PERLAS-BERNABE CASES BY JUDGE MARLO CAMPANILLA

1. Concept of culpa - There are two views on whether culpa is

a crime or just a mode of committing a crime.

Under the first view, culpa or reckless imprudence is not a

crime in itself; it is simply a way of committing it (People vs. Faller,
G.R. No. L-45964, April 25, 1939; Angeles vs. Jose, G.R. No. L-
6494, November 24, 1954).

Following this first view, if a person is killed, property is

damaged and another person suffered slight physical injuries
through reckless driving on the part of the accused, culpa under
Article 3 of the Revised Penal Code shall be considered as a mere
mode of committing crimes while the killing, causing damage to
property and inflicting slight physical injuries are the crimes
themselves. Hence, the accused committed three crimes, to wit:
homicide through reckless imprudence, damage through property
through reckless imprudence, and slight physical injuries through
reckless imprudence. But since a single reckless imprudence
produces these crimes, the accused is liable for a complex crime of
homicide and damage to property through reckless imprudence
under Article 48 of the Revised Penal Code. (Lontoc, Jr. v.
Gorgonio, L-37396, April 30, 1979; Reodica vs. CA, G.R. No.
125066, July 8, 1998; Gonzaga v. People, G.R. No. 195671,
January 21, 2015, Perlas-Bernabe). The third crime will be
considered as a separate crime of slight physical injuries through
reckless imprudence. The third crime is a light felony, which
cannot be made a component of a compound crime since under
Article 48 speaks of a single act constituting a grave or less grave
felony. (People vs. Turla, G.R. No. L-26388, February 14, 1927)

Under the second view, culpa is not just a mode of

committing a crime. It is the crime itself. (Quizon vs. Hon. Justice
of Peace, G.R. No. L-6641, July 28, 1955; People vs. Buan, L-
25366, March 29, 1968; People vs. Cano, G.R. No. 19660, May 24,
1966). Following this second view, if a person is killed, property is
damaged and another person suffered slight physical injuries
through reckless driving on the part of the accused, the
commission of reckless imprudence under Article 365 of the
Revised Penal Code is the crime itself. Hence, the accused shall be
held liable for a single crime of reckless imprudence resulting in
homicide, damage through property and slight physical injuries.

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PERLAS-BERNABE CASES BY JUDGE MARLO CAMPANILLA

Single culpable felony is committed regardless of its consequence.

The consequent death, injuries and damage to property shall only
be considered to impose the proper penalties. This single crime
cannot be split into two for purpose of double prosecution because
of the rule on double jeopardy. (Ivler v. Modesto-San Pedro, G.R.
No. 172716, November 17, 2010; Sevilla vs. People, G.R. No.
194390, August 13, 2014).

2. Praeter intentionem - In Wacoy v. People, G.R. No.

213792, June 22, 2015, Perlas-Bernabe, accused merely kicked
and punched the victim on the stomach, which shows that their
intention is merely to maltreat, and not to end his life. The concept
of intent to kill as an element of homicide should not be confused
with that of lack of intent to kill, on the basis of which the
mitigating circumstance of praeter intentionem shall be
appreciated. Since the victim died as a consequence of a felonious
act of violence employed by the accused, intent to kill as an element
of homicide is conclusively presumed. Even if there is no intent to
kill, the crime is still homicide because with respect to crimes of
personal violence, the penal law looks particularly to the material
results following the unlawful act and holds the aggressor
responsible for all the consequences thereof. However, the
mitigating circumstance of praeter intentionem shall be appreciated
since there is no intent to kill.

Under Article 49 of the Revised Penal Code, if the penalty for

the intended crime is different from that of the committed crime,
the court shall impose the penalty for the intended crime or crime
actually committed, whichever is lesser, to be applied in its
maximum period. Article 49 applies only to error in personae. If the
crime committed is parricide but the crime intended is homicide,
the penalty for the lesser crime of homicide, which is reclusion
temporal, shall be applied in its maximum period. Article 49 is not
applicable if the penalty for the intended crime is not different from
that of the committed crime. If the crime committed is parricide,
but the crime intended is murder, Article 49, which requires the
application of penalty in its maximum period, is not applicable
because but crimes are punished by reclusion perpetua to death.
(1966 and 1983 Bar Exams)

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PERLAS-BERNABE CASES BY JUDGE MARLO CAMPANILLA

Article 49 is neither applicable to aberratio ictus (People v.

Guillen, supra) nor to praeter intentionem. (Wacoy v. People, G.R.
No. 213792, June 22, 2015, Perlas-Bernabe) In aberratio ictus,
Article 48 may apply where crimes committed against the intended
victim and third person, who was hit by reason of aberratio ictus,
were produced by a single act. Praeter intentionem may be
appreciated as mitigating circumstance of lack of intent to commit
so grave a wrong than that committed under Article 13.

3. Mitigating circumstance in imprudence case -

According to Justice Perlas-Bernabe, the rules on the attendance
of modificatory circumstances e.g., the mitigating circumstance of
voluntary surrender should be considered in reckless imprudence
resulting in homicide (Curammeng vs. People, G.R. No. 219510,
November 14, 2016;). However, this is not a controlling rule. Under
Article 365 of the RPC, in the imposition of penalties for imprudence
and negligence, the court shall exercise their sound discretion,
without regard to the rules prescribed in Article 64 (on appreciation
of mitigating circumstances). Thus, court shall not consider
mitigating circumstance of voluntary confession in applying the
penalty for imprudence or negligence in its minimum period
(People vs. Agito, G.R. No. L-12120, April 28, 1958 and Mariano
vs. People, G.R. No. 178145, July 07, 2014). Neither the court shall
consider the special mitigating circumstance of confession and
surrender in reducing the penalty for this crime one degree lower
(People vs. Medroso, Jr. G.R. No. L-37633, January 31, 1975).

4. Re-election - Re-election to public office is not provided

for in Article 89 of the Revised Penal Code as a mode of
extinguishing criminal liability for criminal offense incurred by a
public officer prior to his re-election. (Oliveros v. Judge Villaluz,
G.R. No. L-34636, May 30, 1974; 1974 and 1980 Bar Exams)

Under the old rule, a re-elected public official could not be

removed for administrative offense committed during a prior term,
since his re-election to office operates as a condonation of his
misconduct to the extent of cutting off the right to remove him
therefor. (Aguinaldo v. Santos, G.R. No. 94115, August 21, 1992)
However, in Morales v. CA and Binay, G.R. Nos. 217126-27,
November 10, 2015, Perlas-Bernabe, doctrine of administrative
condonation has been abandoned because it is plainly inconsistent

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PERLAS-BERNABE CASES BY JUDGE MARLO CAMPANILLA

to the concept of public office is a public trust and the corollary

requirement of accountability to the people at all times, as
mandated under Section 1, Article XI of the 1987 Constitution.
Election is not a mode of condoning an administrative offense. In
this jurisdiction, liability arising from administrative offenses may
only be condoned by the President. Power to grant executive
clemency under Section 19, Article VII of the 1987 Constitution
extends to administrative offense.

But the Binay principle shall be given a prospective effect.

Hence, if a public officer is reelected before November 10, 2015 (the
date of the ruling in the Binay case), he can still use the
condonation doctrine as a defense in an administrative case.
(Ombudsman vs. Mayor Vergara, G.R. No. 216871, December 6,
2017)

5. Immutability of final judgement - Under the doctrine of

finality of judgment or immutability of judgment, a decision that
has acquired finality becomes immutable and unalterable, and
may no longer be modified in any respect, even if the modification
is meant to correct erroneous conclusions of fact and law, and
whether it be made by the court that rendered it or by the Highest
Court of the land. Nonetheless, the immutability of final judgments
is not a hard and fast rule as the Court has the power and
prerogative to relax the same in order to serve the demands of
substantial justice. (People vs. Layag, G.R. No. 214875, October 17,
2016, Perlas-Bernabe)

If the death of the accused happened prior to the finality of

the judgement convicting him of rape and acts of lasciviousness,
but the Supreme Court was belatedly informed of such death only
after the finality of such judgment, the case will be re-opened for
purposes of dismissing the case. (People vs. Layag, G.R. No.
214875, October 17, 2016, Perlas-Bernabe) If the penalty imposed
by the trial court is not in accordance with the law, the Supreme
Court can re-open a final and immutable judgement judgment to
impose the correct penalty under the law. (Bigler vs. People, G.R.
No. 210972, March 19, 2016, Perlas-Bernabe) If the new law
prescribes a lesser penalty for the crime of which the accused was
previously convicted by final judgement, the Supreme Court can
re-open a final and immutable judgement judgment to impose the

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lesser penalty under the new law. In sum, the new law shall be
given a retroactive effect. (Hernan vs. Honorable Sandiganbayan,
G.R. No. 217874, December 5, 2017). Layag case, Bigler and
Hernan case are exceptions to the immutability of final judgment
rule.

6. Tumultuous affray - The elements of Death Caused in a

Tumultuous Affray are as follows: (a) that there be several persons;
(b) that they did not compose groups organized for the common
purpose of assaulting and attacking each other reciprocally; (c)
that these several persons quarreled and assaulted one another in
a confused and tumultuous manner; (d) that someone was killed
in the course of the affray; (e) that it cannot be ascertained who
actually killed the deceased; and (f) that the person or persons who
inflicted serious physical injuries or who used violence can be
identified.

There is tumultuous affray when several persons quarrel and

assault each other in a confused and tumultuous manner provided
that they are not composed of groups organized for the common
purpose of reciprocally assaulting and attacking each other.
(Article 251) Tumultuous affray is also called as rumble or free-for-
all fight.

The provision of death caused in tumultuous affray is a

measure designed to remedy a situation where the participant
thereof, who killed the victim, was not identified because of the
confusion. Since there is uncertainty whether those of employed
violence against the deceased committed murder or homicide, or
merely physical injuries, he will be punished for death caused in a
tumultuous affray with the penalty lighter than that prescribed for
murder or homicide but graver than that for physical injuries as a
form of compromise.

In Wacoy vs. People, G.R. No. 213792, June 22, 2015, Perlas
Bernabe, a tumultuous affray takes place when a quarrel occurs
between several persons and they engage in a confused and
tumultuous affray, in the course of which some person is killed or
wounded and the author thereof cannot be ascertained.

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There were only two (2) persons, who picked on one

defenseless individual and attacked him repeatedly, taking turns
in inflicting punches and kicks on the poor victim. There was no
confusion and tumultuous quarrel or affray, nor was there a
reciprocal aggression in that fateful incident. Since assailants were
even identified as the ones who assaulted the victim, the latter's
death cannot be said to have been caused in a tumultuous affray.

7. Rape - Mental retardation of the victim, which is an

element of rape, cannot be considered if the same is not alleged in
the information (People vs. Galia, G.R. No. 222658, August 17,
2016, Perlas-Bernabe)

Statutory Rape is committed by having sexual intercourse

with a woman below twelve (12) years of age regardless of her
consent, or lack of it, to the sexual act. Proof of force, threat, or
intimidation, or consent of the offended party is unnecessary as
these are not elements of statutory rape, considering that the
absence of free consent is conclusively presumed when the victim
is below the age of twelve (12). The law presumes that the offended
party does not possess discernment and is incapable of giving
intelligent consent to the sexual act. (People vs. Comboy, G.R. No.
218399, March 2, 2016, Perlas-Bernabe)

8. Robbery with homicide - A special complex crime of

robbery with homicide takes place when a homicide is committed
either by reason, or on the occasion, of the robbery. To sustain a
conviction for robbery with homicide, the prosecution must prove
the following elements: (1) the taking of personal property
belonging to another; (2) with intent to gain; (3) with the use of
violence or intimidation against a person; and (4) on the occasion
or by reason of the robbery, the crime of homicide, as used in its
generic sense, was committed. A conviction requires certitude that
the robbery is the main purpose, and [the] objective of the
malefactor and the killing is merely incidental to the robbery. The
intent to rob must precede the taking of human life but the killing
may occur before, during or after the robbery. Homicide is said to
have been committed by reason or on occasion of robbery if, for
instance, it was committed: (a) to facilitate the robbery or the
escape of the culprit; (b) to preserve the possession by the culprit
of the loot; (c) to prevent discovery of the commission of the

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robbery; or (d) to eliminate witnesses in the commission of the

crime (People vs. Balute, G.R. No. 212932, January 21, 2015,
Perlas-Bernabe)

9. Theft and estafa - In Benabaye vs. People, G.R. No.

203466, February 25, 2015, Perlas-Bernabe, a sum of money
received by an employee on behalf of an employer is considered to
be only in the material possession of the employee. The material
possession of an employee is adjunct, by reason of his
employment, to a recognition of the juridical possession of the
employer. So long as the juridical possession of the thing
appropriated did not pass to the employee-perpetrator, the offense
committed remains to be theft, qualified or
otherwise. Hence, conversion of personal property in the case of
an employee having mere material possession of the said property
constitutes theft, whereas in the case of an agent to whom both
material and juridical possession have been transferred,
misappropriation of the same property constitutes Estafa.

There is an essential distinction between the possession of a

receiving teller of funds received from third persons paid to the
bank, and an agent who receives the proceeds of sales of
merchandise delivered to him in agency by his principal. In the
former case, payment by third persons to the teller is payment to
the bank itself; the teller is a mere custodian or keeper of the funds
received, and has no independent right or title to retain or possess
the same as against the bank. An agent, on the other hand, can
even assert, as against his own principal, an independent,
autonomous, right to retain the money or goods received in
consequence of the agency; as when the principal fails to
reimburse him for advances he has made, and indemnify him for
damages suffered without his fault.

10. Estafa through misappropriation - In Cheng vs. People,

G.R. No. 174113, January 13, 2016, Perlas-Bernabe, complainant
delivered the jewelry to accused for the purpose of selling them on
commission basis. Accused was required to either remit the
proceeds of the sale or to return the jewelry after one month from
delivery. Accused failed to do what was required of her despite the
lapse of the aforesaid period. The accused issued a check
representing the return of the proceeds of sale, which was

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dishonored. However, in testifying on the delivery of the unfunded

check, complainant erroneously used the words "payment" and
"paid". The defense argued “receipt of property in trust by reason
of agency,” which is an element estafa through misappropriation
is not present since the transaction is sale, which is established by
admission or by using the words “payment” and “paid.” SC rejected
the argument. The erroneous use of the words "payment" and
"paid" by the complainant (who does not know the technical
meaning thereof) will not change the nature of her transactions
from an agency to a contract of sale. Hence, accused is liable for
estafa through misappropriation.

11. Falsification of document - Prosecution need not

identify a specific law under which the accused has the obligation
to disclose the truth. To convict the accused for falsification of
document involving making an untruthful statement, what is
important is that he has a legal obligation to disclose the truth. In
Manansala vs. People, G.R. No. 215424, December 9, 2015, the
accused made an untruthful statement in petty cash
replenishment report of a private corporation. The accused was
convicted of falsification of private document because he has a
legal obligation to disclose the truth in a report.

12. Trafficking in person - In Young vs. People, G.R. No.

213910, February 03, 2016, Perlas-Bernabe, petitioners allegedly
recruited and hired the AAA Group and, consequently, maintained
them under their employ in Jaguar for the purpose of engaging in
prostitution. Accused can be properly charged with trafficking in
person.

13. Independent crime of corruption – Corruption is an

independent crime. Section 3 of R.A. No. 3019 reads: “In addition
to acts or omissions of public officers already penalized by existing
law, the following shall constitute corrupt practices of any public
officer.” It is clear then that one may be charged with violation of
R.A. No. 3019 in addition to a felony under the Revised Penal Code
for the same act. (Ramiscal, Jr. v. Sandiganbayan, G.R. Nos.
169727–28, August 18, 2006) Thus, the offender in addition to
violation of Section 3 of R.A. No. 3019 can be held liable for
falsification of document by public official (Suero v. People, G.R. No.
156408, January 31, 2005); or malversation through falsification

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of document (People vs. Pajaro, G.R. Nos. 167860–65, June 17,

2008) or failure to render an accounting. (Lumauig v. People, G.R.
No. 166680, July 7, 2014); or plunder (See: Senator Revilla vs.
Office of the Ombudsman, G.R. Nos. 212427-28, December 6, 2016,
Perlas-Bernabe)

14. Imputability principle - While the primary offender in

violation of RA No. 3019 and plunder are public officers, private
individuals may also be held liable for the same if they are found
to have conspired with said officers in committing the same. This
proceeds from the fundamental principle that in cases of
conspiracy, the act of one is the act of all. In this case, Janet
Napoles engaged in the illegal hemorrhaging of Senator Enrile's
PDAF. Thus, they are rightfully charged as a co-conspirator for
corruption and plunder. (Napoles vs. Carpio-Morales, G.R. Nos.
213542-43, March 15, 2016, Perlas-Bernabe)

15. Behest loan – The following are the essential elements

for violation of Section 3 (e) of RA 3019: (1) The accused must be a
public officer discharging administrative, judicial or official
functions; (2) He must have acted with manifest partiality, evident
bad faith or inexcusable negligence; and (3) That his action caused
any undue injury to any party, including the government, or giving
any private party unwarranted benefits, advantage or preference
in the discharge of his functions. (Office of the Ombudsman vs.
Prudente, G.R. No. 201830, November 10, 2015; Perlas-Bernabe;
PCGG vs. Gutierrez, G.R. No. 194159, October 21, 2015, Perlas-
Bernabe)

The elements of violation of Section 3 (g) are: (a) that the

accused is a public officer; (b) that he entered into a contract or
transaction on behalf of the government; and (c) that such contract
or transaction is grossly and manifestly disadvantageous to the
government. (PCGG vs. Gutierrez, G.R. No. 194159, October 21,
2015, Perlas-Bernabe)

Unlike Section 3 (e) of RA No. 3019, Section 3 (g) does not

require the giving of unwarranted benefits, advantages or
preferences to private parties who conspire with public officers, its
core element being the engagement in a transaction or contract
that is grossly and manifestly disadvantageous to the government.

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PERLAS-BERNABE CASES BY JUDGE MARLO CAMPANILLA

(PCGG vs. Office of the Ombudsman, G.R. No. 193176, February

24, 2016, Perlas-Bernabe)

Granting of behest loan by government bank or entity to

private individual may violate Section 3 (g) of RA No. 3019 (PCGG
vs. Office of the Ombudsman, G.R. No. 193176, February 24,
2016, Perlas-Bernabe). The following criteria may be utilized as a
frame of reference in determining a behest loan: (1) it is under-
collateralized; (2) the borrower corporation is undercapitalized; (3)
direct or indirect endorsement by high government officials like
presence of marginal notes; (4) stockholders, officers or agents of
the borrower corporation are identified as cronies (of high
government officials); (5) deviation of use of loan proceeds from the
purpose intended; (6) Use of corporate layering; (7) non-feasibility
of the project for which financing is being sought; and (8)
extraordinary speed in which the loan release was made. (See:
PCGG vs. Desierto, G.R. No. 139296, November 23, 2007)

The fact that PNB appeared to be unduly exposing its

finances by extending iniquitous loans to HMOI, despite the latter
being undercapitalized and, notwithstanding the inadequacy of the
collaterals being offered to secure the loans is basis to find
probable cause that violation of RA No. 3019. The HMOI loans
appear to bear the badges of a behest loan. (PCGG vs. Office of the
Ombudsman, G.R. No. 193176, February 24, 2016, Perlas-
Bernabe)

DBP guaranteed the foreign borrowings of Galleon for the

purpose of acquiring new and secondhand vessels despite various
red flags such as: (a) its guarantee accommodation request covers
100% of its project cost, which is in excess of DBP's normal
practice of financing only 80% of such cost; (b) its net profit margin
was experiencing a steady decrease due to high operating costs; (c)
its paid-up capital is only P9.95 Million; and (d) aside from its
proposal to source the increase in equity from the expected profits
from the operations of the vessels to be acquired, Galleon has not
shown any concrete proof on how it will be funding its equity build-
up. The Ad Hoc Committee concluded that the accommodations
extended by DBP to Galleon were in the nature of behest loans.
Thus, there is probable cause to charge respondent of violation of

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PERLAS-BERNABE CASES BY JUDGE MARLO CAMPANILLA

Section 3 (e) and (g). (PCGG vs. Office of the Ombudsman, G.R. No.
193176, February 24, 2016, Perlas-Bernabe)

Note: This material is the intellectual property of Judge

Campanilla. Consent to read or print is subject to the
condition of non-removal of the advertisement of his lecture.

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PERLAS-BERNABE CASES BY JUDGE MARLO CAMPANILLA

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PERLAS-BERNABE CASES BY JUDGE MARLO CAMPANILLA

16. Arias principle – In Arias v. Sandiganbayan, G.R. Nos.

81563 and 82512, December 19, 1989, the property bought by the
City is overpriced. When the accused was appointed as treasurer,
the sale of the property had already been consummated. Accused
was charged with violation of Section 3(e) of R.A. No. 3019 for
causing damage to the government through manifest partiality and
evident bad faith. The only evidence presented by the prosecution
is his signature on the voucher. He was acquitted. Heads of offices
can rely to a reasonable extent on their subordinates on
preparation of bids, purchase of supplies, or negotiations. Any
executive head agencies or commissions can attest to the volume
of papers that must be signed. Thus, executive head cannot be
convicted on the sole basis of signature or approval appearing on
a voucher. To sustain a conspiracy charge and conviction, evidence
must be presented other than her signature on the voucher.

The principle in the Arias case is not applicable in the following

cases:
a. If other than the accused’s signature on the voucher,
circumstances show evident bad faith, or manifest partiality such
as: (a) Where the accused has foreknowledge of existing anomaly –
e.g., mayor signed the inspection report and the disbursement
voucher despite the fact that he had foreknowledge that the
materials delivered by Guadines have already been confiscated by
the DENR (Escara v. People, G.R. No. 164921, July 8, 2005); or (b)
where accused approved the voucher without indication of the
retention money required by law, and he even inspected the
construction site of hospital boat being constructed, in which he
should have noticed the financial weakness of the contractor and
the defective works (Rivera v. People, G.R. No. 156577,
December 3, 2014);

b. If other than the accused’s signature on the voucher,

circumstances show gross inexcusable negligence such as where
there is deviation from ordinary procedure, which necessitate
further investigation – e.g., mayor issued and encashed municipal
checks despite the facts that the disbursement vouchers were in
the name of Kelly Lumber but the checks were payable to another
person and not to Kelly Lumber (Cruz v. The Hon. Sandiganbayan,
G.R. No. 134493, August 16, 2005);

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PERLAS-BERNABE CASES BY JUDGE MARLO CAMPANILLA

In Lihaylihay vs. People, G.R. No. 191219, July 31, 2013,

Perlas-Bernabe, the accused in his capacity as Chairman of the
Inspection and Acceptance Committee, signed the 16 certificates
of acceptance, inventory, and delivery of articles despite its
incompleteness or lack of material dates, while co-accused
certified to the correctness of the Inspection Report Forms even if
no such deliveries were made. Since there are reasons for the
heads of offices to further examine the documents in question,
accused cannot seek refuge by invoking the Arias doctrine.

c. If the public officer acting in his capacity as head of office

has not relied on his subordinates but on officers of equal rank
such as heads of the Office of the City Treasurer and, the Office of
the City Accountant in approving the cash advances in the amount
of P18 million to paymaster despite of the failure to liquidate
previous cash advances (Jaca v. People, G.R. No. 166967, January
28, 2013); and

d. If the documents involving the release of funds are not so

voluminous so as to preclude him from studying each one
carefully. (Santillano v. People, G.R. Nos. 175045–46, March 3,
2010)

17. Venue of BP Blg. 22 - It is well-settled that violation of

BP 22 cases is categorized as transitory or continuing crimes,
which means that the acts material and essential thereto occur in
one municipality or territory, while some occur in another.
Accordingly, the court wherein any of the crime’s essential and
material acts have been committed maintains jurisdiction to try
the case; it being understood that the first court taking cognizance
of the same excludes the other. Stated differently, a person
charged with a continuing or transitory crime may be validly tried
in any municipality or territory where the offense was in part
committed. Applying these principles, a criminal case for violation
of BP 22 may be filed in any of the places where any of its elements
occurred – in particular, the place where the check is drawn,
issued, delivered, or dishonored. (People vs. Yalong, G.R. No.
187174, August 28, 2013, Perlas-Bernabe)

In People vs. Yalong, G.R. No. 187174, August 28, 2013,

Perlas-Bernabe, while the check was drawn, issued, and delivered

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in Manila, records reveal that Ylagan presented the same for

deposit and encashment at the LBC Bank in Batangas City where
she learned of its dishonor. As such, the MTCC, Batangas City,
correctly took cognizance of case as it had the territorial
jurisdiction to try and resolve the same.

18. Estafa and BP Blg 22 - Other differences between

violation of BP Blg. 22 and estafa include the following: (1) deceit
and damage are essential elements of estafa but are not required
in BP Blg. 22; (2) a drawer of a dishonored check may be convicted
under BP Blg. 22 even if he had issued the same for a pre-
existing obligation, while such circumstance negates criminal
liability for estafa; (3) specific and different penalties are imposed
in each of the two offenses; (4) estafa is essentially a crime against
property, while violation of BP Blg. 22 is principally a crime against
public interest as it does injury to the entire banking system; and
(5) crimes of estafa are mala in se, while those of BP Blg. 22 are
mala prohibita. (Rimando vs. Aldaba, G.R. No. 203583, October 13,
2014, Perlas-Bernabe)

Owing to such differences, the simultaneous filing of BP 22

and estafa cases do not amount to double jeopardy. While the
filing of the two sets of Information for violation of BP Blg. 22 and
for estafa, may refer to identical acts committed by the accused,
the prosecution thereof cannot be limited to one offense, because
a single criminal act may give rise to a multiplicity of offenses and
where there is variance or differences between the elements of an
offense is one law and another law as in the case at bar there will
be no double jeopardy because what the rule on double jeopardy
prohibits refers to identity of elements in the two (2) offenses.
Otherwise stated, prosecution for the same act is not prohibited.
What is forbidden is prosecution for the same offense. Hence, the
mere filing of the two (2) sets of information does not itself give rise
to double jeopardy. (Rimando vs. Aldaba, G.R. No. 203583,
October 13, 2014, Perlas-Bernabe)

19. Syndicate estafa - The elements of

Syndicated Estafa are: (a) Estafa or other forms of swindling, as
defined in Articles 315 and 316 of the RPC,, is committed; (b)
the Estafa or swindling is committed by a syndicate of five (5) or
more persons; and (c) defraudation results in the misappropriation

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of moneys contributed by stockholders, or members of rural

banks, cooperative, samahang nayons, or farmers’ associations, or
of funds solicited by corporations/associations from the general
public. (People vs. Tibayan, G.R. No. 209655-60, January 14,
2015, Perlas-Bernabe)

In People vs. Tibayan, supra - TGICI’s modus operandi of

inducing the public to invest in it on the undertaking that their
investment would be returned with a very high monthly interest
rate ranging from three to five and a half percent (3%-5.5%). Under
such lucrative promise, the investing public are enticed to infuse
funds into TGICI. However, as the directors/incorporators of TGICI
knew from the start that TGICI is operating without any paid-up
capital and has no clear trade by which it can pay the assured
profits to its investors, they cannot comply with their guarantee
and had to simply abscond with their investors’ money. Accused
used TGICI to engage in a Ponzi scheme, resulting in the
defraudation of the TGICI investors.

To be sure, a Ponzi scheme is a type of investment fraud that

involves the payment of purported returns to existing investors
from funds contributed by new investors. Its organizers often
solicit new investors by promising to invest funds in opportunities
claimed to generate high returns with little or no risk. In many
Ponzi schemes, the perpetrators focus on attracting new money to
make promised payments to earlier-stage investors to create the
false appearance that investors are profiting from a legitimate
business. It is not an investment strategy but a gullibility scheme,
which works only as long as there is an ever increasing number of
new investors joining the scheme. It is difficult to sustain the
scheme over a long period of time because the operator needs an
ever larger pool of later investors to continue paying the promised
profits to early investors. The idea behind this type of swindle is
that the “con-man” collects his money from his second or third
round of investors and then absconds before anyone else shows
up to collect. Necessarily, Ponzi schemes only last weeks, or
months at the most. Accused, who engaged in a Ponzi schemes,
are liable for syndicated estafa.

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