainant, did not send her any notice of dishonor. It was Josefina whom Myrna contacted, not her. For another, petitioner merely lent the checks to Josefina to be shown by her friend to a jeweler.

Petitioner’s arguments are simply untenable.

The elements of the offense penalized by Batas Pambansa Blg. 22 are: (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 insufficient funds or credit or dishonor for the same reason had not the drawer, without any valid cause, ordered the bank to stop payment.[10]

We agree with the Court of Appeals that the prosecution has proved all the elements of the offense.

Petitioner admitted having issued the three dishonored checks for value. Her purpose was to encash them. She also admitted that at the time she issued the checks, she was aware that she had only P1,000.00 in her account with the Equitable Bank and that her BPI account was already closed. Significantly, what Batas Pambansa Blg. 22 penalizes is the issuance of a bouncing check. It is not the non-payment of an obligation which the law punishes, but the act of making and issuing a check that is dishonored upon presentment for payment.[11] The purpose for which the check was issued and the terms and conditions relating to its issuance are immaterial. What is primordial is that the issued checks were worthless and the fact of worthlessness was known to the petitioner at the time of their issuance, as in this case. This is because under Batas Pambansa Blg. 22, the mere act of issuing a worthless check is malum prohibitum.[12]

We likewise find no reason to sustain petitioner’s contention that she was not given any notice of dishonor. Myrna had no reason to be suspicious of petitioner. It will be recalled that Josefina Dimalanta assured Myrna that petitioner is her “best friend” and “a good payer.” Consequently, when the checks bounced, Myrna would naturally turn to Josefina for help. We note that Josefina refused to give Myrna petitioner’s address but promised to inform petitioner about the dishonored checks.

The Court of Appeals affirmed the findings of the trial court. Settled is the rule that factual findings of the trial court which have been affirmed in toto by the Court of Appeals are entitled to great weight and respect by this Court and will not be disturbed absent any showing that the trial court overlooked certain facts and circumstances which could substantially affect the outcome of the case. [13] This exception is not present here. That Myrna was the sole witness for the prosecution is of no moment. There is no law requiring that the testimony of a single witness must be corroborated. The rule in this jurisdiction is that the testimony of witnesses is weighed, not numbered, and the testimony of a single witness, if found trustworthy and credible, as in this case, is sufficient to sustain a conviction.[14]

WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals dated January 31, 1997 and its Resolution dated March 16, 2000, in CA-G.R. CR No. 17513, sustaining the Joint Decision of the trial court in Criminal Cases Nos. C-44774, C-44775, and C-44776 are AFFIRMED. Costs against petitioner.

SO ORDERED.

Panganiban, (Chairman), Corona, Carpio-Morales and Garcia, JJ., concur.

Republic of the PhilippinesSUPREME COURTSECOND DIVISION

G.R. No. 162822 August 25, 2005JAIME GUINHAWA, Petitioners, vs.PEOPLE OF THE PHILIPPINES, Respondent.

D E C I S I O NCALLEJO, SR., J.:

Jaime Guinhawa was engaged in the business of selling brand new motor vehicles, including Mitsubishi vans, under the business name of Guinrox Motor Sales. His office and display room for cars were located along Panganiban Avenue, Naga City. He employed Gil Azotea as his sales manager.

On March 17, 1995, Guinhawa purchased a brand new Mitsubishi L-300 Versa Van with Motor No. 4D56A-C8929 and Serial No. L069WQZJL-07970 from the Union Motors Corporation (UMC) in Paco, Manila. The van bore Plate No. DLK 406. Guinhawa’s driver, Leopoldo Olayan, drove the van from Manila to Naga City. However, while the van was traveling along the highway in Labo, Daet, Camarines Norte, Olayan suffered a heart attack. The van went out of control, traversed the highway onto the opposite lane, and was ditched into the canal parallel to the highway.1 The van was damaged, and the left front tire had to be replaced.

The incident was reported to the local police authorities and was recorded in the police blotter.2 The van was repaired and later offered for sale in Guinhawa’s showroom.3

Sometime in October 1995, the spouses Ralph and Josephine Silo wanted to buy a new van for their garment business; they purchased items in Manila and sold them in Naga City.4 They went to Guinhawa’s office, and were shown the L-300 Versa Van which was on display. The couple inspected its interior portion and found it beautiful. They no longer inspected the under chassis since they presumed that the vehicle was brand new.5 Unaware that the van had been damaged and repaired on account of the accident in Daet, the couple decided to purchase the van for P591,000.00. Azotea suggested that the couple make a downpayment of P118,200.00, and pay the balance of the purchase price by installments via a loan from the United Coconut Planters Bank (UCPB), Naga Branch, with the L-300 Versa Van as collateral. Azotea offered to make the necessary arrangements with the UCPB for the consummation of the loan transaction. The couple agreed. On November 10, 1995, the spouses executed a Promissory Note6 for the amount of P692,676.00 as payment of the balance on the purchase price, and as evidence of the chattel mortgage over the van in favor of UCPB.

On October 11, 1995, the couple arrived in Guinhawa’s office to take delivery of the van. Guinhawa executed the deed of sale, and the couple paid the P161,470.00 downpayment, for which they were issued Receipt No. 0309.7They were furnished a Service Manual8 which contained the warranty terms and conditions. Azotea instructed the couple on how to start the van and to operate its radio. Ralph Silo no longer conducted a test drive; he and his wife assumed that there were no defects in the van as it was brand new.9

On October 12, 1995, Josephine Silo, accompanied by Glenda Pingol, went to Manila on board the L-300 Versa Van, with Glenda’s husband, Bayani Pingol III, as the driver. Their trip to Manila was uneventful. However, on the return trip to Naga from Manila on October 15 or 16, 1995, Bayani Pingol heard a squeaking sound which seemed to be coming from underneath the van. They were in Calauag, Quezon, where there were no humps along the road.10 Pingol stopped the van in Daet, Camarines Norte, and examined the van underneath, but found no abnormalities or defects.11 But as he drove the van to Naga City, the squeaking sound persisted. Believing that the van merely needed grease, Pingol stopped at a Shell gasoline station where it was examined. The mechanic discovered that some parts underneath the van had been welded. When Pingol complained to Guinhawa, the latter told him that the defects were mere factory defects. As the defects persisted, the spouses Silo requested that Guinhawa change the van with two Charade-Daihatsu vehicles within a week or two, with the additional costs to be taken from their downpayment. Meanwhile, the couple stopped paying the monthly amortization on their loan, pending the replacement of the van. Guinhawa initially agreed to the couple’s proposal, but later changed his mind and told them that he had to sell the van first. The spouses then brought the vehicle to the Rx Auto Clinic in Naga City for examination. Jesus Rex Raquitico, Jr., the mechanic, examined the van and discovered that it was the left front stabilizer that was producing the annoying sound, and that it had been repaired.12 Raquitico prepared a Job Order containing the following notations and recommendations:

1. CHECK UP SUSPENSION (FRONT)

2. REPLACE THE ROD END

3. REPLACE BUSHING

NOTE: FRONT STEP BOARD HAS BEEN ALREADY DAMAGED AND REPAIRED.

NOTE: FRONT LEFT SUSPENSION MOUNTING IS NOT ON SPECIFIED ALIGNMENT/MEASUREMENT13

Josephine Silo filed a complaint for the rescission of the sale and the refund of their money before the Department of Trade and Industry (DTI). During the confrontation between her and Guinhawa, Josephine learned that Guinhawa had bought the van from UMC before it was sold to them, and after it was damaged in Daet. Subsequently, the spouses Silo withdrew their complaint from the DTI.

On February 14, 1996, Josephine Silo filed a criminal complaint for violation of paragraph 1, Article 318 of the Revised Penal Code against Guinhawa in the Office of the City Prosecutor of Naga City. After the requisite investigation, an Information was filed against Guinhawa in the Municipal Trial Court (MTC) of Naga City. The inculpatory portion reads:

The undersigned Assistant Prosecutor of Naga City accuses Jaime Guinhawa of the crime of OTHER DECEITS defined and penalized under Art. 318, par. 1 of the Revised Penal Code, committed as follows:

"That on or about October 11, 1995, in the City of Naga, Philippines, and within the jurisdiction of this Honorable Court, the said accused, being a motor vehicle dealer using the trade name of Guinhawa Motor Sales at Panganiban Avenue, Naga City, and a dealer of brand new cars, by means of false pretenses and fraudulent acts, did then and there willfully, unlawfully and feloniously defraud private complainant, JOSEPHINE P. SILO, as follows: said accused by means of false manifestations and fraudulent representations, sold to said private complainant, as brand new, an automobile with trade name L-300 Versa Van colored beige and the latter paid for the same in the amount of P591,000.00, when, in truth and in fact, the same was not brand new because it was discovered less than a month after it was sold to said Josephine P. Silo that said L-300 Versa Van had defects in the underchassis and stepboard and repairs had already been done thereat even before said sale, as was found upon check-up by an auto mechanic; that private complainant returned said L-300 Versa Van to the accused and demanded its replacement with a new one or the return of its purchase price from said accused but despite follow-up demands no replacement was made nor was the purchase price returned to private complainant up to the present to her damage and prejudice in the amount of P591,000.00, Philippine Currency, plus other damages that may be proven in court."14

Guinhawa testified that he was a dealer of brand new Toyota, Mazda, Honda and Mitsubishi cars, under the business name Guinrox Motor Sales. He purchased Toyota cars from Toyota Philippines, and Mitsubishi cars from UMC in Paco, Manila.15 He bought the van from the UMC in March 1995, but did not use it; he merely had it displayed in his showroom in Naga City.16 He insisted that the van was a brand new unit when he sold it to the couple.17 The spouses Silo bought the van and took delivery only after inspecting and taking it for a road tests.18His sales manager, Azotea, informed him sometime in November 1995 that the spouses Silo had complained about the defects under the left front portion of the van. By then, the van had a kilometer reading of 4,000 kilometers.19He insisted that he did not make any false statement or fraudulent misrepresentation to the couple about the van, either before or simultaneous with its purchase. He posited that the defects noticed by the couple were not major ones, and could be repaired. However, the couple refused to have the van repaired and insisted on a refund of their payment for the van which he could not allow. He then had the defects repaired by the UMC.20 He claimed that the van was never involved in any accident, and denied that his driver, Olayan, met an accident and sustained physical injuries when he drove the van from Manila to Naga City.21 He even denied meeting Bayani Pingol.

The accused claimed that the couple filed a Complaint22 against him with the DTI on January 25, 1996, only to withdraw it later.23 The couple then failed to pay the amortizations for the van, which caused the UCPB to file a petition for the foreclosure of the chattel mortgage and the sale of the van at public auction.24

Azotea testified that he had been a car salesman for 16 years and that he sold brand new vans.25 Before the couple took delivery of the vehicle, Pingol inspected its exterior, interior, and underside, and even drove it for the couple.26 He was present when the van was brought to the Rx Auto Clinic, where he noticed the dent on its front side.27 He claimed that the van never figured in any vehicular accident in Labo, Daet, Camarines Norte on March 17, 1995.28 In fact, he declared, he found no police record of a vehicular accident involving the van on the said date.29 He admitted that Olayan was their driver, and was in charge of taking delivery of cars purchased from the manufacturer in Manila.30

On November 6, 2001, the trial court rendered judgment convicting Guinhawa. The fallo of the decision reads:

WHEREFORE, premises considered, judgment is hereby rendered declaring the accused, JAIME GUINHAWA, guilty of the crime of Other Deceits defined and penalized under Art. 318(1) of the Revised Penal Code, the prosecution having proven the guilt of the accused beyond reasonable doubt and hereby imposes upon him the penalty of imprisonment from 2 months and 1 day to 4 months of Arresto Mayor and a fine of One Hundred Eighty Thousand Seven Hundred and Eleven Pesos (P180,711.00) the total amount of the actual damages caused to private complainant.

As to the civil aspect of this case which have been deemed instituted with this criminal case, Articles 2201 and 2202 of the Civil Code provides:

"Art. 2201. In contracts and quasi-contracts, the damages for which the obligor who acted in good faith is liable shall be those that are the natural and probable consequences of the breach of the obligation, and which the parties have foreseen or could have reasonably foreseen at the time the obligation was constituted.

"In case of fraud, malice or wanton attitude, the obligor shall be responsible for all damages which may be reasonably attributed to the non-performance of the obligation."

"Art. 2202. In crimes and quasi-delicts, the defendant shall be liable for all damages which are the natural and probable consequences of the act or omission complained of. It is not necessary that such damages have been foreseen or could have reasonably been foreseen by the defendant."

Thus, accused is condemned to pay actual damages in the amount of One Hundred Eighty Thousand Seven Hundred and Eleven Pesos (Php180,711.00), which represents the 20% downpayment and other miscellaneous expenses paid by the complainant plus the amount of Nineteen Thousand Two Hundred Forty-One (Php19,241.00) Pesos, representing the 1st installment payment made by the private complainant to the bank. Accused is, likewise, ordered to pay moral damages in the amount of One Hundred Thousand Pesos (Php100,000.00) in view of the moral pain suffered by the complainant; for exemplary damages in the amount of Two Hundred Thousand Pesos (Php200,000.00) to serve as deterrent for those businessmen similarly inclined to take undue advantage over the public’s innocence. As for attorney’s fees, the reasonable amount of One Hundred Thousand Pesos (Php100,000.00) is hereby awarded.

SO ORDERED.31

The trial court declared that the accused made false pretenses or misrepresentations that the van was a brand new one when, in fact, it had figured in an accident in Labo, Daet, Camarines Norte, and sustained serious damages before it was sold to the private complainant.

Guinhawa appealed the decision to the Regional Trial Court (RTC) of Naga City, Branch 19, in which he alleged that:

1. The lower court erred in its finding that the repair works on the left front portion and underchassis of the van was the result of the accident in Labo, Camarines Norte, where its driver suffered an attack of hypertension.

2. The lower court erred in its four (4) findings of fact that accused-appellant made misrepresentation or false pretenses "that the van was a brand new car," which constituted deceit as defined in Article 318, paragraph 1 of the Revised Penal Code.

3. The lower court erred in finding accused-appellant civilly liable to complainant Josephine Silo. But, even if there be such liability, the action therefor has already prescribed and the amount awarded was exhorbitant, excessive and unconscionable.32

Guinhawa insisted that he never talked to the couple about the sale of the van; hence, could not have made any false pretense or misrepresentation.

On August 1, 2002, the RTC affirmed the appealed judgment.33

Guinhawa filed a petition for review with the Court of Appeals (CA), where he averred that:

I

THE COURT A QUO ERRED IN CONVICTING PETITIONER OF THE CRIME OF OTHER DECEITS AND SENTENCING HIM TO SUFFER IMPRISONMENT OF TWO MONTHS AND ONE DAY TO FOUR MONTHS OFARRESTO MAYOR AND TO PAY FINE IN THE AMOUNT OF P180,711.00.

II

THE COURT A QUO ERRED IN ORDERING PETITIONER TO PAY PRIVATE COMPLAINANT P180,711.00 AS DOWNPAYMENT, P19,241.00 AS FIRST INSTALLMENT WITH UCPB NAGA, P100,000.00 AS MORAL DAMAGES,P200,000.00 AS EXEMPLARY DAMAGES AND P100,000.00 AS ATTORNEY’S FEES.34

On January 5, 2004, the CA rendered judgment affirming with modification the decision of the RTC. The fallo of the decision reads:

WHEREFORE, premises considered, the instant petition is hereby partially granted insofar as the following are concerned: a) the award of moral damages is hereby REDUCED to P10,000.00 and b) the award of attorney’s fees and exemplary damages are hereby DELETED for lack of factual basis. In all other respects, We affirm the decision under review.

Costs against petitioner.

SO ORDERED.35

The CA ruled that the private complainant had the right to assume that the van was brand new because Guinhawa held himself out as a dealer of brand new vans. According to the appellate court, the act of displaying the van in the showroom without notice to any would-be buyer that it was not a brand new unit was tantamount to deceit. Thus, in concealing the van’s true condition from the buyer, Guinhawa committed deceit.

The appellate court denied Guinhawa’s motion for reconsideration, prompting him to file the present petition for review on certiorari, where he contends:

I

THE COURT A QUO ERRED IN NOT HOLDING THAT THE INFORMATION CHARGED AGAINST PETITIONER DID NOT INFORM HIM OF A CHARGE OF OTHER DECEITS.

II

THE COURT A QUO ERRED IN HOLDING THAT PETITIONER EMPLOYED FRAUD OR DECEIT AS DEFINED UNDER ARTICLE 318, REVISED PENAL CODE.

III

THE COURT A QUO ERRED IN NOT CONSIDERING THE CIRCUMSTANCES POINTING TO THE INNOCENCE OF THE PETITIONER.36

The issues for resolution are (1) whether, under the Information, the petitioner was charged of other deceits under paragraph 1, Article 318 of the Revised Penal Code; and (2) whether the respondent adduced proof beyond reasonable doubt of the petitioner’s guilt for the crime charged.

The petitioner asserts that based on the allegations in the Information, he was charged with estafa through false pretenses under paragraph 2, Article 315 of the Revised Penal Code. Considering the allegation that the private complainant was defrauded of P591,000.00, it is the RTC, not the MTC, which has exclusive jurisdiction over the case. The petitioner maintains that he is not estopped from assailing this matter because the trial court’s lack of jurisdiction can be assailed at any time, even on appeal, which defect cannot even be cured by the evidence adduced during the trial. The petitioner further avers that he was convicted of other deceits under paragraph 1, Article 318 of the Revised Penal Code, a crime for which he was not charged; hence, he was deprived of his constitutional right to be informed of the nature of the charge against him. And in any case, even if he had been charged of other deceits under paragraph 1 of Article 318, the CA erred in finding him guilty. He insists that the private complainant merely assumed that the van was brand new, and that he did not make any misrepresentation to that effect. He avers that deceit cannot be committed by concealment, the absence of any notice to the public that the van was not brand new does not amount to deceit. He posits that based on the principle of caveat emptor, if the private complainant purchased the van without first inspecting it, she must suffer the consequences. Moreover, he did not attend to the private complainant when they examined the van; thus, he could not have deceived them.

The petitioner maintains that, absent evidence of conspiracy, he is not criminally liable for any representation Azotea may have made to the private complainant, that the van was brand new. He insists that the respondent was estopped from adducing evidence that the vehicle was involved in an accident in Daet, Camarines Norte on March 17, 1995, because such fact was not alleged in the Information.

In its comment on the petition, the Office of the Solicitor General avers that, as gleaned from the material averments of the Information, the petitioner was charged with other deceits under paragraph 1, Article 318 of the Revised Penal Code, a felony within the exclusive jurisdiction of the MTC. The petitioner was correctly charged and convicted, since he falsely claimed that the vehicle was brand new when he sold the same to the private complainant. The petitioner’s concealment of the fact that the van sustained serious damages as an aftermath of the accident in Daet, Camarines Norte constituted deceit within the meaning of paragraph 1 of Article 318.

The Information filed against the petitioner reads:

That on or about October 11, 1995, in the City of Naga, Philippines, and within the jurisdiction of this Honorable Court, the said accused, being a motor vehicle dealer using the trade name of Guinhawa Motor Sales at Panganiban Avenue, Naga City, and dealer of brand new cars, by means of false pretenses and fraudulent acts, did then and there, willfully, unlawfully and feloniously defraud private complainant, JOSEPHINE P. SILO, as follows: said accused by means of false manifestations and fraudulent representations, sold to said private complainant, as brand new, an automobile with trade name L-300 Versa Van colored beige and the latter paid for the same in the amount of P591,000.00, when, in truth and in fact, the same was not brand new because it was discovered less than a month after it was sold to said Josephine P. Silo that said L-300 Versa Van had defects in the underchassis and stepboard and repairs have already been done thereat even before said sale, as was found upon check-up by an auto mechanic; that private complainant returned said L-300 Versa Van to the accused and demanded its replacement with a new one or the return of its purchase price from said accused but despite follow-up demands no replacement was made nor was the purchase price returned to private complainant up to the present to her damage and prejudice in the amount of P591,000.00, Philippine Currency, plus other damages that may be proven in court.

CONTRARY TO LAW.37

Section 6, Rule 110 of the Rules of Criminal Procedure requires that the Information must allege the acts or omissions complained of as constituting the offense:

SEC. 6. Sufficiency of complaint or information. – A complaint or information is sufficient if it states the name of the accused; the designation of the offense given by the statute; the acts or omissions complained of as constituting the offense; the name of the offended party; the approximate date of the commission of the offense; and the place where the offense was committed.

When an offense is committed by more than one person, all of them shall be included in the complaint or information.

The real nature of the offense charged is to be ascertained by the facts alleged in the body of the Information and the punishment provided by law, not by the designation or title or caption given by the Prosecutor in the Information.38 The Information must allege clearly and accurately the elements of the crime charged.39

As can be gleaned from its averments, the Information alleged the essential elements of the crime under paragraph 1, Article 318 of the Revised Penal Code.

The false or fraudulent representation by a seller that what he offers for sale is brand new (when, in fact, it is not) is one of those deceitful acts envisaged in paragraph 1, Article 318 of the Revised Penal Code. The provision reads:

Art. 318. Other deceits. – The penalty of arresto mayor and a fine of not less than the amount of the damage caused and not more than twice such amount shall be imposed upon any person who shall defraud or damage another by any other deceit not mentioned in the preceding articles of this chapter.

This provision was taken from Article 554 of the Spanish Penal Code which provides:

El que defraudare o perjudicare a otro, usando de cualquier engaño que no se halle expresado en los artículos anteriores de esta sección, será castigado con una multa del tanto al duplo del perjuicio que irrogare; y en caso de reincidencia, con la del duplo y arresto mayor en su grado medio al máximo.

For one to be liable for "other deceits" under the law, it is required that the prosecution must prove the following essential elements: (a) false pretense, fraudulent act or pretense other than those in the preceding articles; (b) such false pretense, fraudulent act or pretense must be made or executed prior to or simultaneously with the commission of the fraud; and (c) as a result, the offended party suffered damage or prejudice.40 It is essential that such false statement or fraudulent representation constitutes the very cause or the only motive for the private complainant to part with her property.

The provision includes any kind of conceivable deceit other than those enumerated in Articles 315 to 317 of the Revised Penal Code.41 It is intended as the catchall provision for that purpose with its broad scope and intendment.42

Thus, the petitioner’s reliance on paragraph 2(a), Article 315 of the Revised Penal Code is misplaced. The said provision reads:

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

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

The fraudulent representation of the seller, in this case, that the van to be sold is brand new, is not the deceit contemplated in the law. Under the principle of ejusdem generis, where a statement ascribes things of a particular class or kind accompanied by words of a generic character, the generic words will usually be limited to things of a similar nature with those particularly enumerated unless there be something in the context to the contrary.43

Jurisdiction is conferred by the Constitution or by law. It cannot be conferred by the will of the parties, nor diminished or waived by them. The jurisdiction of the court is determined by the averments of the complaint or Information, in relation to the law prevailing at the time of the filing of the criminal complaint or Information, and the penalty provided by law for the crime charged at the time of its commission.

Section 32 of Batas Pambansa Blg. 129, as amended by Republic Act No. 7691, provides that the MTC has exclusive jurisdiction over offenses punishable with imprisonment not exceeding six years, irrespective of the amount of the fine:

Sec. 32. Jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts in Criminal Cases. – Except in cases falling within the exclusive original jurisdiction of Regional Trial Courts and of the Sandiganbayan, the Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts shall exercise:

(1) Exclusive original jurisdiction over all violations of city or municipal ordinances committed within their respective territorial jurisdiction; and

(2) Exclusive original jurisdiction over all offenses punishable with imprisonment not exceeding six (6) years irrespective of the amount of fine, and regardless of other imposable accessory or other penalties, including the civil liability arising from such offenses or predicated thereon, irrespective of kind, nature, value or amount thereof:Provided, however, That in offenses involving damage to property through criminal negligence, they shall have exclusive original jurisdiction thereof.

Since the felony of other deceits is punishable by arresto mayor, the MTC had exclusive jurisdiction over the offense lodged against the petitioner.

On the merits of the petition, the Court agrees with the petitioner’s contention that there is no evidence on record that he made direct and positive representations or assertions to the private complainant that the van was brand new. The record shows that the private complainant and her husband Ralph Silo were, in fact, attended to by Azotea. However, it bears stressing that the representation may be in the form of words, or conduct resorted to by an individual to serve as an advantage over another. Indeed, as declared by the CA based on the evidence on record:

Petitioner cannot barefacedly claim that he made no personal representation that the herein subject van was brand new for the simple reason that nowhere in the records did he ever refute the allegation in the complaint, which held him out as a dealer of brand new cars. It has thus become admitted that the petitioner was dealing with brand new vehicles – a fact which, up to now, petitioner has not categorically denied. Therefore, when private complainant went to petitioner’s showroom, the former had every right to assume that she was being sold brand new vehicles there being nothing to indicate otherwise. But as it turned out, not only did private complainant get a defective and used van, the vehicle had also earlier figured in a road accident when driven by no less than petitioner’s own driver.44

Indeed, the petitioner and Azotea obdurately insisted in the trial court that the van was brand new, and that it had never figured in vehicular accident. This representation was accentuated by the fact that the petitioner gave the Service Manual to the private complainant, which manual contained the warranty terms and conditions, signifying that the van was "brand new." Believing this good faith, the private complainant decided to purchase the van for her buy-and-sell and garment business, and even made a downpayment of the purchase price.

As supported by the evidence on record, the van was defective when the petitioner sold it to the private complainant. It had ditched onto the shoulder of the highway in Daet, Camarines Norte on its way from Manila to Naga City. The van was damaged and had to be repaired; the rod end and bushing had to be replaced, while the left front stabilizer which gave out a persistent annoying sound was repaired. Some parts underneath the van were even welded together. Azotea and the petitioner deliberately concealed these facts from the private complainant when she bought the van, obviously so as not to derail the sale and the profit from the transaction.

The CA is correct in ruling that fraud or deceit may be committed by omission. As the Court held in People v. Balasa:45

Fraud, in its general sense, is deemed to comprise anything calculated to deceive, including all acts, omissions, and concealment involving a breach of legal or equitable duty, trust, or confidence justly reposed, resulting in damage to another, or by which an undue and unconscientious advantage is taken of another. It is a generic term embracing all multifarious means which human ingenuity can device, and which are resorted to by one individual to secure an advantage over another by false suggestions or by suppression of truth and includes all surprise, trick, cunning, dissembling and any unfair way by which another is cheated. On the other hand, deceit is the false representation of a matter of fact whether by words or conduct, by false or misleading allegations, or by concealment of that which should have been disclosed which deceives or is intended to deceive another so that he shall act upon it to his legal injury.46

It is true that mere silence is not in itself concealment. Concealment which the law denounces as fraudulent implies a purpose or design to hide facts which the other party sought to know.47 Failure to reveal a fact which the seller is, in good faith, bound to disclose may generally be classified as a deceptive act due to its inherent capacity to deceive.48 Suppression of a material fact which a party is bound in good faith to disclose is equivalent to a false representation.49 Moreover, a representation is not confined to words or positive assertions; it may consist as well of deeds, acts or artifacts of a nature calculated to mislead another and thus allow the fraud-feasor to obtain an undue advantage.50

Fraudulent nondisclosure and fraudulent concealment are of the same genre. Fraudulent concealment presupposes a duty to disclose the truth and that disclosure was not made when opportunity to speak and inform was presented, and that the party to whom the duty of disclosure, as to a material fact was due, was induced thereby to act to his injury.51

Article 1389 of the New Civil Code provides that failure to disclose facts when there is a duty to reveal them constitutes fraud. In a contract of sale, a buyer and seller do not deal from equal bargaining positions when the latter has knowledge, a material fact which, if communicated to the buyer, would render the grounds unacceptable or, at least, substantially less desirable.52 If, in a contract of sale, the vendor knowingly allowed the vendee to be deceived as to the thing sold in a material matter by failing to disclose an intrinsic circumstance that is vital to the contract, knowing that the vendee is acting upon the presumption that no such fact exists, deceit is accomplished by the suppression of the truth.53

In the present case, the petitioner and Azotea knew that the van had figured in an accident, was damaged and had to be repaired. Nevertheless, the van was placed in the showroom, thus making it appear to the public that it was a brand new unit. The petitioner was mandated to reveal the foregoing facts to the private complainant. But the petitioner and Azotea even obdurately declared when they testified in the court a quo that the vehicle did not figure in an accident, nor had it been repaired; they maintained that the van was

brand new, knowing that the private complainant was going to use it for her garment business. Thus, the private complainant bought the van, believing it was brand new.

Significantly, even when the petitioner was apprised that the private complainant had discovered the van’s defects, the petitioner agreed to replace the van, but changed his mind and insisted that it must be first sold.

The petitioner is not relieved of his criminal liability for deceitful concealment of material facts, even if the private complainant made a visual inspection of the van’s interior and exterior before she agreed to buy it and failed to inspect its under chassis. Case law has it that where the vendee made only a partial investigation and relies, in part, upon the representation of the vendee, and is deceived by such representation to his injury, he may maintain an action for such deceit.54 The seller cannot be heard to say that the vendee should not have relied upon the fraudulent concealment; that negligence, on the part of the vendee, should not be a defense in order to prevent the vendor from unjustifiably escaping with the fruits of the fraud.

In one case,55 the defendant who repainted an automobile, worked it over to resemble a new one and delivered it to the plaintiff was found to have warranted and represented that the automobile being sold was new. This was found to be "a false representation of an existing fact; and, if it was material and induced the plaintiff to accept something entirely different from that which he had contracted for, it clearly was a fraud which, upon its discovery and a tender of the property back to the seller, [it] entitled the plaintiff to rescind the trade and recover the purchase money."56

On the petitioner’s insistence that the private complainant was proscribed from charging him with estafa based on the principle of caveat emptor, case law has it that this rule only requires the purchaser to exercise such care and attention as is usually exercised by ordinarily prudent men in like business affairs, and only applies to defects which are open and patent to the service of one exercising such care.57 In an avuncular case, it was held that:

… The rule of caveat emptor, like the rule of sweet charity, has often been invoked to cover a multitude of sins; but we think its protecting mantle has never been stretched to this extent. It can only be applied where it is shown or conceded that the parties to the contract stand on equal footing and have equal knowledge or equal means of knowledge and there is no relation of trust or confidence between them. But, where one party undertakes to sell to another property situated at a distance and of which he has or claims to have personal knowledge and of which the buyer knows nothing except as he is informed by the seller, the buyer may rightfully rely on the truth of the seller’s representations as to its kind, quality, and value made in the course of negotiation for the purpose of inducing the purchase. If, in such case, the representations prove to be false, neither law nor equity will permit the seller to escape responsibility by the plea that the buyer ought not to have believed him or ought to have applied to other sources to ascertain the facts. …58

It bears stressing that Azotea and the petitioner had every opportunity to reveal to the private complainant that the van was defective. They resolved to maintain their silence, to the prejudice of the private complainant, who was a garment merchant and who had no special knowledge of parts of motor vehicles. Based on the surrounding circumstances, she relied on her belief that the van was brand new. In fine, she was the innocent victim of the petitioner’s fraudulent nondisclosure or concealment.

The petitioner cannot pin criminal liability for his fraudulent omission on his general manager, Azotea. The two are equally liable for their collective fraudulent silence. Case law has it that wherever the doing of a certain act or the transaction of a given affair, or the performance of certain business is confided to an agent, the authority to so act will, in accordance with a general rule often referred to, carry with it by implication the authority to do all of the collateral acts which are the natural and ordinary incidents of the main act or business authorized.59

The MTC sentenced the petitioner to suffer imprisonment of from two months and one day, as minimum, to four months of arresto mayor, as maximum. The CA affirmed the penalty imposed by the trial court. This is erroneous. Section 2 of Act 4103, as amended, otherwise known as the Indeterminate Sentence Law, provides that the law will not apply if the maximum term of imprisonment does not exceed one year:

SEC. 2. This Act shall not apply to persons convicted of offenses punished with death penalty or life-imprisonment; to those convicted of treason, conspiracy or proposal to commit treason; to those convicted of misprision of treason, rebellion, sedition or espionage; to those convicted of piracy; to those who are habitual delinquents; to those who shall have escaped from confinement or evaded sentence; to those who having been granted conditional pardon by the Chief Executive shall have violated the terms thereof; to those whose maximum term of imprisonment does not exceed one year, not to those already sentenced by final judgment at the time of approval of this Act, except as provided in Section 5 hereof. (As amended by Act No. 4225.)

In this case, the maximum term of imprisonment imposed on the petitioner was four months and one day of arresto mayor. Hence, the MTC was proscribed from imposing an indeterminate penalty on the petitioner. An indeterminate penalty may be imposed if the minimum of the penalty is one year or less, and the maximum exceeds one year. For example, the trial court may impose an indeterminate penalty of six months of arresto mayor, as minimum, to two years and four months of prision correccional, as maximum, since the maximum term of imprisonment it imposed exceeds one year. If the trial court opts to impose a penalty of imprisonment of one year or less, it should not impose an indeterminate penalty, but a straight penalty of one year or less instead. Thus, the petitioner may be sentenced to a straight penalty of one year, or a straight penalty of less than one year, i.e., ten months or eleven months. We believe that considering the attendant circumstances, a straight penalty of imprisonment of six months is reasonable.

Conformably with Article 39 in relation to paragraph 3, Article 38 of the Revised Penal Code, the petitioner shall suffer subsidiary imprisonment if he has no property with which to pay the penalty of fine.

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED. The assailed Decision and Resolution areAFFIRMED WITH MODIFICATION. Considering the surrounding circumstances of the case, the petitioner is hereby sentenced to suffer a straight penalty of six (6) months imprisonment. The petitioner shall suffer subsidiary imprisonment in case of insolvency.

Costs against the petitioner.

SO ORDERED.

ROMEO J. CALLEJO, SR.Associate JusticeWE CONCUR:

REYNATO S. PUNOAssociate Justice

Chairman

MA. ALICIA AUSTRIA-MARTINEZ DANTE O. TINGAAssociate Justice Associate Justice

MINITA V. CHICO-NAZARIOAssociate Justice

A T T E S T A T I O N

I attest that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

REYNATO S. PUNOAssociate JusticeChairman, Second Division

C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairman’s Attestation, it is hereby certified that the conclusions in the above decision were reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

HILARIO G. DAVIDE, JR.Chief Justice

EN BANC PEOPLE OF THE PHILIPPINES,Appellee,

G. R. No. 170470 Present: PANGANIBAN, C.J.,PUNO,

- versus - EDNA MALNGAN y MAYO,Appellant.

QUISUMBING,YNARES-SANTIAGO,SANDOVAL-GUTIERREZ,CARPIO,AUSTRIA-MARTINEZ,CORONA,CARPIO MORALES,CALLEJO, SR.,AZCUNA,TINGA,CHICO-NAZARIO,GARCIA, andVELASCO, JR., JJ. Promulgated: September 26, 2006

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

D E C I S I O N CHICO-NAZARIO, J.: The Case Fo r r ev iew i s t he Dec i s i on [ 1 ] o f t he Cou r t o f Appea l s i n CA-G.R . CR HC No . 01139 p romu lga ted on 2 Sep tember 2005 , a f f i rm ing w i t h mod i f i ca t i on t he Judgmen t [ 2 ] o f t he Reg iona l T r i a l Cou r t (RTC) o f Man i l a , B ranch 41 , i n C r im ina l Case No . 01 -188424 p romu lga ted on 13 Oc tobe r 2003 , f i nd ing appe l l an t Edna Ma lngan y Mayo (Edna ) gu i l t y beyond reasonab le doub t o f t he c r ime o f 'A r son w i t h Mu l t i p l e Homic ide o r A rson resu l t i ng t o t he dea th o f s i x ( 6 ) peop le , and sen tenc ing he r t o su f f e r t he pena l t y o f dea th . The Facts As summarized[3 ] by the Court of Appeals, the antecedent facts are as follows: From the personal account of Remigio Bernardo, the Barangay Chairman in the area, as well as the personal account of the pedicab driver named Rolando Gruta, it was at around 4:45 a.m. on January 2, 2001 when Remigio Bernardo and his tanods saw the accused-appellant EDNA, one hired as a housemaid by Roberto Separa, Sr., with her head turning in different directions, hurriedly leaving the house of her employer at No. 172 Moderna Street, Balut, Tondo, Manila. She was seen to have boarded a pedicab which was driven by a person later identified as Rolando Gruta. She was heard by the pedicab driver to have instructed that she be brought toNipa Street, but upon her arrival there, she changed her mind and asked that she be brought instead to Balasan Street where she finally alighted, after paying for her fare. Thirty minutes later, at around 5:15 a.m. Barangay Chairman Bernardo's group later discovered that a fire gutted the house of the employer of the housemaid. Barangay Chairman Bernardo and his tanods responded to the fire upon hearing shouts from the residents and thereafter, firemen from the Fire District 1-NCR arrived at the fire scene to contain the fire. When Barangay Chairman Bernardo returned to the Barangay Hall, he received a report from pedicab driver Rolando Gruta, who was also a tanod, that shortly before the occurrence of the fire, he saw a woman (the housemaid) coming out of the house at No. 172 Moderna Street, Balut, Tondo, Manila and he received a call from his wife telling him of a woman (the same housemaid)

who was acting strangely and suspiciously on Balasan Street. Barangay Chairman Bernardo, Rolando Gruta and the other tanods proceeded to Balasan Street and found the woman who was later identified as the accused-appellant. After Rolando Gruta positively identified the woman as the same person who left No. 172 Moderna Street, Balut, Tondo, Manila, Barangay Chairman Bernardo and his tanods apprehended her and brought her to the Barangay Hall for investigation. At the Barangay Hall, Mercedita Mendoza, neighbor of Roberto Separa, Sr. and whose house was also burned, identified the woman as accused-appellant EDNA who was the housemaid of Roberto Separa, Sr. Upon inspection, a disposable lighter was found inside accused-appellant EDNA's bag. Thereafter, accused-appellant EDNA confessed to Barangay Chairman Bernardo in the presence of multitudes of angry residents outside the Barangay Hall that she set her employer's house on fire because she had not been paid her salary for about a year and that she wanted to go home to her province but her employer told her to just ride a broomstick in going home. Accused-appellant EDNA was then turned over to arson investigators headed by S[F]O4 DaniloTalusan, who brought her to the San Lazaro Fire Station in Sta. Cruz, Manila where she was further investigated and then detained. When Mercedita Mendoza went to the San Lazaro Fire Station to give her sworn statement, she had the opportunity to ask accused-appellant EDNA at the latter's detention cell why she did the burning of her employer's house and accused-appellant EDNA replied that she set the house on fire because when she asked permission to go home to her province, the wife of her employer Roberto Separa, Sr., named Virginia Separa (sic) shouted at her: 'Sige umuwi ka, pagdating mo maputi ka na. Sumakay ka sa walis, pagdating mo maputi ka na (TSN, January 22, 2002, p.6) (Go ahead, when you arrive your color would be fair already. Ride a broomstick, when you arrive your color would be fair already.') And when Mercedita Mendoza asked accused-appellant EDNA how she burned the house, accused-appellant EDNA told her: 'Naglukot ako ng maraming diyaryo, sinindihan ko ng disposable lighter at hinagis ko sa ibabaw ng lamesa sa loob ng bahay(TSN, January 22, 2002, p. 7.) (I crumpled newspapers, lighted them with a disposable lighter and threw them on top of the table inside the house.') When interviewed by Carmelita Valdez, a reporter of ABS-CBN Network, accused-appellant EDNA while under detention (sic) was heard by SFO4 (sic) Danilo Talusan as having admitted the crime and even narrated the manner how she accomplished it. SFO4 (sic) Danilo Talusan was able to hear the same confession, this time at his home, while watching the television program 'True Crime hosted by Gus Abelgas also of ABS-CBN Network. The fire resulted in [the] destruction of the house of Roberto Separa, Sr. and other adjoining houses and the death of Roberto Separa, Sr. and Virginia Separa together with their four (4) children, namely: Michael, Daphne, Priscilla and Roberto, Jr. On 9 January 2001, an Information[4 ] was filed before the RTC of Manila, Branch 41, charging accused-appellant with the crime of Arson with Multiple Homicide.The case was docketed as Criminal Case No. 01-188424. The accusatory portion of said Information provides: That on or about January 2, 2001, in the City of Manila, Philippines, the said accused, with intent to cause damage, did then and there willfully, unlawfully, feloniously and deliberately set fire upon the two-storey residential house of ROBERTO SEPARA and family mostly made of wooden materials located at No. 172 Moderna St., Balut, Tondo, this city, by lighting crumpled newspaper with the use of disposable lighter inside said house knowing the same to be an inhabited house and situated in a thickly populated place and as a consequence thereof a conflagration ensued and the said building, together with some seven (7) adjoining residential houses, were razed by fire; that by reason and on the occasion of the said fire, the following, namely, 1. Roberto Separa, Sr., 45 years of age2. Virginia Separa y Mendoza, 40 years of age3. Michael Separa, 24 years of age

4. Daphne Separa, 18 years of age5. Priscilla Separa, 14 years of age6. Roberto Separa, Jr., 11 years of age sustained burn injuries which were the direct cause of their death immediately thereafter.[5] When arraigned, accused-appellant with assistance of counsel de oficio, pleaded[6] 'Not Guilty to the crime charged. Thereafter, trial ensued.[7] The prosecution presented five (5) witnesses, namely, SPO4[8] Danilo Talusan, Rolando Gruta, Remigio Bernardo, Mercedita Mendoza and Rodolfo Movilla to establish its charge that accused-appellant Edna committed the crime of arson with multiple homicide. SPO4 Danilo Talusan, arson investigator, testified that he was one of those who responded to the fire that occurred on 2 January 2001 and which started at No. 172 Moderna St., Balut, Tondo, Manila.He stated that the fire killed Roberto Separa, Sr. and all the other members of his family, namely his wife, Virginia, and his children, Michael, Daphne, Priscilla and Roberto, Jr.; the fire also destroyed their abode as well as six neighboring houses. He likewise testified that he twice heard accused-appellant ' once while the latter was being interviewed by Carmelita Valdez, a reporter of ABS-CBN, and the other time when it was shown on channel 2 on television during the airing of the television program entitled 'True Crime hosted by Gus Abelgas ' confess to having committed the crime charged, to wit: Pros. Rebagay:Based on your investigation, was there any occasion when the accused Edna Malngan admitted to the burning of the house of the Separa Family? x x x x Witness:cralawYes, sir. Pros. Rebagay:cralawWhen was that? A:On January 2 she was interviewed by the media, sir. The one who took the coverage was Carmelita Valdez of Channel 2, ABS-CBN. They have a footage that Edna admitted before them, sir. Q:And where were you when Edna Malngan made that statement or admission to Carmelita Valdez of ABS-CBN? A:I was at our office, sir. Q: Was there any other occasion wherein the accused made another confession relative to the admission of the crime? A:Yes, sir. Q:When was that? A: Last Friday, sir. It was shown in True Crime of Gus Abelgas. She was interviewed at the City Jail and she admitted that she was the one who authored the crime, sir. Pros. Rebagay:And where were you when that admission to Gus Abelgas was made? A:I was in the house and I just saw it on tv, sir.

Q:What was that admission that you heard personally, when you were present, when the accused made the confession to Carmelita Valdez? A:Naglukot po siya ng papel, sinidihan niya ng lighter at inilagay niya sa ibabaw ng mesa yung mga diyaryo at sinunog niya. x x x x Q:Aside from that statement, was there any other statement made by the accused Edna Malngan? A:Yes, sir. 'Kaya po niya nagawa 'yon galit po siya sa kanyang amo na si Virginia, hindi siya pinasuweldo at gusto na po niyang umuwi na (sic) ayaw siyang payagan. Nagsalita pa po sa kanya na, 'Sumakay ka na lang sa walis. Pagbalik mo dito maputi ka na. (sic) 'Yon po ang sinabi ng kanyang amo. Atty. Masweng:That was a statement of an alleged dead person, your Honor. Court:Sabi ni Valdes, ha? Pros. Rebagay:Sabi ni Edna Malngan kay Carmelita Valdez, Your Honor. Court:Double hearsay na 'yon. Pros. Rebagay:No, Your Honor, the witness was present, Your Honor, when that confession was made by the accused to Carmelita Valdez.[9]chanroblesvirtuallawlibrary Rolando Gruta, the pedicab driver and one of the barangay tanods in the area, testified: Pros. Rebagay:cralawMr. Witness, what is your profession? A:cralawSidecar driver, sir. Q:cralawOn January 2, 2001 at around 4:45 in the morning, do you recall where were (sic) you? A:cralawI was at the corner of Mode rna S t ree t , sir. Pros. Rebagay:And while you were at the corner of Moderna St., what happened if any, Mr. Witness? A:cralawI saw Edna coming out from the door of the house of Roberto Separa, sir. Q:cralawDo you know the number of the house of the Separa Family? A:cralaw172 Moderna St., Balut, Tondo, Manila, sir. x x x x Q:cralawAnd you said you saw Edna coming out from the house of the Separa Family. How far is that house from the place where you were waiting at the corner of Moderna and Paulino Streets?

A:cralawAbout three meters from Moderna and Paulino Streets where my pedicab was placed. My distance was about three meters, sir. x x x x Q:cralawAnd how did you know that the house where Edna came out is that of the house of the Separa Family? A:cralawMismong nakita po ng dalawang mata ko na doon siya galing sa bahay ng Separa Family. Q:cralawHow long have you known the Separa Family, if you know them? A:cralawAbout two years, sir. Q:cralawHow about this Edna, the one you just pointed (to) awhile ago? Do you know her prior toJanua ry 2 , 2001 ? A:cralawYes, sir. I knew(sic) her for two years. Court:cralawWhy? Witness:cralawMadalas ko po siyang maging pasahero ng aking pedicab. Pros. Rebagay:cralawHow about the Separa family? Why do you know them? A:cralawThey were the employers of Edna, sir. Q:cralawYou said you saw Edna coming out from the house of the Separa Family. What happened when you saw Edna coming out from the house of the Separa Family? A:cralawWala pa pong ano 'yan naisakay ko na siya sa sidecar. Q:cralawAnd what did you observe from Edna when you saw her coming out from the house of the Separa family? A:cralawNagmamadali po siyang lumakad at palinga-linga. x x x x Q:cralawAfter she boarded your pedicab, what happened, if any? A:cralawNagpahatid po siya sa akin. Q:cralawWhere? A:cralawTo Nipa Street, sir. Q:cralawDid you bring her to N ipa S t ree t as she reques ted? A:cralawYes, sir. x x x x

Q:cralawYou said that you brought her to Nipa Street. What happened when you go (sic) there at Nipa Street, if any? A:cralawNagpahinto po siya doon ng saglit, mga tatlong minuto po. Q:cralawWhat did she do when she asked (you) to stop there for three minutes? A:cralawAfter three minutes she requested me to bring her directly to Balasan Street, sir. x x x x Q:cralawWhat happened after that? A:cralawWhen we arrived there, she alighted and pay (sic) P5.00, sir. QcralawAnd then what transpired after she alighted from your pedicab? Witness:cralawI went home and I looked for another passenger, sir. Pros. Rebagay:cralawAfter that, what happened when you were on you way to your house to look for passengers? AcralawNakita ko na nga po na pagdating ko sa Moderna, naglalagablab na apoy. Q:cralawFrom what place was that fire coming out? A:cralawFrom the house of Roberto Separa Family, sir. x x x x Pros. Rebagay:cralawAfter you noticed that there was a fire from the house of Roberto Separa Family, what did you do if any? A:cralawSiyempre po, isang Barangay Tanod po ako, nagresponde na po kami sa sunog. Binuksan na po ng Chairman naming 'yung tangke, binomba na po naming 'yung apoy ng tubig. Q:cralawAfter that incident, Mr. Witness, have you seen Edna Again (sic). A:cralawNo, sir. Pros. Rebagay:cralawAnd after that incident, did you come to know if Edna was apprehended or not? cralawx x x x A:cralawI was called by our Barangay Chairman in order to identify Edna, sir. x x x x[10]chanroblesvirtuallawlibrary Remigio Bernardo, Barangay Chairman of the area where the fire occurred, stated: Pros. Rebagay:

On January 2, 2001, do you recall if there is a fire that occurred somewhere in your area of jurisdiction, particularly Moderna Street? A:cralawYes, sir. Q:cralawNow, where were you when this incident happened? A:cralawKasi ugali ko na po tuwing umagang-umaga po ako na pupunta sa barangay Hall mga siguro6:00 or 5:00 o clock, me sumigaw ng sunog nirespondehan namin iyong sunog eh me dala kaming fire. Court:You just answer the question. Where were you when this incident happened? Witness:cralawcralawI was at the Barangay Hall, Your Honor. Pros. Rebagay:And you said that there was a fire that occurred, what did you do? Witness:Iyon nga nagresponde kami doon sa sunog eh nakita ko iyong sunog mukha talagang arson dahil napakalaki kaagad, meron pong mga tipong ' Iyong namatay po contractor po iyon eh kaya siguro napakaraming kalat ng mga pintura, mga container, kaya hindi ponamin naapula kaagad iyong apoy, nasunog ultimo iyong fire tank namin sa lakas, sir. Pros. Rebagay:cralawNow, will you please tell us where this fire occurred? A:cralawAt the house of the six victims, sir. Q:cralawWhose house is that? A:cralawThe house of the victims, sir. x x x x Pros. Rebagay:You said that you responded to the place, what transpired after you responded to the place? A:cralawIyon nga po ang nagsabi may lumabas na isang babae po noon sa bahay na nagmamadali habang may sunog, me isang barangay tanod po akong nagsabi may humahangos na isang babae na may dalang bag papunta po roon palabas ng sasakyan, sir. Q:cralawAnd so what happened? A:cralawSiyempre hindi naman ako nagtanong kung sino ngayon may dumating galing na sa bahay naming, may tumawag, tumawag po si Konsehala Alfonso na may isang babae na hindi mapakali doon sa Calle Pedro Alfonso, ke konsehal na baka ito sabi niya iyong ganito ganoon nirespondehan ko po, sir. Q:cralawWhere did you respond? A:cralawAt Balasan, sir, but it's not the area of my jurisdiction. x x x x

Q:cralawWhat happened when you reached that place? A:cralawSiya po ang nahuli ko doon, sir. Court:cralawWitness pointing to accused Edna Malngan. Pros. Rebagay:cralawAnd what happened? A:cralawI brought her to the barangay hall, sir. Q:cralawAnd what happened at the barangay hall? A:cralawInembestigahan ko, kinuha naming iyong bag niya, me lighter siya eh. Inamin niya po sa amin na kaya niya sinunog hindi siya pinasasahod ng more or less isang taon na eh. Ngayon sabi ko bakit eh gusto ko ng umuwi ng probinsya ang sabi sa akin ng amo ko sumakay na lang daw po ako ng walis tingting para makauwi, sir. Atty. Herman:We would like to object, Your Honor on the ground that that is hearsay. Pros. Rebagay:That is not a hearsay statement, Your Honor, straight from the mouth of the accused. Atty. Herman:It's not under the exemption under the Rules of Court, Your Honor. He is testifying according to what he has heard. Court:That's part of the narration. Whether it is true or not, that's another matter. Let it remain. Pros. Rebagay:Now, who were present when the accused are telling you this? A:cralawIyon nga iyong mga tanod ko, mamamayan doon nakapaligid, siyempre may sunog nagkakagulo, gusto nga siyang kunin ng mga mamamayan para saktan hindi ko maibigay papatayin siya gawa ng may namatay eh anim na tao and namatay, kaya iyong mga tao kinokontrol siya madidisgrasya siya dahil pin-pointed po siya, Your Honor, iyong dami na iyon libo iyong nakapaligid doon sa barangay hall napakahirap awatin. Gustong-gustosiyang kunin ng mga taong-bayan, nagalit dahil ang daming bahay hong nasunog.[11 ] For her part, Mercedita Mendoza, one of the neighbors of the Separa Family and whose house was one of those destroyed by the fire, recounted: Pros. Rebagay:Madam Witness, on January 2, 2001, do you recall where were you residing then? A:cralawYes, sir. Q:cralawWhere were you residing at? A: cralawAt No. 170 Moderna St., Balut, Tondo, Manila, sir. Q:cralawWhy did you transfer your residence? Awhile ago you testified that you are now residing at147 Moderna St., Ba lu t , Tondo , Man i l a ?

A:cralawBecause our house was burned, sir. Q:cralawMore or less, how much did the loss incurred on the burning of your house (sic)? A:cralawMore or less, P100,000.00, sir Q:cralawDo you know the accused in this case Edna Malngan? A:cralawYes, sir. Q:cralawWhy do you know her? A:cralawShe is the house helper of the family who were (sic) burned, sir. Q:cralawWhat family? A:cralawCifara (sic) family, sir. Q:cralawWho in particular do you know among Cifara (sic) family? A:cralawThe woman, sir. Q:cralawWhat is the name? A:cralawVirginia Mendoza Cifara (sic), sir. Q:cralawAre you related to Virginia Mendoza Cifara (sic)? A:cralawMy husband, sir. Q:cralawWhat is the relationship of your husband to the late Virginia Mendoza Cifara (sic)? A:cralawThey were first cousins, sir. Q:cralawHow far is your house from the house of the Cifara (sic) family? A:cralawMagkadikit lang po. Pader lang ang pagitan. Q:cralawYou said that Edna Malngan was working with the Cifara (sic) family. What is the work of Edna Malngan? A:cralawNangangamuhan po. House helper, sir. Q:cralawHow long do you know Edna Malngan as house helper of the Cifara (sic) family? A:cralawI cannot estimate but she stayed there for three to four years, sir. Q:cralawDo you know who caused the burning of the house of the Cifara (sic) family? Witness:Edna Malngan, sir. Pros. Rebagay:cralawWhy do you know that it was Edna Malngan who burned the house of the Cifara (sic) family?

A:cralawWhen the fire incident happened, sir, on January 3, we went to San Lazaro Fire Station and I saw Edna Malngan detained there, sir. Q:cralawAnd so what is your basis in pointing to Edna Malngan as the culprit or the one who burned the house of the Cifara (sic) family? A:cralawI talked to her when we went there at that day, sir. Q:cralawWhat transpired then? A:cralawI talked to her and I told her, 'Edna, bakit mo naman ginawa 'yung ganun? Q:cralawAnd what was the answer of Edna? A:cralawShe answered, 'Kasi pag nagpapaalam ako sa kanyang umuwi ng probinsya, nagpapaalam po siyang umuwi ng probinsya ang sinasabi daw po sa kanya ni Baby Cifara (sic) na, (sic)Sige umuwi ka, pagdating mo maputi ka na. Sumakay ka sa walis pagdating mo maputi ka na. Pros. Rebagay:cralawWhat is the basis there that she was the one who burned the house of the Cifara (sic) family? A:cralawI also asked her, 'Paano mo ginawa 'yung sunog? She told me, 'Naglukot ako ng maraming diyaryo, sinindihan ko ng disposable lighter at hinagis niya sa ibabaw ng lamesa sa loob ng bahay. (sic)[12]chanroblesvirtuallawlibrary Lastly, the prosecution presented Rodolfo Movilla, owner of the house situated beside that of the Separafamily. He testified that his house was also gutted by the fire that killed the Separa family and that he tried to help said victims but to no avail. The prosecution presented other documentary evidence[13] and thereafter rested its case. When it came time for the defense to present exculpatory evidence, instead of doing so, accused-appellant filed a Motion to Admit Demurrer to Evidence[14] and the corresponding Demurrer to Evidence[15] with the former expressly stating that said Demurrer to Evidence was being filed 'x x x without express leave of court x x x.[16] In her Demurrer to Evidence, accused-appellant asserts that the prosecution's evidence was insufficient to prove her guilt beyond reasonable doubt for the following reasons:[17 ] (a) that she is charged with crime not defined and penalized by law; (b) that circumstantial evidence was insufficient to prove her guilt beyond reasonable doubt; and (c) that the testimonies given by the witnesses of the prosecution were hearsay, thus, inadmissible in evidence against her. The prosecution filed its Comment/Opposition to accused-appellant's Demurrer to Evidence.

On 13 October 2003, acting on the Demurrer to Evidence, the RTC promulgated its Judgment[18] wherein it proceeded to resolve the subject case based on the evidence of the prosecution. The RTC considered accused-appellant to have waived her right to present evidence, having filed the Demurrer to Evidencewithout leave of court. In finding accused-appellant Edna guilty beyond reasonable doubt of the crime of Arson with Multiple Homicide, the RTC ruled that: The first argument of the accused that she is charged with an act not defined and penalized by law is without merit. x x x the caption which charges the accused with the crime of Arson with Multiple Homicide is merely descriptive of the charge of Arson that resulted to Multiple Homicide. The fact is that the accused is charged with Arson which resulted to Multiple Homicide (death of victims) and that charge is embodied and stated in the body of the information. What is controlling is the allegation in the body of the Information and not the title or caption thereof. x x x. x x x x The second and third arguments will be discussed jointly as they are interrelated with each other. x x x. x x x x [W]hile there is no direct evidence that points to the accused in the act of burning the house or actually starting the subject fire, the following circumstances that show that the accused intentionally caused or was responsible for the subject fire have been duly established: 1.cralawthat immediately before the burning of the house, the accused hurriedly and with head turning in different directions (palinga-linga) went out of the said house and rode a pedicab apparently not knowing where to go x x x; 2.cralawthat immediately after the fire, upon a report that there was a woman in Balasan St. who appears confused and apprehensive (balisa), the Barangay Chairman and his tanods went there, found the accused and apprehended her and brought her to the barangay hall as shown by the testimony of Barangay Chairman Remigio Bernardo; and 3.cralawthat when she was apprehended and investigated by the barangay officials and when her bag was opened, the same contained a disposable lighter as likewise shown by the testimony of the Barangay Chairman. [T]he timing of her hurried departure and nervous demeanor immediately before the fire when she left the house and rode a pedicab and her same demeanor, physical and mental condition when found and apprehended at the same place where she alighted from the pedicab and the discovery of the lighter in her bag thereafter when investigated indisputably show her guilt as charged. cralawIf there is any doubt of her guilt that remains with the circumstantial evidence against her, the same is removed or obliterated with the confessions/admissions of the commission of the offense and the manner thereof that she made to the prosecution witnesses Barangay Chairman Remigio Bernardo, Mercedita Mendoza and to the media, respectively. x x x x [H]er confessions/admissions are positive acknowledgment of guilt of the crime and appear to have been voluntarily and intelligently given. These confessions/admissions, especially the one given to her neighbor Mercedita Mendoza and the media, albeit uncounselled and made while she was already under the custody of authorities, it is believed, are not violative of her right under the Constitution.

The decretal part of the RTC's Judgment reads: WHEREFORE, the Demurrer to Evidence is hereby denied and judgment is hereby rendered finding the accused EDNA MALNGAN Y MAYO guilty beyond reasonable doubt of the crime of Arson with Multiple Homicide or Arson resulting to the death of six (6) people and sentencing her to suffer the mandatory penalty of death, and ordering her to pay the heirs of the victims Roberto Separa, Sr. and Virginia Separa and children Michael, Daphne, Priscilla and Roberto, Jr., the amount of Fifty Thousand (P50,000.00) Pesos for each victim and the amount of One Hundred Thousand (P100,000.00) Pesos as temperate damages for their burned house or a total of Four Hundred Thousand (P400,000.00) Pesos and to Rodolfo Movilla the amount of One Hundred [Thousand] (P100,000.00) Pesos. Due to the death penalty imposed by the RTC, the case was directly elevated to this Court for automatic review. Conformably with our decision in People v. Efren Mateo y Garcia,[19] however, we referred the case and its records to the CA for appropriate action and disposition. On 2 September 2005, the Court of Appeals affirmed with modification the decision of the RTC, the fallo of which reads: WHEREFORE, premises considered, the assailed October 13, 2003 Judgment of the Regional Trial Court of Manila, Branch 41, finding accused-appellant Edna Malngan y Mayo guilty beyond reasonable doubt of Arson with multiple homicide and sentencing her to suffer the DEATH PENALTY is hereby AFFIRMED with MODIFICATION in that she is further ordered to pay P50,000.00 as moral damages and another P50,000.00 as exemplary damages for each of the victims who perished in the fire, to be paid to their heirs. She is ordered to pay Rodolfo Movilla, one whose house was also burned, the sum of P50,000.00 as exemplary damage. Pursuant to Section 13 (a), Rule 124 of the 2000 Rules of Criminal Procedure as amended by A.M. No. 00-5-03-SC dated September 28, 2004, which became effective on October 15, 2004, the Court of Appeals, after rendering judgment, hereby refrains from making an entry of judgment and forthwith certifies the case and elevates the entire record of this case to the Supreme Court for review.[20]chanroblesvirtuallawlibrary I t i s t he con ten t i on o f accused -appe l l an t t ha t t he ev idence p resen ted by t he p rosecu t i on i s no t su f f i c i en t t o es tab l i sh he r gu i l t beyond reasonab le doub t as t he pe rpe t ra to r o f t he c r ime cha rged . I n suppo r t o f sa id excu lpa to ry p ropos i t i on , she ass igns t he f o l l ow ing e r ro r s [21 ] :

I.

THE HONORABLE COURT ERRED IN RULING THAT THE CIRCUMSTANTIAL EVIDENCE PRESENTED BY THE PROSECUTION IS SUFFICIENT TO CONVICT THE ACCUSED; and

II.

THE HONORABLE COURT ERRED IN ALLOWING AND GIVING CREDENCE TO THE HEARSAY EVIDENCE AND UNCOUNSELLED ADMISSIONS ALLEGEDLY GIVEN BY THE ACCUSED TO THE WITNESSES BARANGAY CHAIRMAN REMIGIO BERNARDO, MERCEDITA MENDOZA AND THE MEDIA. THERE IS NO COMPLEX CRIME OF ARSON WITH (MULTIPLE) HOMICIDE. The I n fo rma t i on i n t h i s case e r roneous l y cha rged accused -appe l l an t w i t h a comp lex c r ime , i . e . , Arson w i t h Mu l t i p l e Homic ide . P resen t l y , t he re a re two (2 ) l aws tha t

gove rn t he c r ime o f a r son whe re dea th resu l t s t he re f rom ' Ar t i c l e 320 o f t he Rev i sed Pena l Code (RPC) , as amended by Repub l i c Ac t (RA) No . 7659 ,[22 ] and Sec t i on 5 o f P res iden t i a l Dec ree (PD) No . 1613 [23 ] , quo ted he reunde r , t o w i t : Revised Penal Code: ART. 320. Destructive Arson. ' x x x xIf as a consequence of the commission of any of the acts penalized under this Article,death results, the mandatory penalty of death shall be imposed. [Emphasis supplied.] Presidential Decree No. 1613: SEC. 5. Where Death Results from Arson. ' If by reason of or on the occasion of the arson death results, the penalty of reclusion perpetua to death shall be imposed . [Emphasis supplied.] Art. 320 of the RPC, as amended, w i t h r espec t t o des t ruc t i ve a r son , and the p rov i s i ons o fPD No . 1613 r espec t i ng o the r cases o f a r son p rov ide on l y one pena l t y f o r t he commiss ion o f a r son , whe the r cons ide red des t ruc t i ve o r o the rw i se , whe re dea th resu l t s the re f rom . The r a i son d ' t r e i s t ha t a r son i s i t se l f t he end and dea th i s s imp l y t he consequence . [24 ] chanroblesvirtuallawlibrary c ra l awWhe the r t he c r ime o f a r son w i l l abso rb t he resu l t an t dea th o r w i l l have to be a sepa ra te c r ime a l t oge the r , t he j o i n t d i scuss ion [25 ] o f t he l a te Mr . Ch ie f Jus t i ce Ramon C . Aqu ino and Mme. Jus t i ce Ca ro l i na C . G r i o -Aqu ino , on t he sub jec t o f t he c r imes o f a r son and murde r /hom ic ide , i s h i gh l y i ns t ruc t i ve : Groizard says that when fire is used with the intent to kill a particular person who may be in a house and that objective is attained by burning the house, the crime is murder only. When the Penal Code declares that killing committed by means of fire is murder, it intends that fire should be purposely adopted as a means to that end. There can be no murder without a design to take life.[26] In other words, if the main object of the offender is to kill by means of fire, the offense is murder. But if the main objective is the burning of the building, the resulting homicide may be absorbed by the crime of arson.[27]chanroblesvirtuallawlibrary x x x x If the house was set on fire after the victims therein were killed, fire would not be a qualifying circumstance. The accused would be liable for the separate offenses of murder or homicide, as the case may be, and arson.[28]chanroblesvirtuallawlibrary c ra l awAcco rd ing l y , i n cases whe re bo th bu rn ing and dea th occu r , i n o rde r t o de te rm ine wha t c r ime /c r imes was /we re pe rpe t ra ted ' whe the r a r son , murde r o r a r son and homic ide /murde r , i t i s de r i gueu r t o asce r ta i n t he ma in ob jec t i ve o f t he ma le fac to r : ( a ) i f t he ma in ob jec t i ve i s t he bu rn ing o f t he bu i l d i ng o r ed i f i ce , bu t dea th resu l t s by reason o r on t he occas ion o f a r son , t he c r ime i s s imp l y a rson , and the resu l t i ng homic ide i s abso rbed ; ( b ) i f , on t he o the r hand , t he ma in ob jec t i ve i s t o k i l l a pa r t i cu la r pe rson who may be i n a bu i l d i ng o r ed i f i ce , when f i r e i s r eso r ted t o as t he means to accomp l i sh such goa l t he c r ime commi t t ed i s murde r on l y ; l as t l y , ( c ) i f t he ob jec t i ve i s , l i kew ise , t o k i l l a pa r t i cu la r pe rson , and i n f ac t t he o f f ende r has a l r eady done so , bu t f i r e i s r eso r ted t o as a means to cove r up t he k i l l i ng , t hen the re a re two sepa ra te and d i s t i nc t c r imes commi t t ed ' homic ide /murde r and a rson . Whe re t hen does t h i s case fa l l unde r?

F rom a read ing o f t he body o f t he I n fo rma t i on : That on or about January 2, 2001, in the City of Manila, Philippines, the said accused, with intent to cause damage, did then and there willfully, unlawfully, feloniously and deliberately set fire upon the two-storey residential house of ROBERTO SEPARA and family mostly made of wooden materials located at No. 172 Moderna St., Balut, Tondo, this city, by lighting crumpled newspaper with the use of disposable lighter inside said house knowing the same to be an inhabited house and situated in a thickly populated place and as a consequence thereof a conflagration ensued and the said building, together with some seven (7) adjoining residential houses, were razed by fire; that by reason and on the occasion of the said fire, the following, namely, 1. Roberto Separa, Sr., 45 years of age2. Virginia Separa y Mendoza, 40 years of age3. Michael Separa, 24 years of age4. Daphne Separa, 18 years of age5. Priscilla Separa, 14 years of age6. Roberto Separa, Jr., 11 years of age sustained burn injuries which were the direct cause of their death immediately thereafter.[29] [Emphasis supplied.] accused -appe l l an t i s be ing cha rged w i t h t he c r ime o f a r son . I t i t i s c l ea r f r om the f o rego ing t ha t he r i n ten t was mere l y t o des t roy he r emp loye r ' s house th rough the use o f f i r e . We now go to t he i ssues ra i sed . Unde r t he f i r s t ass ignmen t o f e r ro r , i n asse r t i ng t he i nsu f f i c i ency o f t he p rosecu t i on ' s ev idence to es tab l i sh he r gu i l t beyond reasonab le doub t , accused -appe l l an t a rgues t ha t t he p rosecu t i on was on l y ab le t o adduce c i r cums tan t i a l ev i dence ' ha rd l y enough to p rove he r gu i l t beyond reasonab le doub t . She ra t i oc i na tes t ha t t he f o l l ow ing c i r cums tances : 1. That immediately before the burning of the house , the accused hurriedly and with head turning in different directions (palinga-linga) went out of the said house and rode a pedicab apparently not knowing where to go for she first requested to be brought to Nipa St. but upon reaching there requested again to be brought to Balasan St. as shown by the testimony of prosecution witness Rolando Gruta; 2. That immediately after the fire, upon a report that there was a woman in Balasan St. who appears confused and apprehensive (balisa), the Barangay Chairman and his tanods went there, found the accused and apprehended her and brought her to the barangay hall as shown by the testimony of Barangay Chairman Remigio Bernardo; and 3.cralawThat when she was apprehended and investigated by the barangay officials and when her bag was opened, the same contained a disposable lighter as likewise shown by the testimony of the Barangay Chairman.[30]chanroblesvirtuallawlibrary f a l l sho r t o f p rov ing t ha t she had any i nvo l vemen t i n se t t i ng he r emp loye r ' s house on f i r e , much l ess show gu i l t beyond reasonab le doub t , g i ven tha t ' i t i s a f ac t t ha t housema ids a re t he f i r s t pe rsons i n t he house to wake up ea r l y t o pe r fo rm rou t i ne cho res f o r t he i r emp loye rs , [ 31 ] one o f wh i ch i s p repa r i ng and cook ing t he morn ing mea l f o r t he members o f t he househo ld ; and necess i t y r equ i res he r t o go ou t ea r l y t o l ook f o r open s to res o r even nea rby marke tp laces t o buy t h i ngs t ha t w i l l comp le te t he ea r l y mea l f o r t he day . [ 32 ] She then conc ludes t ha t i t was no rma l f o r he r t o have been seen go ing ou t o f he r emp loye r ' s house i n a hu r r y a t t ha t t ime o f t he day and ' t o l ook a t a l l d i r ec t i ons t o i nsu re t ha t t he house i s secu re and tha t t he re a re no o the r pe rsons i n t he v i c i n i t y . [ 33 ] chanroblesvirtuallawlibrary

c ra lawWe a re f a r f r om pe rsuaded . T rue , by t he na tu re o f t he i r j obs , housema ids a re requ i red t o s ta r t t he day ea r l y ; howeve r , con t ra r y t o sa id asse r t i on , t he ac tua t i ons and the demeano r o f accused -appe l l an t on t ha t f a te fu l ea r l y morn ing as obse rved f i r s thand by Ro lando Gru ta , one o f t he w i t nesses o f t he p rosecu t i on , be l i e he r c l a im o f no rma lcy , t o w i t : Q:cralawYou said you saw Edna coming out from the house of the Separa Family. What happened when you saw Edna coming out from the house of the Separa Family? A:cralawWala pa pong ano 'yan naisakay ko na siya sa sidecar. Q:cralawAnd what did you observe from Edna when you saw her coming out from the house of the Separa family? A:cralawNagmamadali po siyang lumakad at palinga-linga . x x x x Q:cralawAfter she boarded your pedicab, what happened, if any? A:cralawNagpahatid po siya sa akin. Q:cralawWhere? A:cralawTo Nipa Street, sir. Q:cralawDid you bring her to N ipa S t ree t as she reques ted? A:cralawYes, sir. x x x x Q:cralawYou said that you brought her to Nipa Street. What happened when you go (sic) there at Nipa Street, if any? A:cralawNagpahinto po siya doon ng saglit, mga tatlong minuto po. Q:cralawWhat did she do when she asked (you) to stop there for three minutes? A:cralawAfter three minutes she requested me to bring her directly to Balasan Street, sir. x x x x We quo te w i t h app rova l t he p ronouncemen t o f t he RTC i n d i sc red i t i ng accused -appe l l an t ' s a fo remen t i oned ra t i ona le : [O]bviously it is never normal, common or ordinary to leave the house in such a disturbed, nervous and agitated manner, demeanor and condition. The timing of her hurried departure and nervous demeanor immediately before the fire when she left the house and rode a pedicab and her same demeanor, physical and mental condition when found and apprehended at the same place where she alighted from the pedicab and the discovery of the lighter in her bag thereafter when investigated indisputably show her guilt as charged.[34] All the witnesses are in accord that accused-appellant's agitated appearance was out of the ordinary. Remarkably, she has never denied this observation.

We give great weight to the findings of the RTC and so accord credence to the testimonies of the prosecution witnesses as it had the opportunity to observe them directly. The credibility given by trial courts to prosecution witnesses is an important aspect of evidence which appellate courts can rely on because of its unique opportunity to observe them, particularly their demeanor, conduct, and attitude, during the direct and cross-examination by counsels. Here, Remigio Bernardo, Rolando Gruta and Mercedita Mendoza are disinterested witnesses and there is not an iota of evidence in the records to indicate that they are suborned witnesses. The records of the RTC even show that Remigio Bernardo, the Barangay Chairman, kept accused-appellant from being mauled by the angry crowd outside of the barangay hall: Pros. Rebagay:Now, who were present when the accused are (sic) telling you this? A:cralawIyon nga iyong mga tanod ko, mamamayan doon nakapaligid, siyempre may sunog nagkakagulo, gusto nga siyang kunin ng mga mamamayan para saktan hindi ko maibigay papatayin siya gawa ng may namatay eh anim na tao and namatay, kaya iyong mga tao kinokontrol siya madidisgrasya siya dahil pin-pointed po siya, Your Honor, iyong dami na iyon libo iyong nakapaligid doon sa barangay hall napakahirap awatin. Gusting-gusto siyang kunin ng mga taong-bayan, nagalit dahil ang daming bahay hong nasunog.[35]chanroblesvirtuallawlibrary Accused-appellant has not shown any compelling reason why the witnesses presented would openly, publicly and deliberately lie or concoct a story, to send an innocent person to jail all the while knowing that the real malefactor remains at large. Such proposition defies logic. And where the defense failed to show any evil or improper motive on the part of the prosecution witnesses, the presumption is that their testimonies are true and thus entitled to full faith and credence.[36] Wh i l e t he p rosecu t i on w i t nesses d id no t see accused -appe l l an t ac tua l l y s ta r t i ng t he f i r e t ha t bu rned seve ra l houses and k i l l ed t he Sepa ra f am i l y , he r gu i l t may s t i l l be es tab l i shed th rough c i r cums tan t i a l ev i dence p rov ided tha t : ( 1 ) t he re i s more t han one c i r cums tance ; ( 2 ) t he f ac t s f r om wh i ch t he i n fe rences a re de r i ved a re p roven ; and , ( 3 ) t he comb ina t i on o f a l l t he c i r cums tances i s such as t o p roduce conv i c t i on beyond reasonab le doub t . [ 37 ] chanroblesvirtuallawlibrary C i r cums tan t i a l ev i dence i s t ha t ev idence wh i ch p roves a f ac t o r se r i es o f f ac t s f r om wh i ch t he f ac t s i n i s sue may be es tab l i shed by i n fe rence . [38 ] I t i s f ounded on expe r i ence and obse rved fac t s and co inc idences es tab l i sh ing a connec t i on be tween the known and p roven fac t s and the f ac t s sough t t o be p roved . [39 ] I n o rde r t o b r i ng abou t a conv i c t i on , t he c i r cums tan t i a l ev i dence p resen ted mus t cons t i t u te an unb roken cha in , wh i ch l eads t o one fa i r and reasonab le conc lus ion po in t i ng t o t he accused , t o t he exc lus ion o f o the rs , as t he gu i l t y pe rson . [40 ] chanroblesvirtuallawlibrary I n t h i s case , t he i n te r l ock ing t es t imon ies o f t he p rosecu t i on w i t nesses , t aken toge the r , exemp l i f y a case whe re conv i c t i on can be uphe ld on t he bas i s o f c i r cums tan t i a l ev i dence .F i r s t , p rosecu t i on w i t ness Ro lando Gru ta , t he d r i ve r o f t he ped i cab tha t accused -appe l l an t r ode on , t es t i f i ed t ha t he knew fo r a f ac t t ha t she wo rked as a housema id o f t he v i c t ims , and tha t he pos i t i ve l y i den t i f i ed he r as t he pe rson hu r r i ed l y l eav ing t he house o f t he v i c t ims on 2 January 2001 a t 4:45 a.m., and ac t i ng i n a ne rvous manne r . Tha t wh i l e r i d i ng on t he ped i cab , accused -appe l l an t was unsu re o f he r i n tended des t i na t i on . Upon reach ing t he p lace whe re he o r i g i na l l y p i cked up accused -appe l l an t on l y a f ew m inu tes a f t e r d ropp ing he r o f f , Ro lando Gru ta saw the Sepa ras house be ing gu t t ed by a b l az ing f i r e .Second , Remig io Be rna rdo tes t i f i ed t ha t he and h i s t anods , i nc l ud ing Ro lando Gru ta , we re t he ones who p i cked up accused -appe l l an t Edna a t Balasan Street (whe re Ro lando Gru ta d ropped he r o f f ) a f t e r r ece i v i ng a ca l l t ha t t he re was a woman ac t i ng s t r ange l y a t sa id s t r ee t and who appea red to have nowhere t o go . Th i rd , SPO4 Dan i l oTa lusan ove rhea rd accused -appe l l an t adm i t t o

Carme l i t a Va ldez , a repo r te r o f Channe l 2 (ABS-CBN) t ha t sa id accused -appe l l an t s ta r t ed t he f i r e , p l us t he f ac t t ha t he was ab le see the t e l ecas t o f Gus Abe lgas show whe re accused -appe l l an t , wh i l e be ing i n te r v i ewed , con fessed to t he c r ime as we l l . The fo rego ing t es t imon ies j ux taposed w i t h t he t es t imony o f Me rced i t a Mendoza va l i da t i ng t he f ac t t ha t accused -appe l l an t con fessed to hav ing s ta r t ed t he f i r e wh i ch k i l l ed t he Sepa ra f am i l y as we l l as bu rned seven houses i nc l ud ing t ha t o f t he v i c t ims , conv inc ing l y f o rm an unb roken cha in , wh i ch l eads t o t he unassa i l ab le conc lus ion p inpo in t i ng accused -appe l l an t as t he pe rson beh ind t he c r ime o f s imp le a r son . I n he r second ass igned e r ro r , accused -appe l l an t ques t i ons t he admiss ib i l i t y o f he r uncounse l l ed ex t ra j ud i c i a l con fess ion g i ven to p rosecu t i on w i t nesses , name ly Remig io Be rna rdo , Merced i t a Mendoza , and to t he med ia . Accused -appe l l an t Edna con tends t ha t be ing uncounse l l ed ex t ra j ud i c i a l con fess ion , he r adm iss ions t o hav ing commi t t ed t he c r ime cha rged shou ld have been exc luded i n ev idence aga ins t he r f o r be ing v i o l a t i ve o f A r t i c l e I I I , Sec t i on 12 (1 ) o f t he Cons t i t u t i on . Pa r t i cu la r l y , she t akes excep t i on t o t he t es t imony o f p rosecu t i on w i t nesses Remig io Be rna rdo and Merced i t a Mendoza fo r be ing hea rsay and i n t he na tu re o f an uncounse l l ed admiss ion . W i th t he above v i t a l p i eces o f ev idence exc luded , accused -appe l l an t i s o f t he pos i t i on t ha t t he rema in ing p roo f o f he r a l l eged gu i l t , cons i s t i ng i n t he ma in o f c i r cums tan t i a l ev i dence , i s i nadequa te t o es tab l i sh he r gu i l t beyond reasonab le doub t . We pa r t l y d i sag ree . A r t i c l e I I I , Sec t i on 12 o f t he Cons t i t u t i on i n pa r t p rov ides : (1)cralawAny person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one.These rights cannot be waived except in writing and in the presence of counsel. x x x x (3)cralawAny confession or admission obtained in violation of this Section or Section 17 hereof shall be inadmissible in evidence. We have he ld t ha t t he abovequo ted p rov i s i on app l i es t o t he s tage o f cus tod ia l i nves t i ga t i on ' when the i nves t i ga t i on i s no l onge r a gene ra l i nqu i r y i n to an unso l ved c r ime bu t s ta r t s t o f ocus on a pa r t i cu la r pe rson as a suspec t . [ 41 ] Sa id cons t i t u t i ona l gua ran tee has a l so been ex tended to s i t ua t i ons i n wh i ch an i nd i v i dua l has no t been fo rma l l y a r res ted bu t has mere l y been ' i nv i t ed f o r ques t i on ing .[ 42 ] chanroblesvirtuallawlibrary To be admiss ib l e i n ev idence aga ins t an accused , t he ex t ra j ud i c i a l con fess ions made mus t sa t i s f y t he f o l l ow ing requ i remen ts : ( 1 ) it must be voluntary;(2 ) it must be made with the assistance of competent and independent counsel;( 3 ) it must be express; and(4) cralawit must be in writing.[43]

Arguab l y , the barangay tanods, including the Barangay Chairman, in this particular instance, maybe deemed as law enforcement officer for purposes of applying Article III, Section 12(1) and (3), of the Constitution. When accused-appellant was brought to the barangay hall in the morning of 2 January 2001, she was a l r eady a suspec t , ac tua l l y t he on l y one , i n t he f i r e t ha t des t royed seve ra l houses as we l l as k i l l ed t he who le f am i l y o f Robe r to Sepa ra , S r .She was , t he re fo re , a l r eady unde r cus tod ia l i nves t i ga t i on and the r i gh t s gua ran teed by A r t i c l e I I I , Sec t i on 12 (1 ) , o f t he Cons t i t u t i on shou ld have a l r eady been obse rved o r app l i ed t o he r . Accused -appe l l an t ' s con fess ion t o Ba rangay Cha i rman Remig io Be rna rdo was made i n r esponse to t he ' i n te r roga t i on made by t he l a t t e r ' adm i t t ed l y conduc ted w i t hou t f i r s t i n fo rm ing accused -appe l l an t o f he r r i gh t s unde r t he Cons t i t u t i on o r done i n t he p resence o f counse l . Fo r t h i s r eason , t he con fess ion o f accused -appe l l an t , g i ven to Ba rangay Cha i rman Remig io Be rna rdo , as we l l as t he l i gh te r f ound by t he l a t t e r i n he r bag a re i nadmiss ib l e i n ev idence aga ins t he r as such we re ob ta ined i n v i o l a t i on o f he r cons t i t u t i ona l r i gh t s . Be tha t as i t may , t he i nadmiss ib i l i t y o f accused -appe l l an t ' s con fess ion t o Ba rangay Cha i rman Remig io Be rna rdo and the l i gh te r as ev idence do no t au toma t i ca l l y l ead to he r acqu i t t a l . I t shou ld we l l be reca l l ed t ha t t he cons t i t u t i ona l sa fegua rds du r i ng cus tod ia l i nves t i ga t i ons do no t app l y t o t hose no t e l i c i t ed t h rough ques t i on ing by t he po l i ce o r t he i r agen ts bu t g i ven i n an o rd ina ry manne r whe reby t he accused ve rba l l y adm i t s t o hav ing commi t t ed t he o f f ense as wha t happened i n t he case a t ba r when accused -appe l l an t adm i t t ed t o Merced i t a Mendoza , one o f t he ne ighbo rs o f Robe r to Sepa ra , S r . , t o hav ing s ta r t ed t he f i r e i n t he Sepa ras house . The tes t imony o f Me rced i t a Mendoza recoun t i ng sa id adm iss ion i s , un fo r tuna te l y f o r accused -appe l l an t , adm iss ib l e i n ev idence aga ins t he r and i s no t cove red by t he a fo resa id cons t i t u t i ona l gua ran tee . A r t i c l e I I I o f t he Cons t i t u t i on , o r t he B i l l o f R igh t s , so le l y gove rns t he re l a t i onsh ip be tween the i nd i v i dua l on one hand and the S ta te (and i t s agen ts ) on t he o the r ; i t does no t conce rn i t se l f w i t h t he re l a t i on be tween a p r i va te i nd i v i dua l and ano the r p r i va te i nd i v i dua l ' as bo th accused -appe l l an t and p rosecu t i on w i t ness Merced i t a Mendoza undoub ted l y a re . [ 44 ] He re , t he re i s no ev idence on reco rd t o show tha t sa id w i t ness was ac t i ng unde r po l i ce au tho r i t y , so app rop r i a te l y , accused -appe l l an t ' s uncounse l l ed ex t ra j ud i c i a l con fess ion t o sa id w i t ness was p rope r l y adm i t t ed by t he RTC. Accused-appellant likewise assails the admission of the testimony of SPO4 DaniloTalusan.Contending that '[w]hen SPO4 Danilo Talusan testified in court, his story is more of events, which are not within his personal knowledge but based from accounts of witnesses who derived information allegedly from the accused or some other persons x x x. In other words, she objects to the testimony for being merely hearsay. With this imputation of inadmissibility, we agree with what the Court of Appeals had to say: Although this testimony of SFO4 Danilo Talusan is hearsay because he was not present when Gus Abelgas interviewed accused-appellant EDNA, it may nevertheless be admitted in evidence as an independently relevant statement to establish not the truth but the tenor of the statement or the fact that the statement was made [People v.Mallari, G.R. No. 103547, July 20, 1999, 310 SCRA 621 citing People v. Cusi, Jr., G.R. No. L-20986, August 14, 1965, 14 SCRA 944.]. In People vs. Velasquez, G.R. Nos. 132635 & 143872-75, February 21, 2001, 352 SCRA 455, the Supreme Court ruled that: Under the doctrine of independently relevant statements, regardless of their truth or falsity, the fact that such statements have been made is relevant. The hearsay rule does not apply, and the statements are admissible as evidence. Evidence as to the making of such statement is not secondary but primary, for the statement itself may constitute a fact in issue or be circumstantially relevant as to the existence of such a fact.[45]chanroblesvirtuallawlibrary

As rega rds t he con fess ion g i ven by accused -appe l l an t t o t he med ia , we need no t d i scuss i t f u r t he r f o r t he repo r te r s we re neve r p resen ted to t es t i f y i n cou r t . As a f i na l a t t emp t a t excu lpa t i on , accused -appe l l an t asse r t s t ha t s i nce t he i den t i t i es o f t he bu rned bod ies we re neve r conc lus i ve l y es tab l i shed , she canno t be respons ib l e f o r t he i r dea ths . Such asse r t i on i s be re f t o f me r i t . I n t he c r ime o f a r son , t he i den t i t i es o f t he v i c t ims a re immate r i a l i n t ha t i n ten t t o k i l l t hem pa r t i cu la r l y i s no t one o f t he e lemen ts o f t he c r ime . As we have c l a r i f i ed ea r l i e r , t he k i l l i ng o f a pe rson i s abso rbed i n t he cha rge o f a r son , s imp le o r des t ruc t i ve . The p rosecu t i on need on l y p rove , t ha t t he bu rn ing was i n ten t i ona l and tha t wha t was i n ten t i ona l l y bu rned i s an i nhab i t ed house o r dwe l l i ng . Aga in , i n t he case o f Peop le v . So r i ano , [ 46 ] we exp la i ned tha t :

Although intent may be an ingredient of the crime of Arson, it may be inferred from the acts of the accused. There is a presumption that one intends the natural consequences of his act; and when it is shown that one has deliberately set fire to a building, the prosecution is not bound to produce further evidence of his wrongful intent.[ 47 ]

The ultimate query now is which kind of arson is accused-appellant guilty of?

As previously discussed, there are two (2) categories of the crime of arson: 1) destructive arson, under Art. 320 of the Revised Penal Code, as amended by Republic Act No. 7659; and 2) simple arson, under Presidential Decree No. 1613.Said classification is based on the kind, character and location of the property burned, regardless of the value of the damage caused,[48] to wit:

Article 320 of The Revised Penal Code, as amended by RA 7659, contemplates the malicious burning of structures, both public and private, hotels, buildings, edifices, trains, vessels, aircraft, factories and other military, government or commercial establishments by any person or group of persons.[[49]]The classification of this type of crime is known asDestructive Arson, which is punishable by reclusion perpetua to death. The reason for the law is self-evident: to effectively discourage and deter the commission of this dastardly crime, to prevent the destruction of properties and protect the lives of innocent people. Exposure to a brewing conflagration leaves only destruction and despair in its wake; hence, the State mandates greater retribution to authors of this heinous crime. The exceptionally severe punishment imposed for this crime takes into consideration the extreme danger to human lives exposed by the malicious burning of these structures; the danger to property resulting from the conflagration; the fact that it is normally difficult to adopt precautions against its commission, and the difficulty in pinpointing the perpetrators; and, the greater impact on the social, economic, security and political fabric of the nation. [Emphasis supplied.]

If as a consequence of the commission of any of the acts penalized under Art. 320, death should result, the mandatory penalty of death shall be imposed.

On the other hand, PD 1613 which repealed Arts. 321 to 326-B of The Revised Penal Code remains the governing law for Simple Arson. This decree contemplates the malicious burning of public and private structures, regardless of size, not included in Art. 320, as amended by RA 7659, and classified as other cases of arson. These includehouses, dwellings , government buildings, farms, mills, plantations, railways, bus stations, airports, wharves and other industrial establishments.[[50]] Although the purpose of the law on Simple Arson is to prevent the high incidence of fires and other crimes involving destruction, protect the national economy and preserve the social, economic and political stability of the nation, PD 1613 tempers the penalty to be meted to offenders. This separate classification of Simple Arson recognizes the need to lessen

the severity of punishment commensurate to the act or acts committed, depending on the particular facts and circumstances of each case. [Emphasis supplied.]

To emphasize: The nature of Destructive Arson is distinguished from Simple Arson by the degree of perversity or viciousness of the criminal offender. The acts committed under Art. 320 of the Revised Penal Code (as amended) constituting Destructive Arson are characterized as heinous crimes for being grievous, odious and hateful offenses and which, by reason of their inherent or manifest wickedness, viciousness, atrocity and perversity are repugnant and outrageous to the common standards and norms of decency and morality in a just, civilized and ordered society. [51] On the other hand, acts committed under PD 1613 constituting Simple Arson are crimes with a lesser degree of perversity and viciousness that the law punishes with a lesser penalty. In other words, Simple Arson contemplates crimes with less significant social, economic, political and national security implications than Destructive Arson. However, acts falling under Simple Arsonmay nevertheless be converted into Destructive Arson depending on the qualifying circumstances present. [Emphasis supplied.][52] Prescinding from the above clarification vis--vis the description of the crime as stated in the accusatory portion of the Information, it is quite evident that accused-appellant was charged with the crime of Simple Arson ' for having 'deliberately set fire upon the two-storey residential houseof ROBERTO SEPARA and family x x x knowing the same to be an inhabited house and situated in a thickly populated place and as a consequence thereof a conflagration ensued and the said building, together with some seven (7) adjoining residential houses, were razed by fire. [Emphasis supplied.] The facts of the case at bar is somewhat similar to the facts of the case of People v.Soriano.[53]The accused in the latter case caused the burning of a particular house.Unfortunately, the blaze spread and gutted down five (5) neighboring houses.The RTC therein found the accused guilty of destructive arson under paragraph 1[54] of Art. 320 of the Revised Penal Code, as amended by Republic Act No. 7659.This Court, through Mr. Justice Bellosillo, however, declared that: x x x [T]he applicable provision of law should be Sec. 3, par. 2, of PD 1613, which imposes a penalty of reclusion temporal to reclusion perpetuafor other cases of arson as the properties burned by accused-appellant are specifically described as houses, contemplating inhabited houses or dwellings under the aforesaid law. The descriptions as alleged in the second Amended Information particularly refer to the structures as houses rather than as buildings or edifices. The applicable law should therefore be Sec. 3, Par. 2, of PD 1613, and not Art. 320, par. 1 of the Penal Code. In case of ambiguity in construction of penal laws, it is well-settled that such laws shall be construed strictly against the government, and liberally in favor of the accused. The elements of arson under Sec. 3, par. 2, of PD 1613 are: (a) there is intentional burning; and (b) what is intentionally burned is an inhabited house or dwelling. Incidentally, these elements concur in the case at bar.[55] As stated in the body of the Information, accused-appellant was charged with having intentionally burned the two-storey residential house of Robert Separa.Said conflagration likewise spread and destroyed seven (7) adjoining houses. Consequently, if proved, as it was proved, at the trial, she may be convicted, and sentenced accordingly, of the crime of simple arson.Such is the case 'notwithstanding the error in the designation of the offense in the information, the information remains effective insofar as it states the facts constituting the crime alleged therein.[56]What is controlling is not the title of the complaint, nor the designation of the offense charged or the particular law or part thereof allegedly violate, x x x, but the description of the crime charged and the particular facts therein recited.[57] There is, thus, a need to modify the penalty imposed by the RTC as Sec. 5 of PD No. 1613 categorically provides that the penalty to be imposed for simple arson is:

SEC. 5. Where Death Results from Arson. -If by reason of or on the occasion of arson death results, the penalty of reclusion perpetua to death shall be imposed. [Emphasis supplied.] Accordingly, there being no aggravating circumstance alleged in the Information, the imposable penalty on accused-appellant is reclusion perpetua. Apropos the civil liabilities of accused-appellant, current jurisprudence[58] dictate that the civil indemnity due from accused-appellant is P50,000.00 for the death of each of the victims.[59]However, the monetary awards for moral and exemplary damages given by the Court of Appeals, both in the amount of P50,000.00, due the heirs of the victims, have to be deleted for lack of material basis. Similarly, the Court of Appeals award of exemplary damages to Rodolfo Movilla in the amount of P50,000.00 for the destruction of his house, also has to be deleted, but in this instance for being improper. Moral damages cannot be award by this Court in the absence of proof of mental or physical suffering on the part of the heirs of the victims. [60] Concerning the award of exemplary damages, the reason for the deletion being that no aggravating circumstance had been alleged and proved by the prosecution in the case at bar.[61] To summarize, accused-appellant's alternative plea that she be acquitted of the crime must be rejected. With the evidence on record, we find no cogent reason to disturb the findings of the RTC and the Court of Appeals. It is indubitable that accused-appellant is the author of the crime of simple arson. All the circumstantial evidence presented before the RTC, viewed in its entirety, is as convincing as direct evidence and, as such, negates accused-appellant's innocence, and when considered concurrently with her admission given to Mercedita Mendoza, the former's guilt beyond reasonable doubt is twice as evident.Hence, her conviction is effectively justified. More so, as it is propitious to note that in stark contrast to the factual circumstances presented by the prosecution, accused-appellant neither mustered a denial nor an alibi except for the proposition that her guilt had not been established beyond reasonable doubt. IN VIEW WHEREOF, the Decision of the Court of Appeals dated 2 September 2005, i n CA G .R . CR HC No . 01139 , i s he reby AFF IRMED inso fa r as t he conv i c t i on o f accused -appe l l an t EDNA MALNGAN Y MAYO i s conce rned . The sen tence to be imposed and the amoun t o f damages to be awarded , howeve r , a re MODIF IED. I n acco rdance w i t h Sec . 5 o f P res iden t i a l Dec ree No . 1613 , accused -appe l l an t i s he reby sen tenced to RECLUSION PERPETUA. Accused -appe l l an t i s he reby o rde red to pay t he he i r s o f each o f t he v i c t ims P 50 ,000 .00 as c i v i l i ndemn i t y . SO ORDERED.