G.R. No. 167805 November 14, 2008 ARNOLD STA. CATALINA, Petitioner, People of The Philippines, Respondent. Decision QUISUMBING, Acting C.J.

G.R. No.
167805 November 14, 2008
ARNOLD STA. CATALINA, petitioner,

vs.
PEOPLE OF THE PHILIPPINES, respondent.
DECISION
QUISUMBING, Acting C.J.:
This petition for review on certiorari seeks to reverse and set aside the
Decision1 dated October 26, 2004 and the 2 dated April 14, 2005 of the Court
of Appeals in CA-G.R. CR No. 21877.
Petitioner was charged before the Regional Trial Court, Branch 63, Makati
City, with the crime of estafa defined under Article 315, paragraph 1(b)3 of the
Revised Penal Code. The Information4reads:
xxxx
That [o]n or about and sometime during the month of February 1988, in
the Municipality of Makati, Metro Manila, Philippines and within the
jurisdiction of this Honorable Court, the said accused, received in trust
from LORENZO B. BALLECER the amount of P100,000.00 for the
purpose of opening a letter of credit for the intended importation of jute
sacks from China with the express obligation on the part of the accused
of returning the same if the transaction does not materialize, but the
accused once in possession of the said amount far from complying with
his obligation, with unfaithfulness and abuse of confidence, did then and
there willfully, unlawfully and feloniously appropriate, apply and convert
to his own personal use and benefit the said amount and despite
demands, failed and refused and still fails and refuses to return the
same to said Lorenzo B. Ballecer, to the damage and prejudice of the
latter in the aforesaid amount of P100,000.00.
CONTRARY TO LAW.
Petitioner pleaded not guilty upon arraignment. Thereafter, a trial on the

merits ensued.
The following facts were established.

Private complainant Lorenzo B. Ballecer was the president of Sunrise
Industries Development, Incorporated while his friend, herein petitioner, was
the president of Century United Marketing and Trading Corporation.5
Sometime in February 1988, Ballecer entered into a joint business venture

with petitioner involving importation of jute sacks from China. Petitioner
intimated to Ballecer that he could secure the jute sacks from China through a
company in Hongkong which would act as his agent. Petitioner also told
Ballecer that he had a ready buyer in the Philippines named Saugus
Enterprises which was willing to buy the jute sacks at P12.25 per piece.
Convinced, Ballecer ordered through petitioner one container load of jute
sacks with the total cost of P137,000.6
After the order was made, petitioner told Ballecer to open the importation's
letter of credit. Accordingly, Ballecer and petitioner proceeded to Citytrust
Bank to open said letter of credit. However, before the letter of credit could be
opened, the bank required them to submit the supporting customs documents
and to post a marginal deposit of P100,000. Ballecer then asked petitioner to
accompany him to United Coconut Planters Bank to encash a check
worth P100,000.7
After the encashment of the check, the two returned to Citytrust Bank.
However, they arrived after banking hours, so the letter of credit could no
longer be opened. Petitioner then suggested that the money be deposited in
his account at Citytrust instead. Ballecer agreed.8 By way of acknowledgment,
petitioner executed a document which reads:
xxxx
This is to certify that I have received from LORENZO B. BALLECER the

amount of ONE HUNDRED THOUSAND PESOS ONLY (P100,000.00)
and deposited in my CITYTRUST BANK Account No. 00035016566 for
use in the opening of a Letter of Credit at said bank for the importation
of 20,000 pcs. of jute sacks from Hongkong and that the same will be
returned to him if transaction does not materialize.9 (Underscoring
supplied.)
While preparing the supporting customs documents for the letter of credit,
Ballecer found that the cost of the jute sacks was not $0.15 but $0.62
or P16.15 per piece.10 Realizing that his business venture was a losing
proposition, Ballecer cancelled the importation and asked petitioner to return
the P100,000. Petitioner, however, failed to return the money despite
repeated verbal and formal demands.
In defense, petitioner testified that he did not misappropriate the P100,000.

Petitioner claimed that the said money was spent and used for the office
expenses, salaries and miscellaneous expenses of the office which Ballecer
and petitioner occupy and share together. He further testified that when the
check was given to Ballecer, they encashed it and entered into an oral
agreement that whatever profit they will realize from their joint business
venture shall be shared equally after deducting all expenses.11
On March 11, 1997, the trial court convicted the petitioner of the crime
charged. The decretal portion of the Decision12 reads:
Finding all the elements necessary to qualify an act as estafa to be

present, the court finds the accused ARNOLD STA. CATALINA,
"GUILTY" beyond reasonable doubt. A judgment of conviction is
rendered against him and he is to suffer the penalty of from 2 years 11
months and 11 days of prision correc[c]ional in its minimum and
mediu[m] period, to 8 years of … prision mayor and 1 year for each
additional P10,000.00 in excess of P22,000.00 as provided for under
Art. 315 par. 1. Likewise, accused is ordered to pay civil indemnity in the
amount of P100,000.00 representing the amount he received from
private complainant and which he deposited in his own account.
SO ORDERED.13
Aggrieved, petitioner appealed. He filed a motion praying that the testimony

covered by the transcript of stenographic notes dated February 5, 1991 be
retaken. The motion was granted by the Court of Appeals in a
Resolution14 dated July 14, 1999. However, on April 10, 2000, the public
prosecutor filed a Manifestation15 stating that Ballecer was no longer
interested in pursuing his complaint against petitioner and that the case
should be decided in light of Ballecer's Affidavit of Desistance.16
On October 26, 2004, the Court of Appeals rendered a Decision affirming the
judgment of conviction by the trial court. The appellate court held:
WHEREFORE, PREMISES CONSIDERED, the Decision, dated March

11, 1997, is hereby AFFIRMED and the sentence imposed by the
Court a quo on the accused is clarified, thus: for the accused to suffer
the indeterminate penalty of 2 years, 11 months and 11 days of prision
correccional as minimum to 15 years of reclusion temporal
as maximum. The judgment of the Court a quo ordering accused-
appellant to pay private complainant the sum of P100,000.00
representing the amount misappropriated is likewise AFFIRMED.
SO ORDERED.17
Petitioner filed a motion for reconsideration.18 The same was denied in a

Resolution dated April 14, 2005. Dissatisfied with the aforementioned rulings
of the Court of Appeals, the petitioner now comes before us, raising the
following issues:
I.
WHETHER OR NOT THE RESPONDENT COURT OF APPEALS HAS

DECIDED THE CASE (CA-G.R. CR NO. 21877) IN A WAY PROBABLY
NOT IN ACCORDANCE WITH LAW OR WITH THE APPLICABLE
DECISIONS OF THE SUPREME COURT;
II.
WHETHER THE RESPONDENT COURT OF APPEALS HAS SO FAR

DEPARTED FROM THE ACCEPTED AND [USUAL] COURSE OF
JUDICIAL PROCEEDINGS, OR SO FAR SANCTIONED SUCH
DEPARTURE BY A LOWER COURT, AS TO CALL FOR AN
EXERCISE OF THE POWER OF SUPERVISION;
III.
WHETHER OR NOT THIS HONORABLE TRIBUNAL, IN THE

EXERCISE OF ITS POWER OF REVIEW, MAY REVERSE THE
DECISION OF THE RESPONDENT COURT, ESPECIALLY IN CASES
WHERE THERE IS MORE THAN A CLEAR GROUND OF
REASONABLE DOUBT.19
In the main, the issue is: Did the Court of Appeals err in convicting the
petitioner for the crime of estafa despite the missing transcript of stenographic
notes dated February 5, 1991?
In his petition, the petitioner contends that he should have been acquitted of
the crime charged. He avers that when the trial court rendered its decision,
the transcript of stenographic notes taken on February 5, 1991 was missing.
Hence, the appellate court erred in not ordering the trial court to render a new
decision based on the complete evidence submitted by the parties, including
the testimony on the missing stenographic notes. Petitioner asserts that the
facts as found by the trial court and adopted by the appellate court are not
complete. Thus, the same should not be used as basis for convicting him of
the crime charged.20
For its part, the Office of the Solicitor General (OSG) counters that nothing on
the record states that the questioned transcript was already missing when the
trial court rendered its decision. In fact, the matter of the transcript being lost
or missing surfaced only when the case was already in the appellate stage.
Also, there is no proof that Ballecer's testimony was not considered at all
when the trial court rendered its decision. The OSG submits that contrary to
petitioner's claim, the decision of the trial court made reference to the
testimony of Ballecer. Conversely, even if the February 5, 1991 transcript was
missing when the trial court decided the case, other evidence were presented,
which as properly appreciated, led the trial court to correctly conclude that the
petitioner committed the crime of estafa.21
We have carefully examined the records of the case and find no cogent
reason to disturb the findings of the appellate court.
First, all the elements of estafa under Article 315, par. 1(b) of the Revised
Penal Code are present. The elements of estafa under said provision are: (a)
that money, goods or other personal property is received by the offender in
trust, or on commission, or for administration, or under any other obligation
involving the duty to make delivery of, or to return the same; (b) that there be
misappropriation or conversion of such money or property by the offender; or
denial on his part of such receipt; (c) that such misappropriation or conversion
or denial is to the prejudice of another.22
Here, the petitioner received in trust from Ballecer the amount of P100,000 for
the purpose of opening a letter of credit for the importation of jute sacks with
the concurrent obligation to return the same amount in the event that the
transaction failed to materialize. Petitioner, however, misappropriated and
applied to his own use the said amount and even admitted issuing checks to
be drawn from the P100,000 for a purpose other than opening a letter of
credit. Petitioner was then asked to return the P100,000. Despite repeated
verbal and formal demands, petitioner failed and refused to return said
amount to the prejudice of Ballecer. Clearly, all the elements of the crime
of estafa were proven in the instant case.23
Second, the appellate court did not err in convicting petitioner despite the fact
that the February 5, 1991 transcript was missing. As correctly pointed out by
the OSG, nothing on record categorically indicates that the transcript was
already missing when the trial court rendered its decision. The mere fact that
the trial court did not mention the February 5, 1991 testimony does not mean
that it was not considered at all. Courts are not required to state in its decision
all the facts found in the records. It is enough that the court states the facts
and the law on which its decision is based.24 The mere fact that no mention
was made in the trial court's decision of the testimony of a witness does not
necessarily mean said testimony was overlooked by the trial court in arriving
at its decision. If it did not make reference of said testimony, it is because it
was insignificant.25
Even assuming that the transcript of February 5, 1991 was missing at the time
the trial court decided the case, there were other evidence presented which
led it to correctly conclude that indeed petitioner committed estafa. In fact, the
missing transcript of February 5, 1991 contained only a portion of the
testimony of Ballecer. Other transcripts, which extensively covered Ballecer's
testimonies, provided sufficient basis for the trial court to convict petitioner.
Finally, the Affidavit of Desistance26 submitted by Ballecer will not justify the
dismissal of the action. By itself, an Affidavit of Desistance is not a ground for
the dismissal of an action, once the action has been instituted in court.27 Here,
Ballecer made the so-called pardon of the petitioner after the institution of the
action. He made the Affidavit of Desistance only on October 25, 1999 - more
than two years after the trial court had rendered its decision. The Court
attaches no persuasive value to a desistance especially when executed as an
afterthought. It would be a dangerous rule to reject the testimony taken before
the court of justice simply because the witness who had given it later on
changed his mind for one reason or another. Such a rule will make a solemn
trial a mockery and place the investigation at the mercy of unscrupulous
witnesses.28 Moreover, if we allow the dismissal of the case in view of
Ballecer's Affidavit of Desistance, there is always the probability that it would
later on be repudiated, and criminal prosecution would thus be interminable.29
WHEREFORE, the petition is hereby DENIED. The Decision dated October

26, 2004 and the Resolution dated April 14, 2005 of the Court of Appeals in
CA-G.R. CR No. 21877 are AFFIRMED.
SO ORDERED.
LEONARDO A. QUISUMBING
Acting Chief Justice
WE CONCUR:
CONCHITA CARPIO MORALES

Associate Justice
DANTE O. TINGA PRESBITERO J. VELASCO, JR.

Associate Justice Associate Justice
ARTURO D. BRION
Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, and the Division
Chairperson's Attestation, it is hereby certified that the conclusions in the
above Decision were reached in consultation before the case was assigned to
the writer of the opinion of the Court's Division.
G.R. No. 157781. April 11, 2005
ROBERT CRISANTO D. LEE, Petitioners,

vs.
PEOPLE OF THE PHILIPPINES and ATOZ TRADING CORPORATION, Respondents.
DECISION
CALLEJO, SR., J.:
This is a petition for review under Rule 45 of the Revised Rules of Court of the Decision1 of the Court
of Appeals (CA) in CA-G.R. CR No. 19947 dismissing the appeal of petitioner Robert Crisanto D.
Lee and the Resolution2denying his motion for reconsideration.
At the instance of Atoz Trading Corporation (ATC), 10 separate Informations were filed, on
September 27, 1994, in the Regional Trial Court of Pasig City, Branch 159, against petitioner in his
capacity as marketing manager of ATC. The cases were docketed as Criminal Case Nos. 107020 to
107029. Except for the dates and the amounts involved, the Informations contained common
allegations for the crimes allegedly committed, as follows:
1. CRIM. CASE No. 107020:
That on or about the 10th day of January, 1992, in the Municipality of San Juan, Metro Manila,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, being
then the Marketing Manager of Atoz Trading Corporation represented by Johnny M. Jaotegan was
authorized to [receive] payments for the company; Thus received from Ocean Feed Mills Company's
Client, the amount of ₱47,940.00 through telegraphic transfer, with the corresponding obligation to
remit/account the same to Atoz Trading Corporation; but accused, far from complying with his
obligation to remit the same despite notices and demands made upon him, with intent [to] gain,
unfaithfulness and grave abuse of confidence and to defraud Atoz Trading Corporation represented
by Johnny M. Jaotegan once in possession of the money received from Ocean Feed Mills, did then
and there willfully, unlawfully, and feloniously misapplied, misappropriated and converted to his own
personal use and benefit the amount of ₱47,940.00 to the damage and prejudice of the complainant
in the aforementioned amount of ₱47,940.00.
CONTRARY TO LAW.3
Other than Criminal Case No. 107023 which was ordered dismissed on motion of the prosecution,
joint trial on the merits of the remaining nine cases eventuated, following the arraignment of
petitioner on February 20, 1995 during which he pleaded "Not Guilty."
The proceedings before the trial court and the evidence adduced by the parties were summarized by
the CA as follows:
During the joint trial of the remaining cases, the prosecution presented the following witnesses: (1)
Johnny Jaotegan, the President and Chief Operating Officer of Atoz Trading Corporation; (2) Jeffrey
Corneby, the general teller of UCPB, Greenhills, San Juan; (3) Maria Concepcion dela Cruz, the
corporate secretary of Ocean Feed Mills; and (4) Ellen Gusar, the accounting clerk-computer
encoder of Atoz Trading Corporation. Their testimonies tend to establish the following factual
backdrop:
Atoz Trading Corporation, hereinafter referred to as Atoz, is a stock corporation engaged in the
trading of animal feeds, feeds supplements, raw materials and ingredients for feed mills, with herein
[petitioner] Robert Crisanto Lee as the corporation’s sales manager from early 90’s to 1994. In the
course of Lee’s employment therewith, he was able to bring in Ocean Feed Mills, a Bacolod-based
company engaged in the manufacture of pelletized feeds for prawn and fish, as one of Atoz’s clients.
Having "personally found" Ocean Feed Mills, [petitioner] handled said account.
Transactions between the two companies were then coursed through [petitioner], so that it was upon
the latter’s instructions that Ocean Feed Mills addressed its payments through telegraphic transfers
to either "Atoz Trading and/or Robert Lee" or "Robert Lee" since [petitioner] explained that it was
difficult for him to claim the check at UCPB Greenhills.
When [petitioner] ceased reporting for work in 1994, Atoz audited some of the accounts handled by
him. It was then that Atoz discovered Ocean Feed Mills’ unpaid account in the amount of
₱318,672.00. Atoz thus notified Ocean Feed Mills that [petitioner] was no longer connected with the
corporation, and advised it to verify its accounts. Promptly preparing a certification and summary of
payments, Ocean Feed Mills informed Atoz that they have already fully settled their accounts and
even made overpayments.
Bank documents prepared and submitted by UCPB Greenhills, San Juan, later showed that
[petitioner] maintained therewith Savings Account No. 117-105532-0, to which account the payments
made by Ocean Feed Mills to Atoz through telegraphic transfers, have either been credited or
deposited. Jeffrey Corneby, UCPB Greenhills’ general teller, testified that upon receipt of telegraphic
transfers coursed through UCPB, it is customary for said bank to either credit the amount to payee’s
account if payee has an account with the bank, or just issue a manager’s check for the amount
transmitted if the payee has no account.
Meanwhile, Ellen Gusar, whose duty was to prepare statement of accounts to be sent to Atoz’s
clients, attested that [petitioner] took the duly-prepared statement of accounts of Ocean Feed Mills
and never returned the same, on the pretext that he had already sent them to the Ocean Feed Mills.
She also confirmed that, as of September 30, 1992, the subsidiary ledger of Atoz showed that
Ocean Feed Mills had an outstanding balance of ₱318,672.00.
After the prosecution rested its case, the [petitioner] filed a Demurrer to Evidence, therein alleging
that the evidence thus far presented by the prosecution in each of the cases were insufficient
inasmuch as "[I]t is bereft of any evidence of formal demand upon the accused to remit the amounts
allegedly misappropriated, before the filing of the subject cases." In an Order dated January 23,
1996, the trial court denied the demurrer for lack of factual and legal basis (Records, p. 200).
In his defense, [petitioner] maintained that he had informed Lu Hsui Nan, the man whom he alleged
to be the "real"president of Atoz, of the manner in which Ocean Feed Mills transmitted its payments
and that Nan said "it is okay although unusual, as long as I [petitioner] maintain the customer and
the relationships and as long as they pay us"(TSN, March 26, 1996, p. 14). He also asserted that as
soon as the bank credited the remittances to his account, he would withdraw the same either in cash
or in the form of manager’s checks and remitted the same to Beth Ligo, Atoz’s cashier. He insisted,
however, that Beth Ligo, instead of issuing acknowledgment receipts of the aforesaid remittances,
merely recorded the same and furnished copies thereof to the credit and collections and the
accounting departments of Atoz.
On rebuttal, the prosecution recalled Johnny Jaotegan to the witness stand, and presented
additional witnesses, namely: (1) Lu Hsui Nan, whom the prosecution presented as Atoz’s vice
president and director; and (2) Elizabeth Ligo, Atoz’s cashier from 1985 to 1994.
Nan denied having knowledge that Ocean Feed Mills made payments through telegraphic transfers
addressed to "Atoz Trading Corporation and/or Robert Lee" as payee, saying that he only learned of
the same when [petitioner] ceased working for the corporation.
Ligo, on the other hand, testified that she did not receive any payment from Ocean Feed Mills, hence
she did not issue provisional receipts for the same. She added that it was only on April 7, 1992 when
she issued Provisional Receipt No. 502 for Ocean Feed Mills’ payment of ₱25,500.00 collected by
[petitioner].
Jaotegan claimed that on August 12, 1994, between 10 p.m. to 1 a.m., he went to Parañaque,
accompanied by his counsel and some policemen, and tried to locate [petitioner], and that upon
finding him, "we asked him [petitioner] to remit the payments made by Ocean Feed Mills to Atoz
Trading Corporation." (TSN, 14 May 1996, p. 19).
On sur-rebuttal, [petitioner] declared that Jaotegan did not demand the payments made by Ocean
Feed Mills [Company] but only demanded from him the return of the service car and the cellular
phone assigned to him.4
On July 23, 1996, the trial court rendered judgment convicting the petitioner of the crimes charged.
The dispositive portion of the decision reads:
WHEREFORE, in view of the foregoing, the Court finds accused ROBERT CRISANTO LEE guilty
beyond reasonable doubt of nine (9) counts of the crime of Estafa, defined and penalized under Art.
315, par. 1(b) of the Revised Penal Code and there being no mitigating nor aggravating
circumstances present in the commission of the crime hereby sentences said accused to suffer the
following:
1) In Crim. Case No. 107020 – An indeterminate penalty of two (2) years, eleven (11) months and
eleven (11) days of prision correccional in its medium period as minimum to eight (8) years and one
(1) day of prision mayor in its medium period as maximum and to pay Atoz Trading Corporation the
amount of ₱47,940.00 as actual damages plus costs.
eleven (11) days of prision correccional in its medium period as minimum to five (5) years and six (6)
months of prision correccional in its maximum period as maximum and to pay Atoz Trading
Corporation the amount of ₱17,000.00 as actual damages plus costs.
5) In Crim. Case No. 107025 – An indeterminate penalty of three (3) years, six (6) months and
twenty (20) days of prision correccional in its medium period as minimum to nine (9) years and one
6) In Crim. Case No. 107026 – An indeterminate penalty of one (1) year and nine (9) months
of prision correccionalin its minimum period as minimum to six (6) years and one (1) day of prision
mayor in its minimum period as maximum and to pay Atoz Trading Corporation the amount of
₱15,000.00 as actual damages plus costs.
(1) day of prision mayor in its medium period as maximum and to pay complainant the amount of
₱23,256.00 as actual damages plus costs.
8) In Crim. Case No. 107028 – An indeterminate penalty of three (3) years, six (6) months and
twenty (20) days of prision correccional in its medium period as minimum to fifteen (15) years, eight
(8) months and one (1) day of reclusion temporal in its medium period as maximum and to pay
private complainant the amount of ₱93,000.00 as actual damages plus costs.
(1) day of prision mayor in its medium period as maximum and to pay private complainant Atoz
Trading Corporation the amount of ₱44,696.00 as actual damages plus costs.
SO ORDERED.5
The petitioner appealed the decision to the CA contending that:
A) THE LOWER COURT GRAVELY ERRED IN FINDING THE ACCUSED GUILTY

OF ESTAFA THRU CONVERSION OR MISAPPROPRIATION EVEN WITHOUT ANY EVIDENCE
OF PRIOR DEMAND; AND
B) THE LOWER COURT GRAVELY ERRED IN FINDING THAT THERE IS EVIDENCE OF

CONVERSION OR MISAPPROPRIATION SINCE THERE IS LACK OF IT. (Appellant’s Brief, p.
4; Rollo, pp. 32-40, 35).6
In a Decision on September 13, 2002, the CA dismissed the appeal and affirmed the assailed
decision. The appellate court, likewise, dismissed the petitioner’s motion for the reconsideration of its
decision.
Aggrieved by the aforementioned rulings, the petitioner filed the instant petition for review and raised
the following:
A.) WHETHER OR NOT PETITIONER CAN BE CONVICTED FOR THE CRIME OF ESTAFA THRU
CONVERSION (ART. 315, PAR. 1-[b] OF THE REVISED PENAL CODE), LACKING THE
ELEMENT OF FORMAL DEMAND BEFORE THE FILING OF THE CASES AGAINST HIM; AND
B.) WHETHER THE QUESTIONED DECISION AND RESOLUTION WERE ISSUED WITH GRAVE
ABUSE OF DISCRETION OR NOT.7
The petitioner contends that demand is a condition sine qua non to the filing of a criminal complaint
for estafa. He posits that demand must be made formally. The petitioner cites the commentary of
Justice Ramon C. Aquino, based on the rulings of the CA in People v. Pendon8 and People v.
Bastiana.9 The petitioner, likewise, echoes the commentary of Justice Aquino that even in Tubb v.
People,10 the Court ruled that there must be demand for funds or property held in trust. The petitioner
asserts that the respondents failed to prove the element of demand on its evidence-in-chief and
attempted to prove the same only on its rebuttal evidence. In any event, the petitioner asserts that
the evidence adduced by the respondents to prove the petitioner’s misappropriation is doubtful.
The respondents refute the contention of the petitioner, thus:
The fourth element of estafa under Article 315, par. 1(b) of the Revised Penal Code, i.e., that
demand was made by the offended party, was adequately and clearly proven by the prosecution. It
must be stressed that prior to the filing of the subject criminal cases against petitioner, private
complainant’s president, Johnny Jaotegan, had demanded from petitioner to turn over to him the
subject sums of money. Thus, in the evening of August 12, 1994, Johnny Jaotegan, along with his
counsel Atty. Fernando Flor and some Parañaque policemen, went to petitioner’s house in
Parañaque and there he asked petitioner to remit said sums of money and to return the company car
and a cellular phone (TSN, May 14, 1996, pp. 16-19). It also appears that earlier, private
complainant’s officers had encountered difficulty in locating petitioner after his continued failure to
report for work in August 1994, prompting said officers to seek the assistance of the Parañaque
police for that purpose (Ibid., p. 17). Evidently, as petitioner admitted, there was a demand made on
him to account for the money he had collected from private complainant’s customer.
Contrary to petitioner’s proposition, prior demand need not be made formally (See People vs.
Valeriano, CA, 61 O.G. 282, 284 [1965], citing Tubb vs. People, 101 Phil. 114 [1957]). This
Honorable Court has suggested in the Tubbcase that previous demand may be made in whatever
form. There, the complainant, after having failed to locate the whereabouts of the accused to whom
he had entrusted ₱6,000.00 for the purchase of rattan and who neither delivered the rattan nor
returned the money, met the accused by chance at the Manila Hotel one year later and asked him
about the money. Charged with estafa, the accused claimed that no demand had been made upon
him. The Honorable Court declared:
"It is urged that there can be no estafa without a previous demand, which allegedly has not been
made upon herein petitioner, but the aforementioned query made to him by Quasha, in the Manila
Hotel, was tantamount to a demand. Besides, the law does not require a demand as a condition
precedent to the existence of the crime of embezzlement. It so happens only that failure to account,
upon demand for funds or property held in trust, is circumstantial evidence of misappropriation. The
same [may], however, be established in the case at bar."
(Tubb vs. People, supra, at 119)
Indeed, in Barrameda vs. Court of Appeals, 313 SCRA 477, 485 [1999], this Honorable Court,
citing Tubb vs. People, supra, held that the specific word "demand" need not be used to show that
demand had, indeed, been made upon the person charged with the offense. A query as to the
whereabouts of the money is tantamount to a demand.
Notably, in his cited book, former Chief Justice Aquino does not, in anyway, purport to subscribe to
the view that a demand must be made formally. What he merely says is that while this Honorable
Court ruled in Tubb that, under the law, a demand is not a condition precedent to the existence of
the crime of embezzlement and that the failure to account, upon demand, for funds or property held
in trust is circumstantial evidence of misappropriation, the same ruling states that there must still be
some demand, regardless of its form. In the same manner, while he cited in his book the Court of
Appeals’ ruling in People vs. Pendon (supra) and People vs. Bastiana (supra) that such demand
must be made formally and before the action is filed and that in the absence of demand, an accused
cannot be convicted of estafa, it is apparent therefrom that Justice Aquino made use of the citation
only to set forth the diverging opinions of the Court of Appeals on the matter, namely, (1) one view
holding that the demand must be made formally (People vs. Pendon, supra); (2) another one holding
that such demand is not required if there is a specified time for delivery (People vs. Librea, CA, 48
O.G. 5304); and (3) still another one holding that a report to the police was considered a demand
(People vs. Baquir, CA-G.R. No. 5349-R, January 26, 1951).11
We agree with the respondents.
Article 315, paragraph 1(b) of the Revised Penal Code reads:
ART. 315. Swindling (estafa). – Any person who shall defraud another by any of the means
mentioned herein below shall be punished by:
1. With unfaithfulness or abuse of confidence, namely:

…
(b) By misappropriating or converting, to the prejudice of another, money, goods, or any other
personal property received by the offender in trust or on commission, or for administration, or under
any other obligation involving the duty to make delivery of or to return the same, even though such
obligation be totally or partially guaranteed by a bond; or by denying having received such money,
goods, or other property.
The elements of estafa with abuse of confidence are as follows: a) that money, goods or other
personal property is received by the offender in trust, or on commission, or for administration, or
under any other obligation involving the duty to make delivery of, or to return the same; b) that there
be misappropriation or conversion of such money or property by the offender; or denial on his part of
such receipt; c) that such misappropriation or conversion or denial is to the prejudice of another.12
The words "convert" and "misappropriate" as used in the aforequoted law connote an act of using or
disposing of another’s property as if it were one’s own or of devoting it to a purpose or use different
from that agreed upon. To "misappropriate" a thing of value for one’s own use or benefit, not only the
conversion to one’s personal advantage but also every attempt to dispose of the property of another
without a right.13 Misappropriation or conversion may be proved by the prosecution by direct evidence
or by circumstantial evidence.
Demand is not an element of the felony or a condition precedent to the filing of a criminal complaint
for estafa. Indeed, the accused may be convicted of the felony under Article 315, paragraph 1(b) of
the Revised Penal Code if the prosecution proved misappropriation or conversion by the accused of
the money or property subject of the Information.14 In a prosecution for estafa, demand is not
necessary where there is evidence of misappropriation or conversion.15 However, failure to account
upon demand, for funds or property held in trust, is circumstantial evidence of misappropriation.16
Demand need not be formal. It may be verbal. In Barrameda v. Court of Appeals,17 the Court ruled
that even a query as to the whereabouts of the money is tantamount to a demand:
It must be noted that the specific word "demand" need not be used to show that demand had,
indeed, been made upon the person charged of the offense. A query as to the whereabouts of the
money, such as the one proven in the case at bench, is tantamount to a demand.18
In the present case, the prosecution adduced proof upon cross-examination of the petitioner that he
failed to return the funds held in trust before the complaint for estafa was filed against him:
Anent the second element of Estafa under Article 315, par. 1(b), there was a strong and positive
evidence that in all the criminal cases filed before this Court, the accused had, indeed, converted the
proceeds of the telegraphic transfers (remitted by Ocean Feed Mills [Company] in favor of Atoz
Trading Corporation) to his own benefit. A perusal of the Transcript of Stenographic Notes dated
March 26, 1996, page 30, reads:
Cross-Examination of Robert
Lee conducted by
Atty. Flor:
Q - According to you, Mr. Witness, the Ocean Feed Mills whenever they remit their payment, they do
it through telegraphic transfer?
A - Yes, Sir.
Q - And according to you, the telegraphic transfer is paid to or the payee is Atoz Trading and/or
Robert Crisanto Lee?
A - Just Robert Lee only.
Q - That Robert Lee refers to you?
A - Yes, Sir.
In the foregoing cross-examination, accused admitted that he received the telegraphic transfers sent
by Ocean Feed Mills. In the same Transcript of Stenographic Notes, pp. 34-36, accused tried to
defend himself by alleging that the proceeds of the remitted amount were given to Ms. Beth Ligo,
cashier of Atoz Trading Corporation.
Cross-Examination
conducted by
Atty. Flor:
Q - This Beth Ligo, Mr. Witness, according to you, she is the cashier of what company?
A - Both of Atoz and Chiu-Nichi Agro Resources.
Q - According to you a while ago, whenever the Ocean Feed Mills remit their payment, it goes to
your account at UCPB and then you withdraw that money from UCPB, Greenhills, sometimes in
cash and sometimes in the form of manager’s check payable to Atoz Trading. A while ago, Mr.
Witness, you testified that you withdraw the cash from your bank account, is it not?
A - Since it was credited in my account, I have to withdraw it from my account.
Q - You withdraw the payments remitted from Bacolod to Greenhills UCPB, from your bank account?
A - Because it was credited.
Q - My question is, did you withdraw the remittances from your bank account?
A - Yes, Sir.
Q - After you withdraw that money from your bank account, you immediately go and see Miss Beth
Ligo and surrender that cash to her, is that what you want to tell us?
A - What do you mean by immediate.

Q - According to you, a while ago, Mr. Witness, UCPB Greenhills is just in front of your office at
Greenhills, is it not?
A - Correct, Sir.
Q - When you learned that there is a remittance from Bacolod from their payment of Atoz product,
you go to your bank and withdraw that remittance in cash and immediately with this cash, you just
cross the street and surrender it to the cashier Ms. Beth Ligo, is it not correct?
A - If what you mean upon crediting of payment from Ocean Feed Mills to my account and I withdraw
it immediately, sometimes it was credited and before I know about it a day or two after. That is the
situation.
Q - Yes, my question is when you learned that telegraphic transfer was made by Ocean Feed Mills
to Atoz Trading and/or Robert Lee and incidentally it ended up in your account, what you normally
do is you go and withdraw that amount in cash and considering that your office is just across the
street, with the cash you go and see the cashier Miss Beth Ligo and right there and then give her the
cash?
A - Yes, because all remittances are handed to the cashier.
From the foregoing testimony of the accused, it is clear that Mr. Robert Crisanto Lee had, indeed,
misappropriated or converted to his personal use the payments of Ocean Feed Mills which were
remitted thru telegraphic transfers in nine (9) instances since the account of Ocean with Atoz
remains outstanding up to the present (Exh. "I," "I-1" and "J") as corroborated by Ms. Beth Ligo
(cashier of Atoz) where she stated on rebuttal that the accused did not remit these payments of
Ocean. It is evident that the accused assumed the right to dispose of the remittances as if it were his
own, thus, committing conversion with unfaithfulness and a clear breach of trust.
It is quite obvious that the misappropriation or conversion committed by the accused resulted to the
prejudice of both Atoz Trading Corporation and Ocean Feed Mills particularly the latter, which had a
belief all along that its payments were credited to its outstanding balance. Since records reveal that
up to this even date, Ocean has an outstanding balance of ₱318,672.00, sufficient to constitute
injury within the meaning of Article 315 a(b) of the Revised Penal Code. Thus, the third element of
this kind of Estafa is satisfied.19
The respondents, likewise, adduced evidence on rebuttal testimony of Johnny M. Jaotegan, the
president of ATC, that he, in the company of policemen, demanded the production of the funds from
the petitioner but that the latter failed to account for and return the same.20
The bare fact that the respondents adduced proof of demand only when they presented Johnny M.
Jaotegan as rebuttal witness and not as a witness on their evidence-in-chief does not enfeeble the
case of the respondents. It bears stressing that in resolving a case, the trial court must consider all
the evidence adduced by the parties on their evidence-in-chief, rebuttal evidence and sur-rebuttal
evidence. Moreover, the petitioner testified on sur-rebuttal evidence and denied the testimony of
Jaotegan on rebuttal, hence, cannot feign prejudice.
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit. Costs against the
petitioner.
SO ORDERED.
Puno, (Chairman), Austria-Martinez, Tinga, and Chico-Nazario, JJ., concur.
ALLIED BANKING CORPORATION VS SECRETARY SEDFREY ORDOÑEZ AND ALFREDOCHING

192 SCRA 246 (1990)
FACTS: Respondent Alfredo Ching duly authorized officer of Philippine Blooming Mills(PBM)
applied for the issuance of commercial letters of credit with petitioner Allied banking Corporation. The latter
issued an irrevocable letter of credit infavor of Nikko Industry wherein it drew four (4) drafts which
were accepted by Blooming Mills and duly honored and paid by Allied Bank. In order to secure the payment
of the loan, Blooming Mills as entrustee, executed four (4) Trust Receipt Agreements acknowledging Allied
bank’s ownership of the goods and Blooming Mills obligation to turn over the proceeds of the sale of the
goods if sold or to return the same within the stated period. Blooming Mills failed to pay itsobligation, thereby
prompting petitioner bank to file a criminal complaint for violation of Presidential Decree 115.
ISSUE: W hether or not the penal provision of Presidential decree 115 apply when the goods
covered by a Trust Receipt do not form part of the finished products which are ultimately sold but are
instead, utilized in the operation of the equipment of entrustee-manufacturer?
RULING: Yes. In trust receipts, there is an obligation to repay the entruster. The entrusteebinds himself to
sell or otherwise dispose of the entrusted goods with the obligation to turn over to the entruster the proceeds
if sold, or return the goods if unsold or not otherwise disposed of according to the terms and conditions of
the trust receipt. Petition granted.
Allied Banking Corporation v Ordonez GR

No. 82495 : December 10, 1990.
The crime of estafa for violation of the Trust Receipts Law is a special offense or mala
prohibita. It is a fundamental rule in criminal law that when the crime is punished by a
special law, the act alone, irrespective of its motives, constitutes the offense. In the instant
case the failure of the entrustee to pay complainant the remaining balance of the value of
the goods covered by the trust receipt when the same became due constitutes the offense
penalized under Section 13 of P.D. No. 115
Facts: Philippine Blooming Mills (PBM, for short) thru its duly authorized officer, private
respondent Alfredo Ching, applied for the issuance of commercial letters of credit with
petitioner’s Makati branch to finance the purchase of 500 M/T Magtar Branch Dolomites and
one (1) Lot High Fired Refractory Sliding Nozzle Bricks. Allied Bank issued an irrevocable
letter of credit in favor of Nikko Industry Co., Ltd. (Nikko) by virtue of which the latter drew
four (4) drafts which were accepted by PBM and duly honored and paid by the petitioner bank.
To secure payment of the amount covered by the drafts, and in consideration of the transfer
by petitioner of the possession of the goods to PBM, the latter as entrustee, thru private
respondent, executed four (4) Trust Receipt Agreements with maturity dates on
acknowledging petitioner’s ownership of the goods and its (PBM’S) obligation to turn over the
proceeds of the sale of the goods, if sold, or to return the same, if unsold within the stated
period.
PBM defaulted on the payment of the trust receipts.. Despite repeated demands, PBM failed
and refused to either turn over the proceeds of the sale of the goods or to return the same.
Allied Bank filed a criminal complaint against private respondent for violation of PD 115 before
the office of the Provincial Fiscal of Rizal. The Fiscal found a prima facie case for violation of
PD 115 on four (4) counts and filed the corresponding information in court. PBM contended
that since it was under rehabilitation receivership, no criminal liability can be imputed to Ching.
Issue: Whether or not rehabilitation bars the filing of the estafa case against Ching
Held: It cannot be denied that the offense was consummated long before the appointment of
rehabilitation receivers. The filing of a criminal case against respondent Ching is not only for
the purpose of effectuating a collection of a debt but primarily for the purpose of punishing an
offender for a crime committed not only against the complaining witness but also against the
state. The crime of estafa for violation of the Trust Receipts Law is a special offense or mala
prohibita. It is a fundamental rule in criminal law that when the crime is punished by a special
law, the act alone, irrespective of its motives, constitutes the offense. In the instant case the
failure of the entrustee to pay complainant the remaining balance of the value of the goods
covered by the trust receipt when the same became due constitutes the offense penalized
under Section 13 of P.D. No. 115; and on the basis of this failure alone, the prosecution has
sufficient evidence to establish a prima facie case (Res. No. 671, s. 1981; Allied Banking
Corporation vs. Reinhard Sagemuller, et al., Provincial Fiscal of Rizal, September 18, 1981).
In examination of P.D. 115 shows the growing importance of trust receipts in Philippine
business, the need to provide for the rights and obligations of parties to a trust receipt
transaction, the study of the problems involved and the action by monetary authorities, and
the necessity of regulating the enforcement of rights arising from default or violations of trust
receipt agreements. The legislative intent to meet a pressing need is clearly expressed .
G.R. No. 158312 November 14, 2008
JOHN DY, petitioner,

vs.
PEOPLE OF THE PHILIPPINES and The HONORABLE COURT OF
APPEALS, respondents.
DECISION
QUISUMBING, Acting C.J.:
This appeal prays for the reversal of the Decision1 dated January 23, 2003
and the Resolution2 dated May 14, 2003 of the Court of Appeals in CA-G.R.
CR No. 23802. The appellate court affirmed with modification the
Decision3 dated November 17, 1999 of the Regional Trial Court (RTC),
Branch 82 of Quezon City, which had convicted petitioner John Dy of two
counts of estafa in Criminal Cases Nos. Q-93-46711 and Q-93-46713, and
two counts of violation of Batas Pambansa Bilang 224 (B.P. Blg. 22) in
Criminal Cases Nos. Q-93-46712 and Q-93-46714.
The facts are undisputed:
Since 1990, John Dy has been the distributor of W.L. Food Products (W.L.
Foods) in Naga City, Bicol, under the business name Dyna Marketing. Dy
would pay W.L. Foods in either cash or check upon pick up of stocks of snack
foods at the latter's branch or main office in Quezon City. At times, he would
entrust the payment to one of his drivers.
On June 24, 1992, Dy's driver went to the branch office of W.L. Foods to pick
up stocks of snack foods. He introduced himself to the checker, Mary Jane D.
Maraca, who upon confirming Dy's credit with the main office, gave him
merchandise worth P106,579.60. In return, the driver handed her a blank Far
East Bank and Trust Company (FEBTC) Check with Check No. 553602
postdated July 22, 1992. The check was signed by Dy though it did not
indicate a specific amount.
Yet again, on July 1, 1992, the same driver obtained snack foods from Maraca
in the amount of P226,794.36 in exchange for a blank FEBTC Check with
Check No. 553615 postdated July 31, 1992.
In both instances, the driver was issued an unsigned delivery receipt. The
amounts for the purchases were filled in later by Evelyn Ong, accountant of
W.L. Foods, based on the value of the goods delivered.
When presented for payment, FEBTC dishonored the checks for insufficiency
of funds. Raul D. Gonzales, manager of FEBTC-Naga Branch, notified Atty.
Rita Linda Jimeno, counsel of W.L. Foods, of the dishonor. Apparently, Dy
only had an available balance of P2,000 as of July 22, 1992 and July 31,
1992.
Later, Gonzales sent Atty. Jimeno another letter5 advising her that FEBTC
Check No. 553602 for P106,579.60 was returned to the drawee bank for the
reasons stop payment order and drawn against uncollected deposit (DAUD),
and not because it was drawn against insufficient funds as stated in the first
letter. Dy's savings deposit account ledger reflected a balance of P160,659.39
as of July 22, 1992. This, however, included a regional clearing check
for P55,000 which he deposited on July 20, 1992, and which took five (5)
banking days to clear. Hence, the inward check was drawn against the yet
uncollected deposit.
When William Lim, owner of W.L. Foods, phoned Dy about the matter, the
latter explained that he could not pay since he had no funds yet. This
prompted the former to send petitioner a demand letter, which the latter
ignored.
On July 16, 1993, Lim charged Dy with two counts of estafa under Article 315,
paragraph 2(d)6 of the Revised Penal Code in two Informations, which except
for the dates and amounts involved, similarly read as follows:
That on or about the 24th day of June, 1992, in Quezon City, Philippines,
the said accused, did then and there [willfully] and feloniously defraud
W.L. PRODUCTS, a corporation duly organized and existing under the
laws of the Republic of the Philippines with business address at No. 531
Gen. Luis St., Novaliches, this City, in the following manner, to wit: the
said accused, by means of false manifestations and fraudulent
representation which he made to complainant to the effect that Far East
Bank and Trust Co. check No. 553602 dated July 22, 1992 in the
amount of P106,579.60, payable to W.L. Products is a good check and
will be honored by the bank on its maturity date, and by means of other
deceit of similar import, induced and succeeded in inducing the said
complainant to receive and accept the aforesaid check in payment of
snack foods, the said accused knowing fully well that all his
manifestations and representations were false and untrue and were
made solely for the purpose of obtaining, as in fact he did obtain the
aforesaid snack foods valued at P106,579.60 from said complainant as
upon presentation of said check to the bank for payment, the same was
dishonored and payment thereof refused for the reason stop payment
and the said accused, once in possession of the aforesaid snack foods,
with intent to defraud, [willfully], unlawfully and feloniously misapplied,
misappropriated and converted the same or the value thereof to his own
personal use and benefit, to the damage and prejudice of said W.L.
Products, herein represented by RODOLFO BORJAL, in the
aforementioned amount of P106,579.60, Philippine Currency.
Contrary to law.7
On even date, Lim also charged Dy with two counts of violation of B.P. Blg.
22 in two Informations which likewise save for the dates and amounts involved
similarly read as follows:
That on or about the 24th day of June, 1992, the said accused, did then
and there [willfully], unlawfully and feloniously make or draw and issue
to W.L. FOOD PRODUCTS to apply on account or for value a Far East
Bank and Trust Co. Check no. 553602 dated July 22, 1992 payable to
W.L. FOOD PRODUCTS in the amount of P106,579.60 Philippine
Currency, said accused knowing fully well that at the time of issue
he/she/they did not have sufficient funds in or credit with the drawee
bank for payment of such check in full upon its presentment, which
check when presented 90 days from the date thereof was subsequently
dishonored by the drawee bank for the reason "Payment stopped" but
the same would have been dishonored for insufficient funds had not the
accused without any valid reason, ordered the bank to stop payment,
the said accused despite receipt of notice of such dishonor, failed to pay
said W.L. Food Products the amount of said check or to make
arrangement for payment in full of the same within five (5) banking days
after receiving said notice.
CONTRARY TO LAW.8
On November 23, 1994, Dy was arrested in Naga City. On arraignment, he

pleaded not guilty to all charges. Thereafter, the cases against him were tried
jointly.
On November 17, 1999 the RTC convicted Dy on two counts each of estafa
and violation of B.P. Blg. 22. The trial court disposed of the case as follows:
WHEREFORE, accused JOHN JERRY DY ALDEN (JOHN DY) is

hereby found GUILTY beyond reasonable doubt of swindling (ESTAFA)
as charged in the Informations in Criminal Case No. 93-46711 and in
Criminal Case No. Q-93-46713, respectively. Accordingly, after applying
the provisions of the Indeterminate Sentence Law and P.D. No. 818,
said accused is hereby sentenced to suffer the indeterminate penalty of
ten (10) years and one (1) day to twelve (12) years of prision mayor, as
minimum, to twenty (20) years of reclusion temporal, as maximum, in
Criminal Case No. Q-93-46711 and of ten (10) years and one (1) day to
twelve (12) years of prision mayor, as minimum, to thirty (30) years
of reclusion perpetua, as maximum, in Criminal Case No. Q-93-46713.
Likewise, said accused is hereby found GUILTY beyond reasonable

doubt of Violation of B.P. 22 as charged in the Informations in Criminal
Case No. Q-93-46712 and in Criminal Case No. Q-93-46714 and is
accordingly sentenced to imprisonment of one (1) year for each of the
said offense and to pay a fine in the total amount of P333,373.96, with
subsidiary imprisonment in case of insolvency.
FINALLY, judgment is hereby rendered in favor of private complainant,
W. L. Food Products, herein represented by Rodolfo Borjal, and against
herein accused JOHN JERRY DY ALDEN (JOHN DY), ordering the
latter to pay to the former the total sum of P333,373.96 plus interest
thereon at the rate of 12% per annum from September 28, 1992 until
fully paid; and, (2) the costs of this suit.
SO ORDERED.9
Dy brought the case to the Court of Appeals. In the assailed Decision of

January 23, 2003, the appellate court affirmed the RTC. It, however, modified
the sentence and deleted the payment of interests in this wise:
WHEREFORE, in view of the foregoing, the decision appealed from is

hereby AFFIRMED with MODIFICATION. In Criminal Case No. Q-93-
46711 (for estafa), the accused-appellant JOHN JERRY DY ALDEN
(JOHN DY) is hereby sentenced to suffer an indeterminate penalty of
imprisonment ranging from six (6) years and one (1) day of prision
mayor as minimum to twenty (20) years of reclusion temporal as
maximum plus eight (8) years in excess of [P]22,000.00. In Criminal
Case No. Q-93-46712 (for violation of BP 22), accused-appellant is
sentenced to suffer an imprisonment of one (1) year and to indemnify
W.L. Food Products, represented by Rodolfo Borjal, the amount of ONE
HUNDRED SIX THOUSAND FIVE HUNDRED SEVENTY NINE PESOS
and 60/100 ([P]106,579.60). In Criminal Case No. Q-93-46713 (for
estafa), accused-appellant is hereby sentenced to suffer an
indeterminate penalty of imprisonment ranging from eight (8) years and
one (1) day of prision mayor as minimum to thirty (30) years as
maximum. Finally, in Criminal Case No. Q-93-46714 (for violation of
BP 22), accused-appellant is sentenced to suffer an imprisonment of
one (1) year and to indemnify W.L. Food Products, represented by
Rodolfo Borjal, the amount of TWO HUNDRED TWENTY SIX
THOUSAND SEVEN HUNDRED NINETY FOUR PESOS AND 36/100
([P]226,794.36).
SO ORDERED.10
Dy moved for reconsideration, but his motion was denied in the Resolution
dated May 14, 2003.
Hence, this petition which raises the following issues:

I.
WHETHER OR NOT THE HONORABLE COURT OF APPEALS

GRAVELY ERRED IN FINDING THAT THE PROSECUTION HAS
PROVEN THE GUILT OF ACCUSED BEYOND REASONABLE DOUBT
OF ESTAFA ON TWO (2) COUNTS?
II.

GRAVELY ERRED IN FINDING THAT THE PROSECUTION HAS
PROVEN THE GUILT OF ACCUSED BEYOND REASONABLE DOUBT
OF VIOLATION OF BP 22 ON TWO (2) COUNTS?
III.

GRAVELY ERRED IN AWARDING DAMAGES TO PRIVATE
COMPLAINANT, W.L. FOOD PRODUCTS, THE TOTAL SUM OF
[P]333,373.96?11
Essentially, the issue is whether John Dy is liable for estafa and for violation of
B.P. Blg. 22.
First, is petitioner guilty of estafa?
Mainly, petitioner contends that the checks were ineffectively issued. He

stresses that not only were the checks blank, but also that W.L. Foods'
accountant had no authority to fill the amounts. Dy also claims failure of
consideration to negate any obligation to W.L. Foods. Ultimately, petitioner
denies having deceived Lim inasmuch as only the two checks bounced since
he began dealing with him. He maintains that it was his long established
business relationship with Lim that enabled him to obtain the goods, and not
the checks issued in payment for them. Petitioner renounces personal liability
on the checks since he was absent when the goods were delivered.
The Office of the Solicitor General (OSG), for the State, avers that the delivery
of the checks by Dy's driver to Maraca, constituted valid issuance. The OSG
sustains Ong's prima facie authority to fill the checks based on the value of
goods taken. It observes that nothing in the records showed that W.L. Foods'
accountant filled up the checks in violation of Dy's instructions or their
previous agreement. Finally, the OSG challenges the present petition as an
inappropriate remedy to review the factual findings of the trial court.
We find that the petition is partly meritorious.
Before an accused can be held liable for estafa under Article 315, paragraph
2(d) of the Revised Penal Code, as amended by Republic Act No. 4885,12 the
following elements must concur: (1) postdating or issuance of a check in
payment of an obligation contracted at the time the check was issued; (2)
insufficiency of funds to cover the check; and (3) damage to the payee
thereof.13 These elements are present in the instant case.
Section 191 of the Negotiable Instruments Law14 defines "issue" as the first
delivery of an instrument, complete in form, to a person who takes it as a
holder. Significantly, delivery is the final act essential to the negotiability of an
instrument. Delivery denotes physical transfer of the instrument by the maker
or drawer coupled with an intention to convey title to the payee and recognize
him as a holder.15 It means more than handing over to another; it imports such
transfer of the instrument to another as to enable the latter to hold it for
himself.16
In this case, even if the checks were given to W.L. Foods in blank, this alone
did not make its issuance invalid. When the checks were delivered to Lim,
through his employee, he became a holder with prima facie authority to fill the
blanks. This was, in fact, accomplished by Lim's accountant.
The pertinent provisions of Section 14 of the Negotiable Instruments Law are

instructive:
SEC. 14. Blanks; when may be filled.-Where the instrument is wanting

in any material particular, the person in possession thereof has
a prima facie authority to complete it by filling up the
blanks therein. And a signature on a blank paper delivered by the
person making the signature in order that the paper may be converted
into a negotiable instrument operates as a prima facie authority to fill it
up as such for any amount. …. (Emphasis supplied.)
Hence, the law merely requires that the instrument be in the possession of a
person other than the drawer or maker. From such possession, together with
the fact that the instrument is wanting in a material particular, the law
presumes agency to fill up the blanks.17 Because of this, the burden of proving
want of authority or that the authority granted was exceeded, is placed on the
person questioning such authority.18 Petitioner failed to fulfill this requirement.
Next, petitioner claims failure of consideration. Nevertheless, in a

letter19 dated November 10, 1992, he expressed willingness to pay W.L.
Foods, or to replace the dishonored checks. This was a clear
acknowledgment of receipt of the goods, which gave rise to his duty to
maintain or deposit sufficient funds to cover the amount of the checks.
More significantly, we are not swayed by petitioner's arguments that the single
incident of dishonor and his absence when the checks were delivered belie
fraud. Indeed damage and deceit are essential elements of the offense and
must be established with satisfactory proof to warrant conviction.20 Deceit as
an element of estafa is a specie of fraud. It is actual fraud which consists in
any misrepresentation or contrivance where a person deludes another, to his
hurt. There is deceit when one is misled -- by guile, trickery or by other means
-- to believe as true what is really false.21
Prima facie evidence of deceit was established against petitioner with regard
to FEBTC Check No. 553615 which was dishonored for insufficiency of funds.
The letter22 of petitioner's counsel dated November 10, 1992 shows beyond
reasonable doubt that petitioner received notice of the dishonor of the said
check for insufficiency of funds. Petitioner, however, failed to deposit the
amounts necessary to cover his check within three banking days from receipt
of the notice of dishonor. Hence, as provided for by law,23 the presence of
deceit was sufficiently proven.
Petitioner failed to overcome the said proof of deceit. The trial court found no
pre-existing obligation between the parties. The existence of prior transactions
between Lim and Dy alone did not rule out deceit because each transaction
was separate, and had a different consideration from the others. Even as
petitioner was absent when the goods were delivered, by the principle of
agency, delivery of the checks by his driver was deemed as his act as the
employer. The evidence shows that as a matter of course, Dy, or his
employee, would pay W.L. Foods in either cash or check upon pick up of the
stocks of snack foods at the latter's branch or main office. Despite their two-
year standing business relations prior to the issuance of the subject check,
W.L Foods employees would not have parted with the stocks were it not for
the simultaneous delivery of the check issued by petitioner.24Aside from the
existing business relations between petitioner and W.L. Foods, the primary
inducement for the latter to part with its stocks of snack foods was the
issuance of the check in payment of the value of the said stocks.
In a number of cases,25 the Court has considered good faith as a defense to a
charge of estafa by postdating a check. This good faith may be manifested by
making arrangements for payment with the creditor and exerting best efforts
to make good the value of the checks. In the instant case petitioner presented
no proof of good faith. Noticeably absent from the records is sufficient proof of
sincere and best efforts on the part of petitioner for the payment of the value
of the check that would constitute good faith and negate deceit.
With the foregoing circumstances established, we find petitioner guilty

of estafa with regard to FEBTC Check No. 553615 for P226,794.36.
The same, however, does not hold true with respect to FEBTC Check No.
553602 for P106,579.60. This check was dishonored for the reason that it was
drawn against uncollected deposit. Petitioner had P160,659.39 in his savings
deposit account ledger as of July 22, 1992. We disagree with the conclusion
of the RTC that since the balance included a regional clearing check
worth P55,000 deposited on July 20, 1992, which cleared only five (5) days
later, then petitioner had inadequate funds in this instance. Since petitioner
technically and retroactively had sufficient funds at the time Check No.
553602 was presented for payment then the second element (insufficiency of
funds to cover the check) of the crime is absent. Also there is no prima
facie evidence of deceit in this instance because the check was not
dishonored for lack or insufficiency of funds. Uncollected deposits are not the
same as insufficient funds. The prima facie presumption of deceit arises only
when a check has been dishonored for lack or insufficiency of funds. Notably,
the law speaks of insufficiency of funds but not of uncollected deposits.
Jurisprudence teaches that criminal laws are strictly construed against the
Government and liberally in favor of the accused.26 Hence, in the instant case,
the law cannot be interpreted or applied in such a way as to expand its
provision to encompass the situation of uncollected deposits because it would
make the law more onerous on the part of the accused.
Clearly, the estafa punished under Article 315, paragraph 2(d) of the Revised
Penal Code is committed when a check is dishonored for being drawn against
insufficient funds or closed account, and not against uncollected
deposit.27 Corollarily, the issuer of the check is not liable for estafa if the
remaining balance and the uncollected deposit, which was duly collected,
could satisfy the amount of the check when presented for payment.
Second, did petitioner violate B.P. Blg. 22?

Petitioner argues that the blank checks were not valid orders for the bank to
pay the holder of such checks. He reiterates lack of knowledge of the
insufficiency of funds and reasons that the checks could not have been issued
to apply on account or for value as he did not obtain delivery of the goods.
The OSG maintains that the guilt of petitioner has been proven beyond
reasonable doubt. It cites pieces of evidence that point to Dy's culpability:
Maraca's acknowledgment that the checks were issued to W.L. Foods as
consideration for the snacks; Lim's testimony proving that Dy received a copy
of the demand letter; the bank manager's confirmation that petitioner had
insufficient balance to cover the checks; and Dy's failure to settle his
obligation within five (5) days from dishonor of the checks.
Once again, we find the petition to be meritorious in part.
The elements of the offense penalized under B.P. Blg. 22 are as follows: (1)
the making, drawing and issuance of any check to apply to account or for
value; (2) the knowledge of the maker, drawer or issuer that at the time of
issue he does not have sufficient funds in or credit with the drawee bank for
the payment of such check in full upon its presentment; and (3) subsequent
dishonor of the check by the drawee bank for insufficiency of funds or credit or
dishonor for the same reason had not the drawer, without any valid cause,
ordered the bank to stop payment.28 The case at bar satisfies all these
elements.
During the joint pre-trial conference of this case, Dy admitted that he issued
the checks, and that the signatures appearing on them were his.29 The facts
reveal that the checks were issued in blank because of the uncertainty of the
volume of products to be retrieved, the discount that can be availed of, and
the deduction for bad orders. Nevertheless, we must stress that what the law
punishes is simply the issuance of a bouncing check and not the purpose for
which it was issued nor the terms and conditions relating thereto.30 If inquiry
into the reason for which the checks are issued, or the terms and conditions of
their issuance is required, the public's faith in the stability and commercial
value of checks as currency substitutes will certainly erode.31
Moreover, the gravamen of the offense under B.P. Blg. 22 is the act of making
or issuing a worthless check or a check that is dishonored upon presentment
for payment. The act effectively declares the offense to be one of malum
prohibitum. The only valid query, then, is whether the law has been
breached, i.e., by the mere act of issuing a bad check, without so much regard
as to the criminal intent of the issuer.32 Indeed, non-fulfillment of the obligation
is immaterial. Thus, petitioner's defense of failure of consideration must
likewise fall. This is especially so since as stated above, Dy has
acknowledged receipt of the goods.
On the second element, petitioner disputes notice of insufficiency of funds on

the basis of the check being issued in blank. He relies on Dingle v.
Intermediate Appellate Court33 and Lao v. Court of Appeals34 as his
authorities. In both actions, however, the accused were co-signatories, who
were neither apprised of the particular transactions on which the blank checks
were issued, nor given notice of their dishonor. In the latter case, Lao signed
the checks without knowledge of the insufficiency of funds, knowledge she
was not expected or obliged to possess under the organizational structure of
the corporation.35 Lao was only a minor employee who had nothing to do with
the issuance, funding and delivery of checks.36 In contrast, petitioner was the
proprietor of Dyna Marketing and the sole signatory of the checks who
received notice of their dishonor.
Significantly, under Section 237 of B.P. Blg. 22, petitioner was prima
facie presumed to know of the inadequacy of his funds with the bank when he
did not pay the value of the goods or make arrangements for their payment in
full within five (5) banking days upon notice. His letter dated November 10,
1992 to Lim fortified such presumption.
Undoubtedly, Dy violated B.P. Blg. 22 for issuing FEBTC Check No. 553615.
When said check was dishonored for insufficient funds and stop payment
order, petitioner did not pay or make arrangements with the bank for its
payment in full within five (5) banking days.
Petitioner should be exonerated, however, for issuing FEBTC Check No.

553602, which was dishonored for the reason DAUD or drawn against
uncollected deposit. When the check was presented for payment, it was
dishonored by the bank because the check deposit made by petitioner, which
would make petitioner's bank account balance more than enough to cover the
face value of the subject check, had not been collected by the bank.
In Tan v. People,38 this Court acquitted the petitioner therein who was indicted
under B.P. Blg. 22, upon a check which was dishonored for the reason DAUD,
among others. We observed that:
In the second place, even without relying on the credit line, petitioner's
bank account covered the check she issued because even though there
were some deposits that were still uncollected the deposits became
"good" and the bank certified that the check was "funded."39
To be liable under Section 140 of B.P. Blg. 22, the check must be dishonored
by the drawee bank for insufficiency of funds or credit or dishonored for the
same reason had not the drawer, without any valid cause, ordered the bank to
stop payment.
In the instant case, even though the check which petitioner deposited on July
20, 1992 became good only five (5) days later, he was considered by the bank
to retroactively have had P160,659.39 in his account on July 22, 1992. This
was more than enough to cover the check he issued to respondent in the
amount of P106,579.60. Under the circumstance obtaining in this case, we
find the petitioner had issued the check, with full ability to abide by his
commitment41 to pay his purchases.
Significantly, like Article 315 of the Revised Penal Code, B.P. Blg. 22 also
speaks only of insufficiency of funds and does not treat of uncollected
deposits. To repeat, we cannot interpret the law in such a way as to expand
its provision to encompass the situation of uncollected deposits because it
would make the law more onerous on the part of the accused. Again, criminal
statutes are strictly construed against the Government and liberally in favor of
the accused.42
As regards petitioner's civil liability, this Court has previously ruled that an
accused may be held civilly liable where the facts established by the evidence
so warrant.43 The rationale for this is simple. The criminal and civil liabilities of
an accused are separate and distinct from each other. One is meant to punish
the offender while the other is intended to repair the damage suffered by the
aggrieved party. So, for the purpose of indemnifying the latter, the offense
need not be proved beyond reasonable doubt but only by preponderance of
evidence.44
We therefore sustain the appellate court's award of damages to W.L. Foods in

the total amount of P333,373.96, representing the sum of the checks
petitioner issued for goods admittedly delivered to his company.
As to the appropriate penalty, petitioner was charged with estafa under Article
315, paragraph 2(d) of the Revised Penal Code, as amended by Presidential
Decree No. 81845 (P.D. No. 818).
Under Section 146 of P.D. No. 818, if the amount of the fraud
exceeds P22,000, the penalty of reclusión temporal is imposed in its
maximum period, adding one year for each additional P10,000 but the total
penalty shall not exceed thirty (30) years, which shall be termed reclusión
perpetua.47Reclusión perpetua is not the prescribed penalty for the offense,
but merely describes the penalty actually imposed on account of the amount
of the fraud involved.
WHEREFORE, the petition is PARTLY GRANTED. John Dy is

hereby ACQUITTED in Criminal Case No. Q-93-46711 for estafa, and
Criminal Case No. Q-93-46712 for violation of B.P. Blg. 22, but he
is ORDERED to pay W.L. Foods the amount of P106,579.60 for goods
delivered to his company.
In Criminal Case No. Q-93-46713 for estafa, the Decision of the Court of
Appeals is AFFIRMED with MODIFICATION. Petitioner is sentenced to suffer
an indeterminate penalty of twelve (12) years of prisión mayor, as minimum,
to thirty (30) years of reclusión perpetua, as maximum.
In Criminal Case No. Q-93-46714 for violation of B.P. Blg. 22, the Decision of
the Court of Appeals is AFFIRMED, and John Dy is hereby sentenced to one
(1) year imprisonment and ordered to indemnify W.L. Foods in the amount
of P226,794.36.
SO ORDERED.
WE CONCUR:

Associate Justice

ARTURO D. BRION
Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, and the Division
Chairperson's Attestation, it is hereby certified that the conclusions in the
above Decision were reached in consultation before the case was assigned to
the writer of the opinion of the Court's Division.
G.R. No. 117857 February 2, 2001
LUIS S. WONG, petitioner,

vs.
COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.
QUISUMBING, J.:
For review on certiorari is the decision dated October 28, 1994 of the Court of Appeals in C.A. G.R.
CR 118561which affirmed the decision of the Regional Trial Court of Cebu City, Branch 17,
convicting petitioner on three (3) counts of Batas Pambansa Blg. 22 (the Bouncing Checks Law)
violations, and sentencing him to imprisonment of four (4) months for each count, and to pay private
respondent the amounts of P5,500.00, P6,410.00 and P3,375.00, respectively, corresponding to the
value of the checks involved, with the legal rate of interest from the time of filing of the criminal
charges, as well as to pay the costs.
1âw phi 1.nêt
The factual antecedents of the case are as follows:
Petitioner Wong was an agent of Limtong Press. Inc. (LPI), a manufacturer of calendars. LPI would
print sample calendars, then give them to agents to present to customers. The agents would get the
purchase orders of customers and forward them to LPI. After printing the calendars, LPI would ship
the calendars directly to the customers. Thereafter, the agents would come around to collect the
payments. Petitioner, however, had a history of unremitted collections, which he duly acknowledged
in a confirmation receipt he co-signed with his wife.2 Hence, petitioner’s customers were required to
issue postdated checks before LPI would accept their purchase orders.
In early December 1985, Wong issued six (6) postdated checks totaling P18,025.00, all dated
December 30, 1985 and drawn payable to the order of LPI, as follows:
(1) Allied Banking Corporation (ABC) Check No. 660143464-C for P6,410.00 (Exh. "B");
(2) ABC Check No. 660143460-C for P540.00 (Exh. "C");
(3) ABC Check No. PA660143451-C for P5,500.00 (Exh. "D");
(4) ABC Check No. PA660143465-C for P1,100.00 (Exh. "E");

(5) ABC Check No. PA660143463-C for P3,375.00 (Exh. "F");
(6) ABC Check No. PA660143452-C for P1,100.00 (Exh. "G").
These checks were initially intended to guarantee the calendar orders of customers who failed to
issue post-dated checks. However, following company policy, LPI refused to accept the checks as
guarantees. Instead, the parties agreed to apply the checks to the payment of petitioner’s unremitted
collections for 1984 amounting to P18,077.07.3LPI waived the P52.07 difference.
Before the maturity of the checks, petitioner prevailed upon LPI not to deposit the checks and
promised to replace them within 30 days. However, petitioner reneged on his promise. Hence, on
June 5, 1986, LPI deposited the checks with Rizal Commercial Banking Corporation (RCBC). The
checks were returned for the reason "account closed." The dishonor of the checks was evidenced by
the RCBC return slip.
On June 20, 1986, complainant through counsel notified the petitioner of the dishonor. Petitioner
failed to make arrangements for payment within five (5) banking days.
On November 6, 1987, petitioner was charged with three (3) counts of violation of B.P. Blg.
224 under three separate Informations for the three checks amounting to P5,500.00, P3,375.00, and
P6,410.00.5
The Information in Criminal Case No. CBU-12055 reads as follows:6
That on or about the 30th day of December, 1985 and for sometime subsequent thereto, in
the City of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the said
accused, knowing at the time of issue of the check she/he does not have sufficient funds in
or credit with the drawee bank for the payment of such check in full upon its presentment,
with deliberate intent, with intent of gain and of causing damage, did then and there issue,
make or draw Allied Banking Corporation Check No. 660143451 dated 12-30-85 in the
amount of P5,500.00 payable to Manuel T. Limtong which check was issued in payment of
an obligation of said accused, but when the said check was presented with said bank, the
same was dishonored for reason ‘ACCOUNT CLOSED’ and despite notice and demands
made to redeem or make good said check, said accused failed and refused, and up to the
present time still fails and refuses to do so, to the damage and prejudice of said Manuel T.
Limtong in the amount of P5,500.00 Philippine Currency.
Contrary to law.
Petitioner was similarly charged in Criminal Case No. 12057 for ABC Check No. 660143463 in the
amount of P3,375.00, and in Criminal Case No. 12058 for ABC Check No. 660143464 for
P6,410.00. Both cases were raffled to the same trial court.
Upon arraignment, Wong pleaded not guilty. Trial ensued.
Manuel T. Limtong, general manager of LPI, testified on behalf of the company, Limtong averred that
he refused to accept the personal checks of petitioner since it was against company policy to accept
personal checks from agents. Hence, he and petitioner simply agreed to use the checks to pay
petitioner’s unremitted collections to LPI. According to Limtong, a few days before maturity of the
checks, Wong requested him to defer the deposit of said checks for lack of funds. Wong promised to
replace them within thirty days, but failed to do so. Hence, upon advice of counsel, he deposited the
checks which were subsequently returned on the ground of "account closed."
The version of the defense is that petitioner issued the six (6) checks to guarantee the 1985
calendar bookings of his customers. According to petitioner, he issued the checks not as payment
for any obligation, but to guarantee the orders of his customers. In fact, the face value of the six (6)
postdated checks tallied with the total amount of the calendar orders of the six (6) customers of the
accused, namely, Golden Friendship Supermarket, Inc. (P6,410.00), New Society Rice and Corn Mill
(P5,500.00), Cuesta Enterprises (P540.00), Pelrico Marketing (P1,100.00), New Asia Restaurant
P3,375.00), and New China Restaurant (P1,100.00). Although these customers had already paid
their respective orders, petitioner claimed LPI did not return the said checks to him.
On August 30, 1990, the trial court issued its decision, disposing as follows:7
"Wherefore, premises considered, this Court finds the accused Luis S. Wong GUILTY
beyond reasonable doubt of the offense of Violations of Section 1 of Batas Pambansa Bilang
22 in THREE (3) Counts and is hereby sentenced to serve an imprisonment of FOUR (4)
MONTHS for each count; to pay Private Complainant Manuel T. Limtong the sums of Five
Thousand Five Hundred (P5,500.00) Pesos, Six Thousand Four Hundred Ten (P6,410.00)
Pesos and Three Thousand Three Hundred Seventy-Five (P3,375.00) Pesos corresponding
to the amounts indicated in Allied Banking Checks Nos. 660143451, 66[0]143464 and
660143463 all issued on December 30, 1985 together with the legal rate of interest from the
time of the filing of the criminal charges in Court and pay the costs."8
Petitioner appealed his conviction to the Court of Appeals. On October 28, 1994, it affirmed the trial
court’s decision in toto.9
Hence, the present petition.10 Petitioner raises the following questions of law -11
May a complainant successfully prosecute a case under BP 22 --- if there is no more

consideration or price or value – ever the binding tie that it is in contracts in general and in
negotiable instruments in particular – behind the checks? – if even before he deposits the
checks, he has ceased to be a holder for value because the purchase orders (PO’s)
guaranteed by the checks were already paid?
Given the fact that the checks lost their reason for being, as above stated, is it not then the
duty of complainant – knowing he is no longer a holder for value – to return the checks and
not to deposit them ever? Upon what legal basis then may such a holder deposit them and
get paid twice?
Is petitioner, as the drawer of the guarantee checks which lost their reason for being, still
bound under BP 22 to maintain his account long after 90 days from maturity of the checks?
May the prosecution apply the prima facie presumption of "knowledge of lack of funds"
against the drawer if the checks were belatedly deposited by the complainant 157 days after
maturity, or will it be then necessary for the prosecution to show actual proof of "lack of
funds" during the 90-day term?
Petitioner insists that the checks were issued as guarantees for the 1985 purchase orders (PO’s) of
his customers. He contends that private respondent is not a "holder for value" considering that the
checks were deposited by private respondent after the customers already paid their orders. Instead
of depositing the checks, private respondent should have returned the checks to him. Petitioner
further assails the credibility of complainant considering that his answers to cross-examination
questions included: "I cannot recall, anymore" and "We have no more record."
In his Comment,12 the Solicitor General concedes that the checks might have been initially intended
by petitioner to guarantee payments due from customers, but upon the refusal of LPI to accept said
personal checks per company policy, the parties had agreed that the checks would be used to pay
off petitioner’s unremitted collections. Petitioner’s contention that he did not demand the return of the
checks because he trusted LPI’s good faith is contrary to human nature and sound business
practice, according to the Solicitor General.
The issue as to whether the checks were issued merely as guarantee or for payment of petitioner’s
unremitted collections is a factual issue involving as it does the credibility of witnesses. Said factual
issue has been settled by the trial court and Court of Appeals. Although initially intended to be used
as guarantee for the purchase orders of customers, they found the checks were eventually used to
settle the remaining obligations of petitioner with LPI. Although Manuel Limtong was the sole witness
for the prosecution, his testimony was found sufficient to prove all the elements of the offense
charged.13 We find no cogent reason to depart from findings of both the trial and appellate courts. In
cases elevated from the Court of Appeals, our review is confined to allege errors of law. Its findings
of fact are generally conclusive. Absent any showing that the findings by the respondent court are
entirely devoid of any substantiation on record, the same must stand.14 The lack of accounting
between the parties is not the issue in this case. As repeatedly held, this Court is not a trier of
facts.15 Moreover, in Llamado v. Court of Appeals,16 we held that "[t]o determine the reason for which
checks are issued, or the terms and conditions for their issuance, will greatly erode the faith the
public reposes in the stability and commercial value of checks as currency substitutes, and bring
about havoc in trade and in banking communities. So what the law punishes is the issuance of a
bouncing check and not the purpose for which it was issued nor the terms and conditions relating to
its issuance. The mere act of issuing a worthless check is malum prohibitum." Nothing herein
persuades us to hold otherwise.
The only issue for our resolution now is whether or not the prosecution was able to establish beyond
reasonable doubt all the elements of the offense penalized under B.P. Blg. 22.
There are two (2) ways of violating B.P. Blg. 22: (1) by making or drawing and issuing a check to
apply on account or for value knowing at the time of issue that the check is not sufficiently funded;
and (2) by having sufficient funds in or credit with the drawee bank at the time of issue but failing to
keep sufficient funds therein or credit with said bank to cover the full amount of the check when
presented to the drawee bank within a period of ninety (90) days.17
The elements of B.P. Blg. 22 under the first situation, pertinent to the present case, are:18
"(1) The making, drawing and issuance of any check to apply for account or for value;
(2) The knowledge of the maker, drawer, or issuer that at the time of issue he does not have
sufficient funds in or credit with the drawee bank for the payment of such check in full upon
its presentment; and
(3) The subsequent dishonor of the check by the drawee bank for insufficiency of funds or
credit or dishonor for the same reason had not the drawer, without any valid cause, ordered
the bank to stop payment."
Petitioner contends that the first element does not exist because the checks were not issued to apply
for account or for value. He attempts to distinguish his situation from the usual "cut-and-dried" B.P.
22 case by claiming that the checks were issued as guarantee and the obligations they were
supposed to guarantee were already paid. This flawed argument has no factual basis, the RTC and
CA having both ruled that the checks were in payment for unremitted collections, and not as
guarantee. Likewise, the argument has no legal basis, for what B.P. Blg. 22 punishes is the issuance
of a bouncing check and not the purpose for which it was issued nor the terms and conditions
relating to its issuance.19
As to the second element, B.P. Blg. 22 creates a presumption juris tantum that the second
element prima facieexists when the first and third elements of the offense are present.20 Thus, the
maker’s knowledge is presumed from the dishonor of the check for insufficiency of funds.21
Petitioner avers that since the complainant deposited the checks on June 5, 1986, or 157 days after
the December 30, 1985 maturity date, the presumption of knowledge of lack of funds under Section
2 of B.P. Blg. 22 should not apply to him. He further claims that he should not be expected to keep
his bank account active and funded beyond the ninety-day period.
Section 2 of B.P. Blg. 22 provides:
Evidence of knowledge of insufficient funds. – The making, drawing and issuance of a check
payment of which is refused by the drawee because of insufficient funds in or credit with
such bank, when presented within ninety (90) days from the date of the check, shall be prima
facie evidence of knowledge of such insufficiency of funds or credit unless such maker or
drawer pays the holder thereof the amount due thereon, or makes arrangements for payment
in full by the drawee of such check within five (5) banking days after receiving notice that
such check has not been paid by the drawee.
An essential element of the offense is "knowledge" on the part of the maker or drawer of the check of
the insufficiency of his funds in or credit with the bank to cover the check upon its presentment.
Since this involves a state of mind difficult to establish, the statute itself creates a prima
facie presumption of such knowledge where payment of the check "is refused by the drawee
because of insufficient funds in or credit with such bank when presented within ninety (90) days from
the date of the check." To mitigate the harshness of the law in its application, the statute provides
that such presumption shall not arise if within five (5) banking days from receipt of the notice of
dishonor, the maker or drawer makes arrangements for payment of the check by the bank or pays
the holder the amount of the check.22
Contrary to petitioner’s assertions, nowhere in said provision does the law require a maker to
maintain funds in his bank account for only 90 days. Rather, the clear import of the law is to
establish a prima facie presumption of knowledge of such insufficiency of funds under the following
conditions (1) presentment within 90 days from date of the check, and (2) the dishonor of the check
and failure of the maker to make arrangements for payment in full within 5 banking days after notice
thereof. That the check must be deposited within ninety (90) days is simply one of the conditions for
the prima facie presumption of knowledge of lack of funds to arise. It is not an element of the
offense. Neither does it discharge petitioner from his duty to maintain sufficient funds in the account
within a reasonable time thereof. Under Section 186 of the Negotiable Instruments Law, "a check
must be presented for payment within a reasonable time after its issue or the drawer will be
discharged from liability thereon to the extent of the loss caused by the delay." By current banking
practice, a check becomes stale after more than six (6) months,23 or 180 days. Private respondent
herein deposited the checks 157 days after the date of the check. Hence said checks cannot be
considered stale. Only the presumption of knowledge of insufficiency of funds was lost, but such
knowledge could still be proven by direct or circumstantial evidence. As found by the trial court,
private respondent did not deposit the checks because of the reassurance of petitioner that he would
issue new checks. Upon his failure to do so, LPI was constrained to deposit the said checks. After
the checks were dishonored, petitioner was duly notified of such fact but failed to make
arrangements for full payment within five (5) banking days thereof. There is, on record, sufficient
evidence that petitioner had knowledge of the insufficiency of his funds in or credit with the drawee
bank at the time of issuance of the checks. And despite petitioner’s insistent plea of innocence, we
find no error in the respondent court’s affirmance of his conviction by the trial court for violations of
the Bouncing Checks Law.
However, pursuant to the policy guidelines in Administrative Circular No. 12-2000, which took effect
on November 21, 2000, the penalty imposed on petitioner should now be modified to a fine of not
less than but not more than double the amount of the checks that were dishonored.
WHEREFORE, the petition is DENIED. Petitioner Luis S. Wong is found liable for violation of Batas
Pambansa Blg. 22 but the penalty imposed on him is hereby MODIFIED so that the sentence of
imprisonment is deleted. Petitioner is ORDERED to pay a FINE of (1) P6,750.00, equivalent to
double the amount of the check involved in Criminal Case No. CBU-12057, (2) P12,820.00,
equivalent to double the amount of the check involved in Criminal Case No. CBU-12058, and (3)
P11,000.00, equivalent to double the amount of the check involved in Criminal Case No. CBU-
12055, with subsidiary imprisonment24 in case of insolvency to pay the aforesaid fines. Finally, as
civil indemnity, petitioner is also ordered to pay to LPI the face value of said checks totaling
P18,025.00 with legal interest thereon from the time of filing the criminal charges in court, as well as
to pay the costs.1âw phi1.nêt
SO ORDERED.
Bellosillo, Mendoza, Buena, and De Leon, Jr., JJ., concur.
G.R. No. 181475 April 7, 2009
PEOPLE OF THE PHILIPPINES, Appellee,

vs.
LARRY "LAURO" DOMINGO, Appellant.
DECISION
CARPIO-MORALES, J.:
On appeal via Petition for Review on Certiorari is the Court of Appeals Decision1 dated September
28, 2007 affirming the Joint Decision2 dated October 19, 2004 of the Regional Trial Court (RTC) of
Malolos, Bulacan, Branch 11 which convicted Larry Domingo (appellant) of Illegal Recruitment
(Large Scale) in Criminal Case No. 1224-M-2001 and Estafa in Criminal Case Nos. 1243-M-2001
and 1246-M-2001, and acquitting him in Criminal Case Nos. 1225-M-2001 to 1242-M-2001 and
1244-M-2001, 1245-M-2001 and 1247-M-2001, also for Estafa.
The Information3 in Criminal Case No. 1224-M-2001 reads:
The undersigned Asst. Provincial Prosecutor accuses Larry "Lauro" Domingo y Cruz of the crime of
illegal recruitment, defined and penalized under the provisions of Article 38 in relation to Articles 34
and 39 of the Labor Code of the Philippines, as amended by presidential Decree Nos. 1920 and
2018, committed as follows:
That in or about the month of November 1999 to January 20, 2000, in the Municipality of Malolos,
province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, being a non-licensee or non-holder of authority from the Department of Labor and
Employment to recruit and/or place workers under local or overseas employment, did then and there
willfully and feloniously, with false pretenses, undertake illegal recruitment, placement or deployment
of Wilson A. Manzo, Florentino M. Ondra, Feliciano S. del Rosario, Leo J. Cruz, Norberto S. Surio,
Genaro B. Rodriguez, Mariano Aguilar, Dionisio Aguilar, Mario J. Sorel, Marcial "Boy" A. dela Cruz,
Edgardo P. Jumaquio, Midel Clara Buensuceso, Remigio S. Carreon, Jr., Romeo Manasala, Magno
D. Balatbat, Jose Armen F. Sunga, Rogelio M. Cambay, Junior Balisbis, Ma. Leah Vivas, Simeon S.
Cabigao, Edcil P. Mariano, Juanito C. Bartolome, Angelito R. Acevedo, Godofredo P. Samson,
Eugenio del Rosario y Tolentino, William B. Bautista, Rodolfo M. Marcelino, Roberto B. Bohol, Felipe
H. Cunanan, Carlos P. Dechavez, Carlos J. Cruz, Reynaldo C. Chico, Renato D. Jumaquio, Narciso
F. Sunga, Enrico R. Espiritu, Leonardo C. Sunga, Jr., and Iglecerio H. Perez. This offense involved
economic sabotage, as it was committed in large scale.
Contrary to law. (Underscoring supplied)
The Informations4 for 23 counts of Estafa, all of which were similarly worded but varying with respect
to the name of each complainant and the amount which each purportedly gave to appellant, read:
That in or about the month of November, 1999 to January, 2000, in the municipality of Malolos,
province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, by means of deceit, false pretenses and fraudulent manifestations, and with intent
of gain, did then and there willfully, unlawfully and feloniously defraud one [Wilson A. Manzo] by then
and there falsely representing that he has the power and capacity to recruit and employ persons in
Saipan and could facilitate the necessary papers in connection therewith if given the necessary
amount, and by means of deceit of similar import, when in truth and in fact, as the accused knew
fully well his representation was false and fraudulent and designed to inveigle [Wilson A. Manzo] to
give, as in fact the latter gave and delivered the amount of [P14,000.00] to him, which the accused
misappropriated to himself, to the damage and prejudice of Wilson A. Manzo in the said amount of
[P14,000.00].
Contrary to law.
Of the 23 complainants, only five testified, namely: Rogelio Cambay, Florentino Ondra, Dionisio
Aguilar, Ma. Leah Vivas, and Simeon Cabigao. The substance of their respective testimonies
follows:
Rogelio Cambay: Appellant recruited him for a painting job in Marianas Island for which he paid him
the amount of ₱15,000 in two installments – ₱2,500 during his medical examination at Newton Clinic
in Makati City, and the balance of ₱12,500 before the scheduled departure on January 25, 2000.
On his scheduled departure, appellant did not show up at their meeting place in Malolos, Bulacan,
hence, the around one hundred people who waited for him organized a search party to look for him
in Zambales. Appellant was arrested on February 25, 2000 at the Balintawak tollgate.
A verification5 with the Department of Labor and Employment showed that appellant was not a
licensed recruiter.
Florentino Ondra: He was recruited by appellant for employment as laborer in Saipan, for which he
gave ₱14,700 representing expenses for passporting, NBI clearance, and medical examination.
Dionisio Aguilar: In September, 1999, he met appellant thru a friend whereupon he was interviewed,
tested for a hotel job, and scheduled for medical examination. He gave ₱30,000 to appellant inside
the latter’s car on November, 1999 after his medical examination. While he was twice scheduled for
departure, it did not materialize.
Ma. Leah Vivas: After meeting appellant thru Eddie Simbayan on October 19, 1999, she applied for
a job as a domestic helper in Saipan, for which she paid appellant ₱10,000, but like the other
complainants, she was never deployed.
Simeon Cabigao: He was recruited by appellant in September, 1999 for employment as carpenter in
Saipan with a guaranteed salary of $375 per month. For the promised employment, he paid
appellant ₱3,000 for medical fee, and an additional ₱9,000, supposedly to bribe the examining
physician because, per information of appellant, he (Cabigao) was found to have an ailment. He was
scheduled for departure on February 23, 2000, but the same never took place.
He was among those who looked for appellant in Zambales.
Private complainant Cabigao later recanted this testimony, per his affidavit6 dated March 3, 2003.
Testifying anew, this time for the defense, he averred that the one who actually recruited him and his
co-complainants and received their money was Danilo Gimeno (Gimeno), and that they only agreed
among themselves to file a case against appellant because Gimeno was nowhere to be found.
Appellant, denying all the accusations against him, claimed as follows: He was a driver hired by the
real recruiter, Gimeno, whom he met inside the Victory Liner Bus bound for Manila in September,
2000. It was Gimeno who undertakes recruitment activities in Dakila, Malolos, Bulacan at the
residence of Eddie Simbayan, and that the other cases for illegal recruitment filed against him before
other courts have all been dismissed.
Appellant likewise presented as witnesses private complainants Enrico Espiritu and Roberto Castillo
who corroborated his claim that it was Gimeno who actually recruited them, and that the filing of the
complaint against appellant was a desperate attempt on their part to get even because Gimeno
could not be located.
By Joint Decision dated October 19, 2004, the trial court found appellant guilty beyond reasonable
doubt of Illega
l Recruitment (Large Scale) and of 2 counts of Estafa, viz:
WHEREFORE, in Criminal case No. 1224-M-2001, for Illegal Recruitment (Large Scale), this Court
finds the accused LARRY DOMINGO GUILTY beyond reasonable doubt of violation of Article 38(b)
of the Labor Code, as amended, in relation to Article 13 (b) and 34 of the same Code (Illegal
Recruitment in Large Scale) and hereby sentences him to suffer the penalty of life imprisonment and
pay a fine of P100,000.00.
Accused is further ordered to pay the following complainants the amounts opposite their names as
actual or compensatory damages, to wit:
1. Rogelio Cambay – P15,000.00

2. Dionisio Aguilar – P30,000.00
3. Florentino Ondra – P14,700.00
4. Ma. Lea Vivas – P10,000.00
In Criminal Case No. 1243-M-2001 for Estafa, this Court finds the accused LARRY DOMINGO
GUILTY beyond reasonable doubt of Estafa under Article 315 par. 2(a) of the Revised Penal Code
and hereby sentences him to a prison term ranging from Two (2) Years, Eleven (11) Months and
Eleven (11) Days of prision correcional as minimum up to Eight (8) Years of prision mayor as
maximum.
In Criminal Case No. 1246-M-2001 for Estafa, this Court finds the accused LARRY DOMINGO
GUILTY beyond reasonable doubt of Estafa under Article 315 par. 2(a) of the Revised Penal Code
and hereby sentences him to a prison term ranging from Two (2) Years, Eleven (11) Months and
eleven (11) Days of prision correcional as minimum up to Nine (9) Years of prision mayor as
maximum.
In Criminal Cases Nos. 1225-M-2001 to 1242-M-2001 and 1244-M-2001, 1245-M-2001 and 1247-M-
2001, accused is hereby ACQUITTED for lack of evidence.
SO ORDERED.
On appeal to the Court of Appeals, appellant maintained that the trial court erred in finding him guilty
beyond reasonable doubt, no receipts to show that he actually received money from private
complainant having been submitted in evidence. And he faulted the trial court for failing to give
weight to Cabigao’s retraction.
The appellate court affirmed the trial court’s decision by the challenged Decision dated September
28, 2007, holding that the straightforward and consistent testimonies of the complaining witnesses
sufficiently supported the trial court’s conclusion that appellant undertook recruitment activities
beginning September up to December 1999 in Dakila, Malolos, Bulacan without the license therefor,
and failed to deploy those he recruited.
Respecting the non-presentation of receipts of payment to appellant in consideration of the promised

jobs, the appellate court affirmed the trial court’s ruling that the same had no bearing on his
culpability in light of the categorical assertions of the complaining witnesses that appellant was the
one who recruited them.
As for Cabigao’s recantation, the appellate court found it immaterial as was the other complainants’
failure to prosecute their claims. The appellate court held that the mere retraction by a prosecution
witness does not necessarily vitiate his original testimony and that, in any event, the prosecution had
proven beyond reasonable doubt that at least three were illegally recruited by the accused -
Cambay, Ondra, Aguilar and Ma. Leah.
As for the estafa cases, the appellate court held that the elements constituting the crime, as
penalized under Article 315 paragraph 2(a) of the Revised Penal Code, were sufficiently established,
viz: Appellant deceived the complainants by assuring them of employment abroad provided that they
submit certain documents and pay the required placement fee; complainants paid appellant the
amount he asked on account of appellant’s representations which turned out to be false; and
complainants suffered damages when appellant failed to return the amounts they paid and the
papers they submitted, despite demand.
Hence, the present appeal, appellant raising the same contentions as those he raised in the
appellate court.
The appeal is bereft of merit.
The term "recruitment and placement" is defined under Article 13(b) of the Labor Code of the
Philippines as follows:
(b) "Recruitment and placement" refers to any act of canvassing, enlisting, contracting, transporting,
utilizing, hiring, or procuring workers, and includes referrals, contract services, promising or
advertising for employment, locally or abroad, whether for profit or not. Provided, That any person or
entity which, in any manner, offers or promises for a fee employment to two or more persons shall
be deemed engaged in recruitment and placement. (Emphasis supplied)
On the other hand, Article 38, paragraph (a) of the Labor Code, as amended, under which the
accused stands charged, provides:
Art. 38. Illegal Recruitment. - (a) Any recruitment activities, including the prohibited practices
enumerated under Article 34 of this Code, to be undertaken by non-licensees or non-holders of
authority shall be deemed illegal and punishable under Article 39 of this Code. The Ministry of Labor
and Employment or any law enforcement officer may initiate complaints under this Article. 1avvphi 1
(b) Illegal recruitment when committed by a syndicate or in large scale shall be considered an
offense involving economic sabotage and shall be penalized in accordance with Article 39 hereof.
Illegal recruitment is deemed committed by a syndicate if carried out by a group of three (3) or more
persons conspiring and/or confederating with one another in carrying out any unlawful or illegal
transaction, enterprise or scheme defined under the first paragraph hereof. Illegal recruitment is
deemed committed in large scale if committed against three (3) or more persons individually or as a
group. (Emphasis supplied)
From the foregoing provisions, it is clear that any recruitment activities to be undertaken by non-
licensee or non-holder of authority shall be deemed illegal and punishable under Article 39 of the
Labor Code of the Philippines. Illegal recruitment is deemed committed in large scale if committed
against three (3) or more persons individually or as a group.
To prove illegal recruitment in large scale, the prosecution must prove three essential elements, to
wit: (1) the person charged undertook a recruitment activity under Article 13(b) or any prohibited
practice under Article 34 of the Labor Code; (2) he/she did not have the license or the authority to
lawfully engage in the recruitment and placement of workers; and (3) he/she committed the
prohibited practice against three or more persons individually or as a group.7
The Court finds that the prosecution ably discharged its onus of proving the guilt beyond reasonable
doubt of appellant of the crimes charged.
That no receipt or document in which appellant acknowledged receipt of money for the promised
jobs was adduced in evidence does not free him of liability. For even if at the time appellant was
promising employment no cash was given to him, he is still considered as having been engaged in
recruitment activities, since Article 13(b) of the Labor Code states that the act of recruitment may be
for profit or not. It suffices that appellant promised or offered employment for a fee to the
complaining witnesses to warrant his conviction for illegal recruitment.
That one of the original complaining witnesses, Cabigao, later recanted, via an affidavit and his
testimony in open court, does not necessarily cancel an earlier declaration. Like any other testimony,
the same is subject to the test of credibility and should be received with caution.8 For a testimony
solemnly given in court should not be set aside lightly, least of all by a mere affidavit executed after
the lapse of considerable time. In the case at bar, the Affidavit of Recantation was executed three
years after the complaint was filed. It is thus not unreasonable to consider his retraction an
afterthought to deny its probative value.9
AT ALL EVENTS, and even with Cabigao’s recantation, the Court finds that the prosecution
evidence consisting of the testimonies of the four other complainants, whose credibility has not been
impaired, has not been overcome.
As to the conviction of appellant for two counts of estafa, it is well established that a person may be
charged and convicted of both illegal recruitment and estafa. People v. Comila,10 enlightens:
x x x The reason therefor is not hard to discern: illegal recruitment is malum prohibitum, while estafa
is malum in se. In the first, the criminal intent of the accused is not necessary for conviction. In the
second, such an intent is imperative. Estafa under Article 315, paragraph 2, of the Revised Penal
Code, is committed by any person who defrauds another by using fictitious name, or falsely pretends
to possess power, influence, qualifications, property, credit, agency, business or imaginary
transactions, or by means of similar deceits executed prior to or simultaneously with the commission
of fraud. x x x (Emphasis supplied)
Appellant, who did not have the authority or license to recruit and deploy, misrepresented to the
complaining witnesses that he had the capacity to send them abroad for employment. This
misrepresentation, which induced the complaining witnesses to part off with their money for
placement and medical fees, constitutes estafa under Article 315, par. 2(a) of the Revised Penal
Code.
WHEREFORE, the petition is DENIED.
SO ORDERED.

Associate Justice
WE CONCUR:
Associate Justice
Chairman

ARTURO D. BRION
Associate Justice
ATTESTATION
I attest that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court’s Division.
Associate Justice
Chairperson
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, I hereby certify that the conclusions in the
above Decision had been reached in consultation before the case was assigned to the writer of the
opinion of the Court.
REYNATO S. PUNO
Chief Justice
G.R. No. 176114 April 8, 2015
GRACE SAN DIEGO y TRINIDAD, Petitioner,

vs.
THE PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
PERALTA, J.:
For resolution of this Court is the Petition for Review, dated January 23, 2007, of petitioner Grace
San Diego which seeks to reverse arid set aside the Decision1 and Resolution,2 dated March 6, 2006
and December 14, 2006, respectively, of the Court of Appeals (CA) affirming with modification the
Decision3 dated August 20, 2001 of the Regional Trial Court (RTC) of Malolos, Bulacan, Branch 1 7,
finding her guilty beyond reasonable doubt of the crime of qualified theft.
The following are the antecedent facts as found in the records.
Petitioner Grace San Diego had been the accountant of Obando Fisherman's Multi-Purpose
Cooperative, Inc. (OFMPCI) from January 1993 to March 11, 1997. Petitioner was in charge of
accounting all business transactions of the cooperative and performed the functions of cashier and
teller, granted loans and did check discounting and trading. She also recorded and reported the cash
in bank transactions and summarized the bank transactions for the day and was also entrusted with
a set of blank checks pre-signed and was authorized to fill up the checks, particularly the date, the
amount in words and in figures, and the payee.
That from November 18, 1996 to January 6, 1997, petitioner acted as cashier when Teresita
Gonzales was on maternity leave and acted as teller from January 13- 30, 1997 when Flordeliza
Ocampo was on her honeymoon. She then, on both occasions, had complete access to the cash
vaults and filing cabinets of the cooperative where its documents were kept.
On March 12, 1997, petitioner stopped reporting for work. Narciso Correa, the General Manager of
the cooperative, then instructed the bookkeeper, Angelita Dimapelis, to prepare bank book balance
based on the cash transactions during the day at the office. They tried to establish the accountability
of San Diego by comparing the cash position she prepared and certified as correct against the
balances of the bank. Dimapelis asked the different depository banks for their bank balances since
their savings account passbooks and bank statements were missing at that time.4
It was only after Corres and Dimapelis reconciled the cash position with the bank balances that they
discovered the discrepancies in petitioner's report. The audited figure showed the cash on hand in
bank to be Php3,712,442.80 as of March 11, 1997.However, petitioner reported and certified the
cash on hand of the cooperative with the total amount of Php9,590,455.17 to be correct. Dimapelis
reported the said discrepancies to Correa and the Board of Directors. It was then that they decided
to file a criminal complaint against San Diego.5
Thus, an Information was filed against petitioner for the crime of qualified theft,6 which reads as
follows:
That [on] or about the period from January 1996 up to March 1997 in the [M]unicipality of Obando,
[P]rovince of Bulacan, Philippines and within the jurisdiction of this Honorable Court, the above-
named accused, being employed as accountant, cashier and teller of Obando Fisherman's Multi-
Purpose Cooperative, Inc. (OFMPCI) and as such had access to the books, cash vaults and bank
deposits of the Cooperative and with grave abuse of confidence, did then and there willfully,
unlawfully and feloniously, with intent to gain and without the knowledge and consent of Obando
Fisherman's Multi-Purpose Cooperative, Inc., take, steal and carry away with her cash amounting to
Php6,016,084.26, to [the] damage and prejudice of the said Obando Fisherman's Multi-Purpose
Cooperative, Inc., in the said amount of Php6,016,084.26. CONTRARY TO LAW.7
Upon arraignment on December 11, 1987, the accused, then assisted by counsel de oficio for
arraignment only, entered a plea of not guilty. The pre-trial having been waived, trial on the merits
ensued.
The prosecution, to prove the above-stated facts, presented the testimonies of Alfonso Piscasio, its
expert witness, Narciso Correa, Angelita Demapilis, Teresita Gonzales, Noel Hilario and Santiago
Panganiban. The testimonies of Dante Liwanag, Cecilia Sayo and Jessybelle San Diego were
dispensed with. The defense, on the other hand, presented the testimonies of Alberto C. Gonzales
and Criselda Sarmiento-Oplas. The testimony of Oplas, the defense's expert witness, can be
summarized as follows:
Oplas stated that she went over the bank reconciliation statements for the whole year of 1996 and
January to March 1997, the financial statements called financial conditions and the financial
operations of the company for the years ending December 1996 and March 1997. She noticed that
one of the recording items stated "overstatement of deposit" or overecording of deposit so that it was
deducted from the book. Another reconciling item stated "understatement deposit" and it was added.
In "overstatement of deposit," she found a notation "shortage" but did not find that the amount added
in the case of understatement of deposit was offset against the shortage or the amount deducted
from the book in case of overstatement of deposit.8
Consequently, the RTC rendered a Decision dated August 20, 2001, finding petitioner Grace San
Diego guilty beyond reasonable doubt of the crime charged, thus:
WHEREFORE, based on the foregoing findings, the Court hereby finds accused GRACE SAN
DIEGO y TRINIDAD guilty beyond reasonable doubt of the crime of QUALIFIED THEFT as defined
and penalized under Article 310, in relation to Articles 308 and 309 of the Revised Penal Code, and
accordingly, sentences her to suffer the penalty of reclusion perpetua for forty years without pardon
before the lapse of 40 years and with the accessory penalties of death under Article 40 of the
Revised Penal Code, and to indemnify the Obando Fisherman's Multi-Purpose Cooperative, Inc., in
the amount of Php6,016,084.26.
SO ORDERED.9
Due to the nature of the judgment, petitioner filed her appeal with this Court. However, in
accordance with the ruling in People v. Mateo,10 the appeal was transmitted to the CA for
intermediate review. The CA then affirmed the decision of the RTC, with modification that she
indemnify the Obando Fisherman's Multi-Purpose Cooperative, Inc. in the amount of
Php2,080,000.00. The dispositive portion of the said Decision reads:
WHEREFORE, premises considered, the decision of the trial court appealed from which found
accused-appellant guilty beyond reasonable doubt of the crime of QUALIFIED THEFT is hereby
AFFIRMED with the MODIFICATION that she is to indemnify the Obando Fisherman's Multi-Purpose
Cooperative, Inc. in the amount of Php 2,080,000.00.
SO ORDERED.11
Petitioner, after the CA denied her motion for reconsideration, filed with this Court the present
petition stating the following grounds:
a) THE COURT OF APPEALS GRAVELY ABUSED ITS DISCRETION WHEN IT HELD

THAT THE PROOF ADDUCED BY THE PEOPLE SUFFICES TO OVERTURN THE
CONSTITUTIONAL PRESUMPTION OF INNOCENCE;
b) THE COURT OF APPEALS ERRED IN THE CHARACTERIZATION OF THE OFFENSE

ALLEGED TO HAVE BEEN COMMITTED, AND IN CONSEQUENCE, COMMITTED[A]
GRAVE LEGAL ERROR WHEN IT HELD THAT THE PROOF ADDUCED CONGRUES
WITH THE OFFENSE WITH WHICH APPELLANT WAS CHARGED; AND
c) THE COURT OF APPEALS LIKEWISE COMMITTED A GRAVE ERROR OF LAW IN THE

MATTER OF THE PENALTY IMPOSED.
In its comment dated April 18, 2007, the Office of the Solicitor General (OSG) stated that impleading
the CA is procedurally improper. It was stressed that the petition was an offshoot of a criminal case,
thus, the real party-respondent-in-interest is the People of the Philippines. The OSG prayed that the
petition be dismissed outrightly.
This Court finds the present petition partially with merit.
It is settled that absent any showing that the findings are totally devoid of support in the records, or
that they are so glaringly erroneous as to constitute grave abuse of discretion, the factual findings of
the appellate court generally are conclusive, and carry even more weight when said court affirms the
findings of the trial court.12 Petitioner is of the opinion that the CA erred in affirming the factual
findings of the RTC. She insists that the prosecution was not able to prove her guilt beyond
reasonable doubt because there was no proof in the audit that the cooperative had really so much
funds and that in consequence there was deficiency of some Php6,000,000 when compared to
pertinent bank statements. As such, petitioner asserts that it is essential for a successful prosecution
for theft that the existence of the personality stolen be established by qualitative evidence, so the
prosecution must fail if no such proof of good quality was adduced.13
This Court disagrees.
The CA did not err when it ruled that the proof adduced by the prosecution is sufficient to prove
petitioner's guilt beyond reasonable doubt. The prosecution presented the testimony of its expert
witness, Alfonso Piscasio, the cooperative's independent auditor since 1992. He stated that his audit
was based on standard and generally accepted auditing procedures.14 The audit report, duly offered
and presented in the trial, was supported by certifications by several depository banks of the
cooperative indicating its balance on its account. Records are bereft of any showing that the audit
report made by the independent auditor is erroneous and unsupported by documents and bank
statements. Thus, there lies no reason for this Court not to afford full faith and credit to his report.
Petitioner's own expert witness, Criselda Sarmiento Oplas, failed to dispute the audit report
presented. She admitted to focusing her review on bank reconciliation made by Piscasio.15 It was
only upon cross-examination that she saw the daily cash flow that petitioner prepared and
certified.16 She did not go over the primary books of accounts of the cooperative like the ledgers,
journals and vouchers nor its commercial documents such as invoices, returned checks including
account deposits. She limited herself to the monthly conciliation reports.17 Petitioner also asserts that
the People did not present any witness who categorically testified that petitioner ran away with the
supposed missing funds. She claimed that the demonstration that some checks of varying amounts
not recorded in petitioner's books notwithstanding their return or dishonor, only proved her
incompetence in the performance of her assigned task and not necessarily criminal authorship.
This Court does not agree. It was held in People v. Ragon that resort to circumstantial evidence is
inevitable when there are no eyewitnesses to a crime.18 Direct evidence of the commission of a crime
is not the only matrix wherefrom a trial court may draw its conclusion and finding of guilt.19 The courts
are allowed to rule on the bases of circumstantial evidence if the following requisites concur: (1)
there is more than one circumstance, (2) the facts from which the inferences are derived are proven,
and (3) the combination of all the circumstances is such as to produce a conviction beyond
reasonable doubt.20 The corollary rule is that the circumstances established must constitute an
unbroken chain which leads to one fair and reasonable conclusion pointing to the accused, to the
exclusion of all others, as the guilty person.21
In the instant case, the following facts were established in the trial court, which the CA later affirmed:
1) Petitioner was the accountant of the cooperative. She had custody of the cooperative's
checks which were pre-signed by its Manager and Chairman of the Board of Directors. She
was likewise in charge of cash in bank. She had custody of the documents pertaining to the
withdrawal of the cooperative's deposits with its depository banks.
2) Petitioner completed said checks by filling in all the details inclusive of the date, name of
payee and the amount of the check in words and in figures but exclusive of the signatures.
3) From November 18, 1996 to January 6, 1997, she acted as cashier when Teresita
Gonzales was on maternity leave and acted as teller from January 13-30, 1997 when
Flordeliza Ocampo went into her honeymoon. She then, on both occasions, had complete
access to the cash vaults and filing cabinets of the cooperative where its documents were
kept.
4) Petitioner prepared a certification that the amount of Php9,653,527.06 represented the

total cash balance of the cooperative its depository banks as of March 11, 1997. Upon actual
verification, it was shown that the total cash balance was only Php3,637,442. 80, indicating
that there was a difference of Php 6,016,084.25 and the loss of which were unexplained.
5) Petitioner admitted in a letter to her father that she withdrew Php200,000 from his account
and Php20,000 from her sister-in-law's account in the cooperative.
6) Petitioner deposited Php1,050,000 and Php250,000 to her account with PCI Bank on
August 13, 1996 and May 28, 1996, respectively.
7) Petitioner stopped reporting for work since March 12, 1997.22
In view of the foregoing circumstances and based on records, such created an unbroken chain
which leads to one fair and reasonable conclusion pointing to the petitioner, to the exclusion of all
others, as the guilty person.
Petitioner then insists that the proof adduced plausibly indicates commission of estafa and not
qualified theft. Petitioner argued that if the thing is not taken away, but received and then
appropriated or converted without the consent of the owner, the crime committed is estafa.23 This
Court is not persuaded by her argument. One of the elements of estafa24 with abuse of confidence is
that the money, goods or other personal property be received by the offender in trust, or on
commission, or for administration, or under any other obligation involving the duty to make delivery
of, or to return, the same. When the thing is received by the offender from the offended party in trust
or in commission or for administration, the offender acquires both material or physical possession
and juridical possession of the thing received.25
Juridical possession means a possession which gives the transferee a right over the thing
transferred and this he may set up even against the owner.26 It was established in the trial that
petitioner never received the sum of money in trust, or on commission or for administration. Correa
outlined the procedure followed by the cooperative in the deposit of its funds with the cooperative's
depository banks, thus:
A: There were cash summarized for the day and the checks collected during the day for the different
depository banks are summarized and prepared by Grace San Diego and this(sic) were being
brought to the different depository banks and sent through our liaison office Mr. Al Gonzales.27
xxx
When asked how said funds were withdrawn from said banks by the cooperative, Correa answered:
A: Normally, withdrawals are made by checks and if there are no cleared checks in the bank the
accountant because she knew the cash position in the bank if there is a need of cash, a check is
converted into cash in the depository bank and sent through the liaison officer and handed to the
chief accountant because she was the one responsible.28
xxx
As to how checks were prepared as far as withdrawals were concerned was, Correa's answer was:
A: Because we have so many things to do, we were busy we were preoccupied, we prepared set of
blank check resigned and we entrusted this to Ms. Grace San Diego and she filled up the checks
particularly the date, the words, the amount in words and in figure numbers, sir.29 Clearly, the above
testimonies show that petitioner did not have juridical possession of the sum of money. She did not
have the right over the sum of money she may have received in the course of her functions as
accountant, teller and cashier of the cooperative. The CA was correct when it described the
possession of the petitioner was akin to that of a receiving teller of funds received from third persons
paid to the bank. 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, 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.30
Anent the issue of penalty, the penalty for the crime of qualified theft based on Article 310 of the
Revised Penal Code (RPC)is the penalty next higher by two (2) degrees than those respectively
specified in Article 309 of the RPC, thus:
The penalty of prision mayor in its minimum and medium periods, if the value of the thing stolen is
more than 12,000 pesos but does not exceed 22,000 pesos; but if the value of the thing stolen
exceeds the latter amount, the penalty shall be the maximum period of the one prescribed in this
paragraph, and one year for each additional ten thousand pesos, but the total of the penalty which
may be imposed shall not exceed twenty years. In such cases, and in connection with the accessory
penalties which may be imposed and for the purpose of the other provisions of this Code, the
penalty shall be termed prision mayor or reclusion temporal, as the case may be. From the
provisions of Articles 309 and 310 of the RPC, the penalty that is two (2) degrees higher than prision
mayor in its minimum and medium periods is reclusion temporalin its medium and maximum periods.
In view, however, of the incremental penalty in simple theft under Article 309 of the RPC, which is
likewise applicable to the crime of qualified theft, when the value of the thing stolen is more than
₱22,000.00, the penalty shall be imposed in its maximum period with an additional period of one (1)
year for every ₱10,000.00 in excess of ₱22,000.00. In the case at bar, the value of the property
stolen as determined by the RTC and modified by the CA is ₱2,080,000.00. Deducting ₱22,000.00
to the amount, the difference of ₱2,058,000.00 will then be divided by ₱10,000.00, disregarding any
amount less than ₱10,000.00, we will have two hundred five (205). Thus, 205 years is the
incremental penalty. Since the imposable penalty for qualified theft is reclusion temporalin its
medium and maximum periods to be imposed in its maximum period which is eighteen (18) years,
two (2) months, and twenty-one (21) days to twenty (20) years, if we add the incremental penalty of
two hundred five (205) years, then the range of the penalty is two hundred twenty-three (223) years,
two (2) months, and twenty-one (21) days to two hundred twenty-five (225) years. However, such
penalty cannot be imposed because the maximum penalty that can be imposed is only up to 40
years, which is the maximum period of reclusion perpetua.
Unlike in Simple Theft where the maximum penalty cannot exceed twenty (20) years, in Qualified
Theft such limitation does not exist. Nonetheless, inasmuch as the penalty imposable in the case at
1âwphi1
bar exceeds twenty (20) years, logically, the penalty that should be imposed is reclusion perpetua,
which is the penalty one degree higher than reclusion temporal.
There is now a need to modify the penalty imposed by the lower court and affirmed by the CA.
Verily, the proper penalty imposable is, thus, the penalty of reclusion perpetua, but it was incorrect
for the R TC to sentence the accused to the penalty of reclusion perpetua for forty ( 40) years
without pardon because that would be a limitation on the part of the power of the Chief Executive.
The exercise of the pardoning power is discretionary in the President and may not be controlled by
the legislature or reversed by the court, save only when it contravenes the limitations set forth by the
Constitution.31 Interest at the rate of six percent (6%) per annum is likewise imposed from date of
finality of this Decision until full payment pursuant to Nacar v. Gallery Frames.32
WHEREFORE, the petition is DENIED. Consequently, the Decision and Resolution, dated March 6,
2006 and December 14, 2006, respectively, of the Court of Appeals affirming with modification the
Decision dated August 20, 2001 of the Regional Trial Court of Malolos, Bulacan, Branch 17, finding
petitioner guilty beyond reasonable doubt of the crime of qualified theft under Article 310, in
connection with Article 308 of the Revised· Penal Code, are hereby AFFIRMED with
MODIFICATION. Petitioner Grace San Diego y Trinidad is sentenced to reclusion perpetua, with all
its accessory penalties. and to indemnify the Obando Fisherman's Multi-Purpose Cooperative, Inc. in
the amount of Php2,080,000.00, plus interest at the rate of six percent (6%) per annum from finality
of judgment until full satisfaction:
SO ORDERED.
DIOSDADO M. PERALTA
Associate Justice
WE CONCUR:
PRESBITERO J. VELASCO, JR.

Associate Justice
Chairperson
MARIANO C. DEL CASTILLO* BIENVENIDO L. REYES

FRANCIS H. JARDELEZA
Associate Justice
ATTESTATION
I attest that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court's Division.
PRESBITERO J. VELASCO, JR.

Associate Justice
Chairperson, Third Division
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson's Attestation, I
certify that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court's Division.
MARIA LOURDES P.A. SERENO

Chief Justice

G.R. No. 167805 November 14, 2008 ARNOLD STA. CATALINA, Petitioner, People of The Philippines, Respondent. Decision QUISUMBING, Acting C.J.

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G.R. No. 167805 November 14, 2008 ARNOLD STA. CATALINA, Petitioner, People of The Philippines, Respondent. Decision QUISUMBING, Acting C.J.

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G.R. No.

167805 November 14, 2008

ARNOLD STA. CATALINA, petitioner,

QUISUMBING, Acting C.J.:

Petitioner pleaded not guilty upon arraignment. Thereafter, a trial on the

The following facts were established.

Sometime in February 1988, Ballecer entered into a joint business venture

This is to certify that I have received from LORENZO B. BALLECER the

In defense, petitioner testified that he did not misappropriate the P100,000.

Finding all the elements necessary to qualify an act as estafa to be

Aggrieved, petitioner appealed. He filed a motion praying that the testimony

WHEREFORE, PREMISES CONSIDERED, the Decision, dated March

Petitioner filed a motion for reconsideration.18 The same was denied in a

WHETHER OR NOT THE RESPONDENT COURT OF APPEALS HAS

WHETHER THE RESPONDENT COURT OF APPEALS HAS SO FAR

WHETHER OR NOT THIS HONORABLE TRIBUNAL, IN THE

WHEREFORE, the petition is hereby DENIED. The Decision dated October

CONCHITA CARPIO MORALES

DANTE O. TINGA PRESBITERO J. VELASCO, JR.

ROBERT CRISANTO D. LEE, Petitioners,

CALLEJO, SR., J.:

1. CRIM. CASE No. 107020:

The petitioner appealed the decision to the CA contending that:

A) THE LOWER COURT GRAVELY ERRED IN FINDING THE ACCUSED GUILTY

B) THE LOWER COURT GRAVELY ERRED IN FINDING THAT THERE IS EVIDENCE OF

The respondents refute the contention of the petitioner, thus:

(Tubb vs. People, supra, at 119)

We agree with the respondents.

Article 315, paragraph 1(b) of the Revised Penal Code reads:

1. With unfaithfulness or abuse of confidence, namely:

A - Just Robert Lee only.

Q - That Robert Lee refers to you?

A - Both of Atoz and Chiu-Nichi Agro Resources.

A - Since it was credited in my account, I have to withdraw it from my account.

A - Because it was credited.

A - What do you mean by immediate.

A - Yes, because all remittances are handed to the cashier.

ALLIED BANKING CORPORATION VS SECRETARY SEDFREY ORDOÑEZ AND ALFREDOCHING

Allied Banking Corporation v Ordonez GR

G.R. No. 158312 November 14, 2008

JOHN DY, petitioner,

QUISUMBING, Acting C.J.:

On November 23, 1994, Dy was arrested in Naga City. On arraignment, he

WHEREFORE, accused JOHN JERRY DY ALDEN (JOHN DY) is

Likewise, said accused is hereby found GUILTY beyond reasonable

Dy brought the case to the Court of Appeals. In the assailed Decision of

WHEREFORE, in view of the foregoing, the decision appealed from is

Hence, this petition which raises the following issues:

WHETHER OR NOT THE HONORABLE COURT OF APPEALS

WHETHER OR NOT THE HONORABLE COURT OF APPEALS

WHETHER OR NOT THE HONORABLE COURT OF APPEALS

First, is petitioner guilty of estafa?

Mainly, petitioner contends that the checks were ineffectively issued. He

We find that the petition is partly meritorious.

The pertinent provisions of Section 14 of the Negotiable Instruments Law are

SEC. 14. Blanks; when may be filled.-Where the instrument is wanting

Next, petitioner claims failure of consideration. Nevertheless, in a

With the foregoing circumstances established, we find petitioner guilty

Second, did petitioner violate B.P. Blg. 22?

Once again, we find the petition to be meritorious in part.

On the second element, petitioner disputes notice of insufficiency of funds on

Petitioner should be exonerated, however, for issuing FEBTC Check No.