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G.R. Nos. 59568-76 January 11, 1990

PETER NIERRAS, petitioner,vs.HON. AUEN!IO !. "A!U#!U# an$ HON. ANTONIO S. %OPE&, 'n ()*'r +aa+'(y as Pr*s'$'n Ju$*, ran+) I/, !our( o'rs( Ins(an+* o %*y(*, Pa2o, %*y(*, an$ !'(y 's+a2 o Ta+2o3an !'(y, %*y(*, r*s*+('4*2y, respondents.

Victor C. Veloso for petitioner.

PARAS,J.:

Before Us is a petition for certiorariwith preliminary injunction for the annulment of the resolution dated September 17, 1981 of therespondent ud!e "u#encio $. %acuycuy in nine &9' criminal cases, entitled ()eople of the )hilippines v. )eter *ierras( doc+eted as$riminal $ases *os. -79, -8, -81, -8/, -8-, -8, -80, -8 and -87, for estafa under "rticle -10 &/2d' of the 3evised)enal $ode which denied petitioner4s motion to 5uash. Said motion to 5uash was filed by petitioner on the !round of double jeopardyas these offenses were already included in $riminal $ases *os. -79, -791, -79/, -79-, 80, 1//, 1/-, 1/, and 1/0, entitled()eople of the )hilippines v. )eter *ierras,( for violation of the Bouncin! $hec+s 6aw or Batas )ambansa Bl!. //, pendin! before thelower court. n both sets of criminal cases, petitioner entered a plea of not !uilty upon arrai!nment before the lower court. owever,immediately after his plea of not !uilty in these estafa cases, petitioner moved in open court to be allowed to withdraw his plea of not!uilty upon his filin! of a motion to 5uash, which was denied by respondent ud!e rulin! as follows

:he motion to 5uash should be and is hereby denied. "ccused )eter *ierras alle!edly issued the chec+s in favor ofcomplainant )ilipinas Shell )etroleum $orporation in payment of oil products which the latter delivered to him

simultaneously with the issuance of the chec+s.

### ### ###

. . . :he crime of estafa committed by means of bouncin! chec+s is not committed by mere issuance of a chec+.Under "rt. -10, par. / &d' of the 3evised )enal $ode, as amended by 3epublic "ct 880, the followin! are theelements of estafa &1' the postdatin! or issuance of a chec+ in payment of an obli!ation contracted at the time thechec+ was issued; &/' lac+ of or insufficiency of funds to cover the chec+; and &-' dama!e to the payee thereof&)eople v. Sabio, 8 S$3" 08'. Under Batas )ambansa Bilan! // &1979' the mere issuance of a chec+ withoutsufficient funds issued in payment of a simultaneous obli!ation and the chec+ was dishonored upon presentationfor that estafa is committed under the 3evised )enal $ode. "t the same time, the drawer will also be liable underBatas )ambansa Bilan! // for offense of issuin! a chec+ without sufficient funds &pp. 12/, 3esolution uash dated September 17, 1981; "nne# (==(, )etition'. &p. 1, Rollo'

:he issue now submitted for

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@hat petitioner failed to mention in his ar!ument is the fact that deceit and dama!e are essential elements in "rticle -10 &/2d'3evised )enal $ode, but are notre5uired in Batas )ambansa Bilan! //. Under the latter law, mere issuance of a chec+ that isdishonored !ives rise to the presumption of +nowled!e on the part of the drawer that he issued the same without sufficient funds andhence punishable &)eople v. eridiano, 1-/ S$3" 0/-' which is not so under the )enal $ode.

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by law,( invo+in! the rule laid down in !eople v.'agdaluyo&1 S$3" 99'. f the petitioner cannot appeal at this state of theproceedin!, it is because there is still a necessity for the trial on the merits wherein the parties may present proofs in support of theircontentions and not because the remedy of appeal is unavailin!.

@A3AF

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$ontrary to law.

:he nformations char!in!

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:A 6

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$hua. ad her intention been tainted with malice and deceit, appellant would not have e#erted e#traordinary effort to pay thecomplainant, !iven her own business and financial reverses.

%A!: O NOTI!E O "ISHONOR

@e also note that the prosecution presented virtually no evidence to show that the indispensable notice of dishonor was sent toand received by appellant. A#cerpts from the followin! testimony of complainant are si!nificant

"::G. "*CA6AS

> *ow, =rs. @itness, when these chec+s from A#hibits J"K to JK have bounced, what steps, did you do?

" consulted my lawyer and she wrote a %emand 6etter.

$ @hat is the name of that lawyer?

" "tty. ir!inia *abora.

"::G. "*CA6AS

> *ow, you mentioned a %emand 6etter sent by "tty. ir!inia *abor, am showin! to you this %emand 6etter dated=arch 1, 1988, will you +indly e#amine the same if this is the same %emand 6etter you mentioned a while a!o?

" Ges, sir.

> *ow, on this second pa!e of this %emand 6etter there is a si!nature above the printed name ir!inia Cuevarra *abor,do you +now the si!nature, =rs. @itness?

" Ges, that is the si!nature of my lawyer.

"::G. "*CA6AS

=ay we re5uest that this %emand 6etter dated =arch 1, 1988 consistin! of two &/' pa!es, Gour onor, be mar+ed asA#hibit J@K and that the si!nature on the second pa!e of this letter of ir!inia Cuevarra *abor be encircled and bemar+ed as A#hibit J@21K and that the attached 3e!istry 3eceipt, Gour onor, be mar+ed as A#hibit J@2/K.

$ *ow, =rs. @itness, why do you +now that this is the si!nature of ir!inia Cuevarra *abor?

" "fter preparin! that saw her si!n the letter.

> *ow, after sendin! this %emand 6etter, do you +now f the accused herein made payments or replaced the chec+s thatwere issued to you?

$ *ow, aside from sendin! this %emand 6etter, do you +now what your lawyer did?

" @e filed a case with the FiscalKs.H/0I

"side from the above testimony, no other reference to the demand letter was made by the prosecution. :he prosecutionclaimed that the demand letter was sent by re!istered mail. :o prove this, it presented a copy of the demand letter as well as there!istry return receipt bearin! a si!nature which was, however, not even authenticated or identified. " re!istry receipt alone isinsufficient as proof of mailin!.H/IM3eceipts for re!istered letters and return receipts do not prove themselves; they must be properlyauthenticated in order to serve as proof of receipt of the letters.NH/7I

t is clear from the fore!oin! that complainant merely presumed that appellant received the demand letter prepared and sentby her lawyer. She was not certain if appellant indeed received the notice of dishonor of the chec+s. "ll she +new was that a demandletter was sent by her lawyer to the appellant. n fact, ri!ht after complainant made that presumption, her lawyer filed the criminalcases a!ainst appellant at the FiscalKs officeH/8Iwithout any confirmation that the demand letter supposedly sent throu!h re!isteredmail was actually received by appellant.

http://sc.judiciary.gov.ph/jurisprudence/2004/jun2004/104238_58.htm#_ftn25http://sc.judiciary.gov.ph/jurisprudence/2004/jun2004/104238_58.htm#_ftn25http://sc.judiciary.gov.ph/jurisprudence/2004/jun2004/104238_58.htm#_ftn26http://sc.judiciary.gov.ph/jurisprudence/2004/jun2004/104238_58.htm#_ftn26http://sc.judiciary.gov.ph/jurisprudence/2004/jun2004/104238_58.htm#_ftn27http://sc.judiciary.gov.ph/jurisprudence/2004/jun2004/104238_58.htm#_ftn28http://sc.judiciary.gov.ph/jurisprudence/2004/jun2004/104238_58.htm#_ftn28http://sc.judiciary.gov.ph/jurisprudence/2004/jun2004/104238_58.htm#_ftn25http://sc.judiciary.gov.ph/jurisprudence/2004/jun2004/104238_58.htm#_ftn26http://sc.judiciary.gov.ph/jurisprudence/2004/jun2004/104238_58.htm#_ftn27http://sc.judiciary.gov.ph/jurisprudence/2004/jun2004/104238_58.htm#_ftn28

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@ith the evident lac+ of notice of dishonor of the chec+s, appellant cannot be held !uilty of violation of B) //. :he lac+ of suchnotice violated appellantKs ri!ht to procedural due process. Mt is a !eneral rule that when service of notice is an issue, the personalle!in! that the notice was served must prove the fact of service.N H/9I:he burden of provin! receipt of notice rests upon the partyassertin! it and the 5uantum of proof re5uired for conviction in this criminal case is proof beyond reasonable doubt.

@hen, durin! the trial, appellant denied havin! received the demand letter, it became incumbent upon the prosecution to provethat the demand letter was indeed sent throu!h re!istered mail and that the same was received by appellant. But it didnot. U::A% in$riminal $ase *o. 882//8 for estafa and in $riminal $ase *os. 882/-, 882/-/, 882/-0 to 882/, 882//, 882/-,882/0 to 882/8 for violation of B) //.

SO OR"ERE".

Vitug" ($hairman)" Sandoval+utierre&" andCarpio'orales" ,,." concur.

H1I)enned by ud!e "rturo U. Barias, r.

H/IRollo, p. .

H-IA#hibit M"N.

HIA#hibit MGN.

H0IA#hibits MQN, MGN, M""N, MBBN and M$$N.

HIA#hibits M$N, MN, MN, M=N, M

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H//I)eople vs. Culion, -9 S$3" 1 H/1I; allartavs.$ourt of "ppeals, 10 S$3" -- H1987I; )eople vs. illapando, 0 )hil. -1H19-1I.

H/-I/8 S$3" --/ H1997I.

H/I6ecaroD vs. Sandi!anbayan ,-0 S$3" -9 H1999I.

H/0I:S*, %ecember 7, 1989, pp. -72-.

H/I:in! vs. $ourt of "ppeals ,- S$3" 001 H/I, citin! $entral :rust $o. vs.$ity of %es =oines" /18 *@ 08.

H/7I:in!vs. $ourt of "ppeals, ibid.

H/8I

:S*, %ecember 7, 1989, pp. /2/-.H/9I:in!vs.$ourt of "ppeals, supra"citin! 08 "m ur /d, *otice, R 0.

H-I$aras vs. $ourt of "ppeals, - S$3" -71 H/1I.

H-1I6ao vs. $ourt of "ppeals ,/7 S$3" 07/ H1997I.

;'()ou( roo o no('+* o $'s)onor, ?no

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intention been tainted with malice and deceit, appellant would not have e#erted e#traordinary effort to pay the complainant, !iven

her own business and financial reverses.

"side from the above testimony, no other reference to the demand letter was made by the prosecution. :he prosecution claimed

that the demand letter was sent by re!istered mail. :o prove this, it presented a copy of the demand letter as well as the re!istry

return receipt bearin! a si!nature which was, however, not even authenticated or identified. " re!istry receipt alone is insufficient as

proof of mailin!.H/I M3eceipts for re!istered letters and return receipts do not prove themselves; they must be properly

authenticated in order to serve as proof of receipt of the letters.NH/7I

t is clear from the fore!oin! 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 chec+s. "ll she +new was that a demand letter

was sent by her lawyer to the appellant. n fact, ri!ht after complainant made that presumption, her lawyer filed the criminal cases

a!ainst appellant at the FiscalKs officeH/8Iwithout any confirmation that the demand letter supposedly sent throu!h re!istered mail

was actually received by appellant.

@ith the evident lac+ of notice of dishonor of the chec+s, appellant cannot be held !uilty of violation of B) //. :he lac+ of such notice

violated appellantKs ri!ht to procedural due process. Mt is a !eneral rule that when service of notice is an issue, the person alle!in!

that the notice was served must prove the fact of service.NH/9I:he burden of provin! receipt of notice rests upon the party assertin!

it and the 5uantum of proof re5uired for conviction in this criminal case is proof beyond reasonable doubt.

@hen, durin! the trial, appellant denied havin! received the demand letter, it became incumbent upon the prosecution to prove that

the demand letter was indeed sent throu!h re!istered mail and that the same was received by appellant. But it did not.

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Finally, it is worth mentionin! that notice of dishonor is re5uired under both par. /&d' "rt. -10 of the 3)$ and Sec. / of B) //. @hile

the 3)$ prescribes that the drawer of the chec+ must deposit the amount needed to cover his chec+ within threedays from receipt of

notice of dishonor, B) //, on the other hand, re5uires the ma+er or drawer to pay the amount of the chec+ within fivedays from

receipt of notice of dishonor. Under both laws, notice of dishonor is necessary for prosecution &for estafa and violation of B) //'.

@ithout proof of notice of dishonor, +nowled!e of insufficiency of funds cannot be presumed and no crime &whether estafa or

violation of B) //' can be deemed to e#ist.

httpLLsc.judiciary.!ov.phLjurisprudenceL/Ljun/L1/-8T08.htm

JOINT !OUNTER-AI"A/IT

O THE RESPON"ENTS

:A U*%A3SC*A% RESPON"ENTS respectfully state

1. A"ISSIONS AN" "ENIA%S.

Q # #. &omitted'

. "IS!USSION

/.1. :he relevant provisions of the 3evised )enal $ode on estafa &deceitLswindlin!' are as follows

"rticle -10. Swindlin! &estafa'. "ny person who shall defraud another by any of the means mentioned hereinbelow shall bepunished by

1st. :he penalty of prision correccional in its ma#imum period to prision mayor in its minimum period, if the amount of the fraud isover 1/, pesos but does not e#ceed //, pesos, and if such amount e#ceeds the latter sum, the penalty provided in this

para!raph shall be imposed in its ma#imum period, addin! one year for each additional 1, pesos; but the total penalty whichmay be imposed shall not e#ceed twenty years. n such case, and in connection with the accessory penalties which may be imposedand for the purpose of other the provisions of this $ode, the penalty shall be termed prision mayor or reclusion temporal, as the casemay be.

/nd. :he penalty of prision correccional in its minimum and medium periods, if the amount of the fraud is over , pesos but doesnot e#ceed 1/, pesos;-rd. :he penalty of arresto mayor in its ma#imum period to prision correccional in its minimum period, if such amount is over /pesos but does not e#ceed , pesos; and

th. By arresto mayor in its medium and ma#imum periods, if such amount does not e#ceed / pesos, provided that in the fourcases mentioned, the fraud be committed by any of the followin! means

1. @ith unfaithfulness or abuse of confidence, namely

&a' By alterin! the substance, 5uantity, or 5uality of anythin! of value which the offender shall deliver by virtue of an obli!ation to doso, even thou!h such obli!ation be based on an immoral or ille!al consideration.

&b' By misappropriatin! or convertin!, to the prejudice of another, money, !oods, or any other personal property received by theoffender in trust or on commission, or for administration, or under any other obli!ation involvin! the duty to ma+e delivery of or toreturn the same, even thou!h such obli!ation be totally or partially !uaranteed by a bond; or by denyin! havin! received suchmoney, !oods, or other property.

&c' By ta+in! undue advanta!e of the si!nature of the offended party in blan+, and by writin! any document above such si!nature inblan+, to the prejudice of the offended party or of any third person.

/. By means of any of the followin! false pretenses or fraudulent acts e#ecuted prior to or simultaneously with the commission of thefraud

&a' By usin! fictitious name, or falsely pretendin! to possess power, influence, 5ualifications, property, credit, a!ency, business orima!inary transactions, or by means of other similar deceits.

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were oneKs own, or of devotin! it to a purpose or use different from that a!reed upon. :o misappropriate for oneKs own use includes

not only conversion to oneKs personal advanta!e, but also every attempt to dispose of the property of another without ri!ht.

Q # #.

.. n the case of ROSITA S# 4s. PEOP%E O THE PHI%IPPINES, G.R. No. 18879, Ar'2 1, 010discussed the ways of

committin! the felony of estafa, thus

Q # #.

:he sole issue for resolution is whether Sy should be held liable forestafa, penaliDed under "rticle -10, para!raph /&a' of the 3evised

)enal $ode &3)$'.

Swindlin! or estafais punishable under "rticle -10 of the 3)$. :here are three ways of committin! estafa, vi&. &1' with unfaithfulness

or abuse of confidence; &/' by means of false pretenses or fraudulent acts; or &-' throu!h fraudulent means. :he three ways of

committin! estafamay be reduced to two, i.e., &1' by means of abuse of confidence; or &/' by means of deceit.

:he elements of estafain !eneral are the followin! &a' that an accused defrauded another by abuse of confidence, or by means of

deceit; and &b' that dama!e and prejudice capable of pecuniary estimation is caused the offended party or third person.

:he act complained of in the instant case is penaliDed under "rticle -10, para!raph /&a' of the 3)$, wherein estafais committed by

any person who shall defraud another by false pretenses or fraudulent acts e#ecuted prior to or simultaneously with the commission

of the fraud. t is committed by usin! fictitious name, or by pretendin! to possess power, influence, 5ualifications, property, credit,

a!ency, business or ima!inary transactions, or by means of other similar deceits.

:he elements of estafaby means of deceit are the followin!, vi&. &a' that there must be a false pretense or fraudulent representation

as to his power, influence, 5ualifications, property, credit, a!ency, business or ima!inary transactions; &b' that such false pretense or

fraudulent representation was made or e#ecuted 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 dama!e.

Q # #.

.. n the case of RAN!IS!O R. %%AAS an$ !ARE%ITA !. %%AAS 4s. THE HONORA%E !OURT O APPEA%S, RAN!H 66

O THE REGIONA% TRIA% !OURT O A:ATI !IT# an$ THE PEOP%E O THE PHI%IPPINES, GR No. 19588, Auus( 16,

010, it was held, amon! other thin!s, that %"="CA is an element of estafa, thus

Q # #.

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"rticle -1 &/' of the 3evised )enal $ode states

"3:. -1.

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/.0. :here is no proof that the respondents intentionally, maliciously and feloniously deceived the association. 3espondents # # # and #

## si!ned the 5uestioned chec+ as authoriDed ban+ si!natories of the association.

&ote23espondent # # # did not si!n the chec+. e did not participate in the 5uestioned transactions in any manner'.

/.0.1. :here is no proof that the respondents dama!ed the association by usin!, malversin! or convertin! the 5uestioned amount to their

own personal use.

/.0./. 3espondents # # # and # # # simply transferred the amount to the name of the new $ooperative * C

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M

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alto!ether, no evidence thereof havin! been presented. bsent proof of conspiracy" appellant may only be held accountable for acts

that are imputable to him with moral certainty.

Q # #.

/.8. * :A $"SA

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and not indispensable for the consummation of the criminal assault does not indicate a purpose to +ill the deceased, but merely to (show off( or

e#press his sympathy or feelin! of camaraderie with the accused )epito =ontao. :hus, in !eople vs. !ortugue&a, this $ourt held that

Q # #.

By and lar!e, the evidence for the prosecution failed to show the e#istence of conspiracy which, accordin! to the settled rule, must be shown to

e#ist as clearly and convincin!ly as the crime itself. n the absence of conspiracy, the liability of the defendants is separate and individual, each is

liable for his own acts, the dama!e caused thereby, and the conse5uences thereof. @hile the evidence shows that the appellant bo#ed the

deceased, it is, however, silent as to the e#tent of the injuries, in which case, the appellant should be held liable only for sli!ht physical injuries.

@e reach the same conclusion here. For failure of the prosecution to prove conspiracy beyond reasonable doubt, petitionerKs liability is separate

and individual. Q # #.

/.9. Q # #..

/.1. :he respondents reserve the ri!ht to file a SU))6A=A*:"6 "FF%": # # #.

/.11. :he respondents reserve the ri!ht to file a 3A

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Banco de

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@A3AF

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there is a prioriintent, which is hard to determine and may not be inferred from mere failure to comply with a promise, no Astafa can

be deemed to e#ist. So holds the / case of !eople v. 5%eda.H1I

# # # CNo('+* o $'s)onor 's r*Fu'r*$ under both ar. =$> Ar(. 15 of the 3HevisedI )HenalI $HodeI and Sec. / of B) //. @hile

the 3)$ prescribes that the drawer of the chec+ must deposit the amount needed to cover his chec+ within three days from receipt of

notice of dishonor, B) //, on the other hand, re5uires the ma+er or drawer to pay the amount of the chec+ within five days from

receipt of notice of dishonor. Un$*r 3o() 2a

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was clearly char!ed, her ac5uittal is in order. :he jud!ment bearin! on her civil liability stands, however.

;HEREORE, the petition is partly GRANTE". )etitioner, Coretti

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:his petition for review see+s to reverse the decisionH1I promul!ated on anuary /8, 1999 by the $ourt of "ppeals in $"2C.3. $ *o.79/, affirmin! the decision of the then $ourt of First nstance of 3iDal, Branch Q &now the 3e!ional :rial $ourt of =a+ati, Branch1-8' dismissin! $ivil $ase *o. -97, for dama!es.

:he facts as summariDed by the $ourt of "ppeals are as follows

)etitioner is a prominent businessman who, at the time material to this case, was the =ana!in! %irector of =ultinational nvestmentBancorporation and the $hairman andLor )resident of several other corporations. e was a depositor in !ood standin! of respondentban+, the =anila Ban+in! $orporation, under current $hec+in! "ccount *o. 29-72. "s he was then runnin! about /corporations, and was !oin! out of the country a number of times, petitioner entrusted to his secretary, OatherineH/I A. Au!enio, hiscredit cards and his chec+boo+ with blan+ chec+s. t was also Au!enio who verified and reconciled the statements of said chec+in!account.H-I

Between the dates September 0, 198 and anuary /-, 1981, Au!enio was able to encash and deposit to her personal account aboutseventeen &17' chec+s drawn a!ainst the account of the petitioner at the respondent ban+, with an a!!re!ate amount of)119,-.-. )etitioner did not bother to chec+ his statement of account until a business partner apprised him that he saw Au!eniouse his credit cards. )etitioner fired Au!enio immediately, and instituted a criminal action a!ainst her for estafa thru falsificationbefore the

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incumbent upon petitioner to establish the fact of for!ery, i.e., by submittin! his specimen si!natures and comparin! them with thoseon the 5uestioned chec+s. $uriously thou!h, petitioner failed to submit additional specimen si!natures as re5uested by the *ationalBureau of nvesti!ation from which to draw a conclusive findin! re!ardin! for!ery. :he $ourt of "ppeals found that petitioner, by hisown inaction, was precluded from settin! up for!ery. Said the appellate court

@e cannot fault the court a 5uo for such declaration, considerin! that the plaintiffKs evidence on the alle!ed for!ery is not convincin!enou!h. :he burden to prove for!ery was upon the plaintiff, which burden he failed to dischar!e. "side from his own testimony, theappellant presented no other evidence to prove the fact of for!ery. e did not even submit his own specimen si!natures, ta+en on orabout the date of the 5uestioned chec+s, for e#amination and comparison with those of the subject chec+s.

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$osts a!ainst petitioner.

S<

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("ll contrary to law.(

@hen his case was tried on

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