SECOND DIVISION

 

PEOPLE OF THE PHILIPPINES,

                              Appellee,

 

          

 

 

 

 

                       - versus -

 

 

 

 

 

 

NORMA BOOC,

                           Appellant.

 

G.R. No. 143959

 

Present:

 

QUISUMBING, J.,

     Chairperson,

CARPIO,

CARPIO MORALES,

TINGA, and

VELASCO, JR., JJ.

 

 

 

 

 

Promulgated:

February 19, 2008

 

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R E S O L U T I O N

 

CARPIO, J.:

 

          This is an appeal from the Decision[1] dated 7 June 1999 of the  Regional Trial Court of Cebu, Branch 58 (trial court) in Criminal Case No. CBU-46304 for estafa.  The trial court found accused-appellant Norma Booc  (Booc) guilty of estafa and sentenced her to imprisonment of 22 years of reclusion perpetua with its accessory penalties, to indemnify the complaining witness P80,000, and to pay the costs.

 

          This case stemmed from Booc’s issuance to Msgr. Romualdo Kintanar (Fr. Kintanar) of Allied Bank Check Nos. PA 0844754 and  PA 0844755 both dated 26 January 1997 for P50,000 each.  On 10 December 1997, the prosecution charged Booc with estafa.

         

          The Information against Booc reads as follows:

 

            That in October 1996, and for sometime subsequent thereto, in the City of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the said accused, with deliberate intent, with intent of gain and by means of false pretenses or fraudulent acts executed prior to or simultaneous with the commission of the fraud, to wit: knowing that she did not have sufficient funds deposited with the Allied Bank, Lapulapu-Cebu Branch, and without informing one Msgr. Romualdo Kintanar of that circumstance, with intent to defraud the latter, did then and there issue, make or draw the following checks, to wit:

CHECK NO.

AMOUNT

DATE

 

 

 

PA 0844754

P   50,000.00

January 26, 1997

PA 0844755

P   50,000.00

January 26, 1997

TOTAL 

P 100,000.00

 

 

in the total amount of P 100,000.00 which were issued in payment of an obligation, but when said checks were presented to the drawee bank for encashment the same were dishonored for reason of “Account Closed” and inspite of repeated demands made upon her to make good the checks she failed and refused, and up to the present time still fails and refuses to do, to the damage and prejudice of Msgr. Romualdo Kintanar in the amount of P100,000.00 Philippine Currency.

            CONTRARY TO LAW.[2]

         

          The trial court established the following facts:

 

            The prosecution’s evidence shows that the private complainant, Msgr. Romualdo Kintanar is the Parish Priest of the Guadalupe Parish Church, Guadalupe, Cebu City.  [Booc] was introduced to [Fr. Kintanar] by his two friends and during that meeting [Booc] has shown her interest in helping the Parish.  [Fr. Kintanar] was very much impressed by the gesture of [Booc].  About a month thereafter, [Booc] came back and told [Fr. Kintanar] about her financial problem and asked him to help her.  As [Booc] was told by [Fr. Kintanar] that he has no money to help her, [Booc] asked him if he could secure a loan for [her] in the amount of P100,000.00.  [Fr. Kintanar] was assured by [Booc] that there would be no problem about the payment because she has the means to pay the loan on due dates [sic] and [she] promised [Fr. Kintanar] to donate more to the church.  To assure further [Fr. Kintanar] of her willingness to pay and means to pay, [Booc] issued to him two (2) postdated checks in the amount of P50,000.00 each (Exhs. “A” and “B”) and another postdated check of P100,000.00 as donation to the church.  Hence, [Fr. Kintanar] applied for a loan with the RC Lending Investor in the amount of P100,000.00, which was readily granted.  The loan was payable for three (3) months at 5% monthly interest or the amount of P115,000.00 including the monthly interest for three (3) months.  The amount of P100,000.00 was in trun [sic] delivered by [Fr. Kintanar] to [Booc].

            It appears that the two (2) checks (Exhs. “A” and “B”) are both postdated January 26, 1997, the date when the loan matured and when the said checks were presented for payment when due, the same were dishonored for the reason that the account of [Booc] was closed, per debit advise (Exhs. “A-1” and “B-1”) with the annotation “Account Closed” (Exh. “A-1-A”).  [Booc] was advised or informed about the dishonor of her checks and, despite the extensions given her, [Booc] failed to redeem or make good her checks or to pay the same.  And [Fr. Kintanar] was forced to pay his loan with the [sic] RC Lending Investor.

            The evidence for the defense is built up by the testimony of [Booc] who has shown her desire to pay [Fr. Kintanar].  [Booc] did not deny her obligation with [sic] Fr. Kintanar and admitted having issued the bouncing checks (Exhs. “A” and “B”).  That her failure to pay [Fr. Kintanar] was due to the failure of her two (2) friends to pay her the amount of money they received from her from the proceeds of the loan obtained for her by [Fr. Kintanar].  To show that she did not defraud [Fr. Kintanar], she paid the amount of P20,000.00 thru the counsel of [Fr. Kintanar] per Cash Voucher dated July 23, 1998. (Exh. “1”)[3]

 

          On 7 June 1999, the trial court rendered a decision convicting Booc of the crime charged, thus:

 

WHEREFORE, premises considered, judgment is hereby rendered finding the accused NORMA BOOC guilty beyond reasonable doubt of the offense charged.  Accordingly, the said accused is hereby sentenced to suffer the penalty of imprisonment of twenty-two (22) years of reclusion perpetua with its accessory penalties, to indemnify the complaining witness the sum of P80,000.00 and to pay the costs.

 

In view of the penalty herein imposed, the accused is hereby ordered restored to the custody of the law, and, in case of appeal, the accused is hereby ordered confined in the National Bureau of Prisons thru the Bagong Buhay Rehabilitation Center (BBRC), Cebu City, pending the resolution of her appeal.

SO ORDERED.[4]

 

          On 24 June 1999, Booc filed a Notice of Appeal appealing the trial court’s decision to the Court of Appeals.

 

          On 21 July 2000, the Court of Appeals transmitted the records of Criminal Case No. CBU-46304 to this Court because the penalty imposed upon Booc is reclusion perpetua.

           

          This Court, upon receipt of the records of the case, issued a Resolution dated 17 January 2001 requiring the parties to file their briefs. Considering that the records of the case were transmitted by the Court of Appeals to this Court, we directed the Administrator of BBRC to transfer Booc to the Correctional Institution for Women, Mandaluyong City and the Superintendent of the Correctional Institution for Women to confirm Booc’s confinement within ten days from the date of receipt.

 

          In our resolution dated 27 March 2001, we noted the letter sent by BBRC’s City Jail Warden that Booc is facing charges of Estafa and Violation of BP Blg. 22 in two other courts in Cebu and that it is more practicable that she continue her stay at the BBRC.  In the same resolution, we noted the withdrawal of appearance of Atty. Joel Enolpe as counsel for the accused and required Atty. Enolpe to comply with Section 26, Rule 138 of the Rules of Court within ten days from notice.

 

          On 1 March 2002, Booc manifested that she wanted this Court to appoint a counsel de oficio for her defense.  We appointed Atty. Aleli Angela G. Quirino as Booc’s counsel de oficio on 27 May 2002.  Booc filed her appellant’s brief on 11 November 2002.

 

          Booc raises the following issues:

 

1.      Whether the two (2) postdated checks issued by Booc constitutes the efficient cause of the alleged defraudation of Kintanar;

2.      Whether the two (2) postdated checks issued by Booc to Kintanar were intended as payment for an obligation contracted prior to or simultaneous with their issuance or merely as security for a pre-existing one;

3.      Whether the series of extensions given by Kintanar to Booc, covering a period of nearly seven (7) months, within which she could “settle [her] overdue obligation”, and not specifically to make good her checks, effectively converted whatever incipient criminal liability Booc had into merely a civil one;

4.      Assuming arguendo that Booc is guilty of the crime charged, whether or not the penalty imposed, which is imprisonment for twenty-two (22) years of reclusion perpetua, is the proper penalty in view of the Indeterminate Sentence Law; and

5.      Whether, in adjudging the civil liability of Booc, the amount of P20,000.00 she deposited with Kintanar on 23 July 1998 should be deducted from her outstanding obligation.[5]

 

          We agree with the ruling of the trial court that Booc is guilty of estafa as defined in Article 315, paragraph 2(d) of the Revised Penal Code.  In explaining its ruling, the trial court stated:

 

            From the evidence adduced, the Court is of the view that [Fr. Kintanar] was persuaded to part the amount of P100,000.00 because of the issuance by [Booc] of the two (2) postdated checks (Exhs. “A” and “B”) and her promise to donate to the Parish the amount of P100,000.00.  Although this supposed donation was also in postdated check which also bounced, the said bouncing check was not included in the instant charge because, according to [Fr. Kintanar], the said check was intended as a donation.  To the mind of the Court, the said supposed donation was made by [Booc] as part of her inducement to [Fr. Kintanar] in order that the latter would help her in her financial problem.  These findings find support in the testimony of [Fr. Kintanar], thus:

ATTY. LOPEZ:

Q:        What motivated you in order to agree to the request of Norma Booc for loan assistance?

A:         I repeat as a trustworthy [sic] that according to her she is very much willing to help the Parish.  I really trust her from the very beginning.

Q:        What about her capacity to pay the loan?

A:         Because of her willingness to give extra donation to the Parish I was impressed that she have [sic] the capacity to pay the loan.

            (TSN:  page 9, hearing on September 10, 1998)

COURT:

Q:        What was that form of assurance that she would pay that loan?

A:         She gave me 2 checks she told me that the checks were good.

Q:        Would you have borrowed (sic) her that amount without those checks given to you?

A:         No way.

Q:        What you are trying to tell the Court is that you have parted way [sic] that amount because of her assurance that the checks she gave you were good checks?

A:         That’s right.  (TSN:  page 4, hearing on October 14, 1998)

            In view of all the foregoing, the Court is of the opinion, as so holds, that [Booc] has committed the crime of Estafa as defined and penalized in Article 315, paragraph 2(d) of the Revised Penal Code, as amended by Republic Act No. 4885, which provides, thus:

(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 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.

            Under the aforequoted legal provisions [sic], the imposable penalty for the offense is reclusion temporal if the amount of the fraud is over P12,000.00 but does not exceed P22,000.00, and if such amount exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its maximum period, adding one year for each additional P10,000.00 but the total penalty which may be imposed shall in no case exceed thirty years.  In such cases, and in connection with the accessory penalties which may be imposed under the Revised Penal Code, the penalty shall be termed reclusion perpetua.[6]

 

            The elements of estafa under paragraph 2(d), Article 315 of the Revised Penal Code are the following:

 

1.      Postdating or issuance of a check in payment of an obligation contracted at the time the check was issued;

2.      Lack of sufficiency of funds to cover the check; and

3.     Damage to the payee.[7]

 

          All the elements are present in this case.  First, Booc issued postdated Allied Bank Check Nos. PA 0844754-55 to obtain money from Fr. Kintanar.  Fr. Kintanar would not have exerted efforts to obtain money to loan to Booc unless Booc issued him the postdated checks.  Second, when the checks were presented for payment, the bank stated that Booc’s account was closed.  Repeated oral and written demands upon Booc to make good the checks prior to the filing of the present case did not produce any result.  Booc made a partial payment of P20,000 to the secretary of Fr. Kintanar’s counsel only after the filing of the present case.   Booc further claims that there was no deceit on her part when she issued the postdated checks, and  Fr. Kintanar was supposed to know that she had no money because she borrowed money from him.  Booc’s claim is untenable.  Booc herself assured Fr. Kintanar that the checks would be good when presented for payment on due date.  Finally, there was damage to Fr. Kintanar, who borrowed  P100,000 to lend to Booc. 

 

            Considering Booc’s advanced age[8] and the length of time that the present case has been in our dockets, we set aside pro hac vice the procedural infirmities brought about by the erroneous certification and receipt of this case from the Court of Appeals[9] and proceed to pronounce the penalty proper to Booc’s crime.

         

          Under Article 315 of the Revised Penal Code, as amended by Presidential Decree No. 818, if the amount of the fraud exceeds P22,000,  the penalty shall be as follows:

 

            Ist. The penalty of reclusion temporal if the amount of the fraud is over 12,000 pesos but does not exceed 22,000 pesos; and if such amount exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its maximum period, adding one year for each additional 10,000 pesos; but the total penalty which may be imposed shall not exceed thirty years.  In such cases, and in connection with the accessory penalties which may be imposed under the Revised Penal Code, the penalty shall be termed reclusion perpetua.

 

 

          The amount misappropriated in this case is P100,000.  The minimum term of Booc’s indeterminate sentence, being next lower in degree to that prescribed in the statute, is prision mayor.  The maximum term of Booc’s indeterminate sentence, on the other hand, should be within the maximum period of reclusion perpetua, which is 17 years, 4 months and 1 day to 20 years, plus 1 year for each additional P10,000.[10]

 

           We accordingly modify the penalty imposed by the trial court and impose on Booc the penalty of imprisonment ranging from 6 years and 1 day of prision mayor to 24 years, 4 months and 1 day of reclusion perpetua.

 

          WHEREFORE, we AFFIRM the Decision dated 7 June 1999 of  Branch 58 of the Regional Trial Court of Cebu City finding Norma Booc GUILTY of estafa, with MODIFICATION.  We impose on Norma Booc an indeterminate penalty of 6 years and 1 day of prision mayor to 24 years,  4 months and 1 day of reclusion perpetua, and to suffer the accessory penalties of reclusion perpetua.  We order Norma Booc to pay Msgr. Romualdo Kintanar P80,000 as actual damages, and to pay the costs.

         

          SO ORDERED.

 

 

ANTONIO T. CARPIO

      Associate Justice

 

 

 

 

 

WE CONCUR:

 

 

 

 

LEONARDO A. QUISUMBING

Associate Justice

Chairperson

 

 

 

 

 

CONCHITA CARPIO MORALES

              Associate Justice

DANTE O. TINGA

                   Associate Justice

 

 

 

 

PRESBITERO J. VELASCO, JR.

Associate Justice

 

 

 

ATTESTATION

 

          I attest that the conclusions in the above Resolution had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

 

 

 

 

LEONARDO A. QUISUMBING

                                                                        Associate Justice

                                                                            Chairperson

 

 

 

 

 

 

 

 

 

CERTIFICATION

 

          Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson’s Attestation, I certify that the conclusions in the above Resolution had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

 

 

 

 

        REYNATO S. PUNO

                                                                         Chief Justice


[1]               Penned by Judge Jose P. Soberano, Jr.

[2]               Rollo, pp.  9-10.

[3]               Id. at 19-20.

[4]               Id. at 22.

[5]               Id. at  89-90.

[6]               Id. at 20-21.

[7]               People v. Reyes, G.R. No. 154159, 31 March 2005, 454 SCRA 635.

[8]               In a letter dated 22 July 2003 addressed to then Chief Justice Hilario Davide, Jr., Booc stated that      she was 70 years old.  Rollo, pp. 179-180.

[9]     According to Section 13, Rule 124 of The Revised Rules of Criminal Procedure, since the trial      court imposed the penalty of reclusion perpetua, the Court of Appeals should have rendered          judgment as the circumstances warrant but refrained from entering judgment, instead of        immediately transmitting the records of the present case to this Court.  After rendering judgment,     the Court of Appeals should have certified the case and elevated the entire record for this Court to review.  The necessity of an intermediate review by the Court of Appeals is emphasized by our     ruling in People v. Mateo, G.R. Nos. 147678-87, 7 July 2004, 433 SCRA 640.  Considering that           the case was elevated to us in 2000, we should have remanded the present case and forwarded all    pertinent records thereof to the Court of Appeals after the promulgation of People v. Mateo in           2004. 

[10]             See Firaza v. People, G.R. No. 154721, 22 March 2007, 518 SCRA 681.  See also Perez v.      People, G.R. No. 150443, 20 January 2006, 479 SCRA 209 citing People v. Gabres, G.R. Nos.          118950-54, 6 February 1997, 267 SCRA 581; People v. Saley, 353 Phil. 897 (1998); Ong v. Court                 of Appeals, 449 Phil. 691 (2003).