Republic of the
Supreme Court
FIRST DIVISION
DAVID TAN, G.R. NO. 145006
Petitioner,
Present:
PANGANIBAN,
C.J.
(Chairperson)
YNARES-SANTIAGO,
- versus - AUSTRIA-MARTINEZ,
CALLEJO,
SR., and
CHICO-NAZARIO, JJ.
PEOPLE
OF THE
and CAROLYN
Respondents. Promulgated:
August 30, 2006
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D E C I S I O N
AUSTRIA-MARTINEZ,
J.:
Before
the Court is a Petition for Review on Certiorari filed by accused David
Tan (petitioner) assailing the Decision[1] of the Court of Appeals (CA) dated
The
antecedent facts as accurately narrated by the MTC in its Decision are as
follows:
David
Tan, the accused herein, stands charged with the crime of Violation of Batas Pambansa Bilang 22 (6 counts) in
six (6) separate informations which read as follows:
x x x x x x x x x
Records
show that the accused, assisted by counsel, entered a plea of Not Guilty, upon
being arraigned. Thereafter, these cases
were set for trial on the merits, which cases were consolidated and tried
jointly.
Carolyn
Zaragoza, of legal age, the private complainant,
testified among others that: She met the accused through their common friend,
Paul Dy while they were having some business
negotiations (Witness identified the accused through his pictures which were
attached to his bail bond, as said accused failed to appear in court despite
notice, said pictures were marked as Exhs. “J”, “J-1”
and J-2”); that during her first meeting with the accused, they had a loan
transaction which was followed by another loan transaction on June 27, 1994 in
the amount of P1 Million, and for which she gave the accused a Metrobank Check No. 001430 in the amount of P950,000.00
(Exhs. “K” & “K-1”), having
deduced the 5% interest from said loan.
Thereafter, the accused issued several PCIBANK Checks, among which are
numbered as follows: x x x When all these checks were deposited at her
account with the City Trust Bank, Sucat (Parañaque) Branch, they all bounced for reason “Account
Closed.” She thereafter tried to contact
the accused but he (accused) refused to talk to her. The accused was sent by her lawyer a formal
demand through registered mail, for him to pay in cash the aforementioned
bounced/dishonored checks but to no avail.
In filing this case she engaged the services of a lawyer for P50,000.00 acceptance fee and P1,000.00 per appearance
in court; that said accused should pay the corresponding interest of P50,000.00
which had become due since November 1994 other than the principal obligation.
Despite
ample opportunity given to the accused to present its evidence, it still failed
to do so; hence, the court in its Order dated
On
IN
VIEW OF THE FOREGOING, this Court finds the accused David Tan guilty beyond
reasonable doubt of the crime of Violation of Batas Pambansa
Blg. 22 in six (6) counts, and hereby sentences said
accused to an imprisonment of six (6) months for each case, and to indemnify
the private complainant in the amount of P600,000.00 representing the
total amount of the subject checks, plus interest thereon in the amount of P50,000.00
and attorney’s fees in the amount of P20,000.00 and to pay the costs.
SO ORDERED.[2]
Petitioner
filed a motion for reconsideration with the MTC wherein he denied receipt of
the demand letter[3] dated
1. The trial court gravely erred in finding
appellant guilty beyond reasonable doubt of the crime of Violation of B.P. 22
on six (6) courts (sic);
2.
The
trial court gravely erred in ordering appellant to indemnify the private
complainant the value of the six (6) checks in question, plus the sum of P50,000.00 interest and P20,000.00 attorney’s fees.[4]
On
WHEREFORE, the Decision of the Court a quo is MODIFIED
to read, thus:
IN VIEW OF THE FOREGOING, this Court
finds the accused David Tan guilty beyond reasonable doubt of the crime of
Violation of Batas Pambansa Bilang
22 in six (6) counts, and hereby sentences said accused to an imprisonment of
six (6) months for each case, and to indemnify the private complainant in the
amount of P600,000.00 representing the total
amount of the subject checks, plus interest thereon at the legal rate from
the filing of the Information until fully paid and to pay the costs.
In
view of the foregoing the court a quo is directed to issue a Warrant of Arrest
against the accused which need not be returned until he has been arrested.
SO ORDERED.[5]
Petitioner
moved for reconsideration of the foregoing Decision but per Order dated
A
Petition for Review was then filed by petitioner with the CA, alleging as
follows:
With
due respect to the Honorable Regional Trial Court, Branch 258,
1. In affirming the trial court’s verdict of
conviction despite the prosecution’s failure to prove the guilt of herein
petitioner/accused beyond reasonable doubt.
2. In affirming the trial court’s verdict
awarding damages to private respondent.
3. In ordering the trial court to issue
warrant of arrest against petitioner despite the fact that its verdict
affirming the trial court’s decision is not yet final and executory.[6]
The
CA dismissed the appeal and affirmed the RTC Decision, ruling that petitioner’s
guilt had indeed been proven beyond reasonable doubt since the existence of the
element that he had knowledge of the insufficiency of funds in or credit with
the drawee bank at the time he issued the checks is
established by the demand letter dated October 30, 1995 notifying him of the
dishonor of the checks he issued. The CA
further pointed out that the RTC had already deleted the MTC’s
award for interest in the amount of P50,000.00
and attorney’s fees, hence, on said issue, there is no error that needs to be
corrected. As to the order for the
issuance of a warrant of arrest, the CA held that “[i]t
is a constitutional mandate that once accused is convicted in the Regional
Trial Court, bail becomes a matter of discretion upon the court and no longer a
matter of right.”[7]
Petitioner filed a motion for
reconsideration where he argued that no evidentiary weight should be given to
the demand letter dated October 30, 1995 because, although included in the
formal offer of evidence by the prosecution, it was not presented during trial
for proper identification, hence, it should not have been admitted into
evidence even if the defense failed to object to the formal offer thereof. Petitioner insisted that the prosecution did
not have proof of notice of dishonor, thus, petitioner’s guilt had not been
proven beyond reasonable doubt.
The CA denied said motion for
reconsideration in its Resolution[8] dated
Hence, this petition where it is
alleged that:
I.
THE
APPELLATE COURT ERRED IN AFFIRMING IN TOTO THE
x
x x x x x x x x
II. THE APPELLATE COURT ERRED IN AFFIRMING
THE TRIAL COURT’S VERDICT AWARDING DAMAGES TO PRIVATE RESPONDENT.
x
x x x x x x x x
III. THE APPELLATE COURT ERRED IN
SUSTAINING THE REGIONAL TRIAL COURT
WHICH ORDERED AN
The
petition is imbued with merit.
With
regard to the first assignment of error, petitioner reiterates his argument
that no evidentiary weight should be given to the demand letter dated October
30, 1995 because, although included in the formal offer of evidence by the
prosecution, it was not presented during trial for proper identification and
should not have been admitted into evidence even if the defense failed to
object to the formal offer thereof.
It
is quite true that this Court has ruled that objection to the admissibility of
evidence, if not made at the time such evidence is offered, shall be deemed waived.[10] However, in all
cases where said rule had been applied, the assailed testimonial or object
evidence had been duly presented during the course of the trial.
In
the present case, a judicious examination of the entire record shows that,
indeed, the demand letter dated
The
transcript of stenographic notes[11] for the hearing held on September 26, 1996 shows that the
presentation of the testimony of the bank representative testifying for the
prosecution was dispensed with since the opposing parties stipulated that the
testimony of a bank representative would prove the following:
x x x the witness will be testifying on the points
that at the time the six checks were presented for payment, the first two
checks were dishonored for being “Drawn Against Insufficient Funds” while the
third up to the sixth checks were dishonored for reason of “account closed” and
per records of the bank, the account of the accused was not sufficient to cover
the amount of the checks issued by the accused as well as the domestic current
account of the accused and we have here the documents, the ledger of the
accused which would prove that the accounts of the accused, both savings and
current were not sufficient to cover the checks issued by the accused to the
complainant?[12]
The only other prosecution witness is
private complainant Carolyn Zaragosa (Zaragosa), whose testimony is to the effect that after the
checks bounced, she tried to call up petitioner but the latter refused to talk
to her, thus, she was constrained to obtain the services of a lawyer. Nowhere in the transcript of stenographic
notes[13] for the hearing held on
Since there were no other hearings
held, it was impossible for the prosecution to have presented and marked as
exhibit, the demand letter dated
The
very first time said demand letter was ever mentioned or appeared in the record
was in the formal offer of evidence, supposedly marked as Exhibit “R.” How said demand letter came to be marked as
Exhibit “R” and inserted into the record truly mystifies this Court. Such circumstance, to say the least, is
tainted with irregularity because, as previously mentioned, such document was
never presented or identified in any of the hearings. As held in Pigao
v. Rabanillo,[14] for documentary evidence to be considered by the court, it
must have been presented during trial and formally offered.
Although
petitioner admits that they failed to submit any opposition to the formal offer
of evidence, he nevertheless raised the issue of the non-presentation of the
demand letter in his motion for reconsideration filed with the MTC. Evidently, the CA made a mistake in stating
that petitioner only raised for the first time on appeal, the issue on the
admission of the demand letter into evidence.
Thus,
in view of the foregoing significant circumstances, it would be unreasonable to
apply to the present case the general rule that objection to the admissibility
of evidence, if not made at the time such evidence is offered, shall be deemed
waived. As the demand letter was never
presented during the course of the trial, petitioner was never alerted to its
possible inclusion in the prosecution’s formal offer of evidence. Verily, therefore, petitioner’s failure to
timely object to this piece of evidence (the demand letter) is excusable. The prosecution should not benefit from the
anomalous inclusion of the demand letter in the records. Said evidence should be deemed inadmissible
and should not have been considered by the MTC in arriving at its
judgment.
With the exclusion of the demand letter from the body of evidence presented by the prosecution, the next question is, would the remaining evidence still be sufficient to prove petitioner’s guilt beyond reasonable doubt? The answer must be in the negative.
The elements of violation of Batas Pambansa Blg. 22 (B.P. Blg.
22) are: (1) making, drawing, and issuance of any check to apply on account or
for value; (2) 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 the 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.[15]
In Ongson v. People,[16] the Court expounded on the kind of evidence necessary to
prove the second element, to wit:
As
to the second element, we have held that knowledge involves a state of mind
which is difficult to establish, thus the statute itself creates a prima
facie presumption that the drawer had knowledge of the insufficiency of his
funds in or credit with the bank at the time of the issuance and on the check's
presentment for payment if he fails to pay the amount of the check within five
(5) banking days from notice of dishonor.
Sec.
2 of B.P. 22 provides:
SEC. 2.
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.
For
this presumption to arise, the prosecution must prove the following: (a) the check is
presented within ninety (90) days from the date of the check; (b) the drawer
or maker of the check receives notice that such check has not been paid by the drawee; and (c) the drawer or maker of the check fails
to pay the holder of the check the amount due thereon, or make arrangements for
payment in full within five (5) banking days after receiving notice that such
check has not been paid by the drawee. In other
words, the presumption is brought into existence only after it is proved
that the issuer had received a notice of dishonor and that within five days
from receipt thereof, he failed to pay the amount of the check or to make
arrangements for its payment. The presumption or prima facie evidence as
provided in this section cannot arise, if such notice of nonpayment by the drawee bank is not sent to the maker or drawer, or if there
is no proof as to when such notice was received by the drawer, since there
would simply be no way of reckoning the crucial 5-day period. Furthermore, the
notice of dishonor must be in writing; a verbal notice is not enough.[17] (Emphasis supplied)
Since the prosecution failed to present evidence during
trial that a written demand had been sent to and received by petitioner, the
second element, that the accused had knowledge of the insufficiency of funds,
had not been established. As stated in Dico
v. Court of Appeals,[18] “[a] notice of dishonor received by the maker or drawer of
the check is thus indispensable before a conviction can ensue. x x x.
The lack of a written notice is fatal for the prosecution.” Hence,
petitioner’s conviction for the crime of violation of B.P. Blg. 22 must
be set aside.
However, the CA correctly
affirmed the RTC’s award of the legal rate of interest on the principal amount
of P600,000.00. It should be borne in mind that Section 1,
Rule 111 of the Rules of Court provides that “[w]hen a criminal action is
instituted, the civil action for the recovery of civil liability arising from
the offense charged shall be deemed
instituted with the criminal action x x x.” Section 1, Rule
133 of the same Rules provides that “[i]n civil
cases, the party having the burden of proof must establish his case by a
preponderance of evidence.” Here, private complainant successfully proved, by
preponderance of evidence, that despite all her efforts to collect from
petitioner, he failed to pay his indebtedness.
Thus, the trial court correctly ordered petitioner to pay private
complainant civil indemnity.
Petitioner’s argument that private complainant should not
have been awarded civil indemnity because she failed to exhaust non-judicial
means before resorting to the filing of the criminal case should not be given
any consideration as the evidence shows that private complainant indeed tried
to demand payment from petitioner out of court but all to no avail.
The RTC was correct in awarding interest on the principal
amount at the legal rate which should be 12% per annum from the filing of the
Information until fully paid, as this is in keeping with the Court’s ruling in Trade & Investment Development
Corporation of the Philippines v. Roblett Industrial
Construction Corporation,[19] where the Court reiterated that:
I. When an obligation, regardless of its source, i.e., law, contracts, quasi-contracts, delicts or quasi-delicts is breached, the contravenor can be held liable for damages. The provisions under Title XVIII on 'Damages' of the Civil Code govern in determining the measure of recoverable damages.
II. With regard particularly to an award of interest in the concept of actual and compensatory damages, the rate of interest, as well as the accrual thereof, is imposed, as follows:
1.
When the obligation is breached, and it consists in the payment of a sum of
money, i.e., a loan or forbearance of money, the interest due should be that
which may have been stipulated in writing. Furthermore, the interest due shall
itself earn legal interest from the time it is judicially demanded. In the
absence of stipulation, the rate of interest shall be 12% per annum to be
computed from default, i.e., from judicial or extrajudicial demand under and
subject to the provisions of Article 1169 of the Civil Code.
x x x x x x x x x (Underscoring Ours)
Petitioner also keeps harping on the issue of the MTC’s error of awarding attorney’s fees, but as correctly pointed out by the CA, the RTC had already deleted such award for attorney’s fees. There is, therefore, no longer any need to discuss such aspect.
WHEREFORE, the
petition is PARTLY GRANTED.
Petitioner is ACQUITTED of the crime of Violation of B.P. Blg. 22.
However, petitioner is ORDERED to PAY private complainant
Carolyn Zaragosa the amount of P600,000.00 representing the total amount of the subject checks,
plus 12% interest thereon from the filing of the Information until fully paid
and to pay the costs.
SO ORDERED.
MA. ALICIA AUSTRIA-MARTINEZ
Associate
Justice
WE CONCUR:
ARTEMIO
V. PANGANIBAN
Chief Justice
Chairperson
CONSUELO
YNARES-SANTIAGO ROMEO J. CALLEJO,
SR.
Associate Justice Associate Justice
MINITA
V. CHICO-NAZARIO
Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII
of the Constitution, 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.
ARTEMIO
V. PANGANIBAN
Chief Justice
[1] Penned by Associate Justice Jose L. Sabio, Jr. and concurred in by Associate Justices Eubulo G. Verzola (now deceased) and Martin S. Villarama, Jr.
[2] CA rollo, p. 40.
[3] Records, pp. 91-92.
[4] CA rollo, p. 47.
[5]
[6] CA rollo, p. 6.
[7] Rollo, p. 39.
[8] Rollo, pp. 42-44.
[9]
[10]
People v. Enfermo, G.R. Nos. 148682-85,
[11] Records, pp. 41-44.
[12]
[13]
[14] G.R. No. 150712, May 2, 2006.
[15] Ongson
v. People, G.R.
No. 156169,
[16]
[17] Ongson v. People, supra at 673-675.
[18] G.R.
No. 141669,
[19] G.R. No. 139290