G.R. Nos. 59568-76 January 11, 1990 PETER NIERRAS, petitioner, vs. HON. AUXENCIO C. DACUYCUY and HON. ANTONIO S. LOPEZ, in their capacity as Presiding Judge, Branch IV, Court of First Instance of Leyte, Palo, Leyte, and City Fiscal of Tacloban City, Leyte, respectively, respondents. Victor C. Veloso for petitioner.

PARAS, J.: Before Us is a petition for certiorari with preliminary injunction for the annulment of the resolution dated September 17, 1981 of the respondent Judge Auxencio C. Dacuycuy in nine (9) criminal cases, entitled "People of the Philippines v. Peter Nierras" docketed as Criminal Cases Nos. 4379, 4380, 4381, 4382, 4383, 4384, 4385, 4386 and 4387, for estafa under Article 315 (2-d) of the Revised Penal Code which denied petitioner's motion to quash. Said motion to quash was filed by petitioner on the ground of double jeopardy as these offenses were already included in Criminal Cases Nos. 3790, 3791, 3792, 3793, 4085, 4122, 4123, 4124, and 4125, entitled "People of the Philippines v. Peter Nierras," for violation of the Bouncing Checks Law or Batas Pambansa Blg. 22, pending before the lower court. In both sets of criminal cases, petitioner entered a plea of not guilty upon arraignment before the lower court. However, immediately after his plea of not guilty in these estafa cases, petitioner moved in open court to be allowed to withdraw his plea of not guilty upon his filing of a motion to quash, which was denied by respondent Judge ruling as follows: The motion to quash should be and is hereby denied. Accused Peter Nierras allegedly issued the checks in favor of complainant Pilipinas Shell Petroleum Corporation in payment of oil products which the latter delivered to him simultaneously with the issuance of the checks. xxx xxx xxx . . . The crime of estafa committed by means of bouncing checks is not committed by mere issuance of a check. Under Art. 315, par. 2 (d) of the Revised Penal Code, as amended by Republic Act 4885, the following are the elements of estafa: (1) the postdating or issuance of a check in payment of an obligation contracted at the time the check was issued; (2) lack of or insufficiency of funds to cover the check; and (3) damage to the payee thereof (People v. Sabio, 86 SCRA 568). Under Batas Pambansa Bilang 22 (1979) the mere issuance of a check without sufficient funds issued in payment of a simultaneous obligation and the check was dishonored upon presentation for that estafa is committed under the Revised Penal Code. At the same time, the drawer will also be liable under Batas Pambansa Bilang 22 for offense of issuing a check without sufficient funds (pp. 1-2, Resolution On Motion To Quash dated September 17, 1981; Annex "MM", Petition). (p. 100, Rollo) The issue now submitted for Our consideration is whether the filing of the nine (9) other informations for estafa against petitioner under the Revised Penal Code after he had earlier been charged with violation of Batas Pambansa Blg. 22 for issuing the same bouncing checks will put him in jeopardy of being convicted twice for the same offenses. In other words, can petitioner be held liable for the nine criminal cases for violation of Batas Pambansa Blg. 22, and separately also be held liable for the crime of estafa under Article 315 (2-d) of the Revised Penal Code for the issuance of the same bouncing checks? It appears that petitioner, a customer of Pilipinas Shell Petroleum Corporation, purchased oil products from it. Simultaneous with the delivery of the products, he issued nine (9) checks in payment thereof. Upon presentation to the Philippine National Bank at Naval, Leyte, said checks were dishonored for the reason that his account was already closed. Thereafter, Pilipinas Shell Petroleum Corporation repeatedly demanded of petitioner either to deposit funds for his checks or pay for the oil products he had purchased but he failed and refused to do either. Petitioner argues that he would be placed in double jeopardy as all the elements of estafa under Article 315 (2-d) of the Revised Penal Code are also present in that crime punishable under Batas Pambansa Bilang 22 namely (1) "the 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." Petitioner's contentions are devoid of merit. Petitioner is charged with two (2) distinct and separate offenses, first under Section 1 of Batas Pambansa Bilang 22 approved on April 3, 1979 which provides that: 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. and, second, under Article 315, (2-d) of the Revised Penal Code which states as follows: Art. 315. Swindling (estafa). Any person who shall defraud another by any of the means mentioned herein below . . . xxx xxx xxx 2. By means of any of the following false pretenses or fraudulent acts, executed prior to or simultaneously with the commission of the fraud; xxx xxx xxx (d) By postdating a check or issuing a check in payment of an obligation when the offender had no funds in the bank, or his funds deposited therein were not sufficient to cover the amount of the check.

What petitioner failed to mention in his argument is the fact that deceit and damage are essential elements in Article 315 (2-d) Revised Penal Code, but are not required in Batas Pambansa Bilang 22. Under the latter law, mere issuance of a check that is dishonored gives rise to the presumption of knowledge on the part of the drawer that he issued the same without sufficient funds and hence punishable (People v. Veridiano, 132 SCRA 523) which is not so under the Penal Code. Other differences between the two also include the following: (1) a drawer of a dishonored check may be convicted under Batas Pambansa Bilang 22 even if he had issued the same for apre-existing obligation, while under Article 315 (2-d) of the Revised Penal Code such circumstance negates criminal liability; (2) specific and different penalties are imposed in each of the two offenses; (3) estafa is essentially a crime against property, while violation of Batas Pambansa Bilang 22 is principally a crime against public interest as it does injury to the entire banking system; (4) violations of Article 315 of the Revised Penal Code are mala in se, while those of Batas Pambansa Bilang 22 are mala prohibita. These differences are better understood by presenting the pertinent discussions on the passage of Batas Pambansa Bilang 22 between the author of the bill, former Solicitor General and Member of the Batasang Pambansa, the Honorable Estelito P. Mendoza, presented in the memorandum for the government as follows: MR. MENDOZA. If there is evidence demonstrating that the act committed does not only violate this proposed Act but also the Revised Penal Code, there will be further prosecution under the Revised Penal Code. That is why it is proposed in this Act that there be a single uniform penalty for all violations in this Act. However the court is given the discretion whether to impose imprisonment or fine or both or also in whatever severity the court may consider appropriate under the circumstances. xxx xxx xxx MR. VELOSO, F. The other way around, it is not so. So precisely, if I file a case for estafa against a particular person for issuance of a bouncing check, then necessarily I can also be prosecuted under this proposed bill. On the other hand, if a person is prosecuted under the proposed bill, it does not necessarily follow that he can be prosecuted for estafa. MR. MENDOZA. This is simply because that in a certain set of circumstances, the offense under this Act is the only offense committed while under a different set of circumstances, not only the offense described in this Act is committed but also estafa. So that, for example, if a check with sufficient funds is issued in payment of a pre-existing obligation and the position of the Government should turn out to be correct that there is no estafa, then the drawer of the check would only be liable under this Act but not under the Revised Penal Code. But if he issues a check in payment, or contemporaneously with incurring, of an obligation, then he will be liable not only for estafa but also for violation for this Act. There is a difference between the two cases. In that situation where the check was issued in payment of a pre-existing obligation, the issuance of the check does not cause damage to the payee and so it is but appropriate that he should not be held for estafa but only for violating this Act. But if he issued a check to induce another, to part with a valuable consideration and the check bounces, then he does inflict an injury to the payee of the check apart from violating this law. In that case, it should be but fair that he be subject to prosecution not only for estafa but also for violating this law. MR. VELOSO, F. Yes, I agree with the Solicitor General on that point but my worry is with respect to situations where there is prosecution first to estafa. MR. MENDOZA. Well, if there is estafa . . . MR. VELOSO, F. Estafa committed by the issuance of a bouncing check, in which case it will be mandatory on the part of the prosecuting official to also file a case for violation of this offense under the proposed bill. MR. MENDOZA. Yes, that is correct. In such a situation because if the offender did not only cause injury on account of the issuance of the check but did issue a bouncing check penalized under this Act, then he will be liable for prosecution under both laws. I would admit that perhaps in such situation, the penalty may be somewhat severe. As a matter of fact, in other jurisdictions, the issuance of bouncing checks is penalized with substantially lower penalty. However, because of the situation in the Philippines, the situation being now relatively grave that practically everybody is complaining about bouncing checks, may be it is necessary at least initially, at this point in time for us to impose a rather severe penalty and even allow liability not only under this Act but also for estafa. Then perhaps, after the necessary discipline has been inculcated in our people and that the incidence of the offense has been reduced, we may then decide to amend the law and reduce the penalty. But at this time, shall we say the evil is of such magnitude that only a dramatic and expeditious effort to prosecute persons who issue bouncing checks may be necessary to curb quickly this evil. (explanations given by Solicitor General ESTELITO P. MENDOZA at the Batasan Pambansa during his sponsorship speech of BP 22 which he authored, pages 1037-1038, Record of the Batasan, Plenary Session No. 70, Dec. 4, 1978). (Emphasis supplied). (pp. 115-117,Rollo or pp. 9-11, Memorandum for respondents). Furthermore, Section 5 of Batas Pambansa Bilang 22 provides that: Prosecution under this Act shall be without prejudice to any liability for violation of any provision of the Revised Penal Code. While the filing of the two sets of Information under the provisions of Batas Pambansa Bilang 22 and under the provisions of the Revised Penal Code, as amended, on estafa, may refer to identical acts committed by petitioner, the prosecution thereof cannot be limited to one offense, because a single criminal act may give rise to a multiplicity of offenses and where there is variance or differences between the elements of an offense in one law and another law as in the case at bar there will be no double jeopardy because what the rule on double jeopardy prohibits refers to identity of elements in the two (2) offenses. Otherwise stated prosecution for the same act is not prohibited. What is forbidden is prosecution for the same offense. Hence, the mere filing of the two (2) sets of information does not itself give rise to double jeopardy (People v. Miraflores, 115 SCRA 570). In the instant petition, certiorari is not the proper remedy. We have held in Acharon v. Purisima, et al. (13 SCRA 309) that "when a motion to quash a criminal case is denied, remedy is not certiorari but to go to court without prejudice to reiterating special defenses invoked in the motion, and if after trial on the merits, an adverse decision is rendered, to appeal therefrom in the manner authorized

by law," invoking the rule laid down in People v.Magdaluyo (1 SCRA 990). If the petitioner cannot appeal at this state of the proceeding, it is because there is still a necessity for the trial on the merits wherein the parties may present proofs in support of their contentions and not because the remedy of appeal is unavailing. WHEREFORE, premises considered, the petition for certiorari is hereby DISMISSED for lack of merit. SO ORDERED. Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Grio-Aquino, Medialdea and Regalado, JJ., concur. Fernan, C.J., took no part.

.R. Nos. 104238-58. June 3, 2004]

PEOPLE OF THE PHILIPPINES, appellee, vs. CORA ABELLA OJEDA, appellant. DECISION CORONA, J.: For review is the decision[1] dated June 21, 1991 of the Regional Trial Court of Manila, Branch 38, the dispositive portion of which

read:

WHEREFORE, the Court finds accused Cora Abella Ojeda guilty beyond reasonable doubt of the crime of Estafa as defined and penalized under paragraph 2(d) of Article 315 of the Revised Penal Code, as amended by Rep. Act 4885, in Criminal Case No. 8866228 and hereby sentences her to suffer a penalty of reclusion perpetua, with the accessories provided by law and with credit for preventive imprisonment undergone, if any, in accordance with Article 29 of the Revised Penal Code as amended, and to pay complainant Ruby Chua the amount of Two Hundred Twenty Eight Thousand Three Hundred Six (P228,306.00) Pesos with interests thereon from the time of demand until fully paid. Likewise, the Court also finds the said accused guilty for Violation of Batas Pambansa Blg. 22 in Criminal Cases Nos. 88-66230, 8866232, 88-66235 to 88-66240, 88-66242, 88-66243, 88- 66245 to 88-66248 (14) counts and hereby sentences her to suffer a penalty of one year of imprisonment for each count. On the other hand, the other charges docketed as Criminal Cases Nos. 88- 66229, 8866231, 88-66233, 88-66234, 88-66241 and 88-66244 are hereby dismissed for insufficiency of evidence. Costs against accused in all instances.[2] Appellant Cora Abella Ojeda was charged in 21 separate Informations for estafa in Criminal Case No. 88-66228 and for violation of Batas Pambansa (BP) 22 in Criminal Case Nos. 88-66229 to 88-66248. The Information charging Ojeda with estafa read: That on or about the first week of November, 1983, in the City of Manila, Philippines, the said accused did then and there willfully, unlawfully and feloniously defraud RUBY CHUA in the following manner, to wit: the said accused, well knowing that she did not have sufficient funds in the bank and without informing the said Ruby Chua of such fact drew, made out and issued to the latter the following post-dated Rizal Commercial Banking Corporation checks, to wit: Check No. 1. 033550 2. 041782 3. 042935 4. 041799 5. 033530 6. 041714 7. 042942 8. 041783 9. 041800 10. 041788 11. 033529 12. 041784 13. 042901 14. 042902 15. 041785 16. 042903 17. 033532 18. 041786 19. 042905 20. 043004 21. 042907 22. 042906 Date Nov. Nov. Nov. Nov. Nov. Nov. Nov. Nov. Nov. Nov. Nov. Nov. Nov. Nov. Nov. Nov. Nov. Nov. Dec. Dec. Dec. Dec. 5, 1983 5, 1983 6, 1983 9, 1983 10, 1983 10, 1983 10, 1983 12, 1983 14, 1983 15, 1983 15, 1983 18, 1983 18, 1983 23, 1983 25, 1983 29, 1983 29, 1983 30, 1983 8, 1983 10, 1983 15, 1983 18, 1983 Amount P17,100.00 5,392.34 1,840.19 11,953.38 19,437.34 26, 890.00 1,941.59 5,392.34 11,953.39 3,081.90 19,437.34 5,392.34 11,953.38 11,953.38 5,392.34 11,953.38 13,603.22 5,392.34 11,953.39 2,386.25 11,953.38 11,953.39

P228,306.60

in payment of various fabrics and textile materials all in the total amount of P228,306.60 which the said accused ordered or purchased from the said RUBY CHUA on the same day; that upon presentation of the said checks to the bank for payment, the same were dishonored and payment thereof refused for the reason Account Closed, and said accused, notwithstanding due notice to her by the said Ruby Chua of such dishonor of the said checks, failed and refused and still fails and refuses to deposit the necessary amount to cover the amount of the checks to the damage and prejudice of the said RUBY CHUA in the aforesaid amount of P228,306.60, Philippine currency.

Contrary to law. The Informations charging Ojeda for violation of BP 22 were similarly worded except for the amounts of the checks, the check numbers and the dates of the checks: That on or about the first week of November 1983, in the City of Manila, Philippines, the said accused did then and there wilfully, unlawfully and feloniously make or draw and issue to RUBY CHUA to apply on account or for value Rizal Commercial Banking Corp. Check No. 041784 dated November 18, 1983 payable to Ruby Chua in the amount of P5,392.34, said accused well knowing that at the time of issue he/she/they did not have sufficient funds in or credit with the drawee bank or payment of such check in full upon its presentment, which check, when presented for payment within ninety (90) days from the date thereof was subsequently dishonored by the drawee bank for insufficiency of funds, and despite receipt of notice of such dishonor, said accused failed to pay said complainant the amount of said check or to make arrangement for full payment of the same within five (5) banking days after receiving said notice. Contrary to law. The pertinent facts of the case follow. Appellant Cora Abella Ojeda used to buy fabrics (telas) from complainant Ruby Chua. For the three years approximately she transacted business with Chua, appellant used postdated checks to pay for the fabrics she bought. On November 5, 1983, appellant purchased from Chua various fabrics and textile materials worth P228,306 for which she issued 22 postdated checks bearing different dates and amounts. Chua later presented to the bank for payment check no. 033550 dated November 5, 1983 in the amount of P17,100[3] but it was dishonored due to Account Closed.[4] On April 10, 1984, Chua deposited the rest of the checks but all were dishonored for the same reason.[5] Demands were allegedly made on the appellant to make good the dishonored checks, to no avail. Estafa and BP 22 charges were thereafter filed against appellant. The criminal cases were consolidated and appellant, on arraignment, pleaded not guilty to each of the charges. On the whole, appellants defense was grounded on good faith or absence of deceit, lack of notice of dishonor and full payment of the total amount of the checks. With the exception of six checks[6] which did not bear her signature, appellant admitted that she issued the postdated checks which were the subject of the criminal cases against her. She, however, alleged that she told Chua not to deposit the postdated checks on maturity as they were not yet sufficiently funded. Appellant also claimed that she made partial payments to Chua in the form of finished garments worth P50,000. This was not rebutted by the prosecution. The trial court convicted appellant of the crime of estafa as defined and penalized under paragraph 2(d) of Article 315 of the Revised Penal Code (RPC), and sentenced her to reclusion perpetua. The trial court also convicted appellant of violation of BP 22 for issuing bouncing checks. However, the court a quo held her guilty of only 14 counts out of the 22 bouncing checks issued. The court reasoned: xxx This is due to the fact that of the 22 checks, two of them are not covered by the indictment. This refers to Check No. 042935 dated November 6, 1983 in the amount of P1,840.19 (Exhibit D) and Check No. 042942 dated November 10, 1983 in the amount of P1,941.59 (Exhibit F). And of the total number of checks, six of them were not signed by the accused but by the latters husband (Exhibits C,H,J,M,R and O). The accused should not be liable for the issuance of the 6 checks in the absence of any showing of conspiracy.[7] Appellant appealed to this Court, seeking acquittal. Her counsel, however, failed to file the appellants brief within the prescribed period. Her appeal was thus dismissed in a resolution of this Court dated October 14, 1992.[8] In her motion for reconsideration, appellant asked this Court to reverse its order of dismissal in the interest of substantial justice and equity.[9]We initially found no compelling reason to grant her motion and resolved to deny with finality appellants MR in a resolution dated February 3, 1993.[10] Appellant thereafter filed a Second and Urgent Motion for Reconsideration, attaching thereto an Affidavit of Desistance of complainant Ruby Chua which stated in part: xxx xxx xxx.

2. that the defendant Mrs. Cora Ojeda has already fully paid her monetary obligation to me in the amount of P228,306.00 which is the subject of the aforementioned cases; xxx xxx xxx.

5. That as the private complainant, I am now appealing to the sense of compassion and humanity of the good justices of the Supreme Court to reconsider the appeal of Mrs. Cora Ojeda and I solemnly pray that the criminal liability be extinguished with her civil liability.[11]

In a resolution dated March 17, 1993, [12] this Court denied the second MR for having been filed without leave of court. In the same resolution, this Court ordered the entry of judgment in due course. Appellant thereafter filed another motion dated April 21, 1993, praying that she be recommended to then President Fidel V. Ramos for executive clemency. In support of such motion, she once more attached the affidavit of desistance [13] of complainant Ruby Chua which categorically declared that the defendant, Ms. Cora Ojeda, (had) already fully paid her monetary obligations to (Chua) in the amount ofP228,306 which (was) the subject of the aforementioned cases.[14] In view of such special circumstances, this Court issued a resolution dated June 9, 1993[15] recalling its resolutions dated October 14, 1992, February 3, 1993 and March 17, 1993 for humanitarian reasons and in the interest of justice, and in order that this Court may resolve appellants appeal on the merits.[16] Hence, the instant appeal with the following assignments of error: I. THE LOWER COURT ERRED IN FINDING THAT DECEIT WAS EMPLOYED BY ACCUSED APPELLANT WHEN SHE ISSUED THE CHECKS TO THE PRIVATE COMPLAINANT. II.

THE LOWER COURT ERRED IN NOT FINDING THAT THE ISSUANCE BY THE ACCUSED-APPELLANT OF THE CHECKS TO THE PRIVATE COMPLAINANT WAS MERELY A MODE OF PAYMENT WHICH ARRANGEMENT HAD BEEN THEIR PRACTICE FOR THREE (3) YEARS. III. THE LOWER COURT ERRED IN NOT FINDING THAT GOOD FAITH IS A VALID DEFENSE AGAINST ESTAFA BY POSTDATING A CHECK IV. THE LOWER COURT ERRED IN CONVICTING THE ACCUSED OF FOURTEEN (14) COUNTS OF B.P. 22 WHEN THERE WAS NO PROOF OF NOTICE OF DISHONOR TO THE ACCUSED. V. THE LOWER COURT ERRED IN NOT FINDING THAT SINCE 13 OF THE 14 CHECKS WERE DEPOSITED ONLY AFTER THE LAPSE OF THE 90 DAY PERIOD, HENCE, THE PRIMA FACIE PRESUMPTION OF KNOWLEDGE DOES NOT APPLY.[17] Appellant firmly denies any criminal liability for estafa. She argues there was no deceit employed when she issued the checks because she never assured Chua that the checks were funded. Chua allegedly knew all along that the checks were merely intended to guarantee future payment by appellant. Appellant further claims good faith in all her transactions with Chua for three years. She explained that her failure to fund the checks was brought about by the collapse of the countrys economy in the wake of the Aquino assassination in 1983. The capital flight and financial chaos at that time caused her own business to shut down when her customers also failed to pay her. Despite the closure of her business, appellant maintains that she did her best to continue paying Chua what she owed and, when she could no longer pay in cash, she instead paid in kind in the form of finished goods. But these were not enough to cover her debts. Nevertheless, she spared no effort in complying with her financial obligations to Chua until she was gradually able to pay all her debts, a fact fully admitted as true by complainant in her affidavit. From the foregoing, appellant contends that the element of deceit thru abuse of confidence or false pretenses was not present. Thus, her guilt was not established with satisfactory proof. Appellant asserts that good faith on her part was a valid defense to rebut the prima faciepresumption of deceit when she issued the checks that subsequently bounced. Furthermore, out of the 14 checks cited in the decision of the trial court, only one check was deposited within 90 days from due date. This was check no. 033550 dated November 5, 1983. The rest of the checks were deposited only on April 10, 1984 or more than 90 days from the date of the last check.[18] Appellant also denies she received any notice of dishonor of the checks, contrary to the findings of the trial court. She was not even aware that cases had already been filed against her for violation of BP 22. Since there was allegedly no proof of notice[19] of the dishonor of the checks, appellant claims that she cannot be convicted of violation of BP 22. On the other hand, the Solicitor General contends that appellant was criminally liable for issuing worthless checks. Complainant Chua accepted the postdated checks as payment because of appellants good credit standing. She was confident that appellants checks were good checks. Thus, no assurances from appellant that the checks were sufficiently funded were needed for Chua to part with her goods. And when the checks later bounced, appellant betrayed the confidence reposed in her by Chua. The Solicitor General also argues that there was a simultaneous exchange of textile materials and checks between complainant and appellant. Complainant Chua would not have parted with her telas had she known that appellants checks would not clear. Appellant obtained something in exchange for her worthless checks. When she issued them, she knew she had no funds to back up those checks because her account had already been closed. Yet, she did not inform Chua that the checks could not be cashed upon maturity. She thus deceived Chua into parting with her goods and the deceit employed constituted estafa. We grant the appeal.

DECEIT AND DAMAGE AS ELEMENTS OF ESTAFA

Under paragraph 2 (d) of Article 315 of the RPC, as amended by RA 4885, [20] the elements of estafa are: (1) a check is postdated or issued in payment of an obligation contracted at the time it is issued; (2) lack or insufficiency of funds to cover the check; (3) damage to the payee thereof. Deceit and damage are essential elements of the offense and must be established by satisfactory proof to warrant conviction.[21] Thus, the drawer of the dishonored check is given three days from receipt of the notice of dishonor to cover the amount of the check. Otherwise aprima facie presumption of deceit arises. The prosecution failed to prove deceit in this case. The prima facie presumption of deceit was successfully rebutted by appellants evidence of good faith, a defense in estafa by postdating a check.[22] Good faith may be demonstrated, for instance, by a debtors offer to arrange a payment scheme with his creditor. In this case, the debtor not only made arrangements for payment; as complainant herself categorically stated, the debtor-appellant fully paid the entire amount of the dishonored checks. It must be noted that our Revised Penal Code was enacted to penalize unlawful acts accompanied by evil intent denominated as crimesmala in se. The principal consideration is the existence of malicious intent. There is a concurrence of freedom, intelligence and intent which together make up the criminal mind behind the criminal act. Thus, to constitute a crime, the act must, generally and in most cases, be accompanied by a criminal intent. Actus non facit reum, nisi mens sit rea. No crime is committed if the mind of the person performing the act complained of is innocent. As we held in Tabuena vs. Sandiganbayan:[23] The rule was reiterated in People v. Pacana, although this case involved falsification of public documents and estafa: Ordinarily, evil intent must unite with an unlawful act for there to be a crime. Actus non facit reum, nisi mens sit rea. There can be no crime when the criminal mind is wanting. American jurisprudence echoes the same principle. It adheres to the view that criminal intent in embezzlement is not based on technical mistakes as to the legal effect of a transaction honestly entered into, and there can be no embezzlement if the mind of the person doing the act is innocent or if there is no wrongful purpose. The accused may thus prove that he acted in good faith and that he had no intention to convert the money or goods for his personal benefit.[24] We are convinced that appellant was able to prove the absence of criminal intent in her transactions with

Chua. Had her intention been tainted with malice and deceit, appellant would not have exerted extraordinary effort to pay the complainant, given her own business and financial reverses.

LACK OF NOTICE OF DISHONOR

We also note that the prosecution presented virtually no evidence to show that the indispensable notice of dishonor was sent to and received by appellant. Excerpts from the following testimony of complainant are significant: ATTY. ANGELES: Q A Now, Mrs. Witness, when these checks from Exhibits A to V have bounced, what steps, did you do? I consulted my lawyer and she wrote a Demand Letter.

COURT: Q A What is the name of that lawyer? Atty. Virginia Nabora.

ATTY. ANGELES: Q A Q A Now, you mentioned a Demand Letter sent by Atty. Virginia Nabor, I am showing to you this Demand Letter dated March 16, 1988, will you kindly examine the same if this is the same Demand Letter you mentioned a while ago? Yes, sir. Now, on this second page of this Demand Letter there is a signature above the printed name Virginia Guevarra Nabor, do you know the signature, Mrs. Witness? Yes, that is the signature of my lawyer.

ATTY. ANGELES: May we request that this Demand Letter dated March 16, 1988 consisting of two (2) pages, Your Honor, be marked as Exhibit W and that the signature on the second page of this letter of Virginia Guevarra Nabor be encircled and be marked as Exhibit W-1 and that the attached Registry Receipt, Your Honor, be marked as Exhibit W-2. COURT: Mark them. ATTY. ANGELES: Q A Q Now, Mrs. Witness, why do you know that this is the signature of Virginia Guevarra Nabor? After preparing that I saw her sign the letter. Now, after sending this Demand Letter, do you know If the accused herein made payments or replaced the checks that were issued to you?

COURT: Q Of course, you assumed that the accused received that letter, that is his basis on the premise that the accused received that letter?

ATTY. ANGELES: A Yes, Your Honor.

COURT: Q What proof is there to show that accused received the letter because your question is premises (sic) on the assumption that the accused received the letter?

ATTY. ANGELES: Q A Now, do you know Mrs. Witness if the accused received the letter? There is a registry receipt.

COURT: Q A Q A Now, later on after sending that letter, did you have communication with the accused? I kept on calling her but I was not able to get in touch with her. But do you know if that letter of your lawyer was received by the accused? I was not informed by my lawyer but I presumed that the same was already received by the accused.

ATTY. ANGELES: Q A Now, aside from sending this Demand Letter, do you know what your lawyer did? We filed a case with the Fiscals.[25]

Aside from the above testimony, no other reference to the demand letter was made by the prosecution. The prosecution claimed that the demand letter was sent by registered mail. To prove this, it presented a copy of the demand letter as well as the registry return receipt bearing a signature which was, however, not even authenticated or identified. A registry receipt alone is insufficient as proof of mailing.[26] Receipts for registered letters and return receipts do not prove themselves; they must be properly authenticated in order to serve as proof of receipt of the letters.[27] It is clear from the foregoing that complainant merely presumed that appellant received the demand letter prepared and sent by her lawyer. She was not certain if appellant indeed received the notice of dishonor of the checks. All she knew was that a demand letter was sent by her lawyer to the appellant. In fact, right after complainant made that presumption, her lawyer filed the criminal cases against appellant at the Fiscals office[28] without any confirmation that the demand letter supposedly sent through registered mail was actually received by appellant.

With the evident lack of notice of dishonor of the checks, appellant cannot be held guilty of violation of BP 22. The lack of such notice violated appellants right to procedural due process. It is a general rule that when service of notice is an issue, the person alleging that the notice was served must prove the fact of service.[29] The burden of proving receipt of notice rests upon the party asserting it and the quantum of proof required for conviction in this criminal case is proof beyond reasonable doubt. When, during the trial, appellant denied having received the demand letter, it became incumbent upon the prosecution to prove that the demand letter was indeed sent through registered mail and that the same was received by appellant. But it did not. Obviously, it relied merely on the weakness of the evidence of the defense. This Court therefore cannot, with moral certainty, convict appellant of violation of BP 22. The evident failure of the prosecution to establish that she was given the requisite notice of dishonor justifies her acquittal.[30] As held in Lao vs. Court of Appeals:[31] 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. 22. Stated otherwise, responsibility under BP 22 was personal to appellant; hence, personal knowledge of the notice of dishonor was necessary. Consequently, while there may have been constructive notice to appellant regarding the insufficiency of her funds in the bank, it was not enough to satisfy the requirements of procedural due process. Finally, it is worth mentioning that notice of dishonor is required under both par. 2(d) Art. 315 of the RPC and Sec. 2 of BP 22. While the RPC prescribes that the drawer of the check must deposit the amount needed to cover his check within three days from receipt of notice of dishonor, BP 22, on the other hand, requires the maker or drawer to pay the amount of the check within five days from receipt of notice of dishonor. Under both laws, notice of dishonor is necessary for prosecution (for estafa and violation of BP 22). Without proof of notice of dishonor, knowledge of insufficiency of funds cannot be presumed and no crime (whether estafa or violation of BP 22) can be deemed to exist. WHEREFORE, the decision of the trial court is hereby REVERSED and SET ASIDE. Appellant Cora Abella Ojeda is ACQUITTED in Criminal Case No. 88-66228 for estafa and in Criminal Case Nos. 88-66230, 88-66232, 88-66235 to 88-66240, 88-66242, 88-66243, 88-66245 to 88-66248 for violation of BP 22. SO ORDERED. Vitug, (Chairman), Sandoval-Gutierrez, and Carpio-Morales, JJ., concur.

[1] [2] [3] [4] [5] [6] [7] [8] [9]

Penned by Judge Arturo U. Barias, Jr. Rollo, p. 40. Exhibit A. Exhibit Y. Exhibits X, Y, AA, BB and CC. Exhibits C, H, J, M, O and R. Record, p. 139. Rollo, p. 47. Rollo, p. 49. Rollo, p. 52. Ibid., p. 61. Rollo, p. 62. Rollo, p. 70. Ibid. Rollo, p. 76. Rollo, p. 76. Rollo, pp. 87-88. Section 2 of BP 22 states: 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 insufficiently 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.

[10] [11] [12] [13] [14] [15] [16] [17] [18]

[19] [20]

Ibid. Art. 315 par. 2(d) of the Revised Penal Code states: (d) By postdating a check, or issuing a check in payment of an obligation when the offender had no funds in the bank, or his funds deposited therein were not sufficient to cover the amount of the check. The failure of the drawer of the check to deposit the amount necessary to cover his check within three (3) days from receipt of notice from the bank and/or the payee or holder that said check has been dishonored for lack or insufficiency of funds shall be prima facie evidence of deceit constituting false pretense or fraudulent act.

[21]

People vs. Chua, 315 SCRA 326 [1999].

[22]

People vs. Gulion, 349 SCRA 610 [2001]; Vallarta vs. Court of Appeals, 150 SCRA 336 [1987]; People vs. Villapando, 56 Phil. 31 [1931]. 268 SCRA 332 [1997]. Lecaroz vs. Sandiganbayan, 305 SCRA 396 [1999]. TSN, December 7, 1989, pp. 37-43. Ting vs. Court of Appeals, 344 SCRA 551 [2000], citing Central Trust Co. vs. City of Des Moines, 218 NW 580. Ting vs. Court of Appeals, ibid. TSN, December 7, 1989, pp. 42-23. Ting vs. Court of Appeals, supra, citing 58 Am Jur 2d, Notice, 45. Caras vs. Court of Appeals, 366 SCRA 371 [2001]. Lao vs. Court of Appeals, 274 SCRA 572 [1997].

[23] [24] [25] [26] [27] [28] [29] [30] [31]

Without proof of notice of dishonor, knowledge of insufficiency of funds cannot be presumed and no crime (whether estafa or violation of BP 22) can be deemed to exist Posted on April 8, 2011 DECEIT AND DAMAGE AS ELEMENTS OF ESTAFA

Under paragraph 2 (d) of Article 315 of the RPC, as amended by RA 4885,[20] the elements of estafa are: (1) a check is postdated or issued in payment of an obligation contracted at the time it is issued; (2) lack or insufficiency of funds to cover the check; (3) damage to the payee thereof. Deceit and damage are essential elements of the offense and must be established by satisfactory proof to warrant conviction.[21] Thus, the drawer of the dishonored check is given three days from receipt of the notice of dishonor to cover the amount of the check. Otherwise a prima facie presumption of deceit arises. The prosecution failed to prove deceit in this case. The prima facie presumption of deceit was successfully rebutted by appellants evidence of good faith, a defense in estafa by postdating a check.[22] Good faith may be demonstrated, for instance, by a debtors offer to arrange a payment scheme with his creditor. In this case, the debtor not only made arrangements for payment; as complainant herself categorically stated, the debtor-appellant fully paid the entire amount of the dishonored checks. It must be noted that our Revised Penal Code was enacted to penalize unlawful acts accompanied by evil intent denominated as crimes mala in se. The principal consideration is the existence of malicious intent. There is a concurrence of freedom, intelligence and intent which together make up the criminal mind behind the criminal act. Thus, to constitute a crime, the act must, generally and in most cases, be accompanied by a criminal intent. Actus non facit reum, nisi mens sit rea. No crime is committed if the mind of the person performing the act complained of is innocent. As we held in Tabuena vs. Sandiganbayan:[23] The rule was reiterated in People v. Pacana, although this case involved falsification of public documents and estafa: Ordinarily, evil intent must unite with an unlawful act for there to be a crime. Actus non facit reum, nisi mens sit rea. There can be no crime when the criminal mind is wanting. American jurisprudence echoes the same principle. It adheres to the view that criminal intent in embezzlement is not based on technical mistakes as to the legal effect of a transaction honestly entered into, and there can be no embezzlement if the mind of the person doing the act is innocent or if there is no wrongful purpose.

The accused may thus prove that he acted in good faith and that he had no intention to convert the money or goods for his personal benefit.[24] We are convinced that appellant was able to prove the absence of criminal intent in her transactions with Chua. Had her

intention been tainted with malice and deceit, appellant would not have exerted extraordinary effort to pay the complainant, given her own business and financial reverses. Aside from the above testimony, no other reference to the demand letter was made by the prosecution. The prosecution claimed that the demand letter was sent by registered mail. To prove this, it presented a copy of the demand letter as well as the registry return receipt bearing a signature which was, however, not even authenticated or identified. A registry receipt alone is insufficient as proof of mailing.[26] Receipts for registered letters and return receipts do not prove themselves; they must be properly authenticated in order to serve as proof of receipt of the letters.[27] It is clear from the foregoing that complainant merely presumed that appellant received the demand letter prepared and sent by her lawyer. She was not certain if appellant indeed received the notice of dishonor of the checks. All she knew was that a demand letter was sent by her lawyer to the appellant. In fact, right after complainant made that presumption, her lawyer filed the criminal cases against appellant at the Fiscals office[28]without any confirmation that the demand letter supposedly sent through registered mail was actually received by appellant. With the evident lack of notice of dishonor of the checks, appellant cannot be held guilty of violation of BP 22. The lack of such notice violated appellants right to procedural due process. It is a general rule that when service of notice is an issue, the person alleging that the notice was served must prove the fact of service.[29] The burden of proving receipt of notice rests upon the party asserting it and the quantum of proof required for conviction in this criminal case is proof beyond reasonable doubt. When, during the trial, appellant denied having received the demand letter, it became incumbent upon the prosecution to prove that the demand letter was indeed sent through registered mail and that the same was received by appellant. But it did not. Obviously, it relied merely on the weakness of the evidence of the defense.

This Court therefore cannot, with moral certainty, convict appellant of violation of BP 22. The evident failure of the prosecution to establish that she was given the requisite notice of dishonor justifies her acquittal.[30] As held in Lao vs. Court of Appeals:[31] 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. 22.

Stated otherwise, responsibility under BP 22 was personal to appellant; hence, personal knowledge of the notice of dishonor was necessary. Consequently, while there may have been constructive notice to appellant regarding the insufficiency of her funds in the bank, it was not enough to satisfy the requirements of procedural due process.

Finally, it is worth mentioning that notice of dishonor is required under both par. 2(d) Art. 315 of the RPC and Sec. 2 of BP 22. While the RPC prescribes that the drawer of the check must deposit the amount needed to cover his check within three days from receipt of notice of dishonor, BP 22, on the other hand, requires the maker or drawer to pay the amount of the check within five days from receipt of notice of dishonor. Under both laws, notice of dishonor is necessary for prosecution (for estafa and violation of BP 22). Without proof of notice of dishonor, knowledge of insufficiency of funds cannot be presumed and no crime (whether estafa or violation of BP 22) can be deemed to exist. http://sc.judiciary.gov.ph/jurisprudence/2004/jun2004/104238_58.htm

JOINT COUNTER-AFFIDAVIT OF THE RESPONDENTS X x x

THE UNDERSIGNED RESPONDENTS respectfully state:

1.

ADMISSIONS AND DENIALS.

X x x. (omitted)

2. 2.1.

DISCUSSION The relevant provisions of the Revised Penal Code on estafa (deceit/swindling) are as follows: Article 315. Swindling (estafa). Any person who shall defraud another by any of the means mentioned hereinbelow shall be punished by: 1st. The penalty of prision correccional in its maximum period to prision mayor in its minimum period, 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 not exceed twenty years. In such case, and in connection with the accessory penalties which may be imposed and for the purpose of other the provisions of this Code, the penalty shall be termed prision mayor or reclusion temporal, as the case may be. 2nd. The penalty of prision correccional in its minimum and medium periods, if the amount of the fraud is over 6,000 pesos but does not exceed 12,000 pesos; 3rd. The penalty of arresto mayor in its maximum period to prision correccional in its minimum period, if such amount is over 200 pesos but does not exceed 6,000 pesos; and 4th. By arresto mayor in its medium and maximum periods, if such amount does not exceed 200 pesos, provided that in the four cases mentioned, the fraud be committed by any of the following means: 1. With unfaithfulness or abuse of confidence, namely: (a) By altering the substance, quantity, or quality of anything of value which the offender shall deliver by virtue of an obligation to do so, even though such obligation be based on an immoral or illegal consideration. (b) By misappropriating or converting, to the prejudice of another, money, goods, or any other personal property received by the offender in trust or on commission, or for administration, or under any other obligation involving the duty to make delivery of or to return the same, even though such obligation be totally or partially guaranteed by a bond; or by denying having received such money, goods, or other property. (c) By taking undue advantage of the signature of the offended party in blank, and by writing any document above such signature in blank, to the prejudice of the offended party or of any third person. 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.

(b) By altering the quality, fineness or weight of anything pertaining to his art or business. (c) By pretending to have bribed any Government employee, without prejudice to the action for calumny which the offended party may deem proper to bring against the offender. In this case, the offender shall be punished by the maximum period of the penalty. (d) By post-dating a check, or issuing a check in payment of an obligation when the offender had no funds in the bank, or his funds deposited therein were not sufficient to cover the amount of check. The failure of the drawer of the check to deposit the amount necessary to cover his check within three (3) days from receipt of notice from the bank and/or the payee or holder that said check has been dishonored for lack of insufficiency of funds shall be prima facie evidence of deceit constituting false pretense or fraudulent act. (As amended by Republic Act No. 4885, approved June 17, 1967.) (e) By obtaining any food, refreshment or accommodation at a hotel, inn, restaurant, boarding house, lodging house, or apartment house and the like without paying therefor, with intent to defraud the proprietor or manager thereof, or by obtaining credit at a hotel, inn, restaurant, boarding house, lodging house, or apartment house by the use of any false pretense, or by abandoning or surreptitiously removing any part of his baggage from a hotel, inn, restaurant, boarding house, lodging house or apartment house after obtaining credit, food, refreshment or accommodation therein without paying for his food, refreshment or accommodation. (As amended by Com. Act No. 157.) 3. Through any of the following fraudulent means: (a) By inducing another, by means of deceit, to sign any document. (b) By resorting to some fraudulent practice to insure success in a gambling game. (c) By removing, concealing or destroying, in whole or in part, any court record, office files, document or any other papers. X x x.

2.2.

In the case of DIONISIO AW a.k.a. TONY GO vs. PEOPLE OF THE PHILIPPINES, GR No. 182276, March 29, 2010, the elements of Estafa were discussed by the Supreme Court, thus:

Xxx.

The elements of Estafa under Article 315, Paragraph 1(B) of the Revised Penal Code are:

(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.

The first element of Estafa under Article 315, Paragraph 1(B) is the receipt by the offender of the money, goods, or other personal property 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.

X x x.

We next turn to the second element of Estafa under Article 315, Paragraph 1(B) namely, prejudice and the third element, therein of misappropriation.

The essence of Estafa under Article 315, paragraph 1(b) is the appropriation or conversion of money or property received to the prejudice of the owner. The words convert and misappropriate connote an act of using or disposing of anothers property as if it

were ones own, or of devoting it to a purpose or use different from that agreed upon. To misappropriate for ones own use includes not only conversion to ones personal advantage, but also every attempt to dispose of the property of another without right.

X x x.

2.3.

In the case of ROSITA SY vs. PEOPLE OF THE PHILIPPINES, G.R. No. 183879, April 14, 2010 discussed the ways of committing the felony of estafa, thus:

X x x.

The sole issue for resolution is whether Sy should be held liable forestafa, penalized under Article 315, paragraph 2(a) of the Revised Penal Code (RPC).

Swindling or estafa is punishable under Article 315 of the RPC. There are three ways of committing estafa, viz.: (1) with unfaithfulness or abuse of confidence; (2) by means of false pretenses or fraudulent acts; or (3) through fraudulent means. The three ways of committing estafa may be reduced to two, i.e., (1) by means of abuse of confidence; or (2) by means of deceit.

The elements of estafa in general are the following: (a) that an accused defrauded another by abuse of confidence, or by means of deceit; and (b) that damage and prejudice capable of pecuniary estimation is caused the offended party or third person.

The act complained of in the instant case is penalized under Article 315, paragraph 2(a) of the RPC, wherein estafa is committed by any person who shall defraud another by false pretenses or fraudulent acts executed prior to or simultaneously with the commission of the fraud. It is committed by using fictitious name, or by pretending to possess power, influence, qualifications, property, credit, agency, business or imaginary transactions, or by means of other similar deceits.

The elements of estafa by means of deceit are the following, viz.: (a) that there must be a false pretense or fraudulent representation as to his power, influence, qualifications, property, credit, agency, business or imaginary transactions; (b) that such false pretense or fraudulent representation was made or executed prior to or simultaneously with the commission of the fraud; (c) that the offended party relied on the false pretense, fraudulent act, or fraudulent means and was induced to part with his money or property; and (d) that, as a result thereof, the offended party suffered damage.

X x x.

2.4.

In the case of FRANCISCO R. LLAMAS and CARMELITA C. LLAMAS vs. THE HONORABLE COURT OF APPEALS, BRANCH 66 OF THE REGIONAL TRIAL COURT OF MAKATI CITY and THE PEOPLE OF THE PHILIPPINES, GR No. 149588, August 16, 2010, it was held, among other things, that DAMAGE is an element of estafa, thus:

X x x.

Article 316 (2) of the Revised Penal Code states:

ART. 316. Other forms of swindling. The penalty of arresto mayor in its minimum and medium periods and a fine of not less than the value of the damage caused and not more than three times such value, shall be imposed upon:

xxx

2. Any person who, knowing that real property is encumbered, shall dispose of the same, although such encumbrance be not recorded;

xxx

In every criminal prosecution, the State must prove beyond reasonable doubt all the elements of the crime charged and the complicity or participation of the accused.

For petitioners to be convicted of the crime of swindling under Article 316 (2) of the Revised Penal Code, the prosecution had the burden to prove the confluence of the following essential elements of the crime:

1. that the thing disposed of be real property;

2. that the offender knew that the real property was encumbered, whether the encumbrance is recorded or not;

3. that there must be express representation by the offender that the real property is free from encumbrance; and

4. that the act of disposing of the real property be made to the damage of another.

One of the essential elements of swindling under Article 316, paragraph 2, is that the act of disposing the encumbered real property is made to the damage of another. In this case, neither the trial court nor the CA made any finding of any damage to the offended party. Nowhere in the Decision of the RTC or that of the CA is there any discussion that there was damage suffered by complainant Avila, or any finding that his rights over the property were prejudiced.

On the contrary, complainant had possession and control of the land even as the cases were being heard. His possession and right to exercise dominion over the property was not disturbed. Admittedly, there was delay in the delivery of the title. This, however, was the subject of a separate case, which was eventually decided in petitioners favor.

If no damage should result from the sale, no crime of estafa would have been committed by the vendor, as the element of damage would then be lacking. The inevitable conclusion, therefore, is that petitioners should be acquitted of the crime charged.

X x x. (underscoring supplied)

2.5.

There is no proof that the respondents intentionally, maliciously and feloniously deceived the association. Respondents x x x and x xx signed the questioned check as authorized bank signatories of the association.

(Note: Respondent x x x did not sign the check. He did not participate in the questioned transactions in any manner).

2.5.1.

There is no proof that the respondents damaged the association by using, malversing or converting the questioned amount to their own personal use.

2.5.2.

Respondents x x x and x x x simply transferred the amount to the name of the new Cooperative IN GOOD FAITH in accord with the formal manifestation, mandate, order, wish, and desire of the members of the association who had formed a new Cooperative and who had mandated the association to transfer its funds, assets, concessions, and contracts association to the new Cooperative.

2.5.3.

GOOD FAITH is a defense in malum en se, such as estafa. This is too basic and too elementary a doctrine that it does not require jurisprudential citations. At any rate, the following cases are cited:

PEOPLE OF THE PHILIPPINES vs. CORA ABELLA OJEDA, G.R. Nos. 104238-58, June 2004, on GOOD FIATH as a defense in estafa and mala en se.

X x x.

DECEIT AND DAMAGE AS ELEMENTS OF ESTAFA

Under paragraph 2 (d) of Article 315 of the RPC, as amended by RA 4885, the elements of estafa are: (1) a check is postdated or issued in payment of an obligation contracted at the time it is issued; (2) lack or insufficiency of funds to cover the check; (3) damage to the payee thereof. Deceit and damage are essential elements of the offense and must be established by satisfactory proof to warrant conviction. Thus, the drawer of the dishonored check is given three days from receipt of the notice of dishonor to cover the amount of the check. Otherwise a prima facie presumption of deceit arises.

The prosecution failed to prove deceit in this case. The prima faciepresumption of deceit was successfully rebutted by appellants evidence of good faith, a defense in estafa by postdating a check. Good faith may be demonstrated, for instance, by a debtors offer to arrange a payment scheme with his creditor. In this case, the debtor not only made arrangements for payment; as complainant herself categorically stated, the debtor-appellant fully paid the entire amount of the dishonored checks.

It must be noted that our Revised Penal Code was enacted to penalize unlawful acts accompanied by evil intent denominated as crimes mala in se. The principal consideration is the existence of malicious intent. There is a concurrence of freedom, intelligence and intent which together make up the criminal mind behind the criminal act. Thus, to constitute a crime, the act must, generally and in most cases, be accompanied by a criminal intent.Actus non facit reum, nisi mens sit rea. No crime is committed if the mind of the person performing the act complained of is innocent. As we held in Tabuena vs. Sandiganbayan, 268 SCRA 332 [1997].:

The rule was reiterated in People v. Pacana, although this case involved falsification of public documents and estafa:

Ordinarily, evil intent must unite with an unlawful act for there to be a crime. Actus non facit reum, nisi mens sit rea. There can be no crime when the criminal mind is wanting.

American jurisprudence echoes the same principle. It adheres to the view that criminal intent in embezzlement is not based on technical mistakes as to the legal effect of a transaction honestly entered into, and there can be no embezzlement if the mind of the person doing the act is innocent or if there is no wrongful purpose.

X x x. (underscoring supplied). By Analogy: FRANCISCO M. LECAROZ and LENLIE LECAROZ, vs.SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, G.R. No. 130872, March 25, 1999, re: PRSUMPTION OF GOOD FAITH.

X x x.

The rule is that any mistake on a doubtful or difficult question of law may be the basis of good faith. In Cabungcal v. Cordova,No. L16934, 31 July, 1964, 11 SCRA 584, we affirmed the doctrine that an erroneous interpretation of the meaning of the provisions of an ordinance by a city mayor does not amount to bad faith that would entitle an aggrieved party to damages against that official. We reiterated this principle in Mabutol v. Pascual which held that public officials may not be liable for damages in the discharge of their official functions absent any bad faith. Sanders v. Veridiano II expanded the concept by declaring that under the law on public officers, acts done in the performance of official duty are protected by the presumption of good faith.

X x x.

2.5.4.

X x x.

2.5.5. 2.6. 2.7.

X x x. X x x. In the case of PEOPLE OF THE PHILIPPINES vs. FELICIANO ANABE y CAPILLAN, G.R. No. 179033 , September 6, 2010, where conspiracy was not proved, the Supreme Court held, thus:

X x x. While conspiracy was alleged in the Informations, it was notestablished during the trial.

Conspiracy as a basis for conviction must rest on nothing less than a moral certainty. Considering the far-reaching consequences of a criminal conspiracy, the same degree of proof necessary in establishing the crime is required to support the attendance thereof, i.e., it must be shown to exist as clearly and convincingly as the commission of the offense itself. While conspiracy need not be established by direct evidence, it is nonetheless required that it be proved by clear and convincing evidence by showing a series of acts done by each of the accused in concert and in pursuance of the common unlawful purpose.

In the present case, there is want of evidence to show the concerted acts of appellant, Conrada and Felicita (albeit already discharged) in pursuing a common design to rob Uy. The prosecution in fact appears to have abandoned the theory of conspiracy

altogether, no evidence thereof having been presented. Absent proof of conspiracy, appellant may only be held accountable for acts that are imputable to him with moral certainty.

X x x.

2.8.

IN THE CASE OF ROSIE QUIDET VS. PEOPLE OF THE PHILIPPINES, G.R. NO. 170289, APRIL 8, 2010, IT WAS HELD, THUS:

Conspiracy must be proved as clearly and convincingly as the commission of the offense itself for it is a facile device by which an accused may be ensnared and kept within the penal fold. In case of reasonable doubt as to its existence, the balance tips in favor of the milder form of criminal liability as what is at stake is the accuseds liberty. We apply these principles in this case.

X x x.

Conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. The essence of conspiracy is the unity of action and purpose. Its elements, like the physical acts constituting the crime itself, must be proved beyond reasonable doubt. When there is conspiracy, the act of one is the act of all.

Conspiracy can be inferred from and established by the acts of the accused themselves when said acts point to a joint purpose and design, concerted action and community of interests. However, in determining whether conspiracy exists, it is not sufficient that the attack be joint and simultaneous for simultaneousness does not of itself demonstrate the concurrence of will or unity of action and purpose which are the bases of the responsibility of the assailants. What is determinative is proof establishing that the accused were animated by one and the same purpose.

X x x.

There is no question that "a person may be convicted for the criminal act of another where, between them, there has been conspiracy or unity of purpose and intention in the commission of the crime charged." It is, likewise, settled that "to establish conspiracy, it is not necessary to prove previous agreement to commit a crime, if there is proof that the malefactors have acted in consort and in pursuance of the same objective." Nevertheless, "the evidence to prove the same must be positive and

convincing. As a facile device by which an accused may be ensnared and kept within the penal fold, conspiracy requires conclusive proof if we are to maintain in full strength the substance of the time-honored principle in criminal law requiring proof beyond reasonable doubt before conviction."

X x x.

Moreover, although the appellant and his co-accused acted with some degree of simultaneity in attacking the deceased, nevertheless, the same is insufficient to prove conspiracy. The rule is well-settled that "simultaneousness does not of itself demonstrate the concurrence of will nor the unity of action and purpose which are the basis of the responsibility of two or more individuals." To establish common responsibility it is not sufficient that the attack be joint and simultaneous; it is necessary that the assailants be animated by one and the same purpose. In the case at bar, the appellant Raymundo Vistido and the accused Pepito Montao, did not act pursuant to the same objective. Thus, the purpose of the latter was to kill as shown by the fact that he inflicted a mortal wound below the abdomen of the deceased which caused his death. On the other hand, the act of the appellant in giving the deceased one fist blow after the latter was stabbed by the accused Pepito Montao an act which is certainly unnecessary

and not indispensable for the consummation of the criminal assault does not indicate a purpose to kill the deceased, but merely to "show off" or express his sympathy or feeling of camaraderie with the accused Pepito Montao. Thus, in People vs. Portugueza, this Court held that:

X x x.

By and large, the evidence for the prosecution failed to show the existence of conspiracy which, according to the settled rule, must be shown to exist as clearly and convincingly as the crime itself. In the absence of conspiracy, the liability of the defendants is separate and individual, each is liable for his own acts, the damage caused thereby, and the consequences thereof. While the evidence shows that the appellant boxed the deceased, it is, however, silent as to the extent of the injuries, in which case, the appellant should be held liable only for slight physical injuries.

We reach the same conclusion here. For failure of the prosecution to prove conspiracy beyond reasonable doubt, petitioners liability is separate and individual. X x x.

2.9.

X x x..

2.10.

The respondents reserve the right to file a SUPPLEMENTAL AFFIDAVIT x x x.

2.11.

The respondents reserve the right to file a REJOINDER-AFFIDAVIT.

PRAYER

WHEREFORE, premises considered, it is respectfully prayed that the instant criminal complaint be DISMISSED for lack of merit.

Further, the respondents respectfully pray for such and other reliefs as may be deemed just and equitable in the premises.

X x x City, x x x.

SECOND DIVISION [G.R. No. 165275, September 23, 2008] GORETTI ONG, PETITIONER, VS. PEOPLE OF THE PHILIPPINES, RESPONDENT. DECISION CARPIO MORALES, J.: Goretti Ong (petitioner) was, by Information dated August 10, 1995, charged before the Regional Trial Court (RTC) of Manila for Estafa, without specification under what mode in Article 315 of the Revised Penal Code the offense was allegedly committed. The Information alleged as follows: That on or about December 12, 1994, in the City of Manila, Philippines, the said accused, did then and there willfully, unlawfully and feloniouslydefraud ROSA CABUSO in the following manner, to wit: the said accused, well knowing that [s]he did not have sufficient funds in the bank, and without informing the said Rosa Cabuso of such fact, drew, made out and issued to the latter the following checks, to wit: Allied Bank Check No. 76000242 dated January 13, 1995 in the amount of P76,654.00;

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

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

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

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

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

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

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

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

PS Bank Check No. 000950 dated January 31, 1995 in the amount of P144,000.00. all in the total amount of P923,110.00, in payment of assorted pieces of jewelry which the said accused ordered, purchased and received from the said complainant on the same day; that upon presentment of the said checks to the bank for payment, the same were dishonored and payment thereof refused for the reason "ACCOUNT CLOSED" and said accused, notwithstanding due notice to her by said complainant of such dishonor of the said checks, failed and refused and still fail[s] and refuse[s] to deposit the necessary amount to cover the amount of the checks, to the damage and prejudice of the said Rosa Cabuso in the aforesaid amount of P923,110.00, Philippine [c]urrency.[1] (Emphasis and underscoring supplied) Petitioner had for years been buying jewelry from Gold Asia which is owned and operated by the family of Rosa Cabuso (the private complainant). While she normally bought jewelry on cash basis, she was allowed to issue postdated checks to cover the jewelry she bought in December 1994 up to February 1995, upon her assurance that the checks would be funded on their due dates. When, on maturity, the checks were deposited, they were returned with the stamp "Account Closed."

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

The evidence presented by the prosecution in the Estafa case consisted of, inter alia,the 10 dishonored checks and the transcript of stenographic notes[2] taken during the trial of the B.P. 22 cases, which transcripts included those of the testimonies of representatives of the drawee banks Allied Bank, PSBank and Banco de Oro.

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

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

By Decision[3] of March 31, 2003, Branch 8 of the Manila RTC convicted petitioner of Estafa under Article 315, paragraph 2(a) of the Revised Penal Code in this wise: While the parties are of the impression that the accused is charged with and is being tried for the crime of estafa committed by means of the issuance of bouncing checks [Art. 315, 2(d) of the Revised Penal Code], this Court is of the opinion that the Information sufficiently charges estafa through false pretenses under Paragraph 2(a)of the same article which provides: "Art. 315. Swindling (estafa). - Any person who shall defraud another . . .

xxxx

2. By means of any of the following false pretenses or fraudulent acts executed prior to or simultaneously with the commission of the fraud: a) By using a fictitious name or falsely pretending to possess power, influence, qualifications, property, credit, agency, business or imaginary transactions; or by means of similar deceits."[4](Emphasis and underscoring supplied) Thus the trial court disposed:

WHEREFORE, the Court hereby renders judgment finding accused Goretti Ong GUILTY BEYOND REASONABLE DOUBT of the crime ofEstafa defined and penalized under Article 315, paragraph 2(a) of the Revised Penal Code and hereby imposes on said accused the penalty of TWELVE (12) YEARS imprisonment and to pay private complainant Rosa Cabuso the amount of FIVE HUNDRED EIGHTY FOUR THOUSAND EIGHT HUNDRED SIXTY (P584,860.00) PESOS and cost of suit. [5](Underscoring supplied) Petitioner challenged the trial court's decision before the Court of Appeals, raising the issue of whether she could be convicted of Estafa under Article 315, paragraph 2(a) of the Revised Penal Code when she was, in the Information, charged of Estafa under Article 315, paragraph 2(d) of the same Code. She additionally raised the following issues: xxxx

2.

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

3.

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

The Court of Appeals affirmed the conviction on appeal but modified the penalty and the amount of indemnity,[7] disposing as follows: WHEREFORE, premises considered, the present appeal is hereby DISMISSED for lack of merit. The appealed decision dated March 31, 2003 of the trial court in Criminal Case No. 95-144421 is hereby AFFIRMED with MODIFICATION in that the accused-appellant is hereby instead sentenced to suffer an indeterminate prison term of four (4) years and two (2) months of prision correccional, as minimum, to twenty (20) years of reclusion temporal as maximum, and to indemnify the complaining witness in the amount of P585,514.00.

With costs against the accused-appellant.[8] Her Motion for Reconsideration[9] having been denied,[10]

petitioner filed the present petition,[11] faulting the appellate court for

convicting her of Estafa despite her good faith and lack of criminal intent, and violating her constitutional right to be informed of the nature and cause of the accusation against her by affirming the trial court's decision finding her guilty of Estafa under Article 315, paragraph 2(a), when she was charged under paragraph 2(d) of the same Article.[12]

The appeal is impressed with merit.

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

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

(a) 2(d) By postdating a check, or issuing a check in payment of an obligation when the offender had no funds in the bank, or his funds deposited therein were not sufficient to cover the amount of the check. The failure of the drawer of the check to deposit the amount necessary to cover this check within three (3) days from receipt of notice from the bank and/or the payee or holder that said check has been dishonored for lack or insufficiency of funds shall be prima facie evidence of deceit constituting false pretense or fraudulent act.

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

Under paragraph 2(d), if there is no proof of notice of dishonor, knowledge of insufficiency of funds cannot be presumed, and unless

there is a priori intent, which is hard to determine and may not be inferred from mere failure to comply with a promise, no Estafa can be deemed to exist. So holds the 2004 case of People v. Ojeda.[14] x x x [N]otice of dishonor is required under both par. 2(d) Art. 315 of the R[evised] P[enal] C[ode] and Sec. 2 of BP 22. While the RPC prescribes that the drawer of the check must deposit the amount needed to cover his check within three days from receipt of notice of dishonor, BP 22, on the other hand, requires the maker or drawer to pay the amount of the check within five days from receipt of notice of dishonor. Under both laws, notice of dishonor is necessary for prosecution (for estafa and violation of BP 22). Without proof of notice of dishonor, knowledge of insufficiency of funds cannot be presumed and no crime (whether estafa or violation of BP 22) can be deemed to exist.[15] (Emphasis and underscoring supplied) Notice of dishonor being then an element of a charge under Article 2(d) under which petitioner was clearly charged, failure to prove it is a ground for acquittal thereunder.

In affirming the trial court's decision, the Court of Appeals relied on the ruling in the 2003 case of Garcia v. People[16] wherein this Court upheld the appellate court's affirmance of the trial court's conviction of the accused for Estafa under Article 315, "Section 2(2) [sic] of the Revised Penal Code." In that case, the accused was charged as follows: That on or about and during the period comprised between June 20, 1995, and August 15, 1995, inclusive, in the City of Manila, Philippines, the said accused did then and there willfully, unlawfully and feloniously defraud DOLORES S. APOLONIO in the following manner, to wit: the said accused by means of false manifestations and fraudulent representations which she made to said DOLORES S. APOLONIO to the effect that accused has three (3) checks which according to her have sufficient funds and if encashed, the same will not be dishonored; andby means of other deceits of similar import, induced and succeeded in inducing the said DOLORES S. APOLONIO to accept the following checks: Name of Bank Phil. Nat'l. Bank - do Pilipinas Bank Check No. 046884 047416 60042087 Amount P28,000.00 34,000.00 25,000.00 Date 6-20-`95 8-15-`95 7-25-`95 Payable to Cash - do Garcia Vegetable Dealer

as payments of assorted vegetables which accused purchased and received from said DOLORES S. APOLONIO in the amount of P87,000.00, said accused knowing fully well that the said manifestations and representations were all false and untrue as said checks when presented to the bank for payment were all dishonored for the reason "Drawn Against Insufficient Funds," and were made solely for the purpose of obtaining, as in fact she did obtain assorted vegetables in the amount of P87,000.00; which once in her possession and with intent to defraud, she willingly, unlawfully and feloniously misappropriated, misapplied and converted the said assorted vegetables or the value thereof to her own personal use and benefit, to the damage and prejudice of the said owner in the aforesaid amount of P87,000.00, Philippine Currency.[17] (Underscoring supplied) The therein accused Garcia argued that since, under the above-quoted Information, she was charged of Estafa under Article 315, paragraph 2(a) of the Revised Penal Code, it was error for the appellate court to affirm her conviction by the trial court under Article 315, paragraph 2(d).

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

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

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

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

IN FINE, the prosecution having failed to establish all the elements of Estafa under Article 315, paragraph 2(d) under which petitioner

was clearly charged, her acquittal is in order. The judgment bearing on her civil liability stands, however.

WHEREFORE, the petition is partly GRANTED. Petitioner, Goretti Ong, is ACQUITTED of the crime charged for failure of the prosecution to prove her guilt beyond reasonable doubt. The decision bearing on her civil liability is AFFIRMED, however.

Costs against petitioner.

SO ORDERED.

Quisumbing, Tinga, Velasco, Jr., and Brion, JJ., concur.

[1]

Records, p. 1.

[2]

Exhibit "A"-"L," id. at 162-212.

[3]

Id. at 400-405.

[4]

Id. at 402-403.

[5]

Id. at 405.

[6]

CA rollo, p. 65.

[7]

Decision of June 11, 2004, penned by Court of Appeals Associate Justice Martin S. Villarama, Jr. with the concurrence of Associate

Justices Regalado E. Maambong and Lucenito N. Tagle, id. at 148-158.

[8]

Id. at 157.

[9]

Id. at 161-164.

[10]

Id. at 177.

[11]

Rollo, pp. 7-34.

[12]

Id. at 16.

[13]

Vide People v. Almendral, G.R. No. 126025, July 6, 2004, 433 SCRA 440, 450-451.

17

Garcia v. People, 457 Phil. 713, 716 (2003).

[14]

G.R. Nos. 104238-58, June 3, 2004, 430 SCRA 436.

[15]

Id. at 449.

[16]

457 Phil. 713 (2003).

[17]

Id. at 716-717.

SECOND DIVISION [G.R. No. 139130. November 27, 2002] RAMON K. ILUSORIO, petitioner, vs. HON. COURT OF APPEALS, and THE MANILA BANKING CORPORATION, respondents. DECISION QUISUMBING, J.:

This petition for review seeks to reverse the decision[1] promulgated on January 28, 1999 by the Court of Appeals in CA-G.R. CV No. 47942, affirming the decision of the then Court of First Instance of Rizal, Branch XV (now the Regional Trial Court of Makati, Branch 138) dismissing Civil Case No. 43907, for damages. The facts as summarized by the Court of Appeals are as follows: Petitioner is a prominent businessman who, at the time material to this case, was the Managing Director of Multinational Investment Bancorporation and the Chairman and/or President of several other corporations. He was a depositor in good standing of respondent bank, the Manila Banking Corporation, under current Checking Account No. 06-09037-0. As he was then running about 20 corporations, and was going out of the country a number of times, petitioner entrusted to his secretary, Katherine[2] E. Eugenio, his credit cards and his checkbook with blank checks. It was also Eugenio who verified and reconciled the statements of said checking account.[3] Between the dates September 5, 1980 and January 23, 1981, Eugenio was able to encash and deposit to her personal account about seventeen (17) checks drawn against the account of the petitioner at the respondent bank, with an aggregate amount of P119,634.34. Petitioner did not bother to check his statement of account until a business partner apprised him that he saw Eugenio use his credit cards. Petitioner fired Eugenio immediately, and instituted a criminal action against her for estafa thru falsification before the Office of the Provincial Fiscal of Rizal. Private respondent, through an affidavit executed by its employee, Mr. Dante Razon, also lodged a complaint for estafa thru falsification of commercial documents against Eugenio on the basis of petitioners statement that his signatures in the checks were forged.[4] Mr. Razons affidavit states: That I have examined and scrutinized the following checks in accordance with prescribed verification procedures with utmost care and diligence by comparing the signatures affixed thereat against the specimen signatures of Mr. Ramon K. Ilusorio which we have on file at our said office on such dates, xxx That the aforementioned checks were among those issued by Manilabank in favor of its client MR. RAMON K. ILUSORIO, That the same were personally encashed by KATHERINE E. ESTEBAN, an executive secretary of MR. RAMON K. ILUSORIO in said Investment Corporation; That I have met and known her as KATHERINE E. ESTEBAN the attending verifier when she personally encashed the above-mentioned checks at our said office; That MR. RAMON K. ILUSORIO executed an affidavit expressly disowning his signature appearing on the checks further alleged to have not authorized the issuance and encashment of the same.[5] Petitioner then requested the respondent bank to credit back and restore to its account the value of the checks which were wrongfully encashed but respondent bank refused. Hence, petitioner filed the instant case.[6] At the trial, petitioner testified on his own behalf, attesting to the truth of the circumstances as narrated above, and how he discovered the alleged forgeries. Several employees of Manila Bank were also called to the witness stand as hostile witnesses. They testified that it is the banks standard operating procedure that whenever a check is presented for encashment or clearing, the signature on the check is first verified against the specimen signature cards on file with the bank. Manila Bank also sought the expertise of the National Bureau of Investigation (NBI) in determining the genuineness of the signatures appearing on the checks. However, in a letter dated March 25, 1987, the NBI informed the trial court that they could not conduct the desired examination for the reason that the standard specimens submitted were not sufficient for purposes of rendering a definitive opinion. The NBI then suggested that petitioner be asked to submit seven (7) or more additional standard signatures executed before or