Tuesday, October 18, 2011
Estafa and Blg. 22; Complaint w/ laws and jurisprudence.
I wish to share a criminal complaint for Estafa and BP 22 that I prepared recently, with focus on the legal research aspect thereof, for the information of my regular readers, to wit:
REPUBLIC OF THE PHILIPPINES
OFFICE OF THE CITY PROSECUTOR
X x x CITY
X x x,
Complainant, I.S. No. _______
- versus - For: ESTAFA and B.P. Blg. 22.
X x x
(Alias: x x x),
THE UNDERSIGNED COMPLAINANT respectfully alleges:
1. COMPLAINANT. – The complainant is x x x, of legal age, married, Filipino and, for purposes of this criminal complaint, with postal address at:
X x x
2. RESPPONDENT. – The respondent is x x x, aka, of legal age, married, xxx national, and with the following three (3) addresses, where summons and notices may be served, to wit:
X x x.
3. NATURE OF THE CRIMINAL COMPLAINT. - This is a criminal complaint for ESTAFA and for violation of B.P. Blg. 22 involving the sum of Five Million Pesos (P5,000,000.00) arising from various checks issued by the respondent to the complainant.
4. ULTIMATE FACTS.
X x x.
4.11. For the record, and to form part hereof, by incorporation and reference, attached hereto are copies of the following supporting documents, to wit:
X x x.
5.1. Article 315 of the Revised Penal Code on deceit/swindling (estfa) provides any person who shall defraud another by any of the means mentioned therein shall be punished by the penalty of prision correccional in its maximum period to prision mayor in its minimum period, 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 twenty years; provided that the fraud be committed by any of the following means:
1. With unfaithfulness or abuse of confidence, namely:
X x x.
(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.
2. By means of any of the following false pretenses or fraudulent acts executed prior to or simultaneously with the commission of the fraud:
(a) By using fictitious name, or falsely pretending to possess power, influence, qualifications, property, credit, agency, business or imaginary transactions, or by means of other similar deceits.
X x x.
(a) By pretending to have bribed any Government employee, without prejudice to the action for calumny which the offended
party may deem proper to bring against the offender. In this case, the offender shall be punished by the maximum period of the penalty.
(b) By post-dating 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 of insufficiency of funds shall be prima facie evidence of deceit constituting false pretense or fraudulent act. (As amended by Republic Act No. 4885, approved June 17, 1967.)
5.2. Article 316 (other forms of swindling) of the Revised Penal Code provides that the penalty of arresto mayor in its minimum and medium periods and a fine of not less than the value of the damage caused and not more than three times such value, shall be imposed upon “any person who, to the prejudice of another, shall execute any fictitious contract.”
5.3. Article 318 (other deceits) of the Revised Penal Code provides that the penalty of arresto mayor and a fine of not less than the amount of the damage caused and not more than twice such amount shall be imposed upon any person who shall defraud or damage another by “any other deceit not mentioned in the preceding articles of this chapter.”
5.4. Further, B.P. Blg. 22 (Bouncing Checks Law) provides:
LATEST APPLICABLE JURISPRUDENCE: ESTAFA
5.6. In PEOPLE OF THE PHILIPPINES vs. VIRGINIA BABY P. MONTANER, G.R. No. 184053, August 31, 2011, the accused was convicted for the crime of Estafa as defined and penalized under paragraph 2(d), Article 315 of the Revised Penal Code. The Information alleged that on or about May 17, 1996 in the Municipality of San Pedro, Province of Laguna and within the jurisdiction of this Honorable Court accused Virginia (Baby) P. Montaner did then and there willfully, unlawfully and feloniously defraud one Reynaldo Solis in the following manner: said accused by means of false pretenses and fraudulent acts that her checks are fully funded draw, make and issue in favor of one Reynaldo Solis ten (10) Prudential Bank Checks, all having a total value of FIFTY THOUSAND PESOS (
P50,000.00) and all
aforesaid checks were postdated June 17, 1996 in exchange for cash knowing
fully well that she has no funds in the drawee bank and when the said checks
were presented for payment the same were dishonored by the drawee bank on
reason of “ACCOUNT CLOSED” and despite demand accused failed and refused to pay
the value thereof to the damage and prejudice of Reynaldo Solis in the
aforementioned total amount of P50,000.00.
To exculpate herself from criminal liability, accused Virginia Baby P. Montaner denied the allegations that she issued ten (10) checks in private complainant’s favor claiming that the ten (10) checks were borrowed from her by one Marlyn Galope because the latter needed money. She gave the ten checks to Galope, signed the same albeit the space for the date, amount and payee were left blank so that the checks cannot be used for any negotiation. She further told Galope that the checks were not funded. When she learned that a case was filed against her for estafa, she confronted Marlyn Galope and the latter told her that money will not be given to her if she will not issue the said checks. She has no knowledge of the notice of dishonor sent to her by private complainant and claimed that her husband, who supposedly received the notice of dishonor left for abroad in July 1996 and returned only after a year, that is, in 1997.
In a Decision dated April 8, 2003, the trial court convicted appellant for the crime of estafa as defined and penalized under paragraph 2(d), Article 315 of the Revised Penal Code and sentenced her to suffer an indeterminate penalty of imprisonment from twelve (12) years of prision mayor as minimum to twenty-two (22) years of reclusion perpetua as maximum and to indemnify complainant Reynaldo Solis in the amount of
Appellant elevated the case to the Court of Appeals but the adverse ruling was merely affirmed by the appellate court in its Decision dated February 12, 2008.
Hence, appellant interposed an appeal before the Supreme Court and put forth a single assignment of error: THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED–APPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF ESTAFA UNDER ARTICLE 315, PAR. 2 (D) OF THE REVISED PENAL CODE.
Appellant maintains that she entrusted the subject checks, purportedly signed in blank, to Marilyn Galope (Galope) out of pity in order for the latter to secure a loan. Thus, there is purportedly no certainty beyond reasonable doubt that she issued the checks purposely to defraud Reynaldo Solis (Solis) into lending her money. She further claims that no transaction had ever transpired between her and Solis. Admitting that she may have been imprudent, she nonetheless insists that her simple imprudence does not translate to criminal liability.
The Supreme Court was not persuaded.
The Court cited Paragraph 2(d), Article 315 of the Revised Penal Code provides:
ART. 315. Swindling (estafa). – Any person who shall defraud another by any of the means mentioned hereinbelow 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
(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.
According to the Court, the elements of estafa under paragraph 2(d), Article 315 of the Revised Penal Code are: (1) the 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.
In the said case, the prosecution sufficiently established appellant’s guilt beyond reasonable doubt for estafa under paragraph 2(d), Article 315 of the Revised Penal Code. According to Solis’s clear and categorical testimony, appellant issued to him the 10 postdated Prudential Bank checks, each in the amount of
P5,000.00 or a total of P50,000.00, in his
house in exchange for their cash equivalent.
From the circumstances, the Court held that it was evident that Solis would not have given
P50,000.00 cash to appellant had
it not been for her issuance of the 10 Prudential Bank checks. These postdated checks were undoubtedly
issued by appellant to induce Solis to part with his cash. However, when Solis attempted to encash them,
they were all dishonored by the bank because the account was already closed.
Solis wrote appellant a demand letter dated October 13, 1996 which was received by appellant’s husband to inform appellant that her postdated checks had bounced and that she must settle her obligation or else face legal action from Solis. Appellant did not comply with the demand nor did she deposit the amount necessary to cover the checks within three days from receipt of notice. This gave rise to a prima facie evidence of deceit, which is an element of the crime of estafa, constituting false pretense or fraudulent act as stated in the second sentence of paragraph 2(d), Article 315 of the Revised Penal Code.
As for appellant’s claims that she merely entrusted to Galope the blank but signed checks imprudently, without knowing that Galope would give them as a guarantee for a loan, the Court viewed such statements with the same incredulity as the lower courts.
Evidence, to be believed, must not only proceed from the mouth of a credible witness, but it must be credible in itself – such as the common experience and observation of mankind can approve as probable under the circumstances. The Court has 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 judicial cognizance.
Appellant wished to impress upon the Court that she voluntarily parted with her blank but signed checks not knowing or even having any hint of suspicion that the same may be used to defraud anyone who may rely on them. Verily, appellant’s assertion defies ordinary common sense and human experience, the Court stated.
Moreover, the Court added, it is elementary that denial, if unsubstantiated by clear and convincing evidence, is negative and self-serving evidence which has far less evidentiary value than the testimony of credible witnesses who testify on affirmative matters. It agreed with the lower courts that appellant’s bare denial cannot be accorded credence for lack of evidentiary support. As aptly noted by the trial court, appellant’s failure to produce Galope as a witness to corroborate her story is fatal to her cause. In all, the Court of Appeals committed no error in upholding the conviction of appellant for estafa. Hence, the Supreme Court AFFIRMED the two decisions of both the trial court and the appellate court.
LATEST APPLICABLE JURISPRUDENCE: B.P. BLG. 22
5.7. In EUMELIA R. MITRA vs. PEOPLE OF THE PHILIPPINES and FELICISIMO S. TARCELO, G.R. NO. 191404, July 5, 2010, the petitioner Eumelia R. Mitra (Mitra) was the Treasurer, and Florencio L. Cabrera (deceased), Jr. was the President, of Lucky Nine Credit Corporation (LNCC), a corporation engaged in money lending activities. Between 1996 and 1999, private respondent Felicisimo S. Tarcelo (Tarcelo) invested money in LNCC. As the usual practice in money placement transactions, Tarcelo was issued checks equivalent to the amounts he invested plus the interest on his investments by Mitra and Cabrera, were issued by LNCC to Tarcelo.
When Tarcelo presented these checks for payment, they were dishonored for the reason “account closed.” Tarcelo made several oral demands on LNCC for the payment of these checks but he was frustrated. Constrained, in 2002, he caused the filing of seven informations for violation of Batas Pambansa Blg. 22 (BP 22) in the total amount of
with the MTCC in Batangas City.
After trial on the merits, the MTCC found Mitra and Cabrera guilty of the charges and ordered them to respectively pay the mandated fines for each violation and with subsidiary imprisonment in all cases, in case of insolvency and it further adjudged them civilly liable and ordered them to pay, in solidum, private complainant Felicisimo S. Tarcelo the amount of NINE HUNDRED TWENTY FIVE THOUSAND PESOS (
Mitra and Cabrera appealed to the Batangas RTC contending that: they signed the seven checks in blank with no name of the payee, no amount stated and no date of maturity; they did not know when and to whom those checks would be issued; the seven checks were only among those in one or two booklets of checks they were made to sign at that time; and that they signed the checks so as not to delay the transactions of LNCC because they did not regularly hold office there. The RTC affirmed the MTCC decision.
Meanwhile, Cabrera died. Mitra alone filed a petition for review with the Court of Appeals claiming, among others, that there was no proper service of the notice of dishonor on her. The Court of Appeals dismissed her petition for lack of merit.
Mitra went up to the Supreme Court on a petition for review and submitted the issues: WHETHER OR NOT THE ELEMENTS OF VIOLATION OF BATAS PAMBANSA BILANG 22 MUST BE PROVED BEYOND REASONABLE DOUBT AS AGAINST THE CORPORATION WHO OWNS THE CURRENT ACCOUNT WHERE THE SUBJECT CHECKS WERE DRAWN BEFORE LIABILITY ATTACHES TO THE SIGNATORIES; and WHETHER OR NOT THERE IS PROPER SERVICE OF NOTICE OF DISHONOR AND DEMAND TO PAY TO THE PETITIONER AND THE LATE FLORENCIO CABRERA, JR.
The Supreme Court denied the petition.
The Court held that a check is a negotiable instrument that serves as a substitute for money and as a convenient form of payment in financial transactions and obligations. The use of checks as payment allows commercial and banking transactions to proceed without the actual handling of money, thus, doing away with the need to physically count bills and coins whenever payment is made. It permits commercial and banking transactions to be carried out quickly and efficiently. But the convenience afforded by checks is damaged by unfunded checks that adversely affect confidence in our commercial and banking activities, and ultimately injure public interest.
BP 22 or the Bouncing Checks Law was enacted for the specific purpose of addressing the problem of the continued issuance and circulation of unfunded checks by irresponsible persons. To stem the harm caused by these bouncing checks to the community, BP 22 considers the mere act of issuing an unfunded check as an offense not only against property but also against public order. The purpose of BP 22 in declaring the mere issuance of a bouncing check as malum prohibitum is to punish the offender in order to deter him and others from committing the offense, to isolate him from society, to reform and rehabilitate him, and to maintain social order. The penalty is stiff. BP 22 imposes the penalty of imprisonment for at least 30 days or a fine of up to double the amount of the check or both imprisonment and fine.
Specifically, BP 22 provides:
SECTION 1. Checks Without Sufficient Funds. — Any person who makes or draws and issues any check to apply on account or for value, knowing at the time of issue that he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment, which check is subsequently dishonored by the drawee bank for insufficiency of funds or credit or would have been dishonored for the same reason had not the drawer, without any valid reason, ordered the bank to stop payment, shall be punished by imprisonment of not less than thirty days but not more than one (1) year or by a fine of not less than but not more than double the amount of the check which fine shall in no case exceed Two Hundred Thousand Pesos, or both such fine and imprisonment at the discretion of the court.
The same penalty shall be imposed upon any person who, having sufficient funds in or credit with the drawee bank when he makes or draws and issues a check, shall fail to keep sufficient funds or to maintain a credit to cover the full amount of the check if presented within a period of ninety (90) days from the date appearing thereon, for which reason it is dishonored by the drawee bank.
Where the check is drawn by a corporation, company or entity, the person or persons who actually signed the check in behalf of such drawer shall be liable under this Act.
SECTION 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.
Mitra posited in the petition that before the signatory to a bouncing corporate check can be held liable, all the elements of the crime of violation of BP 22 must first be proven against the corporation. The corporation must first be declared to have committed the violation before the liability attaches to the signatories of the checks.
The Court stated that it found itself unable to agree with Mitra’s posture. The third paragraph of Section 1 of BP 22 reads: "Where the check is drawn by a corporation, company or entity, the person or persons who actually signed the check in behalf of such drawer shall be liable under this Act." This provision recognizes the reality that a corporation can only act through its officers. Hence, its wording is unequivocal and mandatory – that the person who actually signed the corporate check shall be held liable for a violation of BP 22. This provision does not contain any condition, qualification or limitation.
The Court cited the case of Llamado v. Court of Appeals, where it ruled that the accused was liable on the unfunded corporate check which he signed as treasurer of the corporation. He could not invoke his lack of involvement in the negotiation for the transaction as a defense because BP 22 punishes the mere issuance of a bouncing check, not the purpose for which the check was issued or in consideration of the terms and conditions relating to its issuance. In this case, Mitra signed the LNCC checks as treasurer. Following Llamado, she must then be held liable for violating BP 22.
Another essential element of a violation of BP 22 is the drawer’s knowledge that he has insufficient funds or credit with the drawee bank to cover his check. Because this involves a state of mind that is difficult to establish, BP 22 creates the prima facie presumption that once the check is dishonored, the drawer of the check gains knowledge of the insufficiency, unless within five banking days from receipt of the notice of dishonor, the drawer pays the holder of the check or makes arrangements with the drawee bank for the payment of the check. The service of the notice of dishonor gives the drawer the opportunity to make good the check within those five days to avert his prosecution for violating BP 22.
Mitra alleged that there was no proper service on her of the notice of dishonor and, so, an essential element of the offense is missing. This contention, the Court said, raised a factual issue that was not proper for review. It is not the function of the Court to re-examine the finding of facts of the Court of Appeals. Our review is limited to errors of law and cannot touch errors of facts unless the petitioner shows that the trial court overlooked facts or circumstances that warrant a different disposition of the case or that the findings of fact have no basis on record. Hence, with respect to the issue of the propriety of service on Mitra of the notice of dishonor, the Court gives full faith and credit to the consistent findings of the MTCC, the RTC and the CA.
The defense postulated that there was no demand served upon the accused, said denial deserves scant consideration. Positive allegation of the prosecution that a demand letter was served upon the accused prevails over the denial made by the accused. Though, having denied that there was no demand letter served on April 10, 2000, however, the prosecution positively alleged and proved that the questioned demand letter was served upon the accused on April 10, 2000, that was at the time they were attending Court hearing before Branch I of this Court. In fact, the prosecution had submitted a Certification issued by the other Branch of this Court certifying the fact that the accused were present during the April 10, 2010 hearing. With such straightforward and categorical testimony of the witness, the Court believes that the prosecution has achieved what was dismally lacking in the three (3) cases of Betty King, Victor Ting and Caras – evidence of the receipt by the accused of the demand letter sent to her. The Court accepts the prosecution’s narrative that the accused refused to sign the same to evidence their receipt thereof. To require the prosecution to produce the signature of the accused on said demand letter would be imposing an undue hardship on it. As well, actual receipt acknowledgment is not and has never been required of the prosecution either by law or jurisprudence. [emphasis supplied]
With the notice of dishonor duly served and disregarded, there arose the presumption that Mitra and Cabrera knew that there were insufficient funds to cover the checks upon their presentment for payment. In fact, the account was already closed.
To reiterate the elements of a violation of BP 22 as contained in the above-quoted provision, the Court said, a violation exists where:
1. a person makes or draws and issues a check to apply on account or for value;
2. the person who makes or draws and issues the check knows at the time of issue that he does not have sufficient funds in or credit with the drawee bank for the full payment of the check upon its presentment; and
3. the check is subsequently dishonored by the drawee bank for insufficiency of funds or credit, or would have been dishonored for the same reason had not the drawer, without any valid reason, ordered the bank to stop payment. 
The Court added that there was no dispute that Mitra signed the checks and that the bank dishonored the checks because the account had been closed. Notice of dishonor was properly given, but Mitra failed to pay the checks or make arrangements for their payment within five days from notice. With all the above elements duly proven, Mitra cannot escape the civil and criminal liabilities that BP 22 imposes for its breach.
WHEREFORE, premises considered, it is respectfully prayed that after notice and hearing the respondent be indicted for ESTAFA and VIOLATION OF B.P. BLG. 22 to protect/preserve the right/interest of the complainant to recover his claim of Five Million Pesos (P5,000,000.00), plus exemplary damages of P100,000.00, moral damages of P100,000.00, attorney’s fees of P125,000.00 plus 5% of the recoverable amounts, and costs of suit.
Roll No. 33640, 4/27/85
IBP Lifetime Member No. 1907
IBP Leyte Chapter
PTR 1016909, 1/7/11, Las Pinas City
MCLE Compliance No. IV-1326, 2/3/11
 Cajigas v. People, G.R. No. 156541, February 23, 2009, 580 SCRA 54, 63.
 People v. Garin, 476 Phil. 455, 474 (2004); People v. Samus, 437 Phil. 645, 659 (2002).
 Gomba v. People, G.R. No. 150536, September 17, 2008, 565 SCRA 396, 400, citing People v. Magbanua, G.R. No. 133004, May 20, 2004, 428 SCRA 617, 630.
 Lozano v.
230 Phil. 406, 428 (1986). Martinez
v. Co, G.R. No. 133608, August 26,
2008, 563 SCRA 239, 253. Rosario
 337 Phil. 153, 160 (1997).
 American Home Assurance Company v. Chua, 368 Phil. 555, 569 (1999).
 Rigor v. People, 485 Phil. 125, 139 (2004).
 In Gosiaco v. Ching, G.R. No. 173807,
April 16, 2009, 585 SCRA 471, 483, we held an
accused corporate officer free from civil liability for the corporate debt
after the lower court acquitted the accused of criminal liability under BP
22. Note that this is a totally
different case from the present case as the issue here is both criminal and