FIRST DIVISION
[G.R. No. 126670. December 2, 1999]
ERNESTO T. PACHECO and VIRGINIA O. PACHECO, petitioners, vs. HON. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.
D E C I S I O N
YNARES_SANTIAGO,
J.:
Petitioner spouses are
engaged in the construction business.
Complainant Romualdo Vicencio was a former Judge and his wife, Luz
Vicencio, owns a pawnshop in Samar. On May 17, 1989, due to financial
difficulties arising from the repeated delays in the payment of their
receivables for the construction projects from the DPWH,[1] petitioners were constrained to obtain a
loan of P10,000.00 from Mrs. Vicencio.
The latter acceded. Instead of
merely requiring a note of indebtedness, however, her husband Mr. Vicencio
required petitioners to issue an undated check as evidence of the loan which
allegedly will not be presented to the bank. Despite being informed by
petitioners that their bank account no longer had any funds, Mrs. Vicencio
insisted that they issue the check, which according to her was only a
formality. Thus, petitioner Virginia
Pacheco issued on May 17, 1989 an undated RCBC[2] check with number CT 101756 for
P10,000.00. However, she only received
the amount of P9,000.00 as the 10% interest on the loan was already deducted.
Mrs. Vicencio also required Virginia’s husband, herein petitioner Ernesto
Pacheco, to sign the check on the same understanding that the check is not to
be encashed but merely intended as an evidence of indebtedness which cannot be
negotiated.
On June 14, 1989,
Virginia obtained another loan of P50,000.00 from Mrs. Vicencio. She received
only P35,000.00 as the previous loan of P10,000.00 as well as the 10% interest
amounting to P5,000.00 on the new loan were deducted by the latter. With the
payment of the previous debt, Virginia asked for the return of the first check
(RCBC check no. 101756) but Mrs. Vicencio told her that her filing clerk was
absent. Despite several demands for the return of the first check, Mrs.
Vicencio told Virginia that they can no longer locate the folder containing that
check. For the new loan, she also required Virginia to issue three (3) more
checks in various amounts – two checks for P20,000.00 each and the third check
for P10,000.00. Petitioners were not amenable to these requirements, but Mrs.
Vicencio insisted that they issue the same assuring them that the checks will
not be presented to the banks but will merely serve as guarantee for the loan
since there was no promissory note required of them. Due to her dire financial
needs, Virginia issued three undated RCBC checks numbered 101783 and 101784 in
the sum of P20,000.00 each and 101785 for P10,000.00, and again informed Mrs.
Vicencio that the checks cannot be encashed as the same were not funded.
Petitioner Ernesto also signed the three checks as required by Mrs. Vicencio on
the same conditions as the first check.
On June 20 and July 21,
1989, petitioner Virginia obtained two more loans, one for P10,000.00 and
another for P15,000.00. Again she issued two more RCBC checks (No. 101768 for
P10,000.00 and No. 101774 for P15,000.00) as required by Mrs. Vicencio with the
same assurance that the checks shall not be presented for payment but shall
stand only as evidence of indebtedness in lieu of the usual promissory note.
All the checks were
undated at the time petitioners handed them to Mrs. Vicencio. The six checks
represent a total obligation of P85,000.00. However, since the loan of
P10,000.00 under the first check was already paid when the amount thereof was
deducted from the proceeds of the second loan, the remaining account was only
P75,000.00. Of this amount, petitioners were able to settle and pay in cash
P60,000.00 in July 1989. Petitioners never had any transaction nor ever dealt
with Mrs. Vicencio’s husband, the complainant herein.
When the remaining
balance of P15,000.00 on the loans became due and demandable, petitioners were
not able to pay despite demands to do so. On August 3, 1992, Mrs. Vicencio
together with her husband and their daughter Lucille, went to petitioners’
residence to persuade Virginia to place the date “August 15, 1992” on checks
nos. 101756 and 101774, although said checks were respectively given undated to
Mrs. Vicencio on May 17, 1989 and July 21, 1989. Check no. 101756 was required
by Mrs. Vicencio to be dated as additional guarantee for the P15,000.00 unpaid
balance allegedly under check no. 101774. Despite being informed by petitioner
Virginia that their account with RCBC had been closed as early as August 17,
1989, Mrs. Vicencio and her daughter insisted that she place a date on the checks
allegedly so that it will become evidence of their indebtedness. The former
reluctantly wrote the date on the checks for fear that she might not be able to
obtain future loans from Mrs. Vicencio.
Later, petitioners were
surprised to receive on August 29, 1992 a demand letter from Mrs. Vicencio’s
spouse informing them that the checks when presented for payment on August 25,
1992 were dishonored due to “Account Closed”. Consequently, upon the complaint
of Mrs. Vicencio’s husband with whom petitioners never had any transaction, two
informations for estafa, defined in Article 315(2)(d) of the Revised Penal
Code, were filed against them. The informations which were amended on April 1,
1993 alleged that petitioners “through fraud and false pretenses and in payment
of a diamond ring (gold necklace)” issued checks which when presented for
payment were dishonored due to account closed.[3] After entering a plea of not guilty during
arraignment, petitioners were tried and sentenced to suffer imprisonment and
ordered to indemnify the complainant in the total amount of P25,000.00.[4] On appeal, the Court of Appeals (CA)
affirmed the decision of the court a quo.[5] Hence this petition.
Estafa may be committed
in several ways. One of these is by postdating a check or issuing a check in
payment of an obligation, as provided in Article 315, paragraph 2(d) of the
RPC, viz:
“ART. 315. Swindling (estafa). Any person who shall defraud another by any of the means mentioned hereinbelow shall be punished by:
x x x x x x x x x
2. By means of any of the following false pretenses or fraudulent acts executed prior to or simultaneously with the commission of the fraud:
x x x x x x x x x
(d) By postdating a check, or issuing a check in payment of an obligation when the offender had no funds in the bank, or his funds deposited therein were not sufficient to cover the amount of the check. The failure of the drawer of the check to deposit the amount necessary to cover his check within three (3) days from receipt of notice from the bank and/or the payee or holder that said check has been dishonored for lack or insufficiency of funds shall be prima facie evidence of deceit constituting false pretense or fraudulent act.”
The essential elements in
order to sustain a conviction under the above paragraph are:
1. that the offender postdated or issued a check in payment of an obligation contracted at the time the check was issued;
2. that such postdating or issuing a check was done when the offender had no funds in the bank, or his funds deposited therein were not sufficient to cover the amount of the check;
3.
deceit or damage to the payee thereof.[6]
The first and third
elements are not present in this case. A check has the character of
negotiability and at the same time it constitutes an evidence of indebtedness.
By mutual agreement of the parties, the negotiable character of a check may be
waived and the instrument may be treated simply as proof of an obligation.
There cannot be deceit on the part of the obligor, petitioners herein, because
they agreed with the obligee at the time of the issuance and postdating of the
checks that the same shall not be encashed or presented to the banks. As per
assurance of the lender, the checks are nothing but evidence of the loan or
security thereof in lieu of and for the same purpose as a promissory note. By
their own covenant, therefore, the checks became mere evidence of indebtedness.
It has been ruled that a drawer who issues a check as security or evidence of
investment is not liable for estafa.[7] Mrs. Vicencio could not have been deceived
nor defrauded by petitioners in order to obtain the loans because she was
informed that they no longer have funds in their RCBC accounts. In 1992, when
the Vicencio family asked Virginia to place a date on the check, the latter
again informed Mrs. Vicencio that their account with RCBC was already closed as
early as August 1989. With the assurance, however, that the check will only
stand as a firm evidence of indebtedness, Virginia placed a date on the check.
Under these circumstances, Mrs. Vicencio cannot claim that she was deceived or defrauded
by petitioners in obtaining the loan. In the absence of the essential element
of deceit,[8] no estafa was committed by petitioners.
Both courts below relied
so much on the fact that Mrs. Vicencio’s husband is a former Judge who knows
the law. He should have known, then, that he need not even ask the petitioners
to place a date on the check, because as holder of the check, he could have
inserted the date pursuant to Section 13 of the Negotiable Instruments Law
(NIL).[9] Moreover, as stated in Section 14 thereof,
complainant, as the person in possession of the check, has prima facie
authority to complete it by filling up the blanks therein. Besides, pursuant to
Section 12 of the same law, a negotiable instrument is not rendered invalid by
reason only that it is antedated or postdated.[10] Thus, the allegation of Mrs. Vicencio that
the date to be placed by Virginia was necessary so as to make the check
evidence of indebtedness is nothing but a ploy. Petitioners openly disclosed
and never hid the fact that they no longer have funds in the bank as their bank
account was already closed. Knowledge by the complainant that the drawer does
not have sufficient funds in the bank at the time it was issued to him does not
give rise to a case for estafa through bouncing checks.[11]
Moreover, a check must be
presented within a reasonable time from issue.[12] By current banking practice, a check becomes
stale after more than six (6) months. In fact a check long overdue for more
than two and one-half years is considered stale.[13] In this case, the checks were issued more
than three years prior to their presentment. In his complaint, complainant
alleged that petitioners bought jewelry from him and that he would not have
parted with his jewelry had not petitioners issued the checks. The evidence on
record, however, does not support the theory of the crime.
There were six checks
given by petitioners to Mrs. Vicencio but only two were presented for
encashment. If all were issued in payment of the alleged jewelry, why were not
all the checks presented? There was a deliberate choice of these two checks as
the total amount reflected therein is equivalent to the amount due under the
unpaid obligation. The other checks, on the other hand, could not be used as
the amounts therein do not jibe with the amount of the unpaid balance.
Following complainant’s theory that he would not have sold the jewelries had
not petitioners issued “postdated” checks, still no estafa can be imputed to
petitioners. It is clear that the checks were not intended for encashment with
the bank, but were delivered as mere security for the payment of the loan and
under an agreement that the checks would be redeemed with cash as they fell
due. Hence, the checks were not intended by the parties to be modes of payment
but only as promissory notes. Since complainant and his wife were well aware of
that fact, they cannot now complain there was deception on the part of
petitioners. Awareness by the complainant of the fictitious nature of the
pretense cannot give rise to estafa by means of deceit.[14] When the payee was informed by the drawer
that the checks are not covered by adequate funds it does not give rise to bad
faith or estafa.[15]
Moreover, complainant’s
allegations that the two subject checks were issued in 1992 as payment for the
jewelry he allegedly sold to petitioners is belied by the evidence on record.
First, complainant is not engaged in the sale of jewelry.[16] Neither are petitioners. If the pieces of
jewelry were important to complainant considering that they were with him for
more than twenty-five years already,[17] he would not have easily parted with them in
consideration for unfunded personal checks in favor of persons whose means of
living or source of income were unknown to him.[18] Applicable here is the legal precept that
persons are presumed to have taken care of their business.[19]
Second, petitioners’ bank
account with RCBC was opened on March 26, 1987 and was closed on April 17,
1989, during the span of which they were issued 10 check booklets with the last
booklet issued on April 6, 1989. This last booklet contains 50 checks
consecutively numbered from 101751 to 101800. The two subject checks came from
this booklet. All the checks in this
booklet were issued in the year 1989 including the two subject checks, so that
the complainants’ theory that the jewelry were sold in 1992 cannot be believed.
The rule that factual
findings of the trial court bind this court is not absolute but admits of
exceptions such as when the conclusion is a finding grounded on speculation,
surmise, and conjecture and when the findings of the lower court is premised on
the absence of evidence and is contradicted by the evidence on record.[20] Based on the foregoing discussions, this
Court is constrained to depart from the general rule. Equally applicable is
what Vice-Chancellor Van Fleet once said:[21]
“Evidence to be believed must not only proceed from the mouth of a credible witness but must be credible in itself – such as the common experience and observation of mankind can approve as probable under the circumstances. We have no test of the truth of human testimony, except its conformity to our knowledge, observation and experience. Whatever is repugnant to these belongs to the miraculous, and is outside of judicial cognizance.”
Petitioners, however, are
not without liability. An accused acquitted of a criminal charge may
nevertheless be held civilly liable in the same case where the facts
established by the evidence so warrant.[22] Based on the records, they still have an
outstanding obligation of P15,000.00 in favor of Mrs. Vicencio. There was
mention that the loan shall earn interests. However, an agreement as to payment
of interest must be in writing, otherwise it cannot be valid,[23] although there was actual payment of
interests by virtue of the advance deductions from the loan. Once the judgment
becomes final and executory, the amount due is deemed equivalent to a
forbearance of credit during the interim period from the finality of judgment
until full payment, in which case it shall earn legal interest at the rate of
twelve per cent (12%) per annum pursuant to Central Bank (CB) Circular
No. 416.[24]
WHEREFORE, the assailed Decision is REVERSED and SET
ASIDE. Petitioners are ACQUITTED of the charge of estafa but they are ORDERED
to pay Mrs. Vicencio the amount of P15,000.00 without interest. However, from
the time this judgment becomes final and executory, the amount due shall earn
legal interest of twelve percent (12%) per annum until full payment.
SO ORDERED.
Davide, Jr., C.J.,
(Chairman), Puno, Kapunan, and Pardo,
JJ., concur.
[1] Department
of Public Works and Highways.
[2] Rizal
Commercial Banking Corporation.
[3] Except
as to the date and time of commission, the jewelries involved, the amount of
the check and the check number, the amended informations in Criminal Case No.
C-1708-1709 identically read: “That on or about the 15th day of August, 1992, at about 8:00
o’clock in the morning, in the Municipality of Catarman, Province of Northern
Samar, Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, conspiring, confederating and helping one another, with
intent to gain, through fraud and false pretenses and in payment of a diamond
ring, did, then and there wilfully and unlawfully issue an RCBC Check with No.
CT 101774 in the amount of FIFTEEN THOUSAND (P15,000.00) PESOS, and when
presented for payment on August 19, 1992, the RCBC in Catarman dishonored the
check on the ground that it was drawn against “ACCOUNT CLOSED”, and despite
notice accused failed to pay to the actual damage and prejudice of Romualdo
Vicencio in the amount aforestated.” (Regional Trial Court (RTC) Records in
Criminal Case No. C-1709, p. 24).
[4] The dispositive portion of the RTC Decision (Branch
19, Catarman, Northern Samar) dated August 4, 1993 penned by Judge Cesar R.
Cinco, p. 6 reads: “WHEREFORE, the Court hereby finds Ernesto Pacheco y
Tambuyat, also known as Erning, and Virginia Pacheco y Oledan, also known as
Virgie, GUILTY beyond reasonable doubt as co-principals in the crimes of estafa
defined and penalized under paragraph 2(d) of Article 315 of the Revised Penal
Code, amended by Republic Act 4885 and Presidential Decree 818, as charged
under the informations and sentences each, to wit:
In Criminal Case No. C-1708, to suffer an imprisonment ranging from EIGHT (8) YEARS, EIGHT (8) MONTHS and ONE (1) DAY of prision mayor, as minimum, to FOURTEEN (14) YEARS, EIGHT (8) MONTHS and ONE (1) DAY of reclusion temporal, as maximum, to jointly and severally indemnify Atty. Romualdo Vicencio in the amount of P15,000.00 and to pay the costs; and,
In Criminal Case No. C-1709, to suffer an imprisonment
ranging from EIGHT (8) YEARS, EIGHT (8) MONTHS and ONE (1) DAY, as minimum, to
TEN (10) YEARS, EIGHT (8) MONTHS and ONE (1) day, as maximum, of prision
mayor, to indemnify jointly and severally Atty. Romualdo Vicencio in the
amount of P10,000.00 and to pay the costs. SO ORDERED.” (Rollo, p. 128).
[5] The
dispositive portion of the Court of Appeals (CA) Decision promulgated March 19,
1996 penned by Justice Romeo Callejo, Sr. with Justices Antonio Martinez (now a
retired member of this Court) and Delilah Vidallon-Magtolis, concurring, p. 14
reads: “IN THE LIGHT OF THE FOREGOING, the Decision appealed from is hereby
AFFIRMED in toto. With costs against
the Appellants. SO ORDERED.” (Rollo, p. 21).
[6] People
v. Ong, 204 SCRA 942 (1991); People v. Tugbang, 196 SCRA 341 (1991);
Sales v. CA, 164 SCRA 717 (1988); People v. Sabio, Jr., 86 SCRA
568 (1978).
[7] People
v. Tugbang, 196 SCRA 341 (1991).
[8] Buaya
v. Polo, 169 SCRA 471 (1989); People v. Grospe, 157 SCRA 154 (1988);
US v. Rivera, 23 Phil. 383.
[9] When
date may be inserted. – Where an instrument expressed to be payable at a
fixed period after date is issued undated, or where the acceptance of an
instrument payable at a fixed period after sight is undated, any holder may
insert therein the true date of issue or acceptance, and the instrument
shall be payable accordingly. The
insertion of a wrong date does not avoid the instrument in the hands of a
subsequent holder in due course; but as to him, the date so inserted is to be
regarded as the true date. (Italics supplied).
[10] Ante-dated
and post-dated. – The instrument is not invalid for the reason only that it
is ante-dated or post-dated, provided this is not done for an illegal or
fraudulent purpose. The person to whom
an instrument so dated is delivered acquires the title thereto as of the date
of delivery.
[11] See
Magno v. CA, 210 SCRA 471 (1992).
[12] Section
186, NIL. Within what time a check must
be presented. - 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.
[13] Montinola
v. Philippine National Bank, 88 Phil. 178 (1951).
[14] People
v. Concepcion, 44 Phil. 544.
[15] Firestone
Tire and Rubber Co. of the Philippines v. Inez Chavez and Co., 18 SCRA 356
(1966).
[16] Transcript
of Stenographic Notes (TSN), July 20, 1993, p. 49.
[17] TSN,
April 29, 1993, p. 12.
[18] TSN,
April 29, 1993, p. 9.
[19] Rules of Court, Rule 131, Sec. 3. Disputable
presumptions. - The following presumptions are satisfactory if
uncontradicted, but may be contradicted and overcome by other evidence:
x x x x x x x x x
(d) That a person takes ordinary care of his concerns;
x x x x x x x x x
(p) That private transactions have been fair and regular.
[20] Smith
Kline & French Laboratories, Ltd. v. CA, 342 Phil. 187 citing among
others Vda. De Alcantara v. CA, 252 SCRA 457 (1996); Republic v. IAC,
196 SCRA 335 (1991); Fernan v. CA, et al., 181 SCRA 546 (1990); People
v. Traya, 147 SCRA 381 (1987); Tolentino v. de Jesus, 56 SCRA 67
(1974).
[21] Cited
in Daggers v. Van Dyck, 37 N.J. Eq., 130, 132; See also People v.
Cara, 283 SCRA 96 (1997).
[22] People
v. Tugbang, 196 SCRA 341 (1991); Nuñez v. CA, G.R. No. 80216, December
7, 1988, Minute Resolution.
[23] Article
1956, New Civil Code.
[24] Philippine
National Bank v. CA, 331 Phil. 1079, 263 SCRA 766 (1996) citing Eastern
Shipping Lines v. CA, 234 SCRA 78 (1994).