G.R. No.

174436

January 23, 2013

JUANITA ERMITAO, represented by her Attorney-in-Fact, ISABELO ERMITAO, Petitioner,

vs.
LAILANIE M. PAGLAS, Respondent.
DECISION
PERALTA, J.:
Before the Court is a petition for review on certiorari under Rule 45 of the Rules of Court seeking to reverse
and set aside the Decision1 and Resolution2 dated September 8, 2004 and August 16, 2006, respectively, of
the Court of Appeals (CA) in CA-G.R. SP No. 77617.
On November 5, 1999, herein respondent and petitioner, through her representative, lsabelo R. Ermitao,
executed a Contract of Lease wherein petitioner leased in favor of respondent a 336 square meter residential
lot and a house standing thereon located at No. 20 Columbia St., Phase l, Doa Vicenta Village, Davao City.
The contract period is one (1) year, which commenced on November 4, 1999, with a monthly rental rate
of P13,500.00. Pursuant to the contract, respondent paid petitioner P2,000.00 as security deposit to answer for
unpaid rentals and damage that may be cause to the leased unit.
Subsequent to the execution of the lease contract, respondent received information that sometime in March
1999, petitioner mortgaged the subject property in favor of a certain Charlie Yap (Yap) and that the same was
already foreclosed with Yap as the purchaser of the disputed lot in an extra-judicial foreclosure sale which was
registered on February 22, 2000. Yap's brother later offered to sell the subject property to respondent.
Respondent entertained the said offer and negotiations ensued. On June 1, 2000, respondent bought the
subject property from Yap for P950,000.00. A Deed of Sale of Real Property was executed by the parties as
evidence of the contract. However, it was made clear in the said Deed that the property was still subject to
petitioner's right of redemption.
Prior to respondent's purchase of the subject property, petitioner filed a suit for the declaration of nullity of the
mortgage in favor of Yap as well as the sheriff's provisional certificate of sale which was issued after the
disputed house and lot were sold on foreclosure.
Meanwhile, on May 25, 2000, petitioner sent a letter demanding respondent to pay the rentals which are due
and to vacate the leased premises. A second demand letter was sent on March 25, 2001. Respondent ignored
both letters.
On August 13, 2001, petitioner filed with the Municipal Trial Court in Cities (MTCC), Davao City, a case of
unlawful detainer against respondent.
In its Decision dated November 26, 2001, the MTCC, Branch 6, Davao City dismissed the case filed by
petitioner and awarded respondent the amounts of P25,000.00 as attorney's fees and P2,000.00 as
appearance fee.
Petitioner filed an appeal with the Regional Trial Court (RTC) of Davao City.
On February 14, 2003, the RTC rendered its Decision, the dispositive portion of which reads as follows:

WHEREFORE, PREMISES CONSIDERED, the assailed Decision is AFFIRMED with MODIFICATION.

AFFIRMED insofar as it dismissed the case for unlawful detainer but modified in that the award of attorney's
fees in defendant's herein respondent's favor is deleted and that the defendant respondent is ordered to pay
plaintiff herein petitioner the equivalent of ten months unpaid rentals on the property or the total sum
of P135,000.00.
SO ORDERED.3
The RTC held that herein respondent possesses the right to redeem the subject property and that, pending
expiration of the redemption period, she is entitled to receive the rents, earnings and income derived from the
property.
Aggrieved by the Decision of the RTC, petitioner filed a petition for review with the CA.
On September 8, 2004, the CA rendered its assailed Decision disposing, thus:
WHEREFORE, premises considered, the assailed Decision of the Regional Trial Court, Branch 16, 11th
Judicial Region, Davao City is AFFIRMED with the MODIFICATIONS as follows:
(a) Private respondent's obligation to pay the petitioner the amount of ONE HUNDRED THIRTY-FIVE
THOUSAND PESOS (P135,000.00) equivalent of ten (10) months is hereby DELETED;
(b) Attorney's fees and litigation expenses were correctly awarded by the trial court having compelled
the private respondent to litigate and incur expenses to protect her interests by reason of the unjustified
act of petitioner (Producers Bank of the Philippines vs. Court of Appeals, 365 SCRA 326), Thus:
litigation expenses of only TEN THOUSAND PESOS (P10,000.00) not TWENTY-FIVE THOUSAND
PESOS (P25,000.00); and
(c) Attorney's fees REI NSTAT ED in the amount of TEN THOUSAND PESOS (P10,000.00) instead of
only TWO THOUSAND PESOS (P2,000.00).
SO ORDERED.4
Quoting extensively from the decision of the MTCC as well as on respondent's comment on the petition for
review, the CA ruled that respondent did not act in bad faith when she bought the property in question because
she had every right to rely on the validity of the documents evidencing the mortgage and the foreclosure
proceedings.
Petitioner filed a Motion for Reconsideration, but the CA denied it in its Resolution dated August 16, 2006.
Hence, the instant petition for review on certiorari raising the following assignment of errors:
A.WHETHER OR NOT THE COURT OF APPEALS ERRED IN DISMISSING THE UNLAWFUL
DETAINER CASE BY RULING THAT A SHERIFF'S FINAL CERTIFICATE OF SALE WAS ALREADY
ISSUED WHICH DECISION IS NOT BASED ON THE EVIDENCE AND IN ACCORDANCE WITH THE
APPLICABLE LAWS AND JURISPRUDENCE.
B. WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT RULED THAT PRIVATE
RESPONDENT WAS A BUYER IN GOOD FAITH EVEN IF SHE WAS INFORMED BY PETITIONER
THROUGH A LETTER ADVISING HER THAT THE REAL ESTATE MORTGAGE CONTRACT WAS

SHAM, FICTITIOUS AS IT WAS A PRODUCT OF FORGERY BECAUSE PETITIONER'S

PURPORTED SIGNATURE APPEARING THEREIN WAS SIGNED AND FALSIFIED BY A CERTAIN
ANGELA CELOSIA.
C. WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT AWARDED ATTORNEY'S FEES
WHICH WAS DELETED BY RTC-BRANCH 16 OF DAVAO CITY DESPITE THE ABSENCE OF ANY
EXPLANATION AND/OR JUSTIFICATION IN THE BODY OF THE DECISION.5
At the outset, it bears to reiterate the settled rule that the only question that the courts resolve in ejectment
proceedings is: who is entitled to the physical possession of the premises, that is, to the possession de facto
and not to the possession de jure.6 It does not even matter if a party's title to the property is questionable.7 In
an unlawful detainer case, the sole issue for resolution is the physical or material possession of the property
involved, independent of any claim of ownership by any of the party litigants.8 Where the issue of ownership is
raised by any of the parties, the courts may pass upon the same in order to determine who has the right to
possess the property.9 The adjudication is, however, merely provisional and would not bar or prejudice an
action between the same parties involving title to the property.10
In the instant case, pending final resolution of the suit filed by petitioner for the declaration of nullity of the real
estate mortgage in favor of Yap, the MTCC, the RTC and the CA were unanimous in sustaining the
presumption of validity of the real estate mortgage over the subject property in favor of Yap as well as the
presumption of regularity in the performance of the duties of the public officers who subsequently conducted its
foreclosure sale and issued a provisional certificate of sale. Based on the presumed validity of the mortgage
and the subsequent foreclosure sale, the MTCC, the RTC and the CA also sustained the validity of
respondent's purchase of the disputed property from Yap. The Court finds no cogent reason to depart from
these rulings of the MTCC, RTC and CA. Thus, for purposes of resolving the issue as to who between
petitioner and respondent is entitled to possess the subject property, this presumption stands.
Going to the main issue in the instant petition, it is settled that in unlawful detainer, one unlawfully withholds
possession thereof after the expiration or termination of his right to hold possession under any contract,
express or implied.11 In such case, the possession was originally lawful but became unlawful by the expiration
or termination of the right to possess; hence, the issue of rightful possession is decisive for, in such action, the
defendant is in actual possession and the plaintiffs cause of action is the termination of the defendants right to
continue in possession.12
In the instant petition, petitioner's basic postulate in her first and second assigned errors is that she remains
the owner of the subject property. Based on her contract of lease with respondent, petitioner insists that
respondent is not permitted to deny her title over the said property in accordance with the provisions of Section
2 (b), Rule 131 of the Rules of Court.
The Court does not agree.
The conclusive presumption found in Section 2 (b), Rule 131 of the Rules of Court, known as estoppel against
tenants, provides as follows:
Sec. 2. Conclusive presumptions. The following are instances of conclusive presumptions:
xxxx
(b) The tenant is not permitted to deny the title of his landlord at the time of the commencement of the relation
of landlord and tenant between them. (Emphasis supplied).

It is clear from the abovequoted provision that what a tenant is estopped from denying is the title of his landlord
at the time of the commencement of the landlord-tenant relation.13 If the title asserted is one that is alleged to
have been acquired subsequent to the commencement of that relation, the presumption will not apply.14 Hence,
the tenant may show that the landlord's title has expired or been conveyed to another or himself; and he is not
estopped to deny a claim for rent, if he has been ousted or evicted by title paramount.15 In the present case,
what respondent is claiming is her supposed title to the subject property which she acquired subsequent to the
commencement of the landlord-tenant relation between her and petitioner. Hence, the presumption under
Section 2 (b), Rule 131 of the Rules of Court does not apply.
The foregoing notwithstanding, even if respondent is not estopped from denying petitioner's claim for rent, her
basis for such denial, which is her subsequent acquisition of ownership of the disputed property, is
nonetheless, an insufficient excuse from refusing to pay the rentals due to petitioner.
There is no dispute that at the time that respondent purchased Yap's rights over the subject property,
petitioner's right of redemption as a mortgagor has not yet expired. It is settled that during the period of
redemption, it cannot be said that the mortgagor is no longer the owner of the foreclosed property, since the
rule up to now is that the right of a purchaser at a foreclosure sale is merely inchoate until after the period of
redemption has expired without the right being exercised.16 The title to land sold under mortgage foreclosure
remains in the mortgagor or his grantee until the expiration of the redemption period and conveyance by the
master's deed.17 Indeed, the rule has always been that it is only upon the expiration of the redemption period,
without the judgment debtor having made use of his right of redemption, that the ownership of the land sold
becomes consolidated in the purchaser.18
Stated differently, under Act. No. 3135, the purchaser in a foreclosure sale has, during the redemption period,
only an inchoate right and not the absolute right to the property with all the accompanying incidents.19 He only
becomes an absolute owner of the property if it is not redeemed during the redemption period.20
Pending expiration of the period of redemption, Section 7 of Act No. 3135,21 as amended, provides:
Sec. 7. In any sale made under the provisions of this Act, the purchaser may petition the Court of First Instance
of the province or place where the property or any part thereof is situated, to give him possession thereof
during the redemption period, furnishing bond in an amount equivalent to the use of the property for a period of
twelve months, to indemnify the debtor in case it be shown that the sale was made without violating the
mortgage or without complying with the requirements of this Act. Such petition shall be made under oath and
filed in [the] form of an ex parte motion in the registration or cadastral proceedings if the property is registered,
or in special proceedings in the case of property registered under the Mortgage Law or under section one
hundred and ninety-four of the Administrative Code, or of any other real property encumbered with a mortgage
duly registered in the office of any register of deeds in accordance with any existing law, and in each case the
clerk of the court shall, upon the filing of such petition, collect the fees specified in paragraph eleven of section
one hundred and fourteen of Act Numbered Four hundred and ninety-six, as amended by Act Numbered
Twenty-eight hundred and sixty-six, and the court shall, upon approval of the bond, order that a writ of
possession issue, addressed to the sheriff of the province in which the property is situated, who shall execute
said order immediately.
Thus, it is clear from the abovequoted provision of law that, as a consequence of the inchoate character of the
purchaser's right during the redemption period, Act. No. 3135, as amended, allows the purchaser at the
foreclosure sale to take possession of the property only upon the filing of a bond, in an amount equivalent to
the use of the property for a period of twelve (12) months, to indemnify the mortgagor in case it be shown that
the sale was made in violation of the mortgage or without complying with the requirements of the law. In Cua

Lai Chu v. Laqui,22 this Court reiterated the rule earlier pronounced in Navarra v. Court of Appeals23 that the
purchaser at an extrajudicial foreclosure sale has a right to the possession of the property even during the oneyear redemption period provided the purchaser files an indemnity bond. That bond, nonetheless, is not
required after the purchaser has consolidated his title to the property following the mortgagor's failure to
exercise his right of redemption for in such a case, the former has become the absolute owner thereof.24
It, thus, clearly follows from the foregoing that, during the period of redemption, the mortgagor, being still the
owner of the foreclosed property, remains entitled to the physical possession thereof subject to the purchaser's
right to petition the court to give him possession and to file a bond pursuant to the provisions of Section 7 of
Act No. 3135, as amended. The mere purchase and certificate of sale alone do not confer any right to the
possession or beneficial use of the premises.25
In the instant case, there is neither evidence nor allegation that respondent, as purchaser of the disputed
property, filed a petition and bond in accordance with the provisions of Section 7 of Act No. 3135. In addition,
respondent defaulted in the payment of her rents. Thus, absent respondent's filing of such petition and bond
prior to the expiration of the period of redemption, coupled with her failure to pay her rent, she did not have the
right to possess the subject property.
On the other hand, petitioner, as mortgagor and owner, was entitled not only to the possession of the disputed
house and lot but also to the rents, earnings and income derived therefrom. In this regard, the RTC correctly
cited Section 32, Rule 39 of the Rules of Court which provides as follows:
Sec. 32. Rents, earnings and income of property pending redemption. The purchaser or a redemptioner shall
not be entitled to receive the rents, earnings and income of the property sold on execution, or the value of the
use and occupation thereof when such property is in the possession of a tenant. All rents, earnings and income
derived from the property pending redemption shall belong to the judgment obligor until the expiration of his
period of redemption. (Emphasis supplied)
While the above rule refers to execution sales, the Court finds no cogent reason not to apply the same
principle to a foreclosure sale, as in this case.
The situation became different, however, after the expiration of the redemption period on February 23, 2001.
Since there is no allegation, much less evidence, that petitioner redeemed the subject property within one year
from the date of registration of the certificate of sale, respondent became the owner thereof. Consolidation of
title becomes a right upon the expiration of the redemption period.26 Having become the owner of the disputed
property, respondent is then entitled to its possession.
As a consequence, petitioner's ejectment suit filed against respondent was rendered moot when the period of
redemption expired on February 23, 2001 without petitioner having redeemed the subject property, for upon
expiration of such period petitioner lost his possessory right over the same. Hence, the only remaining right
that petitioner can enforce is his right to the rentals during the time that he was still entitled to physical
possession of the subject property that is from May 2000 until February 23, 2001.1wphi1
In this regard, this Court agrees with the findings of the MTCC that, based on the evidence and the pleadings
filed by petitioner, respondent is liable for payment of rentals beginning May 2000 until February 2001, or for a
period of ten (10) months. However, it is not disputed that respondent already gave to petitioner the sum
of P27,000.00, which is equivalent to two (2) months rental, as deposit to cover for any unpaid rentals. It is
only proper to deduct this amount from the rentals due to petitioner, thus leaving P108,000.00 unpaid rentals.

As to attorneys fees and litigation expenses, the Court agrees with the RTC that since petitioner is, in entitled
to unpaid rentals, her complaint which, among others, prays for the payment of unpaid rentals, is justified.
Thus, the award of attorney' and litigation expenses to respondent should be deleted.
WHEREFORE, the Decision and Resolution of the Court of Appeals in CA-G.R. SP No. 77617, dated
September 8, 2004 and August 16, 2006, respectively, are AFFIRMED with the following MODIFICATIONS: (1)
respondent is ORDERED to pay petitioner P108,000.00 as and for unpaid rentals; (2) the award of attorneys
fees and litigation expenses to respondent is DELETED.
SO ORDERED.

G.R. No. L-62024 February 12, 1990

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
GINA SAHAGUN y MENDOZA, accused-appellant.
The Solicitor General for plaintiff-appellee.
Florante A. Miano for accused-appellant.

FERNAN, C.J.:
Courts must be extra vigilant in trying drug charges lest an innocent person is made to suffer the unusually
severe penalties for drug offenses. 1
Gina Sahagun was convicted by the Regional Trial Court of Zambales and Olongapo City, Branch Ill, for
violation of Sec. 4, Republic Act No. 6425 (Dangerous Drugs Act of 1972, as amended by Presidential Decree
No. 1675) and sentenced to suffer imprisonment for life and to pay a fine of twenty thousand (P20,000.00)
pesos. She now appeals for the reversal of this decision. 2

The information against the accused reads: 3

That on or about the 6th day of August, 1981 in the City of Olongapo, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, without being lawfully
authorized, did then and there wilfully, unlawfully and knowingly attempt to sell, deliver and give
away to another and distribute one (1) aluminum tin foil of marijuana dried leaves weighing
approximately fifteen (15) grams which is a prohibited drug.
Petitioner Gina Sahagun was working as an entertainer at the Aztec Club in Olongapo City at the time of the
alleged incident, which according to the prosecution happened thus: 4
Two or three days before August 6, 1981, Capt. Arturo Castillo, Commanding Officer of the Task
Force Bagong Buhay Constabulary Anti-Narcotics Unit in Olongapo City received information
from an unnamed American serviceman that marijuana is being used and being peddled at the
Aztec Club in Olongapo City (TSN, Dec. 21, 1981, p. 5). Upon receiving the information, they
conducted a surveillance inside the Club (TSN, Dec. 21, 1981, p. 1).
In the evening of August 6,1981 between 11:35 and 12:00 o'clock, while seated three chairs
(TSN, December 21, 1981, p. 2) or five (5) meters from where the accused and his American
serviceman informer were (TSN, December 21, 1981, p. 6), he saw accused handed (sic) to his
American informer marijuana dried leaves wrapped in tin foil (Exh. "B-l"). He thereupon arrested
the accused and confiscated the marijuana (Exh. "B-2") from the American serviceman. The
scene where the incident took place was dimly lighted (TSN, December 21, 1981, p. 2). In order
to be sure, he, Capt. Castillo and his companion conducted a body search of the American
serviceman informer.
Accused, on the other hand, presented the following version in her defense. 5
Inside the Aztec Bar at 11:00 o'clock in the evening of August 6, 1981, she met an unnamed
American customer. She joined the American at his table. The American ordered drinks for her
and a beer for him (sic). While thus seated, obviously drinking their drinks, the American asked
if he (sic) was selling marijuana. She told the American that she was not. While thus talking, the
American drew from his pocket marijuana wrapped in tin foil and handed it to her. The American
asked if the same can be sold.
While in the possession of the tin-foil, Capt. Arturo Castillo arrested her. She told Capt. Castillo
that the marijuana was shown to her by the American. The American asked her to hold it. But
she was brought to the CANU office. She did not know where the American was when she was
brought to the CANU office.
Having been found guilty by the court a quo, 6 the appellant questions said verdict.
A careful scrutiny of the evidence shows that the guilt of the accused has not been proven beyond reasonable
doubt.
The American serviceman who was alleged to be the informer was not presented before the trial court. Without
his testimony, the conclusion of the court that the accused was seen delivering marijuana wrapped in a tin foil
to the American is not supported by the evidence on hand. Who was delivering the marijuana and who was
selling it? The accused pointed to the American as the one selling the prohibited goods. Such testimony was
not rebutted by the prosecution since the American informer was never presented as a witness. Captain Arturo

Castillo, the apprehending officer, was not in a position to see or hear the goings-on at the table of the
American and the accused. The officer was five meters away from the two persons. The place where the event
took place was dimly lighted. And with all that noise, it would be impossible for him to hear the transactions
happening at the table five meters away. There is thus a hiatus to the evidence fatal to a finding of guilt. 7
In the case of People v. Ale, 8 this Court held that the identity of the poseur-buyer is vital where the accused
denies having sold marijuana to anyone. The failure to present the American is, to our mind, fatal to the
prosecution's case for it is presumed that evidence wilfully suppressed would be adverse if produced. 9
The prosecution's evidence leaves much to be desired. If the inculpatory facts and circumstances are capable
of two or more explanations, one of which is consistent with the innocence of the accused and the other
consistent with his guilt, then the evidence does not fulfill the test of moral certainty and is not sufficient to
support a conviction. 10 The constitutional presumption of innocence stands until overthrown by strong and
convincing evidence, one which will prove guilt beyond reasonable doubt. 11
WHEREFORE, the appealed decision of the Regional Trial Court is reversed and the appellant is acquitted on
the ground of failure of the prosecution to prove her guilt beyond reasonable doubt.
SO ORDERED.
Gutierrez, Jr., Feliciano, Bidin and Cortes, JJ., concur.

G.R. No. L-48548 January 27, 1981

PEOPLE OF THE, PHILIPPINES, plaintiff-appellee,
vs.
BIENVENIDO HINLO Y CANALIJA defendant-appellant.
DE CASTRO,* J.:
Appeal from the decision of the Court of First Instance of Rizal, finding Bienvenido Hinlo y Canalija guilty of
murder for the killing of Hilarion Martin and sentencing him to reclusion perpetua, and to indemnify the heirs of
the victim in the amount of P12,000.00 and to pay costs. 1

As proven by the evidence of the prosecution the crime was committed as follows, quoting from the People's
brief.2
This incident happened on the evening of May 8, 1977 at Almanza, Las Pinas Metro Manila.
Earlier that evening, accused appellant must have had a quarrel with his wife, because he was
seen by his neighbors slapping the latter. No one dared to pacify him accused-appellant), as he
threatened to stab anyone who came to intervene. In fact, even Saturnina Petilla, aunt of the
owner of the house where accused-appellant was residing, was almost stabbed when she went
there to intervene, as she was chased by the accused-appellant with a knife, shouting: Ikaw isa
ka rin! (pp. 22-25, t.s.n., De Guzman.)
Luckily, accused-appellant did not continue chasing her (Petilla). Instead, he (accusedappellant) proceeded towards the house of Lotita Manalili. which was formerly used as a store.
Inside the house were the victim Hilarion Martin, together with one Benjamin Dayuta and the
latter's helper. They were fetching water from the artesian well just opposite the street, and were
resting inside the house while waiting for their containers to be filled, when all of a sudden
accused- appellant entered and, without warning, started stabbing the victim twice and Dayuta
once. The victim was hit twice at the back penetrating the posterior aspect of his chest, as he
was then sitting with his back towards the door, busy conversing with Dayuta, when the
accused-appellant unexpectedly stabbed him (victim) from behind unnoticed; thus, giving the
latter no opportunity to defend himself and/or escape injury. In the case of Dayuta, he was hit on
the right upper arm as he was able to instinctively parry accused-appellant's thrust. (pp. 8-12,
24-25, Ibid).
Thereafter, the three stepped out and ran. Neighbors who came to their rescue carried the
victim and helped Dayuta board a jeep that brought them to the Perpetual Help Medical Center
in Pamplona, Las Pinas Metro Manila, where the victim expired shortly after arrival (pp. 5-6, 1314, Ibid). A request to autopsy the victim's body was then made to the NBI (Exhibit "A").
Accordingly, an autopsy was conducted on the cadaver of the victim by Dr. Virgilio Gernale, a
medico-legal officer of the NBI, after the victim's body was Identified by his brother at the
Funeraria Rizal where it was brought (Exhibit "B"). After taking pictures of the victim's wounds
(Exhibits "C-1" to "C-3" Dr. Gernale examined the same. He then issued a necropsy report
(Exhibit " D ") wherein he described the two stab wounds and stated the cause of death of the
victim as: "Hemorrhage. severe, secondary to stab wound of the chest, right side, posterior
aspect." According to him, (Dr. Gernale the Assailant must be standing behind the victim when
the wounds were inflicted with the use of a sharp edge, single bladed instrument (pp. 2-9, Ibid).
Meanwhile, after stabbing the victim and Dayuta inside the house of Manalili accused-appellant
escaped towards an alley where he met and also stabbed a certain Juan Padayao. By this time,
news of the stabbing incident reached the relatives of the victim as they started looking for the
accused-appellant (pp. 25-26, Ibid), who was later arrested by a policeman and a barangay
official. They brought him to the municipal hall of Las Pinas Metro Manila where he was
detained (pp. 13-14, t.s.n., Cruz).
Appellant would impute error to the trial court in giving credence to the two eye-witnesses of the prosecution,
Benjamin Dayuta and Saturnina Petilla, alleging that not only are their testimonies inconsistent with each other,
but also that each testimony is self-contradictory and improbable, and in addition, witnesses who could have
given more reliable testimony were not presented, thereby demonstrating further, by this supposed
suppression of evidence, the untrustworthiness of the aforementioned state witnesses' testimony. Appellant

has pointed out where the alleged inconsistencies, self-contradictions and improbabilities lie. Going over how
each and every one of them were shown by the Solicitor General not to be such as claimed by the appellant,
We find the efforts of the said counsel to have convincingly achieved his ends, as can best be demonstrated by
quoting from appellee's brief 3 the following:
(a) The fact that Saturnina Petilla testified that only the victim and Benjamin Dayuta were inside
the house of Lolita Manalili when the incident happened does not necessarily contradict the
testimony of Dayuta that, aside from them (Dayuta and victim), they had a third companion
(Dayuta's helper). True, there was no barrier between her (Petilla) and the place of the incident,
which was about five arms length away. But the fact, however, is that she was outside looking
through the door which was partly opened. Naturally, she could not have seen the four corners
of the room where the incident happened as the partly opened door reveals only a portion of the
room. And, being a mere helper, it is safe to assume that this third companion was sitting at a
corner a little bit farther from the two (Dayuta and victim). This explains why Petilla only saw
Dayuta and the victim at the time of the incident;
(b) There is actually no real inconsistency between Dayuta's testimony that the victim when
stabbed was sitting with his back towards the door from that of Petilla that the accusedappellant stabbed the victim when the latter already fell on the floor. It will be recalled that
accused- appellant stabbed the victim twice. Hence, it could be that Petilla was describing the
position of the victim at the time he was stabbed the second time when he was already felled by
the first stab. In the case of Dayuta, he was describing the position of the victim at the time
accused- appellant started to stab him (victim);
(c) The testimonies of prosecution witnesses Benjamin Dayuta, Saturnina Petilla and Lolita
Manalili complement rather than contradict each other as alleged (p. 8, Appellant's Brief). Thus,
when Manalili, owner of the house, left a short while before the incident, she closed the door,
which the accused-appellant opened when he entered; hence, the testimony of Petilla that the
door was partly opened at the time of the incident. In the case of Dayuta he could not say
whether or not the door was closed at the time of the incident because he did not notice the
entry of accused- appellant as he was then busy conversing with the victim;
(d) There is no material contradiction between the testimony of Dayuta to the incident occurred
at about 9:00 o'clock in the evening of May 8, 1977 and that of the testimony of Petilla that it
occurred at around 9:30 o'clock that same evening. For, the testimonies of both witnesses, as to
the time of the incident, are only their estimates and, both cannot be expected to estimate time
with exact mathematical precision. if at all, it demonstrates that neither witness was coached or
rehearsed before they testified;
(e) Petilla's testimony that the only things inside Manalili's house were a set and a table, does
not necessarily contradict that of Dayuta that there was jukebox inside the house where the
stabbing took place. Considering that the place was no longer used as a store, the jukebox must
have been placed in a secluded corner of the house; hence, the same might not have been
seen by Petilla, who was looking only through the door, which was partly opened by accusedappellant;
(f) This is also true in the case of Dayuta's stabbing. The fact that Petilla did not see the
stabbing does not necessarily contradict the testimony of Dayuta that he (Dayuta) was also

stabbed by the accused-appellant before he stepped out of the house. For, it was possible for
Petilla not to have seen the stabbing of Dayuta through the door, which was only partly opened;
(g) The testimonies of both Petilla and Manalili that accused-appellant also stabbed a certain
Juan Padayao after stabbing the victim, does not in any way contradict Dayuta's testimony that
he was also stabbed by the accused-appellant. As heretofore discussed, Petilla could not have
seen the stabbing of Dayuta through the partly opened door. In fact, the stabbing of Padayao
even confirms Dayuta's claim that he was also stabbed by accused-appellant, because it
demonstrate, the fact that the latter was indiscriminately stabbing anyone who came his way;
(h) Petilla's testimony that she only noticed the accused-appellant running out of the house of
Manalili after the stabbing, is not a contradiction of Dayuta's testimony that they also ran out of
the house after he and the victim were stabbed. Having been almost a victim herself of
accused-appellant immediately prior to the incident when she tried to intervene to stop him
(accused-appellant) from slapping his wife, it was but natural for Petilla to focus her attention on
the accused-appellant to see to it that the latter would not come her way and, therefore, she
(Petilla) could not be expected to observe what the victim of accused-appellant did after the
incident.
If the foregoing clearly shows how actually non-existent are the alleged inconsistencies between the testimony
of Dayuta and Petilla as the principal state witnesses, the absence of self-contradictions and improbabilities in
the testimony of each of them which appellant claims said testimony to be riddled with, is as convincingly
demonstrated with the Solicitor General correctly observing as follows:
(a) There is nothing improbable in the testimony of Dayuta that he did not notice the entry of
accused-appellant. The place where the incident occurred was used as a resting place by some
people fetching water from the artesian well just opposite the street. Hence, people just come
and go unnoticed. Besides, there was no time for Dayuta to observe the entry of accusedappellant because it was so sudden and unexpected.
(b) The testimony of Manalili that prior to the incident she left her (Manalili children listening to
the jukebox, does not render improbable Dayuta's testimony that he and the victim were telling
stories before the stabbing. It could be that, after Manalili left, the victim stopped listening to the
jukebox and went near Dayuta to converse with him. Besides, the victim can converse with
Dayuta while the jukebox was playing.
(c) The fact that Dayuta could not tell the kind of weapon used by accused-appellant in stabbing
to death the victim, does not affect the credibility of his (Dayuta) testimony. The incident is a
startling occurrence which was so sudden and unexpected that one witnessing the same,
especially if he himself is involved, cannot be expected to watch it with sobriety as to be able to
observe even the kind of weapon used.
(d) We see nothing incredible in the testimony of Dayuta regarding his whereabouts, as well as
that of the victim, after the stabbing incident (pp. 10-11, Appellant's Brief. The fact that he
(Dayuta) saw the victim running towards the alley leading to a house while he was running
towards the waiting shed, does not contradict his other statement that the victim was ahead of
him in the waiting shed. It could be that the victim, while running towards the alley was helped
by neighbors who learned of the incident and rushed him to the waiting shed where he could be
brought to the hospital. That explains why the victim was even ahead of Dayuta at the waiting
shed.

(e) Petilla's testimony regarding the victim's age, as well as the time when she came to know
the latter, are merely based on her estimates and recollection. Consequently, their inaccuracy
win not affect the credibility of her testimony. Besides, these are insignificant and immaterial
matters, as the Identity of the victim is not disputed.
(f) It is not unnatural for petilla to have followed theaccused-appellant to where the crime was
committed, despite the danger to her life. In fact, not a few people died because of curiosity.
This is demonstrated time and again when policemen had to drive away people who
unnecessarily expose themselves to dangers, like fires and quarrels, just to satisfy their
curiosity.
(g) Petilla's testimony is not rendered incredible simply because she did not know what the
accused-appellant used in stabbing the victim. As already stated, the incident was a startling
occurrence and, therefore, people watching it, especially a woman cannot be expected to
observe such minor details as the kind of weapon used by the assailant.
(h) The testimony of Reynaldo Martin regarding the position of his brother, the victim when
stabbed is hearsay because he was not an eyewitness to the incident and, therefore, the trial
court did not err in not considering it to discredit the testimonies of Dayuta and Petilla
In any case, if some inconsistencies, improbabilities and self-contradictions may be said to manifest
themselves somehow, as laboriously pointed out by appellant, they refer to minor and inconsequential details
in the testimony of the prosecution witnesses whom appellant has picked out for concentrated attack on their
credibility, which would thus be unavailing; for this kind of flaws in one's testimony, far from weakening its
credibility, actually strengthens it, for they deflect suspicion of coaching or rehearsal of the witnesses 4 whose
testimonies thus remain unaffected in the strength of their appeal for truth and belief. 5
Pursuing its effort to discredit the testimony of the state witnesses to which the trial court accorded welldeserved credence, which act of said court he has assigned as error, appellant would try to make something
out of the non-presentation as witnesses of the "helper" and Juan Padayao, the former having been present
with Dayuta at the scene of the stabbing as eye-witness, and the latter having also been stabbed by appellant,
as a case of suppression of evidence.
The helper's testimony, with Dayuta and Petilla already presented to testify on seeing appellant stab the
deceased, would be entirely unnecessary being only commulative in effect. The adverse presumption against
the prosecution as appellant would invoke cannot, therefore, arise from the failure of the prosecution to present
the "helper" as a witness. Moreover, as a mere "helper" at the time, he may have been no longer available to
testify, as he might have left for another job elsewhere not known at the time of the hearing.
With more reason will no such adverse presumption against the prosecution arise with the non-presentation of
Juan Padayao as witness. His testimony would be only as to his having been stabbed by appellant, which is
beyond the scope of the present inquiry as to appellant's guilt only for the killing of Hilarion Martin. If some
relevance might be found in the stabbing of Padayao on the same occasion, it is in how it would show that
appellant was evidently seized by a fit of violence that drove him into a stabbing spree, as it were, contrary to
his pretension of denying the stabbing of the deceased. But without need of Padayao's personal testimony, the
fact that appellant also stabbed him after stabing Dayuta and Martin, the latter fatally, because the assault on
him was so sudden and unexpected, and from behind as to deny the victim any chance at defense by evading
or parrying the blow, was positively established with the testimony of Saturnina Petilla and Lolita Manalili on
this particular fact, which was unrebutted.

By this fact alone that he stabbed Juan Padayao, appellant's testimony on the only incident in which he is
supposed to have been involved his having been hit with a "pingga" by Dayuta when he (appellant) merely
tried to pacify Leodegario Petilla who, armed with a knife, was engaged in a street quarrel with 6 or 7 men, and
went home thereafter, inferentially denying even having laid a hand or touched the victim, is rendered
unbelievable. In effect, his defense is that of alibi which is totally unavailing against his having been positively
Identified 6 by witnesses as the assailant of the victim, one of whom is Saturnina Petilla, the mother of
Leodegario Petilla whom he allegedly approached as a friend to pacify him in his quarrel against persons who
overwhelmingly outnumbered him. Appellant allegedly went to Saturnina to report that his son was involved in
that street quarrel. With Saturnina Petilla testifying that appellant even chased her when she tried to intervene
when appellant slapped his wife during a quarrel, threatening anyone who would dare intervene, the testimony
of appellant as to his friendly mission in seeing Saturnina becomes totally unworthy of belief, for if the
testimony were true, what motive has Saturnina to testify falsely against appellant.
As the trial court also observed, appellant's testimony suffers from improbability because
... Admitting that on the date and time of the stabbing, he was merely to approach the quarreling
group and Leodegario Petilla; attempted to pacify Leodegario Petilla, and ran away when he
was hit on the head with a 'pingga' by Benjamin Dayuta. The version of accused Hinlo suffers
with so many improbabilities. He claims that he saw his friend Leodegario Petilla armed with a
knife, 7 inches long facing a group of 6 to 7 men. It was a situation fraught with dangers. Yet,
accused Hinlo approached the group and his friend Leodegario Petilla, merely to pacify them.
Even granting this extraordinary course of action to be true, yet when accused Hinlo again
asserts that when he was hit on the head with a 'pingga', he ran away, leaving his friend alone, it
is hard to believe him. Not only that. After informing Saturnina Petilla, mother of Leodegario
Petilla, that her son was quarreling with a group of men, he just went home, again, leaving his
friend to his fate. What is more, he never called the police who could have provided the more
effective help to his friend. Then, there is the question as to what happened to Leodegario
Petilla faced by 6 or 7 men. Obviously, nothing happened. What is significant, is the fact that
Saturnina Petilla, mother of Leodegario Petilla, even testified for the prosecution. All these
circumstances, considered fairly and with unprejudiced mind, lead to the conclusion that there
never was a quarrel between the group of 6 or 7 men and Leodegario Petilla. (Decision, pp. 7576, Record.)
It would seem that appellant hints at the possibility of Leodegario Petilla being the assailant when he pictured
him as engaged in a quarrel with six or seven persons, armed with a knife and poised to strike. If this were so,
witnesses from among the several adversaries of Leodegario would have been easily available to testify
against the latter as the real culprit. The fact is even the brother of the deceased, Reynaldo Martin, testified
against appellant which he should not have done unless he was convinced, from his own investigation, if not
personal knowledge, that appellant is his brother's killer and not someone else. He certainly desires to make
sure that the real culprit is brought to justice and not given immunity from punishment instead, as would
happen if he pointed an accusing finger at the wrong man.
WHEREFORE, the judgment appealed from being in accordance with law and the evidence, with treachery
proven to qualify the crime of murder as charged, but not evident premeditation as alleged in the information, is
affirmedin toto, with costs.
SO ORDERED.

KOH TIECK HENG, Petitioner, vs. PEOPLE OF THE PHILIPPINES and COURT OF APPEALS,
Respondents.
DECISION
REGALADO, J.:
This petition for review on Certiorari impugns the decision of the Court of Appeals in CA-G.R. No. 16246-47CR 1 which affirmed the judgment of the former Court of First Instance of Manila in Criminal Cases Nos. 15006
and 15007 convicting herein accused-petitioner of estafa and attempted estafa, respectively.
The facts as found by the trial court and adopted by respondent court are as follows:
"From the evidence extant on the record, the following facts appear undisputed: That accused Koh Tieck Heng,
alias Tomas P. Flores opened Savings Account No. 26580, with the Security Bank and Trust Company, Escolta
St., Manila, hereinafter called SBTC in short, with an initial deposit of P500.00, made on 21 Feb. 1973, for
which he was given a pass book in his name of Tomas P. Flores (see Exh. C). He made a second deposit of
P400.00 then a withdrawal of P500.00 then a deposit of P775.00, and then a withdrawal of P1,000.00 (Entries
on Exh. C).
"On 13 March (sic, August) accused went to SBTC and filled up or accomplished and signed a deposit slip
(Exh. B) for a deposit of P18,060.00 in check. With the deposit slip, he submitted to Urbana Ramos de Ferrer,
Teller No. 2 of SBTC, his pass book (Exh. C) and a Philippine Bank of Communications Check No. U-186378,
dated August 9, 1973 (Exh. A) for P18,060.00, appearing to have been signed and issued by `F. Dycaico', who
was then maintaining with the Philippine Bank of Communications, hereinafter referred also as PBC, a
checking account No. 13360. This check was signed and indorsed by the accused. Upon deposit of this check
for P18,060.00, the said sum was posted in the pass book (Exh. C), as shown in Exhibit C-1. (T.S.N., pp. 5-15,
Oct. 10, 1973, hearing).:-cralaw
"On 16 August 1973, the accused withdrew from this Savings Account No. 26580, the sum of P10,000.00 upon
submission to Margarita Tiongson, Teller No. 3, of a withdrawal slip (Exh. E) accomplished and signed by him.
Such withdrawal was posted in the pass book (Exh. C), shown by Exhibit C-2. Upon receipt of the amount
withdrawn, the teller caused the accused to sign at the back of the withdrawal slip and which signature is
marked Exhibit E-1. On the next day, 17 August 1973, the accused withdrew another amount of P5,500.00
upon defendant's submission to Teller No. 3 of a withdrawal slip (Exh. F) and the pass book. The withdrawal

was posted in the pass book as shown by Exhibit C-3. Upon receipt of the sum withdrawn, the teller caused
the accused to sign at the back of the withdrawal slip and which signature is marked Exhibit F-1. (T.S.N., pp.
21-30; 32-39, id.).
"On 18 August 1973, the accused went again to the SBTC to deposit another Philippine Bank of
Communications Check No. U-186414 (Exh. H), dated 11 August 1973 for P18,060.00 which appears to be
signed by 'F. Dycaico' against Checking Account No. 13360. Accused, therefore, filled up and accomplished a
deposit slip (Exh. I) for P18,060.00. After accomplishing Exhibit I, accused submitted the check (Exh. H), the
pass book (Exh. C) and the deposit slip (Exh. I) to Candida Abella Villanueva, Teller No. 5. The deposit of
P18,060.00 was thus posted at the pass book (Exh. C), as shown by Exh. C-4 (T.S.N., pp. 60-70, Id.).
"Sometime in that month of August 1973, Florencio Dycaico, who maintains the Checking Account No. 13360
with the Philippine Bank of Communications saw his Statement of Account and came upon an amount of
P18,060.00 debited against his account. He complained to the PBC that he never issued a check for that
much. With this information PBC informed SBTC that the check, Exh. A, was a spurious check. So, SBTC
officials instructed their bank tellers to watch for Tomas P. Flores. NBI agent Mamerto Espartero was also
assigned to crack down on check forgers or passers in company with an informer, at the premises of SBTC, in
coordination with SBTC officials (T.S.N., pp. 3-7, 12, 16-17, Nov. 12, 1973, hearing).
"Then, came the pay off. The accused appeared in the SBTC premises on 22 August 1973. He filled up,
accomplished and signed a withdrawal slip (Exh. K) for P15,500.00, and after that he submitted his passbook
(Exh. C) with the withdrawal slip to Maria Victoria Soriano, SBTC Teller No. 7. Forewarned to watch for the
accused Tomas P. Flores, she asked the accused to sign his name in Exh. K, and he did sign it as requested.
He signed his name of Koh Tieck Heng (See Exh. K-3). After that, Teller No. 7 brought the slip and the pass
book of Tomas P. Flores. Teller No. 7 returned to her cage and then called up for Tomas P. Flores. The accused
went to Teller No. 7. Teller No. 7 asked the accused to sign his name at the back, and which signature is
marked Exh. K-2. After he signed Exh. K-2, the NBI agent Espartero swooped down on the accused and
apprehended him. The accused was brought inside the Cashier's Office. He was interviewed and then later
brought to the NBI office where he was investigated. In the course of his investigation, he executed a written
statement now marked Exh. M. (T.S.N., pp. 3-20, Oct. 22, 1973, hearing)." 2
Based on the facts narrated, appellant Koh Tieck Heng, alias Teddy Koh, alias Tomas P. Flores, was charged in
Criminal Case No. 15006 before the then Court of First Instance of Manila, Branch XII, with the crime of estafa
thru falsification of a commercial document in an information which reads:
"That on or about and during the period comprised between August 13, 1973 and August 17, 1973, inclusive, in
the City of Manila, Philippines, the said accused, conspiring and confederating with one whose true name,
identity and present whereabouts are still unknown and mutually helping each other, did then and there wilfully,
unlawfully and feloniously, with intent to defraud, commit acts of falsification on a commercial document in the
following manner, to wit: the said accused, after opening a savings account with the Security Bank and Trust
Company, under Savings Account No. 26580 in the name of Tomas P. Flores, and having somehow illegally
obtained possession of Philippine Bank of Communications Check No. U-186378, dated July 14, 1973, pay to
cash, in the amount of P225.00, issued by F. DYCAICO, and therefore a commercial document, did then and
there wilfully, unlawfully and feloniously forge and falsify and/or cause to be forged and falsified the aforesaid
check by then and there erasing and altering and/or causing to be erased and altered the date and amount of
said check and superimposing or causing to be superimposed over the original date and amount of said check
the following: 'Aug. 9' after the printed word 'MANILA', the figures '73' after the figures '19', the figures
'P18,060.00' after the sign 'P' and the words 'Eighteen Thousand Sixty Only' after the printed word 'PESOS',
thus causing it to appear as it did appear that said check was issued on August 9, 1973, for the amount of
P18,060.00, when in truth and in fact as the said accused well knew, the correct date of said check is July 14,
1973, and the real amount of the check so drawn and issued by said F. DYCAICO is only for P225.00, thereby
making or causing to be made alterations and changes in a genuine document which altered or changed its
meaning: that once the aforesaid check had been forged and falsified, altered or otherwise changed in the
manner above set forth, said accused affixed the signature Tomas P. Flores at the back thereof and deposited
said check in his account with the Security Bank and Trust Company, Escolta Branch, this City, which check
was cleared by the Philippine Bank of Communications upon presentation thereof believing that said check is
genuine; and thereafter, said accused, with intent to defraud, withdrew from said account the amounts of
P10,000.00 and P5,500.00 on August 16, 1973 and August 17, 1973 respectively, or a total of P15,500.00,
which amount, once in his possession, said accused misappropriated, misapplied and converted to his own

personal use and benefit, to the damage and prejudice of the Security Bank and Trust Company and/or the
Philippine Bank of Communications in the aforesaid amount of P15,500.00, Philippine currency." (Emphasis
supplied.) 3
On the same date, appellant was also charged in Criminal Case No. 15007 with attempted estafa thru
falsification of a commercial document before the same court under the following information:
"That on or about and during the period comprised between August 18, 1973 and `August 22, 1973, inclusive,
in the City of Manila, Philippines, the said accused, being then a depositor of the Security Bank and Trust
Company, Escolta Branch, this City, under Savings Account No. 26580, conspiring and confederating together
with one whose true name, identity and present whereabouts are still unknown and mutually helping each
other, with intent to defraud, commenced the commission of the crime of estafa thru falsification of commercial
document directly by overt acts, to wit: the said accused having somehow obtained possession of Philippine
Bank of Communications Check No. U-186414, dated August 11, 1973, pay to cash, in the amount of
P2,030.00 issued by F. DYCAICO, and therefore a commercial document, did then and there wilfully, unlawfully
and feloniously forge and falsify and or cause to be forged and falsified the aforesaid check by then and there
erasing and altering and/or causing to be erased and altered the amount of said check and superimposing or
causing to be superimposed over the original amount of said check the figures 'P18,060.00' after the sign 'P'
and the words 'Eighteen Thousand Sixty Only' after the printed word 'Pesos', thus causing it to appear, as in
fact it did appear, that said check was issued for the amount of P18,060.00, when in truth and in fact as the
accused well knew, the correct and real amount of the check so drawn and issued by said F. DYCAICO is only
for P2,030.00 thereby making or causing to be made alterations and changes in a genuine document which
altered or changed its meaning; that once the aforesaid check had been forged and falsified, altered or
otherwise changed in the manner above set forth, said accused affixed the signature Tomas P. Flores at the
back of said check and deposited the same in his account with the Security Bank and Trust Company, the
latter believing that said check is genuine, accepted the same for deposit, and thereafter, the said accused with
intent to defraud, accomplished a withdrawal slip for the sum of P15,500.00 and presented the same to the
teller of the Security Bank and Trust Company for the purpose of withdrawing the said amount, but the said
accused did not perform all the acts of execution which should have produced the crime of estafa thru
falsification of a commercial document by reason of some cause other than his own spontaneous desistance,
that is, by the timely discovery made by the officials and/or employees of said bank of the forgery and
falsification made on the aforesaid check before payment could be made which led then and there to the
apprehension of said accused." (Emphasis ours.) 4
Appellant pleaded not guilty when arraigned in both cases, which were subsequently ordered consolidated. In
his defense at the trial, and later adopted for the same purpose in his brief, appellant claims::-cralaw
"That on August 9, 1973, he went to the Supersonic Auto Supply, situated at the corner of Espaa and P.
Leoncio Sts., Sampaloc, Manila. He went there to buy auto spare parts as he is engaged in the buying and
selling of auto spare parts. When he was at this store, a person whom accused claimed to know later as Jimmy
Go, was also buying tires. The store did not have tires for sale, and so the tire salesman pointed to the
accused as one who is selling such stuff. So, this man went to the accused and asked him if he had tires for
sale. Accused asked the man who introduced himself to the accused as Jimmy Go, how many tires he needed.
This man told the accused he needed twenty-four (24) pieces of tires. Accused told this `Jimmy Go' that he had
the 24 tires but that he needed cash. Accused told `Jimmy Go' that he does not accept checks for payment,
especially he did not know him. Accused claims that was the first time he had met this man 'Jimmy Go'. 'Jimmy
Go', however, told the accused that he can issue the check and he can deliver the tires only after having
encashed the same. To this proposition, the accused agreed. 'Jimmy Go', therefore, brought out a check, now
Exh. A, and then signed it in his presence. He signed the name 'F. Dycaico'. He then crossed the check at the
upper left hand corner of the check. Accused claims that except the signature and the lines used to cross the
check as aforementioned all the other handwritten portions of the check were already there when 'Jimmy Go'
signed it.
"After signing Exh. A, 'Jimmy Go' handed it to the accused. Seeing the amount to be big, as the cost price of
the 24 pieces of tires was only about P3,000.00, more or less, the accused told, 'Jimmy Go' that he has no
cash to return for the difference. 'Jimmy Go' told him to just deliver the difference after he has encashed it. So
the accused got the check and they parted.
"He claimed he went to the SBTC on 13 August 1973 as he deposited the check (Exh. A) in his bank account
(passbook, Exh. C), filling up therefor a deposit slip (Exh. B.). The accused claimed that on 13 August 1973, he

went to withdraw P10,000.00, accomplishing Exh. E. After withdrawing P10,000.00, the accused went to
Espaa St. and delivered to 'Jimmy Go' the P10,000.00. He delivered the tires in the afternoon. On that same
day, 'Jimmy Go' told the accused that he needed the balance of the money and so he said that he delivered
the balance of P5,500.00 on 16 August 1973. On this date, 16 Aug. 1973, as per his claim, 'Jimmy Go' again
delivered to him another check (Exh. H) as 'Jimmy Go' was buying another fifty (50) pieces of tires. So, he took
the check and deposited it with SBTC on his account (passbook, Exh. C). He claims he could not get the
proceeds of the checks because at the time he was withdrawing from his deposit, two men approached him
and immediately handcuffed him" 5
On November 26, 1973 the trial court rendered judgment 6 finding appellant guilty beyond reasonable doubt of
the felonies charged in both cases, the decretal portion of its decision reading as follows:
"IN VIEW OF THE FOREGOING CONSIDERATIONS, the Court finding the guilt of the accused for the crime
charged in both cases (No. 15006 and 15007) to have been proved beyond reasonable doubt, and there being
neither mitigating nor aggravating circumstances to affect his penal liability, hereby imposes upon the accused
and sentences him to suffer:
(a) In Crim. Case. No. 15006
an indeterminate penalty of from FOUR (4) years and TWO (2) months of prision correccional, as minimum, to
EIGHT (8) years and ONE (1) day of prision mayor, as maximum, with all the accessory penalties of the law,
and to indemnify the Security Bank and Trust Company the sum of P18,060.00, sans subsidiary imprisonment
in case of insolvency, and to pay the costs; and
(b) In Crim. Case No. 15007
an indeterminate penalty of from TWO (2) years, FOUR (4) months of prision correccional, as minimum, to six
(6) years of prision correccional as maximum, with all the accessory penalties of the law, and to pay a fine of
P5,000.00 and to suffer a subsidiary imprisonment in case of insolvency at the rate of P8.00 a day, but in no
case shall it exceed one-third (1/3) of the term of the sentence nor shall it continue for more than one year, and
to pay the costs.
"The accused shall first serve the sentence imposed in Crim. Case No. 15006, to which shall be credited fourfifths (4/5) of his preventive imprisonment in the service of his sentence.: rd
SO ORDERED." 7
Not satisfied therewith, petitioner interposed an appeal with respondent Court of Appeals, docketed therein as
CA-G.R. No. 16246-47-Cr. Respondent court, in a decision promulgated on September 26, 1977, affirmed the
judgment of conviction but modified the penalties in both cases as follows:
"In Criminal Case No. 15006
to suffer an indeterminate penalty of four (4) years and two (2) months of prision correccional, as minimum, to
six (6) years, eight (8) months and twenty (20) days of prision mayor, as maximum, with all the accessory
penalties of the law; to indemnify the Security Bank and Trust Company in the sum of P18,060.00, without
subsidiary imprisonment in case of insolvency; and to pay the costs; and
In Criminal Case No. 15007
to suffer the penalty of four (4) months and twenty (20) days of arresto mayor, and to pay the costs.
"The Accused shall first serve the sentence imposed in Criminal Case No. 15006 and shall be credited with the
term of his preventive imprisonment in accordance with Article 29 of the Revised Penal Code, as amended by
R.A. No. 6127.
SO ORDERED." 8
Culled from the submissions of both parties in the present appeal and the established facts of these cases, the
issues raised and submitted for determination by us may be synthesized into whether or not respondent court
erred
(1) In supposedly changing the tenor and or nature of the accusation and convicting appellant on the basis of
this new accusation without having informed him of the nature and cause of the accusation;

(2) In holding that there is a crime of attempted estafa and convicting appellant of such crime in the absence of
the essential elements of deceit and damage; and
(3) In arriving at a conclusion of guilt of the crimes of attempted estafa and estafa, both thru falsification of
commercial documents, on the basis merely of a presumption of law, despite the absence of evidence showing
that appellant committed, or had knowledge of, the crimes charged, in violation of the constitutional
presumption of innocence and doctrinal jurisprudence on proof beyond reasonable doubt in favor of appellant.
Parenthetically, this petition for review on Certiorari was formerly denied in a Resolution of this Court, dated
August 18, 1978, 9 but was later on given due course on a Motion for Reconsideration and/or for New Trial, 10
based inter alia, on an alleged letter of one Jimmy Go dated August 14, 1978, which appellant supposedly
received on August 21, 1978 and which he claims he could not have discovered and produced during the trial
of the cases despite diligent efforts to produce the same. Mere zerox copies of the supposed letter and the
mailing envelope were appended to said motion.
We do not, however, deem it proper to include the aforesaid matter in the issues above enumerated
considering that the requirement in the 1964 Rules of Court 11 , which was then in force, to the effect that a
motion for new trial must be supported by affidavits of the witnesses by whom such evidence is expected to be
given, has not been complied with; and (b) the judgment of conviction will not in any way be affected by such
evidence the authenticity and credibility whereof have not been established, aside from the obvious fact that
the tenor thereof is inherently improbable and such a letter could easily be concocted.: nad
Coming now to the first issue, appellant alleges that there is a variance between the allegations in the
information and the evidence adduced, thereby depriving him of the right to be informed of the nature and
cause of the accusation against him.
The rule that an accused cannot be convicted of an offense not charged or included in the information is based
upon the right to be informed of the true nature and cause of the accusation against him. 12 However,
respondent court exhaustively discussed this issue and lucidly explained the facts upon which its judgment of
conviction was predicated, thus:
"It is a fact that under the two informations, the mode of falsification attributed to the Accused is that of having
erased and altered the dates and amounts of the checks in question, and superimposing or causing to be
superimposed over the original dates and amount of said checks other dates and amounts, thereby making
alterations and changes in genuine documents which changed their meaning. Clearly, therefore, the offense
charged is that penalized under Article 172 in relation to Article 171 (6) of the Revised Penal Code.
"It is to be noted, however, that presented in evidence by the prosecution for the First Case were two checks,
Exhs. 'A' and `O', which both bear the identical Check No. U-186378 but the former bears the amount of
P225.00, while the latter that of P18,060.00, both drawn and issued by 'F. Dycaico'. For the Second Case, two
checks were likewise presented, Exhs. 'H' and 'P' which bear the identical Check No. U-186414, but the former
bears the amount of P2,030.00 while the latter that of P18,060.00, both drawn and issued by 'F. Dycaico'.
"Prosecution witness, Florencio Dycaico, admitted that he issued the checks, Exhs. 'O' and 'P', in the amounts
of P225.00 and P2,030.00 respectively, but denied having issued at all the checks, Exhibits 'A' and 'H', both in
the respective amounts of P18,060.00.
"It has to be conceded, therefore, as alleged by the defense, and likewise admitted by the People, that
considering the evidence adduced, there were no erasures nor alterations nor superimpositions as alleged in
both Informations, but that Exhibits 'A' and 'H' were forgeries in toto. In other words, while the Accused has
been charged of Estafa and Attempted Estafa thru Falsification of a commercial document under Article 172 in
relation to Article 171, paragraph 6 the Revised Penal Code, reading
'Art. 171. . . . shall falsify a document by committing any of the following acts:
xxx
'6. Making any alterations or intercalation in a genuine document which changes its meaning,'
based on the evidence, the accusation would fall under either paragraph 1 or 2 of Article 171 of the same Code
which reads:
'1. Counterfeiting or imitating any handwriting, signature or rubric;

'2. Causing it to appear that persons have participated in any act or proceeding when they did not in fact so
participate.'
"Be that as it may, as pointed out by the State, the aforementioned variance affects solely the charge of
Falsification, of which the Accused should not have been convicted under the time-honored rule that an
Accused should be informed of the true nature and cause of the accusation against him. However, with respect
to the charges of Estafa and Attempted Estafa, respectively, (complexed under the two Informations with
Falsification of a Commercial Document) conviction would still be proper, the two essential requisites of Estafa,
namely fraud or deceit and damage to another, having been charged and proven." 13
On the second issue, appellant contends that respondent court erred in convicting him of attempted estafa in
Criminal Case No. 15007 when it admitted in its decision that appellant was not able to withdraw the value of
the second check as he was apprehended in the act of withdrawing the same. From this, he argues that having
failed to withdraw the sum as part value of the second check, no amount whatsoever was taken by him, hence
no damage or prejudice was suffered by the bank. Absent such damage, he concludes, he cannot be convicted
of attempted estafa.: nad
This is specious argumentation.
Basically, the two essential requisites of fraud or deceit and damage or injury must be established by sufficient
and competent evidence in order that the crime of estafa may be established. 14 Deceit is the false
representation of a matter of fact (whether by words or conduct, by false or misleading allegations, or by
concealment of that which should have been disclosed) which deceives or is intended to deceive another so
that he shall act upon it to his legal injury. 15 The fact that appellant was the possessor and utterer of the
checks in question (Exhibits "A" and "H") and having benefited from the subsequent withdrawals, as well as
having attempted to gain by trying to withdraw an amount thereon, the inevitable conclusion would be that he
was the one who falsified said Exhibits "A" and "H". Ineluctably, the use of the spurious checks is by itself fraud
or deceit.
Although one of the essential elements of estafa is damage or prejudice to the offended party, 16 in the
absence of proof thereof the offender would at least be guilty of attempted estafa. Appellant commenced the
commission of the crime of estafa but he failed to perform all the acts of execution which would produce the
crime, not by reason of his own spontaneous desistance but because of his apprehension by the authorities
before he could obtain the amount. Since only the intent to cause damage and not the damage itself has been
shown, respondent court correctly convicted appellant of attempted estafa.
Lastly, appellant insists that there is no evidence whatsoever pointing to him as the person who falsified the
two checks in question (Exhs. "A" and "H"), as the prosecution failed to refute his version regarding the
circumstances under which he allegedly took possession of the said checks. He further posits the view that
while the courts may apply the presumptions of law in some cases, the presumption that the possessor of a
falsified document is presumed to be the forger does not constitute proof beyond reasonable doubt and cannot
be applied in his case, allegedly because the provisions not only of the Constitution but also of the Rules of
Court must be the basis of the judgment.
We disagree.
While it may appear that the prosecution failed to directly contradict the claim of appellant as to how he came
into possession of the two checks, it is understandable that the prosecution would not always have the means
for obtaining such direct evidence to confute acts contrived clandestinely. Undoubtedly, too, as a general rule,
positive testimony as to a particular fact, uncontradicted by anyone, should control the decision of the court.
Where, however, there is such an inherent improbability in the testimony or theory of the witness, the court
may properly disregard such evidence, even in the absence of any direct conflicting testimony. We agree with
respondent court that the People's version of the facts deserves more credence and it is more in consonance
with human experience.
As repeatedly expounded by this Court, evidence to be worthy of credit, must not only proceed from a credible
source but must, in addition, be credible in itself. And by this is meant that it shall be natural, reasonable and
probable as to make it easy to believe. 17 No better test has yet been found to determine the value of the
testimony of a witness than its conformity to the knowledge and common experience of mankind. 18 As
bewailed by the court below, the theory espoused by appellant "is taxing too much the credulity of this Court,
an insult to the humble intelligence and the common sense of this Court." 19

The checks in question (Exhibits "A" and "H") were undeniably spurious, or were forgeries in toto. Prosecution
witness Florencio Dycaico categorically testified that he did not issue said checks but only those checks in the
amount of P225.00 and P2,030.00 (Exhibits "O" and "P"). The disclaimer by Dycaico of his alleged signatures
on the aforesaid checks is prima facie evidence of falsification and consequently shifts the burden of evidence
to appellant to prove otherwise, but which burden appellant has not discharged.:-cralaw
The court a quo, as well as respondent court, posed the question as to the identity of the forger, and we are
satisfied that both courts did not err in relying upon the presumption that the possessor of a falsified document
is presumed to be the author thereof. It is an established rule that when it is proved that a person has in his
possession a falsified document and makes use of the same, the presumption or inference is justified that such
person is the forger. 20 The petitioner has been shown to have been the possessor and utterer of the two
checks (Exhibits "A" and "H") when he made use of and benefited therefrom by his withdrawals of and attempt
to withdraw funds through said checks. The circumstance, therefore, that appellant made use of and benefited
from the falsified document is a strong evidence that he either himself falsified it or caused the same to be
falsified, 21 he being criminally responsible in either case. 22 Since appellant is the only person who stood to
be benefited by the falsification of the document that was found in his possession, it is presumed that he is the
material author of such falsification. 23
It is thus apparent that the refusal of respondent Court of Appeals to give credence to the theory of the defense
is substantially supported by the ambient circumstances and the evidence on record. Besides, this being a
petition for review on Certiorari of a decision of respondent court rendered in the exercise of its exclusive
appellate jurisdiction over the decision of the trial court, said decision of respondent court is "final", subject only
to our power of review on questions of law. 24
WHEREFORE, the petition is DENIED and the appealed judgment of respondent Court of Appeals is hereby
AFFIRMED in toto.
SO ORDERED.
G.R. No. L-30810 October 29, 1975
ITT PHILIPPINES, INC., petitioner,
vs.
COURT OF APPEALS and ERDULFO C. BOISER, respondents.
Nestor E. Nicolas for petitioner.
Erlinda Boiser Ramos for private respondent.

MARTIN, J.:
This is a petition for review of the decision of the respondent Court of Appeals in CA-G.R. No. 42895R 1 issuing a Writ of Mandamus to the Court of First Instance of Rizal commanding it to give due course to the
appeal of private respondent Erdulfo C. Boiser, from the order of said court denying said respondent's
"Omnibus Motion for Relief of Judgment, New Trial, to Recall the Writ of Execution and to Suspend Execution",
pursuant to Section 1 of Rule 45 of the Revised Rules of Court.
On December 11, 1964 petitioner ITT Philippines, Inc. filed in the Court of First Instance of Rizal (Pasig
Branch) an action (Civil Case No. 8503) against private respondent Erdulfo C. Boiser to collect payment of the
latter's alleged indebtedness. Private respondent filed his answer on February 15, 1965. Petitioner then moved
to declare private respondent in default but his motion was denied as private respondent has already filed his
answer.

On the scheduled pre-trial of the case on August 24, 1965, private respondent failed to appear. It was reset for
September 30, 1965 since private respondent was not duty notified of the scheduled pre-trial. Again, it was
postponed as there was no showing that the notice thereof was received by private respondent. Once more,
the pre-trial for November 23, 1965 reset for January 6, 1966.
With the appointment of Judge Samuel F. Reyes as Immigration Commissioner, Judge Herminio C. Mariano
took over the case and set the case again for another pre-trial for September 6, 1966. When private
respondent failed to appear, the lower court ordered the Deputy Clerk of Court to determine whether private
respondent was duly served with notice of the pre-trial on September 6, 1966. Upon verification, the lower
court found no report of the Deputy Clerk in the expediente of the case.
On February 20, 1967, the petitioner through counsel filed a motion to declare private respondent in default.
Acting on said motion, the lower court on March 4, 1967, issued the following order:
Finding the Motion dated February 20, 1967 filed by the plaintiff to declare defendant Erdulfo C.
Boiser in default to be well taken, it appearing that said defendant failed to file his answer within
the reglementary period, said defendant is hereby declared in default. 2
On July 27, 1967, the lower court rendered judgement on the case and upon motion of the petitioner issued its
order of April 24, 1968 authorizing the execution of the judgment.
On July 10, 1968 private respondent filed an "Urgent Omnibus Motion for Relief of Judgment, New Trial, to
Recall the Writ of Execution and to Suspend Execution," claiming that he came to know of the order declaring
him in default only on July 5, 1968 when the Special Sheriff left a copy of the writ of execution in his residence
in Tagbilaran, Bohol. In support of his motion private respondent brought to the attention of the trial court an
affidavit alleging "that the Postmaster of Tagbilaran, Bohol, with malice and fraud aforethought, deliberately
withheld from him ... all and every information about the receipt of his mail by that post office, particularly the
one containing the decision of the court in Civil Case No. 8503, and instead he, the Postmaster,
unceremoniously returned as unclaimed by the addressee the said mail containing the decision
notwithstanding the fact that the required number of notices usually sent to addressees of registered mails
were never sent" which "may be attributed to the critical comments made" by private respondent who is a radio
commentator in Tagbilaran against the alleged mismanagement by the Postmaster of the official business of
the post office.
On July 22, 1968, the aforesaid "Urgent Omnibus Motion for Relief of Judgment, New Trial, to Recall the Writ
of Execution and to Suspend Execution" was denied.
On August 10, 1968, private respondent filed his Notice of Appeal from the decision of the lower court and from
the order denying his "Urgent Omnibus Motion for Relief of Judgment, New Trial, to Recall the Writ of
Execution and to Suspend Execution". The record on appeal and the appeal bond were subsequently filed on
August 24, 1968.
In due time petitioner riled an urgent motion to dismiss the appeal filed by private respondent from the decision
of the lower court and the order denying the aforesaid omnibus motion. The lower court granted the motion to
dismiss appeal. Private respondent moved for reconsideration of the order of dismissal of his appeal but the
motion for reconsideration was denied.
Private respondent took the case to the Court of Appeals on a petition for "Mandamus with Preliminary
Injunction" praying, among others, for the issuance of a "writ of preliminary injunction restraining the
respondent Judge and Special sheriff and all other officers of the law ..., from carrying out or threatening to

carry out the order of execution," ..."ordering the respondent Judge to give due course to the appeal perfected
on time" ... "and to elevate to this Honorable Court the record on appeal, notice of appeal, appeal bond and the
entire evidence, oral and documentary, submitted in said Civil Case No. 8503." The respondent Court of
Appeals granted the petition for private respondent and issued the writ of mandamus commanding the lower
court to give due course to the appeal of private respondent from the order denying his Urgent Omnibus
Motion for Relief of Judgment, New Trial, to Recall the Writ of Execution and to Suspend Execution. Petitioner
filed a motion for reconsideration of the decision of the respondent Court of Appeals but said motion was
denied.
Hence, this petition for review on certiorari of the decision of the respondent Court of Appeals, pressing upon
the following errors:
I
IN NOT HOLDING THAT A WRIT OF MANDAMUS IS NOT AVAILABLE TO COMPEL THE
TRIAL COURT TO GIVE DUE COURSE TO THE PATENTLY FRIVOLOUS AND DILATORY
APPEAL OF RESPONDENT BOISER.
II
IN DISREGARDING THE FACT CONCLUSIVELY ESTABLISHED IN THE RECORDS THAT
RESPONDENT BOISER FILED HIS PETITION FOR RELIEF MORE THAN SIXTY (60) DAYS
FROM SERVICE OF THE DECISION UPON HIM.
III
IN NOT HOLDING THAT RESPONDENT BOISER IS NOT ENTITLED TO RELIEF FROM THE
JUDGMENT, BECAUSE IN HIS ANSWER HE ADMITTED EVERY ALLEGATION IN THE
COMPLAINT AND PRESENTED NO DEFENSE WHATSOEVER.
IV
IN NOT HOLDING THAT RELIEF FROM JUDGMENT IS NOT AVAILABLE TO RESPONDENT
BOISER BECAUSE IT WAS DUE TO HIS OWN INEXCUSABLE NEGLIGENCE THAT HE
LOST HIS RIGHT TO AVAIL HIMSELF OF OTHER REMEDIES.
V
IN NOT HOLDING THAT RESPONDENT BOISER WAS NOT DENIED DUE PROCESS OF
LAW.
Initially, the petitioner questions the priority of the grant of the writ of mandamus by the respondent Court of
Appeals compelling the trial court to give due course to the appeal of private respondent which according to it
is patently frivolous and dilatory. Well established is the doctrine that under Sections 13 and 14 of Rule 41 of
the Revised Rules of Court 3 unless the appeal is abandoned, the only ground for dismissing an appeal in the
trial court is the failure of the appellant to file on time the notice of appeal, appeal bond, or record on
appeal. 4 This is not, however, the ground upon which petitioner has predicated his motion to dismiss the
appeal in question. What petitioner claims in its motion to dismiss private respondent's appeal is that the same
presents no justiciable controversy and therefore frivolous. In several cases 5 this Court has consistently held
that the question as to whether or not the appeal is frivolous is not within the jurisdiction of the trial courts but

for the appellate court to determine. Otherwise, it would be easy for trial courts to frustrate meritorious appeals
by the simple expedient of dismissing them on the pretext that they are frivolous or dilatory.
Petitioner further claims that the respondent Court of Appeals erred in disregarding the fact that private
respondent filed his petition for relief from the judgment of default against him more than sixty (60) days from
services of the decision upon him. Petitioner submits that private respondent was deemed to have been
properly served with the copies of the questioned decision and order of default of the trial court after he failed
to claim his mail from the post office within five (5) days from the date of the first notice of the postmaster to
private respondent pursuant to Section 8, Rule 13, Revised Rules of Court. 6 Petitioner relies heavily on the
presumption that the postmaster had discharged properly and regularly his duties or performed acts required
by law, in accordance with the law and the authority conferred on him which had not been allegedly rebutted
even by the affidavit executed by private respondent alleging fraud on the part of the postmaster.
It is true that under the Revised Rules of Court, it is presumed that official duty has been regularly
performed; 7that a public official has properly and regularly discharged his duties, or performs acts required by
law, in accordance with the law and the authority conferred on him, and that he will not do any act contrary to
his official duty or omit to do anything which such duty may require. 8 This presumption, however, cannot apply
to the case at bar. In one case, 9 this Court had occasion to review the prevailing jurisprudence on the matter
and after going over several relevant cases 10 finally arrived at the conclusion that
Consequently, it cannot be too much to expect that when the post office makes a certification
regarding delivery of registered mail, such certification should include the date not only as to
whether or not the corresponding notices were issued or sent but also as to how, when and to
whom the delivery thereof was made. Accordingly, the certification in the case at bar that the
first and second notices addressed to Atty. Narvasa had been "issued" can hardly suffice to
requirements of equity and justice. It was incumbent upon the post office to further certify that
said notices were reportedly received. When there are several related acts supposed to be
performed by a public officer or employee in regard to a particular matter, the presumption of
regularity in the performance of official functions would not arise and be considered as
comprehending all the required acts, if the certification issued by the proper office refers only to
some of such acts, particularly in instances wherein proof of whether or not all of them have
been performed is available under the law or office regulations to the officer making the
certification. In other words, the omission of some of the acts in the certification may justify the
inference that from the proof available to the officer there is no showing that they have also
been performed. Of course, where the certification is worded in general terms that reasonably
comprehend performance of all the related acts, the presumption of regularity holds as to all of
them.
In the case before Us, there is nothing in the records to show as to how, when and to whom the delivery of the
registry notices of the registered mails of private respondent was made and as to whether said registry notices
were received by private respondent. It was incumbent upon the postmaster to make a certification that the
registry notices were issued or sent to private respondent and that the latter had received them. Thus, when
the postmaster failed to make such certification, the presumption of regularity in the performance of his official
functions would not lie. Hence, it was a grave error on the part of the lower court to consider private
respondent to have been duly served with the copies of the questioned decision and order of default of the trial
court by applying to him Section 8, Rule 13 of the Revised Rules of Court which provides:

... Service by registered mail is completed upon actual receipt by the addressee; but if he fails to
claim his mail from the post office within five (5) days from the date of the first notice of the
postmaster, service shall take effect at the expiration of such time.
Furthermore, the affidavit of private respondent pointing to the fraud allegedly committed by the postmaster
refutes the presumption of regularity of official functions relied upon by the trial court. Said affidavit reads:
... that the Postmaster of Tagbilaran, Bohol, with malice and fraud aforethought, deliberately
withhold from defendant, who is herein petitioner, all and every information about the receipt of
his mail by that post office, particularly the one containing the decision of the court below in the
above-mentioned Civil Case No. 8503, and instead he, the postmaster, unceremoniously
returned as unclaimed by the addressee the said mail containing the decision notwithstanding
the fact that the required number of notices usually sent to addressees of registered mails were
sent to petitioner "which may be attributed to the critical comments made by said petitioner who
is a radio commentator in Tagbilaran, in the recent past about the nasty, inept and corrupt
method by which the said postmaster mismanages the official business of the post office in
Tagbilaran. Hence, in retaliation, he purposely kept the petitioner ignorant of his mails in the
post office.
With the presentation of the foregoing affidavit, the burden has shifted to the petitioner to prove that there was
no such fraud committed by the postmaster in the handling of the registered mails of private respondent and in
the sending of the corresponding registry notices to the latter regarding them, by producing the postmaster
personally in court to belie the charge against him or at the very least by presenting counter affidavits refuting
the claim of the latter. Petitioner could have even cited the postmaster to testify on the manner the registered
mails of private respondent were handled by his office, whether the corresponding registry notices were sent to
him and whether said registry notices were actually received by the latter. In the absence of any proof that the
registry notices regarding the "unclaimed" registered letters addressed to private respondent were actually
received by him and in the face of his submission that he received the copy of the decision and the order of
default against him only on July 5, 1968 when a Special Sheriff left a copy of the writ of execution on the case
at his residence in Tagbilaran, Bohol, it is evident that when private respondent filed his "Urgent Omnibus
Motion for Relief of Judgment, New Trial, To recall the Writ of Execution and to Suspend Execution", he was
well within the reglementary period within which to file petition for relief from judgment provided by Section 2,
Rule 38 of the Rules of Court and the trial court was therefore in error in dismissing the appeal of private
respondent from the order denying his "Omnibus Motion for Relief of Judgment, New Trial, to Recall the Writ of
Execution and to Suspend Execution." Consequently, the respondent Court of Appeals acted correctly in
issuing the writ of mandamus to compel the trial court to give due course to the appeal of private respondent
for under Section 15, Rule 41 of the Revised Rules of Court "when erroneously a motion to dismiss an appeal
is granted or a record on appeal is disallowed by the trial court, a proper petition for mandamus may be filed in
the appellate court."
IN VIEW OF THE FOREGOING, the judgment of the respondent Court of Appeals is hereby affirmed. With
costs against petitioner.
SO ORDERED.
G.R. No. 179010

April 11, 2011

ELENITA M. DEWARA, epresented by her Attorney-in-Fact, FERDINAND MAGALLANES, Petitioner,

vs.
SPOUSES RONNIE AND GINA LAMELA and STENILE ALVERO, Respondents.

DECISION
NACHURA, J.:
Before the Court is a petition for review on certiorari under Rule 45 of the Rules of Court, assailing the
Decision1dated November 6, 2006 and the Resolution2 dated July 10, 2007 of the Court of Appeals (CA) in CAG.R. CV No. 64936, which reversed and set aside the Decision3 dated September 2, 1999 of the Regional Trial
Court (RTC), Branch 54, Bacolod City, in Civil Case No. 93-7942.
The Facts
Eduardo Dewara (Eduardo) and petitioner Elenita Magallanes Dewara (Elenita) were married before the
enactment of the Family Code. Thus, the Civil Code governed their marital relations. Husband and wife were
separated-in-fact because Elenita went to work in California, United States of America, while Eduardo stayed in
Bacolod City.
On January 20, 1985, Eduardo, while driving a private jeep registered in the name of Elenita,4 hit respondent
Ronnie Lamela (Ronnie). Ronnie filed a criminal case for serious physical injuries through reckless
imprudence5against Eduardo before the Municipal Trial Court in Cities (MTCC), Branch IV, Bacolod City. The
MTCC found Eduardo guilty of the charge and sentenced him to suffer the penalty of imprisonment of two (2)
months and one (1) day to (3) months, and to pay civil indemnity of Sixty-Two Thousand Five Hundred NinetyEight Pesos and Seventy Centavos (P62,598.70) as actual damages and Ten Thousand Pesos (P10,000.00)
as moral damages. On appeal, the RTC6 affirmed the decision of the MTCC7 and it became final and
executory.8
The writ of execution on the civil liability was served on Eduardo, but it was returned unsatisfied because he
had no property in his name. Ronnie requested the City Sheriff, respondent Stenile Alvero, to levy on Lot No.
234-C, Psd. 26667 of the Bacolod Cadastre, with an area of One Thousand Four Hundred Forty (1,440)
square meters (sq m), under Transfer Certificate of Title (TCT) No. T-80054, in the name of "ELENITA M.
DEWARA, of legal age, Filipino, married to Eduardo Dewara, and resident of Bacolod City," to satisfy the
judgment on the civil liability of Eduardo. The City Sheriff served a notice of embargo on the title of the lot and
subsequently sold the lot in a public auction. In the execution sale, there were no interested buyers other than
Ronnie. The City Sheriff issued a certificate of sale to spouses Ronnie and Gina Lamela to satisfy the civil
liability in the decision against Eduardo.9Ronnie then caused the consolidation of title in a Cadastral
Proceeding before the RTC, which ordered the cancellation of TCT No. T-80054 in the name of Elenita and the
issuance of a new certificate of title in the name of respondent spouses.10
The levy on execution, public auction, issuance of certificate of sale, and cancellation of title of the lot in the
name of Elenita were done while Elenita was working in California.11 Thus, Elenita, represented by her
attorney-in-fact, Ferdinand Magallanes, filed a case for annulment of sale and for damages against respondent
spouses and ex-officio sheriff Stenile Alvero before the RTC of Bacolod City. Petitioner claimed that the levy on
execution of Lot No. 234-C was illegal because the said property was her paraphernal or exclusive property
and could not be made to answer for the personal liability of her husband. Furthermore, as the registered
owner of the property, she received no notice of the execution sale. She sought the annulment of the sale and
the annulment of the issuance of the new TCT in the name of respondent spouses.12
On the other hand, respondent spouses averred that the subject lot was the conjugal property of petitioner
Elenita and Eduardo. They asserted that the property was acquired by Elenita during her marriage to Eduardo;
that the property was acquired with the money of Eduardo because, at the time of the acquisition of the

property, Elenita was a plain housewife; that the jeep involved in the accident was registered in the name of
petitioner; and that Elenita did not interpose any objection pending the levy on execution of the property.13
On September 2, 1999, the RTC rendered a decision in favor of petitioner, the fallo of which reads:
WHEREFORE, judgment is hereby rendered in favor of the [petitioner] and against the [respondents]:
1. The levy on execution on Lot No. 234-C of the Bacolod Cadastre covered by TCT No. 80054 in the
name of [petitioner] Elenita M. Dewara, the public auction of the property, and the consolidation of the
title and issuance of new TCT No. 167403 in the name of [respondent] Ronnie Lamela, are hereby
declared null and void;
2. The Register of Deeds of Bacolod City is ordered to cancel TCT No. 167403 in the name of
[respondent] Ronnie Lamela and TCT No. 80054 be reinstated or a new one issued in the name of
[petitioner] Elenita M. Dewara;
3. There is no pronouncement on damages with cost de officio.
SO ORDERED.14
The RTC declared that said property was paraphernal in nature. It arrived at this conclusion by tracing how
Elenita acquired the subject property. Based on the documentary evidence submitted, Elenitas grandfather,
Exequiel Magallanes, originally owned Lot No. 234-C. Upon his demise, his children, Jesus (Elenitas father),
Salud, and Concepcion, inherited the property, each entitled to a share equal to one-third (1/3) of the total area
of the land. They were issued a new title (TCT No. T-17541) for the property. On July 6, 1966, petitioners aunt,
Salud, executed a waiver of rights duly registered with the Office of the Register of Deeds under Entry No.
76392, thereby waiving her rights and participation over her 1/3 share of the property in favor of her siblings,
Jesus and Concepcion. The two siblings then became the owners of the property, each owning one-half (1/2)
of the property. Jesus subsequently sold his share to his daughter, Elenita, for the sum of Five Thousand
Pesos (P5,000.00), based on the deed of sale dated March 26, 1975. The deed of sale was duly registered
with the Register of Deeds under Entry No. 76393. Concepcion also sold her share to her niece, Elenita, for
the sum of Ten Thousand Pesos (P10,000.00), based on the deed of sale dated April 29, 1975, which was duly
registered with the Register of Deeds under Entry No. 76394. By virtue of the sale transactions, TCT No. T17541 was cancelled and a new title, TCT No. T-80054, was issued in the name of Elenita.15
The RTC gave credence to the testimony of Elenita on the circumstances surrounding the sale of the property.
First, it was sold to her by her father and her aunt so that the family would remain on the lot. Second, the
minimal and inadequate consideration for the 1,440 sq m property was for the purpose of helping her expand
her capital in her business at the time. Thus, the sale was essentially a donation and was therefore gratuitous
in character.16
Having declared that the property was the paraphernal property of Elenita, the RTC ruled that the civil liability
of Eduardo, which was personal to him, could not be charged to the exclusive property of his wife.17
On appeal, the CA reversed the decision of the RTC. The dispositive portion of the Decision reads:
WHEREFORE, in view of all the foregoing, the instant appeal is GRANTED. The assailed decision of the
Regional Trial Court of Bacolod City, Branch 54, dated September 2, 1999, in Civil Case No. 93-7942 is hereby
REVERSED and SET ASIDE, and a new Decision is entered DISMISSING the complaint for lack of merit. Let
a copy of this Decision be furnished to the Office of the Register of Deeds of Bacolod City, Negros Occidental

[which] is hereby ordered to cancel Transfer Certificate of Title No. T-80054 or any transfer certificate of title
covering Lot No. 234-C issued in the name of Elenita M. Dewara, and reinstate Transfer Certificate of Title No.
167403 or issue a new transfer certificate of title covering Lot No. 234-C in the name of Ronnie Lamela. No
pronouncement as to costs.
SO ORDERED.18
In reversing the decision of the RTC, the CA elucidated that the gross inadequacy of the price alone does not
affect a contract of sale, except that it may indicate a defect in the consent, or that the parties really intended a
donation or some other act or contract. Except for the assertions of Elenita, there was nothing in the records
that would indicate a defect in Jesus and Concepcion Magallanes consent to the sale.19 The CA ruled that
Elenita and Eduardo acquired the property by onerous title during their marriage through their common fund.
Thus, it belonged to the conjugal partnership of gains and might be levied upon to answer for civil liabilities
adjudged against Eduardo.20
Hence, this petition.
The Issue
The sole issue for resolution is whether the subject property is the paraphernal/exclusive property of Elenita or
the conjugal property of spouses Elenita and Eduardo.
The answer to this question will define whether the property may be subject to levy and execution sale to
answer for the civil liability adjudged against Eduardo in the criminal case for serious physical injuries, which
judgment had already attained finality.
The Ruling of the Court
All property of the marriage is presumed to belong to the conjugal partnership, unless it be proved that it
pertains exclusively to the husband or to the wife.21 Registration in the name of the husband or the wife alone
does not destroy this presumption.22 The separation-in-fact between the husband and the wife without judicial
approval shall not affect the conjugal partnership. The lot retains its conjugal nature.23 Moreover, the
presumption of conjugal ownership applies even when the manner in which the property was acquired does
not appear. The use of the conjugal funds is not an essential requirement for the presumption to arise.24
There is no dispute that the subject property was acquired by spouses Elenita and Eduardo during their
marriage. It is also undisputed that their marital relations are governed by the conjugal partnership of gains,
since they were married before the enactment of the Family Code and they did not execute any prenuptial
agreement as to their property relations. Thus, the legal presumption of the conjugal nature of the property
applies to the lot in question. The presumption that the property is conjugal property may be rebutted only by
strong, clear, categorical, and convincing evidencethere must be strict proof of the exclusive ownership of
one of the spouses, and the burden of proof rests upon the party asserting it.25
Aside from the assertions of Elenita that the sale of the property by her father and her aunt was in the nature of
a donation because of the alleged gross disparity between the actual value of the property and the monetary
consideration for the sale, there is no other evidence that would convince this Court of the paraphernal
character of the property. Elenita proffered no evidence of the market value or assessed value of the subject
property in 1975. Thus, we agree with the CA that Elenita has not sufficiently proven that the prices involved in
the sales in question were so inadequate for the Court to reach a conclusion that the transfers were in the
nature of a donation rather than a sale.

Furthermore, gross inadequacy of the price does not affect a contract of sale, except as it may indicate a
defect in the consent, or that the parties really intended a donation or some other act or contract.26 The records
are bereft of proof that the consent of petitioners father and her aunt were vitiated or that, in reality, they
intended the sale to be a donation or some other contract. Inadequacy of the price per se will not rule out the
transaction as one of sale; the price must be grossly inadequate or shocking to the conscience, such that the
mind would revolt at it and such that a reasonable man would neither directly nor indirectly consent to it.27
However, even after having declared that Lot No. 234-C is the conjugal property of spouses Elenita and
Eduardo, it does not necessarily follow that it may automatically be levied upon in an execution to answer for
debts, obligations, fines, or indemnities of one of the spouses. Before debts and obligations may be charged
against the conjugal partnership, it must be shown that the same were contracted for, or the debts and
obligations should have redounded to, the benefit of the conjugal partnership. Fines and pecuniary indemnities
imposed upon the husband or the wife, as a rule, may not be charged to the partnership. However, if the
spouse who is bound should have no exclusive property or if the property should be insufficient, the fines and
indemnities may be enforced upon the partnership assets only after the responsibilities enumerated in Article
161 of the Civil Code have been covered.
In this case, it is just and proper that Ronnie be compensated for the serious physical injuries he suffered. It
should be remembered that even though the vehicle that hit Ronnie was registered in the name of Elenita, she
was not made a party in the said criminal case. Thus, she may not be compelled to answer for Eduardos
liability. Nevertheless, their conjugal partnership property may be held accountable for it since Eduardo has no
property in his name. The payment of indemnity adjudged by the RTC of Bacolod City in Criminal Case No.
7155 in favor of Ronnie may be enforced against the partnership assets of spouses Elenita and Eduardo after
the responsibilities enumerated under Article 161 of the Civil Code have been covered. This remedy is
provided for under Article 163 of the Civil Code, viz.:
Art. 163. The payment of debts contracted by the husband or the wife before the marriage shall not be charged
to the conjugal partnership.1wphi1
Neither shall the fines and pecuniary indemnities imposed upon them be charged to the partnership.
However, the payment of debts contracted by the husband or the wife before the marriage, and that of fines
and indemnities imposed upon them, may be enforced against the partnership assets after the responsibilities
enumerated in Article 161 have been covered, if the spouse who is bound should have no exclusive property or
if it should be insufficient; but at the time of the liquidation of the partnership such spouse shall be charged for
what has been paid for the purposes above-mentioned.28
Article 161 of the Civil Code enumerates the obligations which the conjugal partnership may be held
answerable, viz.:
Art. 161. The conjugal partnership shall be liable for:
(1) All debts and obligations contracted by the husband for the benefit of the conjugal partnership, and
those contracted by the wife, also for the same purpose, in the cases where she may legally bind the
partnership;
(2) Arrears or income due, during the marriage, from obligations which constitute a charge upon
property of either spouse or of the partnership;

(3) Minor repairs or for mere preservation made during the marriage upon the separate property of
either the husband or the wife; major repairs shall not be charged to the partnership;
(4) Major or minor repairs upon the conjugal partnership property;
(5) The maintenance of the family and the education of the children of both the husband and wife, and
of legitimate children of one of the spouses;
(6) Expenses to permit the spouses to complete a professional, vocational or other course.
The enumeration above-listed should first be complied with before the conjugal partnership may be held to
answer for the liability adjudged against Eduardo.
Finally, the indemnity imposed against Eduardo shall earn an interest at the rate of twelve percent per annum,
in accordance with our ruling in Eastern Shipping Lines, Inc. v. Court of Appeals.29
WHEREFORE, in view of the foregoing, the Decision dated November 6, 2006 and the Resolution dated July
10, 2007 of the Court of Appeals in CA-G.R. CV No. 64936 are hereby ANNULLED and SET ASIDE. The
decision dated September 2, 1999 of the Regional Trial Court of Bacolod City in Civil Case No. 93-7942 is
hereby REINSTATED WITH MODIFICATION that the conjugal properties of spouses Elenita Dewara and
Eduardo Dewara shall be held to answer for the judgment of Seventy-Two Thousand Five Hundred NinetyEight Pesos and Seventy Centavos (P72,598.70), plus an interest rate of twelve (12) percent per annum from
the date of finality of the decision of the Regional Trial Court of Bacolod City in Criminal Case No. 7155, after
complying with the provisions of Article 161 of the Civil Code.
SO ORDERED.