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FIRST DIVISION The prosecution established the following: G.R. No.

164733 September 21, 2007 MICHAEL JOHN Z. MALTO, petitioner Vs PEOPLE OF THE PHILIPPINES, respondent DECISION CORONA, J.: On July 18, 1997, AAA was having lunch with her friends when petitioner joined their group. He told them to address him simply as Mike. He handed them his organizer and asked them to list down their names and contact numbers. On October 3, 1997, while AAA and her friends were discussing the movie Kama Sutra, petitioner butted in and bragged that it was nothing compared to his collection of xxx-rated films. To the shock of AAAs group, he lectured on and demonstrated sexual acts he had already experienced. He then invited the group to view his collection. On October 10, 1997, petitioner reiterated his invitation to AAA and her friends to watch his collection of pornographic films. Afraid of offending petitioner, AAA and two of her friends went with him. They rode in his car and he brought them to the Anito Lodge on Harrison St. in Pasay City. They checked in at a calesa room. Petitioner was disappointed when he found out there was neither a video cassette player (on which he could play his video tapes) nor an x-rated show on the closed-circuit television. He suggested that they just cuddle up together. AAA and her friends ignored him but he pulled each of them towards him to lie with him in bed. They resisted until he relented. AAA and her friends regretted having accepted petitioners invitation. For fear of embarrassment in case their classmates got wind of what happened, they agreed to keep things a secret. Meanwhile, petitioner apologized for his actuations. Thereafter, petitioner started to show AAA amorous attention. He called her on the phone and paged[8] her romantic messages at least thrice a day. When semestral break came, his calls and messages became more frequent. Their conversation always started innocently but he had a way of veering the subject to sex. Young, naive and coming from a broken family, AAA was soon overwhelmed by petitioners persistence and slowly got attracted to him. He was the first person to court her. Soon, they had a mutual understanding and became sweethearts. When AAA secured her class card in Philosophy II at the start of the second semester, petitioner told her that he gave her a final grade of 3. She protested, stating that her mid -term grade was 1.2. He gave her a grade of 1.5 when she promised not to disclose his intimate messages to her to anyone. He also cautioned her not to tell anyone about their affair as it could jeopardize his job. On November 19, 1997, at around 11:00 a.m., AAA agreed to have lunch with petitioner outside the premises of the college. Since she was not feeling well at that time, he asked her to lie down in the backseat of his car. She was surprised when he brought her to Queensland Lodge[9] on Harrison St. in Pasay City. Once inside the motel room, he kissed her at the back and neck, touched her breasts and placed his hand inside her blouse. She resisted his advances but he was too strong for her. He stopped only when she got angry at him. On November 26, 1997, petitioner asked AAA to come with him so that they could talk in private. He again brought her to Queensland Lodge. As soon as they were inside the room, he took off his shirt, lay down in bed and told her, halika na, dito na tayo mag -usap. She refused but he dragged her towards the bed, kissed her lips, neck and breasts and unsnapped her brassiere. She struggled to stop him but he overpowered her. He went on top of her, lowered her pants and touched her private part. He tried to penetrate her but she pushed him away forcefully and she sat up in bed. He hugged her tightly saying, Sige na, AAA, pumayag ka na, At the time of the incident, private complainant AAA was 17 years old.[7] She was a college student at the Assumption College in San Lorenzo Village, Makati City. Petitioner, then 28, was her professor in her Philosophy II class in the first semester of the school year 1997 to 1998.

Whereas, mankind owes to the child the best it has to give. (Final preambular clause of the Declaration of the Rights of the Child)

This is a petition for review[1] of the decision[2] dated July 30, 2004 of the Court of Appeals (CA) in CA-G.R. CR No. 25925 affirming with modification the decision[3] of Branch 109 of the Regional Trial Court of Pasay City in Criminal Case No. 00-0691 which found petitioner Michael John Z. Malto guilty for violation of paragraph 3, Section 5(a), Article III of RA 7610,[4] as amended. Petitioner was originally charged in an information which read: The undersigned Assistant City Prosecutor accuses MICHAEL JOHN Z. MALTO of VIOLATION OF SECTION 5(b), ARTICLE III, REPUBLIC ACT 7610, AS AMENDED, committed as follows: That on or about and sometime during the month of November 1997 up to 1998, in Pasay City, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, Michael John. Z. Malto, a professor, did then and there willfully, unlawfully and feloniously induce and/or seduce his student at Assumption College, complainant, AAA, a minor of 17 years old, to indulge in sexual intercourse for several times with him as in fact said accused had carnal knowledge. Contrary to law.[5]

This was subsequently amended as follows: The undersigned Assistant City Prosecutor accuses MICHAEL JOHN Z. MALTO of VIOLATION OF SECTION 5(a), ARTICLE III, REPUBLIC ACT 7610, AS AMENDED, committed as follows:

That on or about and sometime during the month of November 1997 up to 1998, in Pasay City, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, Michael John. Z. Malto, a professor, did then and there willfully, unlawfully and feloniously take advantage and exert influence, relationship and moral ascendancy and induce and/or seduce his student at Assumption College, complainant, AAA, a minor of 17 years old, to indulge in sexual intercourse and lascivious conduct for several times with him as in fact said accused has carnal knowledge. Contrary to law.[6] Petitioner did not make a plea when arraigned; hence, the trial court entered for him a plea of not guilty. After the mandatory pre-trial, trial on the merits proceeded.

I wont hurt you. She refused and said, Mike, ayoko. He angrily stood up saying, Fine, hindi na tayo mag-uusap. Dont come to the faculty room anymore. You know I need this and if you will not give in or give it to me, let us end this. She replied, Mike, hindi pa ako ready and it was you who said it will be after my debut on December 3, 1997. He insisted that there was no difference between having sex then and after her debut. He told her, kung hindi ko makukuha ngayon, tapusin na natin ngayon. Pressured and afraid of his threat to end their relationship, she hesitantly replied Fine. On hearing this, he quickly undressed while commenting ibibigay mo rin pala, pinahirapan mo pa ako and laughed. They had sexual intercourse. In July 1999, AAA ended her relationship with petitioner. She learned that he was either intimately involved with or was sexually harassing his students in Assumption College and in other colleges where he taught. In particular, he was dismissed from the De La Salle University-Aguinaldo for having sexual relations with a student and sexually harassing three other students. His employment was also terminated by Assumption College for sexually harassing two of his students. It was then that AAA realized that she was actually abused by petitioner. Depressed and distressed, she confided all that happened between her and petitioner to her mother, BBB. On learning what her daughter underwent in the hands of petitioner, BBB filed an administrative complaint in Assumption College against him. She also lodged a complaint in the Office of the City Prosecutor of Pasay City which led to the filing of Criminal Case No. 000691. In his defense, petitioner proffered denial and alibi. He claimed that the alleged incidents on October 3, 1997 and October 10, 1997 did not happen. He spent October 3, 1997 with his colleagues Joseph Hipolito and AJ Lagaso while he was busy checking papers and computing grades on October 10, 1997. The last time he saw AAA during the first semester was when she submitted her final paper on October 18, 1997. On November 19, 1997, between 10:30 a.m. and 1:00 p.m., he sorted out conflicts of class schedules for the second semester at the Assumption College. On November 26, 1997, he was at St. Scholasticas College (where he was also teaching) preparing a faculty concert slated on December 12, 1997. At lunch time, he attended the birthday treat of a colleague, Evelyn Bancoro. On November 29, 1997, he attended AAAs 18th birthday party. That was the last time he saw her. According to petitioner, AAA became his sweetheart when she was already 19 years old and after he was dismissed from Assumption College. On December 27 and 28, 1998, they spent time together, shared their worries, problems and dreams and kissed each other. On January 3, 1999, he brought her to Queensland Lodge where they had sexual intercourse for the first time. It was repeated for at least 20 times from January 1999 until they broke up in July 1999, some of which were done at either his or her house when no one was around. The trial court found the evidence for the prosecution sufficient to sustain petiti oners conviction. On March 7, 2001, it rendered a decision finding petitioner guilty.[10] The dispositive portion read: In view of the foregoing, the Court finds the accused Michael John Malto y Zarsadias guilty beyond reasonable doubt for violation of Article III, Section 5(a)[,] paragraph 3 of RA 7610[,] as amended and hereby sentences him to reclusion temporal in its medium period or an imprisonment of seventeen (17) years, four (4) months and one (1) day to twenty (20) years and to pay civil indemnity in the amount of Php 75,000.00 and moral and exemplary damages of Php 50,000.00 to minor complainant with subsidiary imprisonment in case of insolvency.[11]

Petitioner questioned the trial courts decision in the CA. In a decisi on dated July 30, 2004,[12] the appellate court affirmed his conviction even if it found that his acts were not covered by paragraph (a) but by paragraph (b) of Section 5, Article III of RA 7610. It further observed that the trial court failed to fix the minimum term of indeterminate sentence imposed on him. It also ruled that the trial court erred in awarding P75,000 civil indemnity in favor of AAA as it was proper only in a conviction for rape committed under the circumstances under which the death penalty was authorized by law.[13] Hence, the CA modified the decision of the trial court as follows: WHEREFORE, the appealed Decision of conviction is AFFIRMED, with the MODIFICATION that (1) appellant MICHAEL JOHN MALTO y ZARSADIAS is hereby sentenced to an indeterminate penalty of Eight (8) Years and One (1) Day of prision mayor as minimum, to Seventeen (17) Years, Four (4) Months and One (1) Day of reclusion temporal as maximum; and (2) the sum of P75,000.00 as civil indemnity is DELETED.[14] Hence, this petition. Petitioner contends that the CA erred in sustaining his conviction although it found that he did not rape AAA. For him, he should have been acquitted since there was no rape. He also claims that he and AAA were sweethearts and their sexual intercourse was consensual. Petitioner is wrong.

THE OFFENSE STATED IN THE INFORMATION WAS WRONGLY

DESIGNATED

In all criminal prosecutions, the accused is entitled to be informed of the nature and cause of the accusation against him.[15] Pursuant thereto, the complaint or information against him should be sufficient in form and substance. A complaint or information is sufficient if it states the name of the accused; the designation of the offense by the statute; the acts or omissions complained of as constituting the offense; the name of the offended party; the approximate date of the commission of the offense and the place where the offense was committed.[16] The complaint or information shall state the designation of the offense given by the statute, aver the acts or omissions constituting the offense and specify its qualifying and aggravating circumstances.[17] If there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it.[18] The acts or omissions constituting the offense and the qualifying and aggravating circumstances must be stated in ordinary and concise language and not necessarily in the language used in the statute but in terms sufficient to enable a person of common understanding to know what offense is being charged as well as its qualifying and aggravating circumstances and for the court to pronounce judgment.[19] The designation of the offense in the information against petitioner was changed from violation of Section 5(b), Article III of RA 7610 to violation of Section 5(a), Article III thereof. Paragraphs (a) and (b) of Section 5, Article III of RA 7610 provide: Section 5. Child Prostitution and Other Sexual Abuse. - Children, whether male or female, who, for money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other sexual abuse. The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following:

(a) Those who engage in or promote, facilitate or induce child prostitution which include, but are not limited to, the following: 1. Acting as a procurer of a child prostitute;

through coercion, intimidation or influence, engages in sexual intercourse or lascivious conduct.[20] The information against petitioner did not allege anything pertaining to or connected with child prostitution. It did not aver that AAA was abused for profit. What it charged was that petitioner had carnal knowledge or committed sexual intercourse and lascivious conduct with AAA; AAA was induced and/or seduced by petitioner who was her professor to indulge in sexual intercourse and lascivious conduct and AAA was a 17-year old minor. These allegations support a charge for violation of paragraph (b), not paragraph (a), of Section 5, Article III, RA 7610.

2. Inducing a person to be a client of a child prostitute by means of written or oral advertisements or other similar means; 3. 4. Taking advantage of influence or relationship to procure a child as a prostitute; Threatening or using violence towards a child to engage him as a prostitute; or

5. Giving monetary consideration, goods or other pecuniary benefit to a child with intent to engage such child in prostitution. (b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subjected to other sexual abuse: Provided, That when the victim is under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and Article 336 of Act No. 3815, as amended, the Revised Penal Code, for rape or lascivious conduct, as the case may be: Provided, that the penalty for lascivious conduct when the victim is under twelve (12) years of age shall be reclusion temporal in its medium period; and xxx xxx xxx (emphasis supplied)

THE REAL NATURE OF THE OFFENSE IS DETERMINED BY FACTS ALLEGED IN THE INFORMATION, NOT BY THE DESIGNATION

The designation in the information of the specific statute violated is imperative to avoid surprise on the accused and to afford him the opportunity to prepare his defense accordingly. However, the failure to designate the offense by statute,[21] or to mention the specific provision penalizing the act,[22] or an erroneous specification of the law violated[23] does not vitiate the information if the facts alleged clearly recite the facts constituting the crime charged.[24] What controls is not the title of the information or the designation of the offense but the actual facts recited in the information.[25] In other words, it is the recital of facts of the commission of the offense, not the nomenclature of the offense, that determines the crime being charged in the information.[26] The facts stated in the amended information against petitioner correctly made out a charge for violation of Section 5(b), Article III, RA 7610. Thus, even if the trial and appellate courts followed the wrong designation of the offense, petitioner could be convicted of the offense on the basis of the facts recited in the information and duly proven during trial.

The elements of paragraph (a) are: 1. the accused engages in, promotes, facilitates or induces child prostitution; 2. the act is done through, but not limited to, the following means: a. acting as a procurer of a child prostitute; b. inducing a person to be a client of a child prostitute by means of written or oral advertisements or other similar means;

PETITIONER VIOLATED SECTION 5(B), ARTICLE III OF RA 7610, AS AMENDED c. d. taking advantage of influence or relationship to procure a child as a prostitute; threatening or using violence towards a child to engage him as a prostitute or The first element of Section 5(b), Article III of RA 7610 pertains to the act or acts committed by the accused. The second element refers to the state or condition of the offended party. The third element corresponds to the minority or age of the offended party. The first element was present in this case. Petitioner committed lascivious conduct against and had sexual intercourse with AAA in the following instances: (1) on November 19, 1997, when he kissed her at the back and neck, touched her breasts and placed his hand inside her blouse to gratify his lust; (2) on November 26, 1997, when, with lewd designs, he dragged her towards the bed of the motel room and forcibly kissed her on the lips, neck and breasts and (3) when he exerted moral influence on her and pressured her until she surrendered herself to him on November 26, 1997. His acts were covered by the definitions of sexual abuse and lascivious conduct under Section 2(g) and (h) of the Rules and Regulations on the Reporting and Investigation of Child Abuse Cases promulgated to implement the provisions of RA 7610, particularly on child abuse: (g) Sexual abuse includes the employment, use, persuasion, inducement, enticement or coercion of a child to engage in, or assist another person to engage in, sexual intercourse or lascivious conduct or the molestation, prostitution, or incest with children; (h) Lascivious conduct means the intentional touching, either directly or through clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks, or the introduction of any object into

e. giving monetary consideration, goods or other pecuniary benefit to a child with intent to engage such child in prostitution; 3. 4. the child is exploited or intended to be exploited in prostitution and the child, whether male or female, is below 18 years of age.

On the other hand, the elements of paragraph (b) are: 1. the accused commits the act of sexual intercourse or lascivious conduct; 2. the act is performed with a child exploited in prostitution or subjected to other sexual abuse and 3. the child, whether male or female, is below 18 years of age. Paragraph (a) essentially punishes acts pertaining to or connected with child prostitution. It contemplates sexual abuse of a child exploited in prostitution. In other words, under paragraph (a), the child is abused primarily for profit. On the other hand, paragraph (b) punishes sexual intercourse or lascivious conduct not only with a child exploited in prostitution but also with a child subjected to other sexual abuse. It covers not only a situation where a child is abused for profit but also one in which a child,

the genitalia, anus or mouth, of any person, whether of the same or opposite sex, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person, bestiality, masturbation, lascivious exhibition of the genitals or public area of a person. (emphasis supplied) The second element was likewise present here. The following pronouncement in People v. Larin[27] is significant:

The sweetheart theory applies in acts of lasciviousness and rape, felonies committed against or without the consent of the victim. It operates on the theory that the sexual act was consensual. It requires proof that the accused and the victim were lovers and that she consented to the sexual relations.[30] For purposes of sexual intercourse and lascivious conduct in child abuse cases under RA 7610, the sweetheart defense is unacceptable. A child exploited in prostitution or subjected to other sexual abuse cannot validly give consent to sexual intercourse with another person. The language of the law is clear: it seeks to punish [t]hose who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subjected to other sexual abuse.

A child is deemed exploited in prostitution or subjected to other sexual abuse, when the child indulges in sexual intercourse or lascivious conduct (a) for money, profit, or any other consideration; or (b) under the coercion or influence of any adult, syndicate or group. (emphasis supplied)

On November 19, 1997, due to the influence of petitioner, AAA indulged in lascivious acts with or allowed him to commit lascivious acts on her. This was repeated on November 26, 1997 on which date AAA also indulged in sexual intercourse with petitioner as a result of the latters influence and moral ascendancy. Thus, she was deemed to be a child subjected to other sexual abuse as the concept is defined in the opening paragraph of Section 5, Article III of RA 7610 and in Larin. The third element of the offense was also satisfied. Section 3 (a), Article I of RA 7610 provides: SECTION 3. Definition of Terms. (a) Children refers [to] persons below eighteen (18) years of age or those over but are unable to fully take care of themselves or protect themselves from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability or condition; (emphasis supplied)

Unlike rape, therefore, consent is immaterial in cases involving violation of Section 5, Article III of RA 7610. The mere act of having sexual intercourse or committing lascivious conduct with a child who is exploited in prostitution or subjected to sexual abuse constitutes the offense. It is a malum prohibitum, an evil that is proscribed. A child cannot give consent to a contract under our civil laws.[31] This is on the rationale that she can easily be the victim of fraud as she is not capable of fully understanding or knowing the nature or import of her actions. The State, as parens patriae, is under the obligation to minimize the risk of harm to those who, because of their minority, are as yet unable to take care of themselves fully.[32] Those of tender years deserve its protection.[33] The harm which results from a childs bad decision in a sexual encounter may be infinitely more damaging to her than a bad business deal. Thus, the law should protect her from the harmful consequences[34] of her attempts at adult sexual behavior.[35] For this reason, a child should not be deemed to have validly consented to adult sexual activity and to surrender herself in the act of ultimate physical intimacy under a law which seeks to afford her special protection against abuse, exploitation and discrimination. (Otherwise, sexual predators like petitioner will be justified, or even unwittingly tempted by the law, to view her as fair game and vulnerable prey.) In other words, a child is presumed by law to be incapable of giving rational consent to any lascivious act or sexual intercourse.[36] This must be so if we are to be true to the constitutionally enshrined State policy to promote the physical, moral, spiritual, intellectual and social well-being of the youth.[37] This is consistent with the declared policy of the State [T]o provide special protection to children from all forms of abuse, neglect, cruelty, exploitation and discrimination, and other conditions prejudicial to their development; provide sanctions for their commission and carry out a program for prevention and deterrence of and crisis intervention in situations of child abuse, exploitation, and discrimination.[38] (emphasis supplied) as well as to intervene on behalf of the child when the parents, guardian, teacher or person having care or custody of the child fails or is unable to protect the child against abuse, exploitation, and discrimination or when such acts against the child are committed by the said parent, guardian, teacher or person having care and custody of the same.[39] (emphasis supplied) This is also in harmony with the foremost consideration of the childs best interests in all actions concerning him or her. The best interest of children shall be the paramount consideration in all actions concerning them, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities, and legislative bodies, consistent with the principles of First Call for Children as enunciated in the United Nations Convention on the Rights of the Child. Every

On November 19, 2007 and November 26, 2007, AAA was a child as she was below 18 years of age. She was therefore within the protective mantle of the law. Since all three elements of the crime were present, the conviction of petitioner was proper.

VIOLATION OF SECTION 5(B), ARTICLE III OF RA 7610 AND RAPE ARE SEPARATE AND DISTINCT CRIMES Petitioner was charged and convicted for violation of Section 5(b), Article III of RA 7610, not rape. The offense for which he was convicted is punished by a special law while rape is a felony under the Revised Penal Code.[28] They have different elements.[29] The two are separate and distinct crimes. Thus, petitioner can be held liable for violation of Section 5(b), Article III of RA 7610 despite a finding that he did not commit rape.

CONSENT OF THE CHILD IS IMMATERIAL IN CRIMINAL CASES INVOLVING VIOLATION OF SECTION 5, ARTICLE III OF RA 7610

Petitioner claims that AAA welcomed his kisses and touches and consented to have sexual intercourse with him. They engaged in these acts out of mutual love and affection. But may the sweetheart theory be invoked in cases of child prostitution and other sexual abuse prosecuted under Section 5, Article III of RA 7610? No.

effort shall be exerted to promote the welfare of children and enhance their opportunities for a useful and happy life.[40] (emphasis supplied) PETITIONER MAY ENJOY THE BENEFITS OF THE INDETERMINATE SENTENCE LAW The penalty prescribed for violation of the provisions of Section 5, Article III of RA 7610 is reclusion temporal in its medium period to reclusion perpetua. In the absence of any mitigating or aggravating circumstance, the proper imposable penalty is reclusion temporal in its maximum period, the medium of the penalty prescribed by the law.[41] Notwithstanding that RA 7610 is a special law, petitioner may enjoy the benefits of the Indeterminate Sentence Law.[42] Since the penalty provided in RA 7610 is taken from the range of penalties in the Revised Penal Code, it is covered by the first clause of Section 1 of the Indeterminate Sentence Law.[43] Thus, he is entitled to a maximum term which should be within the range of the proper imposable penalty of reclusion temporal in its maximum period (ranging from 17 years, 4 months and 1 day to 20 years) and a minimum term to be taken within the range of the penalty next lower to that prescribed by the law: prision mayor in its medium period to reclusion temporal in its minimum period (ranging from 8 years and 1 day to 14 years and 8 months). THE AWARD OF DAMAGES SHOULD BE MODIFIED The trial court awarded AAA P75,000 as civil indemnity, P50,000 as moral and exemplary damages. The CA deleted the award for civil indemnity. It correctly reasoned that the award was proper only in a conviction for rape committed under the circumstances under which the death penalty is authorized by law. Consistent, however, with the objective of RA 7610 to afford children special protection against abuse, exploitation and discrimination and with the principle that every person who contrary to law, willfully or negligently causes damage to another shall indemnify the latter for the same,[44] civil indemnity to the child is proper in a case involving violation of Section 5(b), Article III of RA 7610. Every person criminally liable is civilly liable.[45] The rule is that, in crimes and quasi-delicts, the defendant shall be liable for all damages which are the natural and probable consequences of the act or omission complained of.[46] Thus, P50,000 civil indemnity ex delicto shall be awarded in cases of violation of Section 5(b), Article III of RA 7610.[47] Moreover, the CA erred in affirming the grant of P50,000 as moral and exemplary damages. The rule is that, in every case, trial courts must specify the award of each item of damages and make a finding thereon in the body of the decision.[48] Thus, moral damages and exemplary damages should be separate items of award. AAA testified that she was emotionally devastated and lost touch of her inner self as a result of what petitioner did to her. Because of the mental anxiety and wounded feelings caused by petitioner to her, she had several sessions with the dean for student affairs[49] and the guidance counselor of Assumption College as well as with a psychiatrist. This was corroborated by her mother and the dean of student affairs of Assumption College. Thus, she is entitled to moral damages of P50,000. However, in the absence of an aggravating circumstance, the grant of exemplary damages is unwarranted.[50] Accordingly, the petition is hereby DENIED. Petitioner Michael John Z. Malto is hereby found guilty of violating Section 5(b), Article III of RA 7610, as amended, for which he is sentenced to 14 years and 8 months of reclusion temporal as minimum to 20 years of reclusion temporal as maximum. He is further ordered to pay AAA P50,000 as civil indemnity and P50,000 for moral damages. Costs against petitioner. SO ORDERED.

THIRD DIVISION G.R. No. 149995 September 28, 2007 ISIDRO PABLITO M. PALANA, petitioner Vs PEOPLE OF THE PHILIPPINES, respondent DECISION

not issued in September 1987 to guarantee the payment of a loan since his checking account was opened only on December 1, 1987.[8] He claimed that private complainant cajoled him to issue a check in his favor allegedly to be shown to a textile supplier who would provide the partnership with the necessary raw materials. Petitioner alleged that when the check was issued sometime in February 1988,[9] complainant knew that the same was not funded.[10] After trial on the merits, the Regional Trial Court rendered on September 23, 1997 a Decision[11] finding petitioner guilty as charged, the dispositive portion of which reads: Wherefore, this court finds the accused Isidro Pablito M. Palana guilty as charged and sentences him to a prison term of Six (6) months and to indemnify the private complainant the sum of P590,000.00 plus legal interest from filing of this case until full payment. SO ORDERED.

YNARES-SANTIAGO, J.:

For review is the Decision of the Court of Appeals in CA-G.R. CR No. 21879 dated September 17, 2001,[1] affirming the September 23, 1997 Decision of the Regional Trial Court of Makati City, Branch 63, in Criminal Case No. 91-5617 convicting petitioner Isidro Pablito Palana with violation of Batas Pambansa (B.P.) Blg. 22 otherwise known as the Bouncing Checks Law. On August 19, 1991, petitioner was charged with violation of B.P. Blg. 22 in an Information which reads as follows:

Petitioner appealed but it was dismissed by the Court of Appeals which affirmed the trial courts decision in toto.[12] Both the trial court and the Court of Appeals found that the check was issued as a guaranty for the loan, thereby rejecting petitioners investment theory. In ruling against the existence of a partnership between them, the trial court noted that the so-called partnership venture, Palanas General Merchandising, was registered on December 1, 1987 only in the name of petitioner.[13] The Court of Appeals also held that the act of lending money does not necessarily amount to an investment of capital. Hence, the instant petition raising the following issues: I.

That on or about September 1987, in the Municipality of Makati, Metro Manila, Philippines, a place within the jurisdiction of this Honorable Court, the above-named accused did, then and there, willfully, unlawfully and knowingly make or draw and issue to Alex B. Carlos to apply on account or for the value the check described below: Check No. Drawn Against : Paseo de Roxas Branch In the amount of Postdated Payable to : 326317PR Asian Savings Bank : : : P590,000.00 February 15, 1988 Dr. Alex B. Carlos

THE COURT OF APPEALS ERRED IN AFFIRMING THE FINDING OF THE LOWER COURT DISREGARDING THE DEFENSE OF THE ACCUSED THAT THE ISSUANCE OF THE SUBJECT ASIAN BANK CHECK, WAS NOT FOR A CONSIDERATION OR FOR VALUE, AS THE ACCUSED WAS ONLY TRICKED BY THE PRIVATE COMPLAINANT TO ISSUE THE SAID CHECK AS A MEANS OF BINDING THE ACCUSED TO RETURN HIS INVESTMENT IN THE PARTNERSHIP WHICH WAS THEN SUFFERING FROM BUSINESS REVERSALS. II. THE COURT OF APPEALS ERRED IN AFFIRMING THE FINDINGS OF THE LOWER COURT THAT THE REGIONAL TRIAL COURT HAS JURISDICTION OVER THE CASE, DESPITE THE FACT THAT AT THE TIME THE ACCUSED WAS ARRAIGNED ON JULY 25, 1995 R.A. 7691 EXPANDING THE JURISDICTION OF THE METROPOLITAN TRIAL COURT WAS ALREADY IN EFFECT.[14] The issues to be resolved are: 1) whether petitioner was guilty of violation of B.P. Blg. 22; and 2) whether the Regional Trial Court has jurisdiction over the case. Petitioners argument that it is the Metropolitan Trial Court and not the Regional Trial Court which has jurisdiction over the case pursuant to R.A. 7691 is without merit. It is hornbook doctrine that jurisdiction to try a criminal action is determined by the law in force at the time of the institution of the action[15] and not during the arraignment of the accused. The Information charging petitioner with violation of B.P. Blg. 22 was filed on August 19, 1991. At that time, the governing law determinative of jurisdiction is B.P. Blg. 129[16] which provides: Sec. 20. Jurisdiction in criminal cases. Regional Trial Courts shall exercise exclusive original jurisdiction in all criminal cases not within the exclusive jurisdiction of any court,

said accused well knowing that at the time of issue, he did not have sufficient funds in or credit with the drawee bank for the payment in full of the face amount of such check when presented for payment within (90) days from the date thereof, was subsequently dishonored by the drawee bank for the reason Drawn Against Insufficient Funds and despite receipt of notice of such dishonor, the accused failed to pay said payee the face amount of said check or make arrangement for full payment within five (5) banking days after receiving notice.[2] On January 30, 1992, the case was archived due to petitioners non -apprehension despite the issuance of a warrant for his arrest.[3] On June 27, 1995, the warrant of arrest was recalled and set aside[4] after petitioner posted the required bail. He was arraigned on July 25, 1995 when he pleaded not guilty to the offense charged.[5] Private complainant Alex B. Carlos testified that sometime in September 1987, petitioner and his wife borrowed money from him in the amount of P590,000.00. To secure the payment of the loan, petitioner issued a postdated check for the same amount in favor of the complainant.[6] However, when the check was presented for payment, it was dishonored by the bank for insufficiency of funds. Subsequent demand notwithstanding, petitioner failed to make good the said dishonored check.[7]

Petitioner alleged that the amounts given to him by private complainant was an investment by the latter who was his business partner. He argued that the subject check was

tribunal or body, except those now falling under the exclusive and concurrent jurisdiction of the Sandiganbayan which shall hereafter be exclusively taken cognizance by the latter. xxxx Sec. 32. Jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts in Criminal Cases. Except in cases falling within the exclusive original jurisdiction of Regional Trial Courts and the Sandiganbayan, the Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts shall exercise: xxxx (2) Exclusive original jurisdiction over all offenses punishable with imprisonment of not exceeding four years and two months, or a fine of not more than four thousand pesos, or both such fine and imprisonment, regardless of other imposable accessory or other penalties, including the civil liability arising from such offenses or predicated thereon, irrespective of kind, nature, value or amount thereof: Provided, however, That in offenses involving damage to property through criminal negligence they shall have exclusive original jurisdiction where the imposable fine does not exceed twenty thousand pesos. Violation of B.P. Blg. 22 is punishable with imprisonment of not less than 30 days but not more than one 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 P200,000.00, or both fine and imprisonment[17] at the discretion of the court. In the present case, the fine imposable is P200,000.00 hence, the Regional Trial Court properly acquired jurisdiction over the case.[18] The Metropolitan Trial Court could not acquire jurisdiction over the criminal action because its jurisdiction is only for offenses punishable with a fine of not more than P4,000.00. The subsequent amendment of B.P. 129 by R.A. No. 7691, An Act Expanding the Jurisdiction of the Municipal Trial Courts, Municipal Circuit Trial Courts and the Metropolitan Trial Court[19] on June 15, 1994 cannot divest the Regional Trial Court of jurisdiction over petitioners case. Where a court has already obtained and is exercising jurisdiction over a controversy, its jurisdiction to proceed to the final determination of the cause is not affected by new legislation placing jurisdiction over such proceedings in another tribunal unless the statute expressly provides, or is construed to the effect that it is intended to operate on actions pending before its enactment. Indeed, R.A. No. 7691 contains retroactive provisions. However, these only apply to civil cases that have not yet reached the pre-trial stage. Neither from an express proviso nor by implication can it be construed that R.A. No. 7691 has retroactive application to criminal cases pending or decided by the Regional Trial Courts prior to its effectivity.[20] The jurisdiction of the RTC over the case attached upon the commencement of the action by the filing of the Information and could not be ousted by the passage of R.A. No. 7691 reapportioning the jurisdiction of inferior courts, the application of which to criminal cases is prospective in nature.[21] After a careful review of the records, this Court sustains petitioners conviction for violation of B.P. Blg. 22. The elements of the offense penalized under B.P. Blg. 22 are as follows: (1) the accused makes, draws, or issues any check to apply on account or for value; (2) the accused knows at the time of issue that he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment; and (3) the check is subsequently dishonored by the drawee bank for insufficiency of funds or credit or would have been dishonored for the same reason had not the drawer, without any valid reason, ordered the bank to stop payment. Each element of the offense was duly proven by the prosecution. Petitioner admitted that at the time he issued the subject check, he knew that he does not have sufficient funds in or credit with the drawee bank for payment of such check. Consequently, when the check was presented for payment, it was dishonored by the drawee bank for insufficiency of funds.

Thereafter, he received demand letters to pay the amount of the check from private complainant but he did not comply with it.[22] In ruling that the amount of the check was for consideration or value, both the trial court and the Court of Appeals upheld private complainants claim that the check was issued as a guaranty for the loan and rejected petitioners investment theory. The issue as to whether the amount of the subject check represents the amount of the money loaned by private complainant to petitioner or as an investment in the alleged partnership is a factual question involving the credibility of witnesses. Where the issue is one of credibility, the appellate court will not generally disturb the findings of the lower court considering that it is in a better position to settle that issue since it had the advantage of hearing the witnesses and observing their conduct during the trial, which circumstances carry great weight in assessing their credibility. In the present case, we see no reason to reverse the finding of the trial court as affirmed by the Court of Appeals that the amount of the subject check was a loan and not an investment.[23] Upon issuance of a check, in the absence of evidence to the contrary, it is presumed that the same was issued for valuable consideration, which may consist either in some right, interest, profit or benefit accruing to the party who makes the contract, or some forbearance, detriment, loss or some responsibility, to act, or labor, or service given, suffered or undertaken by the other side. Since it was established that petitioner received money from private complainant in various amounts,[24] petitioner cannot now claim that the checks were not issued for value.[25] The allegation that the check was intended to be shown to potential suppliers is not a valid defense. In Cueme v. People,[26] the Court held thus: The allegation of petitioner that the checks were merely intended to be shown to prospective investors of her corporation is, to say the least, not a defense. The gravamen of the offense punished under B.P. Blg. 22 is the act of making or issuing a worthless check or a check that is dishonored upon its presentment for payment. The law has made the mere act of issuing a bad check malum prohibitum, an act proscribed by the legislature for being deemed pernicious and inimical to public welfare. Considering the rule in mala prohibita cases, the only inquiry is whether the law has been breached. Criminal intent becomes unnecessary where the acts are prohibited for reasons of public policy, and the defenses of good faith and absence of criminal intent are unavailing. The checks issued, even assuming they were not intended to be encashed or deposited in a bank, produce the same effect as ordinary checks. What the law punishes is the issuance of a rubber check itself and not the purpose for which the check was issued nor the terms and conditions relating to its issuance. This is not without good reasons. To determine the purpose as well as the terms and conditions for which checks are issued will greatly erode the faith the public reposes in the stability and commercial value of checks as currency substitutes, and bring about havoc in the trading and banking communities. Besides, the law does not make any distinction as to the kind of checks which are the subject of its provisions, hence, no such distinction can be made by means of interpretation or application. What is important is the fact that petitioner deliberately issued the checks in question and those checks were dishonored upon presentment for payment. Hence, the agreement surrounding the issuance of a check is irrelevant to the prosecution and conviction of the petitioner.[27] The alleged inconsistency in the date of issuance of the subject check is likewise immaterial. Issuance, as defined under the Negotiable Instruments Law, is the first delivery of the check.[28] In the case at bar, the Information alleged that the check was postdated February 15, 1988 although issued in or about September 1987. During trial, petitioner testified that the

Checking Account was opened only on December 1, 1987 and that the check was issued sometime in February 1988. The rule is that a variance between the allegation in the information and proof adduced during trial shall be fatal to the criminal case if it is material and prejudicial to the accused so much so that it affects his substantial rights.[29] In a prosecution for violation of B.P. 22, the time of the issuance of the subject check is material since it forms part of the second element of the offense that at the time of its issuance, petitioner knew of the insufficiency of funds. However, it cannot be said that petitioner was prejudiced by such variance nor was surprised by it. Records show that petitioner knew at the time he issued the check that he does not have sufficient funds in the bank to cover the amount of the check. Yet, he proceeded to issue the same claiming that the same would only be shown to prospective suppliers, a defense which is not valid. Moreover, there is no merit in petitioners allegation that private complainant knew that the check is not funded. Both the trial court and the Court of Appeals found that the subject check was issued as guaranty for payment of the loan hence, was intended to apply for account or for value. As such, it was incumbent upon petitioner to see to it that the check is duly covered when presented for payment. Pursuant to Supreme Court Administrative Circular No. 12-2000, as clarified by Administrative Circular No. 13-2001, the alternative penalty of fine may be imposed in lieu of imprisonment considering that the prosecution failed to prove or allege that petitioner is not a first-time offender.[30] Hence, in lieu of imprisonment, a fine of P200,000.00 shall be imposed upon petitioner.[31] WHEREFORE, the assailed decision of the Court of Appeals in CA-G.R. CR No. 21879 dated September 17, 2001, finding petitioner ISIDRO PABLITO M. PALANA guilty of violating Batas Pambansa Blg. 22, is AFFIRMED with MODIFICATION. Petitioner is ordered to pay private complainant the amount of P590,000.00, representing the value of the check, with six (6%) percent interest from date of filing of the Information until the finality of the decision, the amount of which, inclusive of the interest, is subject to twelve percent (12%) interest, from finality of the decision until fully paid. In lieu of imprisonment, petitioner is ordered to pay a fine of P200,000.00. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 155647 November 23, 2007

Later, Metrobank instituted 11 criminal charges against Jimmy and Benjamin Go for violation of Presidential Decree No. 115 (Trust Receipts Law) before the Office of the City Prosecutor of Manila. After preliminary investigation, the Office of the City Prosecutor of Manila issued a Resolution26 in I.S. Nos. 94D-09945-55 dated May 31, 1995 recommending the dismissal of the case, viz.: The liability of respondents is only civil in nature in the absence of commission and misappropriation. Respondents are liable ex-contractu for breach of the Letters of Credit Trust Receipt. In the instant case, the goods subject of the trust receipts have not been sold, so there is (sic) no proceeds to deliver to the bank. Granting for the sake of argument that respondents failed to account for said goods, the failure is only a mere disputable presumption which has been overturned by the submission of an inventory showing that the goods are intact and in the warehouse in Bataan. Considering that the goods are still intact in the [respondents] warehouse at the Bataan Export Processing Zone, considering further the fact that the goods were never processed, and considering finally that the goods have not been sold, ergo, there is no violation of [the] Presidential Decree. As already stated, respondents liability is only civil in nature. On June 22, 1995, Metrobank filed a motion for reconsideration, but the same was denied for lack of merit in the Review Resolution27 dated October 25, 1999. Metrobank appealed to the Department of Justice. On September 5, 2000, then Acting Secretary of Justice, Ramon J. Liwag, rendered a Resolution28 dismissing the appeal on two grounds: (1) the resolution issued by the City Fiscal is in accord with law and evidence; and (2) Metrobank failed to submit proof of service of a copy of the appeal to the prosecutor either by personal service or registered mail as required by Section 3 of Department Order No. 223. Metrobank went to the Court of Appeals via a petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure. However, the Court of Appeals dismissed the petition for lack of merit. Metrobank moved to reconsider the dismissal, but the motion was denied. Hence, this petition. The Issues The reasons given by Metrobank for the allowance of its petition are as follows: First Reason

METROPOLITAN BANK & TRUST COMPANY, Petitioner, vs. JIMMY GO and BEMJAMIN GO BAUTISTA alias BENJAMIN GO, Respondents. DECISION NACHURA, J.: Petitioner Metropolitan Bank & Trust Company (Metrobank) urges this Court to review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure the Decision dated August 15, 2002 and the Resolution dated October 15, 2002, both of the Court of Appeals in CA-G.R. SP No. 61544.1 The Facts of the Case On September 30, 1988, Metrobank, through its Assistant Vice- President Leonardo B. Lejano, executed a Credit Line Agreement2 in favor of its client, BGB Industrial Textile Mills, Inc. (BGB) in the total amount ofP10,000,000.00. As security for the obligation, private respondent Benjamin Go (now deceased), being an officer of BGB, executed a Continuing Surety Agreement3 in favor of Metrobank, binding himself solidarily with BGB to pay Metrobank the said amount of P10,000,000.00. In November 1988, private respondent Jimmy Go, as general manager of BGB, applied for eleven (11) commercial letters of credit to cover the shipment of raw materials and spare parts. Accordingly, Metrobank issued the 11 irrevocable letters of credit to BGB. The merchandise/shipments were delivered to and accepted by BGB on different dates. Consequently, 11 trust receipts were executed by BGB thru Jimmy Go and Benjamin Go, as entrustees, in favor of Metrobank as entruster. The letters of credit and their corresponding trust receipts are listed below: By the terms of the trust receipts, BGB agreed to hold the goods in trust for Metrobank and, in case of sale of the goods, to hand the proceeds to the bank to be applied against the total obligation object of the trust receipts. On maturity dates of the trust receipts, because the goods remained unsold, BGB and Jimmy and Benjamin Go failed to satisfy their obligation. Metrobank filed three (3) separate complaints against BGB, for collection of sum of money equivalent to the value of the goods subject of the trust receipts. The cases were filed with the Makati Regional Trial Court and docketed as Civil Case Nos. 93-496, 93-509, and 93-910.

BOTH THE RESOLUTION AND THE DECISION OF THE COURT OF APPEALS DELIBERATELY IGNORED THE GLARING VIOLATION COMMITTED BY THE RESPONDENTS OF BOTH THE PROVISIONS OF THE SUBJECT TRUST RECEIPTS AND OF PRESIDENTIAL DECREE NO. 115. Second Reason

BOTH THE RESOLUTION AND THE DECISION OF THE COURT OF APPEALS DELIBERATELY IGNORED THE FACT THAT THE OFFER MADE BY THE RESPONDENTS TO ALLEGEDLY RETURN THE SUBJECT MERCHANDISE IS A MERE AFTERTHOUGHT. Third Reason BOTH THE RESOLUTION AND THE DECISION DELIBERATELY IGNORED THE FACT THAT A VIOLATION OF PRESIDENTIAL DECREE NO. 115, AS SETTLED JURISPRUDENCE HOLD, IS AN OFFENSE AGAINST PUBLIC ORDER AND NOT MERELY AGAINST PROPERTY.29 Petitioner Metrobank ascribed error to the Office of the City Prosecutor of Manila when it found that the liability of respondents Jimmy and Benjamin Go was only civil in nature, i.e., to return the merchandise subject of the 11 trust receipts, considering that they were never sold, and to pay their obligation under the letters of credit. Citing jurisprudence,30 it contends that Section 13,31 the penal provision of the Trust Receipts Law, encompasses any act violative of an obligation covered by the trust receipt and is not limited to transactions in goods which are to be sold (retailed), reshipped, stored, and processed as a component of a product ultimately sold. It posits that a violation of the Trust Receipts Law can be committed by mere failure of the entrustee to discharge any of the obligations imposed upon him under Section 9 32 of the said law. According to Metrobank, Jimmy and Benjamin Gos offer to deliver the merchandise subject of the trust receipts cannot exculpate them from criminal liability because they failed to offer to surrender and to actually surrender the goods upon maturity of the trust receipts and even when several demands were made upon them. Stated differently, it was Metrobanks position that there was already a violation of the Trust Receipts Law committed by Jimmy and Benjamin Go even before they made their offer to return the merchandise to Metrobank in their pleadings before the Office of the City Prosecutor of Manila. Metrobank claimed that the belated offer of Jimmy and Benjamin Go to return the goods was a mere afterthought in order to evade indictment and prosecution. Metrobank further argues that the dismissal by the Office of the City Prosecutor of Manila of the 11 criminal charges for violation of the Trust Receipts Law against Jimmy and Benjamin Go for want of probable cause, grounded on the absence of conversion or misappropriation, is tantamount to holding that a violation of the Trust Receipts Law is merely a crime against property and not against public order, contrary to prevailing jurisprudence. The Ruling of the Court After a judicious study of the records of this case, this Court does not find any cogent reason to reverse the assailed Decision and Resolution of the Court of Appeals, and the Resolutions of the Office of the City Prosecutor of Manila and of the Secretary of Justice. First. The issues raised in this petition are substantially factual. Essentially, Metrobank urges this Court to determine whether or not Jimmy and Benjamin Go failed to turn over the proceeds of the sale of the goods or to return them, if unsold, in accordance with the terms of the 11 trust receipts. This failure, Metrobank adds, amounts to a violation of Section 13 of the Trust Receipts Law and warrants the prosecution of respondents for estafa under Article 315, paragraph 1(b)33 of the Revised Penal Code.

In an appeal via certiorari, only questions of law may be raised because this Court is not a trier of facts.34Metrobank wants to make this case an exception to the rule, as it attributes to the Office of the City Prosecutor of Manila, the Secretary of Justice, and the Court of Appeals a misapprehension of the facts. Unfortunately, there is no adequate support for this imputation. In order that respondents Jimmy and Benjamin Go may be validly prosecuted for estafa under Article 315, paragraph 1(b) of the Revised Penal Code, in relation to Section 13 of the Trust Receipts Law, the following elements must be established: (a) they received the subject goods in trust or under the obligation to sell the same and to remit the proceeds thereof to Metrobank, or to return the goods if not sold; (b) they misappropriated or converted the goods and/or the proceeds of the sale; (c) they performed such acts with abuse of confidence to the damage and prejudice of Metrobank; and (d) demand was made on them by Metrobank for the remittance of the proceeds or the return of the unsold goods. 35 The Office of the City Prosecutor and the Secretary of Justice had identical findings that the element of misappropriation or conversion is absent, and that Jimmy and Benjamin Go could not deliver the proceeds of the sale of the merchandise to Metrobank because the goods remained unsold. Both offices similarly found that the failure of the respondents to account for the proceeds of the sale or of the goods only created a disputable presumption that either the proceeds or the goods themselves were converted or misappropriated, but the presumption was overturned when the goods were offered to be inventoried and returned as they remained intact in the warehouse at the Bataan Export Processing Zone. Accordingly, they both ruled that the liability of Jimmy and Benjamin Go was merely civil in nature, and the criminal complaints were dismissed for lack of probable cause. Declaring that the Office of the City Prosecutor did not commit grave abuse of discretion, the Court of Appeals likewise made a factual finding that Jimmy and Benjamin Go offered to return the goods even prior to the filing of the civil cases against them, although the offer was not accepted because Metrobank appeared more interested in collecting the amount it advanced under the letters of credit. It also found that Metrobank failed to prove its demand for the return of the goods. Thus, even if we accommodate the petitioners plea to review the cases factual milieu, we still have to agree with the findings of fact of the Office of the City Prosecutor and of the Court of Appeals. These findings appear to be supported by the evidence on record. The prosecution for estafa under Article 315, paragraph 1(b) of the Revised Penal code, cannot prosper because the second (misappropriation/conversion) and the fourth (demand) elements of the offense are not present. Under the pro-forma trust receipts subject of this case, Jimmy and Benjamin Go, as entrustees, agreed to hold the goods (whether in their original, processed or manufactured state, and irrespective of the fact that a different merchandise is used in completing such manufacture) in trust for Metrobank, as its exclusive property, with liberty to sell them for cash only for the latters account, but without authority to make any other disposition whatsoever of the said goods or any part (or the proceeds) thereof by way of conditional sale, pledge, or otherwise. They further agreed that in case of sale of the goods, or if the goods are used for the manufacture of finished products and are sold, they will turn over the proceeds to Metrobank to be applied against their total obligation under the trust receipts and for the payment of other debts to Metrobank. It is noteworthy that Jimmy and Benjamin Go processed the goods into textiles, to be sold for cash only, and that not all of the merchandise were sold such that they were able to remit only enough proceeds to fully settle their accounts under Letters of Credit-Trust Receipt Nos. 1922 and 1939, which were not subject of the 11 criminal complaints filed by Metrobank. Metrobank

wants us to interpret this as confirmation that Jimmy and Benjamin Go had sold all the other merchandise but deliberately failed to turn over their corresponding proceeds. However, the Court sees this circumstance for what it simply and truly is, i.e., that Jimmy and Benjamin Go exerted efforts to comply with their obligation to sell the merchandise and remit the proceeds thereof. Unfortunately, the rest of the merchandise remained unsold in the warehouse at the Bataan Export Processing Zone, such that no proceeds thereof could be remitted to Metrobank. This Court also observes that the same trust receipts provide that Metrobank has the option to take possession of the goods upon default of Jimmy and Benjamin Go on any of their obligations and to sell them, with the proceeds thereof to be applied to the principal obligation and also to the expenses to be incurred by Metrobank in selling the same.36 But Metrobank did not exercise this option. Instead, it filed three (3) complaints to collect the value of the merchandise. Jimmy and Benjamin Go offered to return the merchandise to Metrobank even before these civil cases were filed. Then, Jimmy and Benjamin Go reiterated the offer to return the goods in their answer to the civil complaints. Again, Metrobank did not accept the offer, and instead filed the 11 criminal complaints for alleged violation of the Trust Receipts Law to be prosecuted as estafa under Article 315, paragraph 1(b) of the Revised Penal Code. This chain of events validates the finding of the Court of Appeals that Metrobank is not interested in the return of the goods but only in collecting the money it extended to the respondents. Furthermore, the trust receipts uniformly contain the following provision: Failure on the part of the ENTRUSTEE to account to the BANK/ENTRUSTER for the goods/documents/instruments received in trust and/or for the proceeds of the sale thereof within thirty (30) days from demand made by the BANK/ENTRUSTER shall constitute an admission that the ENTRUSTEE has converted or misappropriated said goods/documents/instruments for the personal benefit of the ENTRUSTEE and to the detriment and prejudice of the BANK/ENTRUSTER, and the BANK/ENTRUSTER is forthwith authorized to file and prosecute the corresponding and appropriate action, civil or criminal, against the ENTRUSTEE.37 Yet, not one of the 11 criminal complaints was accompanied by a demand letter to show that Metrobank demanded the remittance of the proceeds of the sale of the goods or the return of goods, if unsold. We find this deficiency exceptionally revealing, especially considering that the said trust receipts had different maturity dates. Second. The trust receipts subject of this case partake of the nature of contracts of adhesion. A contract of adhesion is defined as one in which one party imposes a ready-made form of contract which the other party may accept or reject, but which the latter cannot modify; one party prepares the stipulations in the contract, while the other party merely affixes his signature or his "adhesion" thereto, giving no room for negotiation, and resulting in deprivation of the latter of the opportunity to bargain on equal footing.38 In this case, the trust receipts were prepared solely by Metrobank with Jimmy and Benjamin Go having no choice but to adhere entirely to their provisions. In fact, the trust receipts stipulated that the goods subject thereof were the exclusive property of Metrobank, contrary to the essence of a trust receipt. A trust receipt is considered a security transaction designed to provide financial assistance to importers and retail dealers who do not have sufficient funds or resources to finance the importation or purchase of merchandise, and who may not be able to acquire credit except through utilization, as collateral, of the merchandise imported or purchased. It is a document in

which is expressed a security transaction where the lender, having no prior title to the goods on which the lien is to be constituted, and not having possession over the same since possession thereof remains in the borrower, lends his money to the borrower on security of the goods which the borrower is privileged to sell, clear of the lien, with an agreement to pay all or part of the proceeds of the sale to the lender. It is a security agreement pursuant to which a bank acquires a "security interest" in the goods. It secures a debt, and there can be no such thing as security interest that secures no obligation.39 The subject trust receipts, being contracts of adhesion, are not per se invalid and inefficacious. But should there be ambiguities therein, such ambiguities are to be strictly construed against Metrobank, the party that prepared them.40 There is no doubt as to the obligation of Jimmy and Benjamin Go to turn over the proceeds of the sale of the goods or to return the unsold goods. However, an ambiguity exists as to when this obligation arises, whether upon maturity of the trust receipts or upon demand by Metrobank. A strict construction of the provisions of the contracts of adhesion dictates that the reckoning point should be the demand made by Metrobank. As already discussed above, Jimmy and Benjamin Go turned over the proceeds of the goods sold under the two letters of credit/trust receipts which were not subject of the criminal cases. They also made the offer to return the unsold goods covered by the eleven trust receipts even before the three civil cases were filed against them. The offer was reiterated in their answer. More importantly, the unsold goods remained intact, contrary to the claim of Metrobank that they had misappropriated or converted the same. While there was a stipulation of a presumptive admission on the part of Jimmy and Benjamin Go of misappropriation or conversion upon failure to account for the goods or for the proceeds of the sale thereof within 30 days from demand, which will authorize Metrobank to pursue legal remedies in court, the fact of demand made by Metrobank was not established by competent evidence. Except for the bare allegation that it did so in the 11 criminal complaints, no letter of demand accompanied all of the criminal complaints. As to the other obligations under the trust receipts adapted from Section 9 of the Trust Receipts Law, there is no sufficient evidence proffered by Metrobank that Jimmy and Benjamin Go had actually violated them. What the law punishes is the dishonesty and abuse of confidence in the handling of money or goods to the prejudice of another, whether the latter is the owner.41 The malum prohibitum nature of the offense notwithstanding, the intent to misuse or misappropriate the goods or their proceeds on the part of Jimmy and Benjamin Go should have been proved. Unfortunately, no such proof appears on record. 42 In the prosecution of criminal cases, it is the complainant who has the burden to prove the elements of the crime which the respondents are probably guilty of. 43 Obviously, Metrobank failed to discharge this burden. Indeed, there is neither error nor grave abuse of discretion which can be attributed to the Office of the City Prosecutor of Manila when it dismissed the criminal complaints for lack of probable cause. In the absence of grave abuse of discretion on the part of the Office of the City Prosecutor of Manila, this Court must not interfere in its findings, considering that full discretionary authority has been delegated to the latter in determining whether or not a criminal charge should be instituted.44 With greater reason should we respect this finding, as it had been uniformly affirmed not only by the reviewing prosecutor but also by the Secretary of Justice and by the Court of Appeals.

WHEREFORE, the petition is DENIED for lack of merit. Accordingly, the assailed Decision dated August 15, 2002 and the Resolution dated October 15, 2002 of the Court of Appeals in CA-G.R. SP No. 61544 are AFFIRMED. SO ORDERED.

Letter of Credit No. DIV88-1941NC


4

Expiry Date of Trust Receipt Feb. 18, 1989 March 04, 1989 March 07, 1989 March 07, 1989 March 14, 1989 April 04, 1989 April 04, 1989 April 10, 1989 April 12, 1989 April 19, 1989 May 25, 1989

Amount of Trust Receipt P1,625,395.385 P3,011,249.717 P 508,252.169 P 626,165.2811 P 452,289.5513 P 660,348.0015 P 594,313.2017 P 358,113.3319 P1,720,882.0721 P 244,250.2623 P1,413,999.1125

DIV88-1940NC6 DIV88-1925NC8 DIV88-1926NC10 DIV88-1924NC12 DIV88-1930NC14 DIV88-1931NC16 DIV88-1923NC18 DIV88-1951NC20 DIV88-1932NC22 DIV88-1952NC24

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 152644 February 10, 2006

The Ruling of the MTC In its Joint Order of 16 January 1997 ("Joint Order"), the MTC12 initially deferred ruling on petitioners motion for lack of "indubitable ground for the quashing of the [I]nformations x x x." The MTC scheduled petitioners arraignment in February 1997. However, on petitioners motion, the MTC issued a Consolidated Order on 28 April 1997 ("Consolidated Order"), granting partial reconsideration to its Joint Order and quashing the Informations for violation of PD 1067 and PD 984. The MTC maintained the Informations for violation of RA 7942 and Article 365 of the RPC. The MTC held: [T]he 12 Informations have common allegations of pollutants pointing to "mine tailings" which were precipitately discharged into the Makulapnit and Boac Rivers due to breach caused on the Tapian drainage/tunnel due to negligence or failure to institute adequate measures to prevent pollution and siltation of the Makulapnit and Boac River systems, the very term and condition required to be undertaken under the Environmental Compliance Certificate issued on April 1, 1990. The allegations in the informations point to same set [sic] of evidence required to prove the single fact of pollution constituting violation of the Water Code and the Pollution Law which are the same set of evidence necessary to prove the same single fact of pollution, in proving the elements constituting violation of the conditions of ECC, issued pursuant to the Philippine Mining Act. In both instances, the terms and conditions of the Environmental Compliance Certificate were allegedly violated. In other words, the same set of evidence is required in proving violations of the three (3) special laws. After carefully analyzing and weighing the contending arguments of the parties and after taking into consideration the applicable laws and jurisprudence, the Court is convinced that as far as the three (3) aforesaid laws are concerned, only the Information for [v]iolation of Philippine Mining Act should be maintained. In other words, the Informations for [v]iolation of AntiPollution Law (PD 984) and the Water Code (PD 1067) should be dismissed/quashed because the elements constituting the aforesaid violations are absorbed by the same elements which constitute violation of the Philippine Mining Act (RA 7942). Therefore, x x x Criminal Case[] Nos. 96-44, 96-45 and 96-46 for [v]iolation of the Water Code; and Criminal Case[] Nos. 96-47, 96-48 and 96-49 for [v]iolation of the Anti-Pollution Law x x x are hereby DISMISSED or QUASHED and Criminal Case[] Nos. 96-50, 96-51 and 96-52 for [v]iolation of the Philippine Mining Act are hereby retained to be tried on the merits. The Information for [v]iolation of Article 365 of the Revised Penal Code should also be maintained and heard in a full blown trial because the common accusation therein is reckless imprudence resulting to [sic] damage to property. It is the damage to property which the law punishes not the negligent act of polluting the water system. The prosecution for the [v]iolation of Philippine Mining Act is not a bar to the prosecution for reckless imprudence resulting to [sic] damage to property.13 The MTC re-scheduled petitioners arraignment on the remaining charges on 28 and 29 May 1997. In the hearing of 28 May 1997, petitioners manifested that they were willing to be arraigned on the charge for violation of Article 365 of the RPC but not on the charge for violation of RA 7942 as they intended to appeal the Consolidated Order in so far as it maintained the Informations for that offense. After making of record petitioners manifestation, the MTC proceeded with the arraignment and ordered the entry of "not guilty" pleas on the charges for violation of RA 7942 and Article 365 of the RPC.

JOHN ERIC LONEY, STEVEN PAUL REID and PEDRO B. HERNANDEZ, Petitioners, vs. PEOPLE OF THE PHILIPPINES, Respondent. DECISION CARPIO, J.: The Case This is a petition for review1 of the Decision2 dated 5 November 2001 and the Resolution dated 14 March 2002 of the Court of Appeals. The 5 November 2001 Decision affirmed the ruling of the Regional Trial Court, Boac, Marinduque, Branch 94, in a suit to quash Informations filed against petitioners John Eric Loney, Steven Paul Reid, and Pedro B. Hernandez ("petitioners"). The 14 March 2002 Resolution denied petitioners motion for reconsideration. The Facts Petitioners John Eric Loney, Steven Paul Reid, and Pedro B. Hernandez are the President and Chief Executive Officer, Senior Manager, and Resident Manager for Mining Operations, respectively, of Marcopper Mining Corporation ("Marcopper"), a corporation engaged in mining in the province of Marinduque. Marcopper had been storing tailings3 from its operations in a pit in Mt. Tapian, Marinduque. At the base of the pit ran a drainage tunnel leading to the Boac and Makalupnit rivers. It appears that Marcopper had placed a concrete plug at the tunnels end. On 24 March 1994, tailings gushed out of or near the tunnels end. In a few days, the Mt. Ta pian pit had discharged millions of tons of tailings into the Boac and Makalupnit rivers. In August 1996, the Department of Justice separately charged petitioners in the Municipal Trial Court of Boac, Marinduque ("MTC") with violation of Article 91(B), 4 sub-paragraphs 5 and 6 of Presidential Decree No. 1067 or the Water Code of the Philippines ("PD 1067"), 5 Section 86 of Presidential Decree No. 984 or the National Pollution Control Decree of 1976 ("PD 984"),7 Section 1088 of Republic Act No. 7942 or the Philippine Mining Act of 1995 ("RA 7942"),9 and Article 36510 of the Revised Penal Code ("RPC") for Reckless Imprudence Resulting in Damage to Property.11 Petitioners moved to quash the Informations on the following grounds: (1) the Informations were "duplicitous" as the Department of Justice charged more than one offense for a single act; (2) petitioners John Eric Loney and Steven Paul Reid were not yet officers of Marcopper when the incident subject of the Informations took place; and (3) the Informations contain allegations which constitute legal excuse or justification.

Petitioners subsequently filed a petition for certiorari with the Regional Trial Court, Boac, Marinduque, assailing that portion of the Consolidated Order maintaining the Informations for violation of RA 7942. Petitioners petition was raffled to Branch 94. For its part, public respondent filed an ordinary appeal with the same court assailing that portion of the Consolidated Order quashing the Informations for violation of PD 1067 and PD 984. Public respondents appeal was raffled to Branch 38. On public respondents motion, Branch 38 ordered public respondents appeal consolidated with petitioners petition in Branch 94. The Ruling of Branch 94 In its Resolution14 of 20 March 1998, Branch 94 granted public respondents appeal but denied petitioners petition. Branch 94 set aside the Consolidated Order in so far as it quashed the Informations for violation of PD 1067 and PD 984 and ordered those charges reinstated. Branch 94 affirmed the Consolidated Order in all other respects. Branch 94 held: After a careful perusal of the laws concerned, this court is of the opinion that there can be no absorption by one offense of the three other offenses, as [the] acts penalized by these laws are separate and distinct from each other. The elements of proving each violation are not the same with each other. Concededly, the single act of dumping mine tailings which resulted in the pollution of the Makulapnit and Boac rivers was the basis for the information[s] filed against the accused each charging a distinct offense. But it is also a well-established rule in this jurisdiction that "A single act may offend against two or more entirely distinct and unrelated provisions of law, and if one provision requires proof of an additional fact or element which the other does not, an acquittal or conviction or a dismissal of the information under one does not bar prosecution under the other. x x x." xxxx [T]he different laws involve cannot absorb one another as the elements of each crime are different from one another. Each of these laws require [sic] proof of an additional fact or element which the other does not although they stemmed from a single act. 15 Petitioners filed a petition for certiorari with the Court of Appeals alleging that Branch 94 acted with grave abuse of discretion because (1) the Informations for violation of PD 1067, PD 984, RA 7942 and the Article 365 of the RPC "proceed from and are based on a single act or incident of polluting the Boac and Makalupnit rivers thru dumping of mine tailings" and (2) the duplicitous nature of the Informations contravenes the ruling in People v. Relova.16Petitioners further contended that since the acts complained of in the charges for violation of PD 1067, PD 984, and RA 7942 are "the very same acts complained of" in the charge for violation of Article 365 of the RPC, the latter absorbs the former. Hence, petitioners should only be prosecuted for violation of Article 365 of the RPC.17 The Ruling of the Court of Appeals In its Decision of 5 November 2001, the Court of Appeals affirmed Branch 94s ruling. The appellate court held: The records of the case disclose that petitioners filed a motion to quash the aforementioned Informations for being duplicitous in nature. Section 3 of Rule 117 of the Revised Rules of Court specifically provides the grounds upon which an information may be quashed. x x x

xxxx [D]uplicity of Informations is not among those included in x x x [Section 3, Rule 117]. xxxx We now go to petitioners claim that the resolution of the public respondent contravened the doctrine laid down in People vs. Relova for being violative of their right against multiple prosecutions. In the said case, the Supreme Court found the Peoples argument with respect to the variances in the mens rea of the two offenses being charged to be correct. The Court, however, decided the case in the context of the second sentence of Article IV (22) of the 1973 Constitution (now under Section 21 of Article III of the 1987 Constitution), rather than the first sentence of the same section. x x x xxxx [T]he doctrine laid down in the Relova case does not squarely apply to the case at Bench since the Informations filed against the petitioners are for violation of four separate and distinct laws which are national in character. xxxx This Court firmly agrees in the public respondents understanding that the laws by which the petitioners have been [charged] could not possibly absorb one another as the elements of each crime are different. Each of these laws require [sic] proof of an additional fact or element which the other does not, although they stemmed from a single act. x x x xxxx [T]his Court finds that there is not even the slightest indicia of evidence that would give rise to any suspicion that public respondent acted with grave abuse of discretion amounting to excess or lack of jurisdiction in reversing the Municipal Trial Courts quashal of the I nformations against the petitioners for violation of P.D. 1067 and P.D. 984. This Court equally finds no error in the trial courts denial of the petitioners motion to quash R.A. 7942 and Article 365 of the Revised Penal Code.18 Petitioners sought reconsideration but the Court of Appeals denied their motion in its Resolution of 14 March 2002. Petitioners raise the following alleged errors of the Court of Appeals: I. THE COURT OF APPEALS COMMITTED A R[E]VERSIBLE ERROR IN MAINTAINING THE CHARGES FOR VIOLATION OF THE PHILIPPINE MINING ACT (R.A. 7942) AND REINSTATING THE CHARGES FOR VIOLATION OF THE WATER CODE (P.D. 1067) AND POLLUTION CONTROL LAW (P.D. 984), CONSIDERING THAT:

A. THE INFORMATIONS FOR VIOLATION OF THE WATER CODE (P.D. 1067), THE POLLUTION CONTROL LAW (P.D. 984), THE PHILIPPINE MINING ACT (R.A. 7942) AND ARTICLE 365 OF THE REVISED PENAL CODE PROCEED FROM AND ARE BASED ON A SINGLE ACT OR INCIDENT OF POLLUTING THE BOAC AND MAKULAPNIT RIVERS THRU DUMPING OF MINE TAILINGS. B. THE PROSECUTION OF PETITIONERS FOR DUPLICITOUS AND MULTIPLE CHARGES CONTRAVENES THE DOCTRINE LAID DOWN IN PEOPLE VS. RELOVA, 148 SCRA 292 [1986 THAT "AN ACCUSED SHOULD NOT BE HARASSED BY MULTIPLE PROSECUTIONS FOR OFFENSES WHICH THOUGH DIFFERENT FROM ONE ANOTHER ARE NONETHELESS EACH CONSTITUTED BY A COMMON SET OR OVERLAPPING SETS OF TECHNICAL ELEMENTS." II. THE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR IN RULING THAT THE ELEMENT OF LACK OF NECESSARY OR ADEQUATE PRECAUTION, NEGLIGENCE, RECKLESSNESS AND IMPRUDENCE UNDER ARTICLE 356 [sic] OF THE REVISED PENAL CODE DOES NOT FALL WITHIN THE AMBIT OF ANY OF THE ELEMENTS OF THE PERTINENT PROVISIONS OF THE WATER CODE, POLLUTION CONTROL LAW AND PHILIPPINE MINING ACT CHARGED AGAINST PETITIONERS[.]19 The Issues The petition raises these issues: (1) Whether all the charges filed against petitioners except one should be quashed for duplicity of charges and only the charge for Reckless Imprudence Resulting in Damage to Property should stand; and (2) Whether Branch 94s ruling, as affirmed by the Court of Appeals, contravenes People v. Relova. The Ruling of the Court The petition has no merit. No Duplicity of Charges in the Present Case Duplicity of charges simply means a single complaint or information charges more than one offense, as Section 13 of Rule 11020 of the 1985 Rules of Criminal Procedure clearly states: Duplicity of offense. A complaint or information must charge but one offense, except only in those cases in which existing laws prescribe a single punishment for various offenses. In short, there is duplicity (or multiplicity) of charges when a single Information charges more than one offense.21

Under Section 3(e), Rule 11722 of the 1985 Rules of Criminal Procedure, duplicity of offenses in a single information is a ground to quash the Information. The Rules prohibit the filing of such Information to avoid confusing the accused in preparing his defense. 23 Here, however, the prosecution charged each petitioner with four offenses, with each Information charging only one offense. Thus, petitioners erroneously invoke duplicity of charges as a ground to quash the Informations. On this score alone, the petition deserves outright denial. The Filing of Several Charges is Proper Petitioners contend that they should be charged with one offense only Reckless Imprudence Resulting in Damage to Property because (1) all the charges filed against them "proceed from and are based on a single act or incident of polluting the Boac and Makalupnit rivers thru dumping of mine tailings" and (2) the charge for violation of Article 365 of the RPC "absorbs" the other charges since the element of "lack of necessary or adequate protection, negligence, recklessness and imprudence" is common among them. The contention has no merit. As early as the start of the last century, this Court had ruled that a single act or incident might offend against two or more entirely distinct and unrelated provisions of law thus justifying the prosecution of the accused for more than one offense.24 The only limit to this rule is the Constitutional prohibition that no person shall be twice put in jeopardy of punishment for "the same offense."25 In People v. Doriquez,26 we held that two (or more) offenses arising from the same act are not "the same" x x x if one provision [of law] requires proof of an additional fact or element which the other does not, x x x. Phrased elsewise, where two different laws (or articles of the same code) define two crimes, prior jeopardy as to one of them is no obstacle to a prosecution of the other, although both offenses arise from the same facts, if each crime involves some important act which is not an essential element of the other.27 (Emphasis supplied) Here, double jeopardy is not at issue because not all of its elements are present. 28 However, for the limited purpose of controverting petitioners claim that they should be charged with one offense only, we quote with approval Branch 94s comparative analysis of PD 1067, PD 984, RA 7942, and Article 365 of the RPC showing that in each of these laws on which petitioners were charged, there is one essential element not required of the others, thus: In P.D. 1067 (Philippines Water Code), the additional element to be established is the dumping of mine tailings into the Makulapnit River and the entire Boac River System without prior permit from the authorities concerned. The gravamen of the offense here is the absence of the proper permit to dump said mine tailings. This element is not indispensable in the prosecution for violation of PD 984 (Anti-Pollution Law), [RA] 7942 (Philippine Mining Act) and Art. 365 of the Revised Penal Code. One can be validly prosecuted for violating the Water Code even in the absence of actual pollution, or even [if] it has complied with the terms of its Environmental Compliance Certificate, or further, even [if] it did take the necessary precautions to prevent damage to property. In P.D. 984 (Anti-Pollution Law), the additional fact that must be proved is the existence of actual pollution. The gravamen is the pollution itself. In the absence of any pollution, the accused must be exonerated under this law although there was unauthorized dumping of mine tailings or lack of precaution on its part to prevent damage to property.

In R.A. 7942 (Philippine Mining Act), the additional fact that must be established is the willful violation and gross neglect on the part of the accused to abide by the terms and conditions of the Environmental Compliance Certificate, particularly that the Marcopper should ensure the containment of run-off and silt materials from reaching the Mogpog and Boac Rivers. If there was no violation or neglect, and that the accused satisfactorily proved [sic] that Marcopper had done everything to ensure containment of the run-off and silt materials, they will not be liable. It does not follow, however, that they cannot be prosecuted under the Water Code, AntiPollution Law and the Revised Penal Code because violation of the Environmental Compliance Certificate is not an essential element of these laws. On the other hand, the additional element that must be established in Art. 365 of the Revised Penal Code is the lack of necessary or adequate precaution, negligence, recklessness and imprudence on the part of the accused to prevent damage to property. This element is not required under the previous laws. Unquestionably, it is different from dumping of mine tailings without permit, or causing pollution to the Boac river system, much more from violation or neglect to abide by the terms of the Environmental Compliance Certificate. Moreover, the offenses punished by special law are mal[a] prohibita in contrast with those punished by the Revised Penal Code which are mala in se.29 Consequently, the filing of the multiple charges against petitioners, although based on the same incident, is consistent with settled doctrine. On petitioners claim that the charge for violation of Article 365 of the RPC "absorbs" t he charges for violation of PD 1067, PD 984, and RA 7942, suffice it to say that a mala in se felony (such as Reckless Imprudence Resulting in Damage to Property) cannot absorb mala prohibita crimes (such as those violating PD 1067, PD 984, and RA 7942). What makes the former a felony is criminal intent (dolo) or negligence (culpa); what makes the latter crimes are the special laws enacting them. People v. Relova not in Point Petitioners reiterate their contention in the Court of Appeals that their prosecution contravenes this Courts ruling in People v. Relova. In particular, petitioners cite the Courts statement in Relova that the law seeks to prevent harassment of the accused by "multiple prosecutions for offenses which though different from one another are nonetheless each constituted by a common set or overlapping sets of technical elements." This contention is also without merit.1avvphil.net The issue in Relova is whether the act of the Batangas Acting City Fiscal in charging one Manuel Opulencia ("Opulencia") with theft of electric power under the RPC, after the latter had been acquitted of violating a City Ordinance penalizing the unauthorized installation of electrical wiring, violated Opulencias right against double jeopardy. We held that it did, n ot because the offenses punished by those two laws were the same but because the act giving rise to the charges was punished by an ordinance and a national statute, thus falling within the proscription against multiple prosecutions for the same act under the second sentence in Section 22, Article IV of the 1973 Constitution, now Section 21, Article III of the 1987 Constitution. We held: The petitioner concludes that:

"The unauthorized installation punished by the ordinance [of Batangas City] is not the same as theft of electricity [under the Revised Penal Code]; that the second offense is not an attempt to commit the first or a frustration thereof and that the second offense is not necessarily included in the offense charged in the first information." The above argument[ ] made by the petitioner [is] of course correct. This is clear both from the express terms of the constitutional provision involved which reads as follows: "No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act." x x x and from our case law on this point. The basic difficulty with the petitioners position is that it must be examined, not under the terms of the first sentence of Article IV (22) of the 1973 Constitution, but rather under the second sentence of the same section. The first sentence of Article IV (22) sets forth the general rule: the constitutional protection against double jeopardy is not available where the second prosecution is for an offense that is different from the offense charged in the first or prior prosecution, although both the first and second offenses may be based upon the same act or set of acts. The second sentence of Article IV (22) embodies an exception to the general proposition: the constitutional protection, against double jeopardy is available although the prior offense charged under an ordinance be different from the offense charged subsequently under a national statute such as the Revised Penal Code, provided that both offenses spring from the same act or set of acts. x x x30 (Italicization in the original; boldfacing supplied) Thus, Relova is no authority for petitioners claim against multiple prosecutions based on a single act not only because the question of double jeopardy is not at issue here, but also because, as the Court of Appeals held, petitioners are being prosecuted for an act or incident punished by four national statutes and not by an ordinance and a national statute. In short, petitioners, if ever, fall under the first sentence of Section 21, Article III which prohibits multiple prosecution for the same offense, and not, as in Relova, for offenses arising from the same incident. WHEREFORE, we DENY the petition. We AFFIRM the Decision dated 5 November 2001 and the Resolution dated 14 March 2002 of the Court of Appeals. SO ORDERED.