FERMINA RAMOS, PETITIONER, VS. THE COURT OF APPEALS AND THE PEOPLE OF THE PHILIPPINES, RESPONDENTS.

This is a petition for review on certiorari of the November
9, 1982 decision of the Court of Appeals in CA-G.R. Nos. 23626-CR; 23627-CR;
and 23628-CR entitled “People of the Philippines v. Fermina Ramos, Lourdes
Orpiano and Mariano Barreto;” “People of the Philippines v. Fermina
Ramos, Lourdes Gonzales, Francisco Gonzales and Mariano Barreto;” and
“People of the Philippines v. Fermina Ramos, Lourdes Gonzales, Francisco
Gonzales, alias ‘E. Rivera’ and John Doe,” respectively, which affirmed
with modifications the judgments of the Court of First Instance (now Regional
Trial Court) of Tagum, Davao, Branch IX, presided by Judge Felix L. Moya, by
finding her guilty as co?principal of the crime of estafa with
unfaithfulness or abuse of confidence under Article 315 subparagraph 1(b) of
the Revised Penal Code instead of estafa thru reckless negligence. The dispositive portion of the Court of
Appeals’ decision reads as follows:

“WHEREFORE, the judgments of the trial court in Crim. Cases
Nos. 3349, 3350 and 3351 finding the accused Fermina Ramos guilty beyond
reasonable doubt, as principal, in the commission of the crime of estafa is
hereby affirmed, but with modification of the penalties imposed upon her as
follows:

“In Criminal Case No. 3349, she is hereby sentenced to suffer
an indeterminate penalty of imprisonment ranging from five (5) years of prision correccional maximum, as minimum, to eight (8) years of prision mayor, as maximum, with the accessory penalties provided
by law, and to pay the costs.

“In Criminal Cases Nos. 3350 and 3351, she is sentenced to
suffer in each case an indeterminate penalty of imprisonment ranging from two
(2) years of prision correccional minimum, as
minimum, to five (5) years of prision correccional maximum, as
maximum, with the accessory penalties provided by law, and to pay the costs.

“SO ORDERED.” (Rollo, pp. 37-38)

The three (3) informations under which the herein petitioner was
prosecuted and later on found criminally liable read as follows:

Criminal Case
No. 3349:

“x x x

“That on or about May 19, 1976, in the Municipality of Tagum,
Davao, Philippines, and within the jurisdiction of this Court, the herein
accused, conspiring, confederating and helping one another, intentionally,
feloniously and criminally, with deceit and intent to defraud the Family
Savings Bank, Tagum Branch, Tagum, Davao, FERMINA RAMOS, the then Manager of
the offended bank (Family Savings Bank), authorized one of her co-accused,
LOURDES ORPIANO, to withdraw and was paid right there and then on May 19, 1976,
in RCBC Check (Tagum) No. 85297, the payee of the same is the accused LOURDES
ORPIANO, which she subsequently endorsed it to her co-accused Mariano Barretto, in the sum of TWENTY-EIGHT THOUSAND
(P28,000.00) PESOS, against her uncollected and uncleared check deposit, whose
drawer is Lourdes Orpiano, PCIB DVO Check No. 77946 in the sum of TWENTY-EIGHT
THOUSAND (P28,000.00) PESOS, and when said PCIB DVO Check was presented by the
Family Savings Bank thru their Depository Bank for clearing, the same was
dishonored by the Drawee Bank, to the damage and prejudice of the Family
Savings Bank in the aforestated sum.

“Contrary to law.

Criminal Case
No. 3350:

“x x x

“That on or about May 19, 1976, in the Municipality of Tagum,
Davao, Philippines, and within the jurisdiction of this Court, the herein
accused, conspiring, confederating and helping one another, intentionally,
feloniously and criminally, with deceit and with intent to defraud the Family
Savings Bank, Tagum Branch, Tagum, Davao, FERMINA RAMOS, the then Manager of
the offended bank (Family Savings Bank), allowed one of her co-accused, LOURDES
GONZALES, to withdraw and was paid right then and there on May 19, 1976, in BPI
TAG Check No. 85325 in the amount of P20,440.00, the payee of the same is
‘Cash,’ which was subsequently deposited in the Rizal Commercial Banking
Corporation, Tagum Branch, Tagum, Davao, in the savings account of accused
MARIANO BARRETTO No. 6838, against her uncollected and uncleared check deposit
(Joint Savings Account of accused-spouses Francisco Gonzales and Lourdes
Gonzales), whose drawer is LOURDES GONZALES, BPI TAG Check No. 100190 in the sum of THIRTY EIGHT THOUSAND FOUR HUNDRED (P38,400.00)
PESOS, and when said BPI TAG Check was presented by the Family Savings Bank
thru their Depository Bank for clearing, the same was dishonored by the Drawee
Bank, to the damage and prejudice of the Family Savings Bank in the aforestated
sum.

“Contrary to law.”

Criminal Case
No. 3351:

“x x x

“That on or about May 19, 1976, in the Municipality of Tagum,
Davao, Philippines, and within the jurisdiction of this Court, the herein
accused, conspiring, confederating, and helping one another, intentionally,
feloniously and criminally, with deceit and with intent to defraud the Family
Savings Bank, Tagum Branch, Tagum, Davao, FERMINA RAMOS, the then Manager of
the offended bank (Family Savings Bank), allowed one of her co-accused, LOURDES
GONZALES, to withdraw and was paid right then and there on May 19, 1976, in BPI
TAG Check No. 241132 in the amount of P18,560.00, the payee of the same is
‘Cash,’ which was subsequently deposited in the Rizal Commercial Banking
Corporation, Tagum Branch, Tagum, Davao, in the savings account of accused
FERMINA RAMOS No. 6835, against her uncollected and uncleared check deposit
(Joint Savings Account of accused-spouses Francisco Gonzales and Lourdes
Gonzales), whose drawer is alias ‘E. RIVERA,’ RCBC CAG Check No. 1868051 in the
sum of THIRTY-NINE THOUSAND (P39,000.00) PESOS, and when said RCBC CAG Check
was presented by the Family Savings Bank thru their Depository Bank for
clearing, the same was dishonored by the Drawee Bank, to the damage and
prejudice of the Family Savings Bank in the aforestated sum.

“Contrary to law.”

The foregoing criminal charges were among the twenty-three (23)
criminal charges filed by the Provincial Fiscal of Davao against the petitioner
and her other co-accused, four (4) of which were dismissed for lack of basis,
six (6) were dismissed for insufficiency of evidence, and ten (10) were
dismissed with the trial court finding that the Family Savings Bank (FSB) had no
cause to complain because the acts complained of were found to have been done
with the knowledge and consent of the higher ranking bank officials.

In three separate decisions, the trial court convicted petitioner
Ramos not of the charges alleged in the complaint but of three (3) counts of
Estafa Thru Reckless Imprudence, thus:

Criminal Case
No. 3349:

“WHEREFORE, finding accused FERMINA RAMOS GUILTY beyond reasonable doubt of the crime of
Estafa Thru Reckless Imprudence under Art. 365 of the Revised Penal Code, in
conjunction with Art. 315 (1st) of the same Code, she is ordered to serve an
indeterminate sentence of SIX (6) MONTHS, maximum period of arresto mayor,
as minimum penalty, to ONE (1) YEAR and ONE (1) DAY, minimum period of prision
correccional, as maximum penalty; to suffer all the accessory penalties
provided by law; and to pay the costs of this suit.

“Since a separate civil action is pending, the court shall not
order civil restitution.

“SO ORDERED.”

Criminal Case
No. 3350:

“WHEREFORE, finding accused FERMINA RAMOS GUILTY beyond
reasonable doubt of the crime of Estafa Thru Reckless Imprudence under Art. 365
(1st) of the same code, she is ordered to serve an indeterminate sentence of
SIX (6) MONTHS, maximum period of arresto mayor, as minimum
penalty, to ONE (1) YEAR and ONE (1) DAY, minimum period of prision correccional,
as maximum penalty; to suffer the accessory penalties provided by law; and to
pay the costs of this suit.

“Since a separate civil action is pending, the court shall not
order civil restitution.

“SO ORDERED.”

Criminal Case
No. 3351:

“WHEREFORE, finding accused FERMINA RAMOS GUILTY beyond
reasonable doubt of the crime of Estafa Thru Reckless Imprudence under Art. 365
of the Revised Penal Code in conjunction with Art. 315 (1st) of the same code,
she is ordered to serve an indeterminate sentence of SIX (6) MONTHS, maximum
period of arresto mayor, as minimum penalty, to ONE (1) YEAR and ONE (1) DAY, minimum period of prision correctional,
as maximum penalty; to suffer all the accessory penalties provided by law; and
to pay the costs of this suit.

“Since a separate civil action is pending, the court shall not
order civil restitution.

“SO ORDERED.”

From the records, the facts are as follows:

On January 27, 1976, petitioner Fermina Ramos was designated
Acting Branch Manager of the FSB in Tagum, Davao due to the transfer of the
then branch manager, Mr. Johnny Cuan, to another branch. She was appointed branch manager effective
February 16, 1976 which position she held until the middle of June of the same
year. During the term of her
predecessor Mr. Cuan, as branch manager of Tagum, the latter was authorized by
the bank’s Assistant Vice President Gerry Ramirez of the FSB, Cebu City to
allow the drawing against uncleared check deposits (DAUD) to certain clients of
the bank. Apparently, this practice was
in violation of the bank’s operation manual (O.M.S. No. 2:07), the pertinent
provisions of which provide:

“All withdrawals must be approved and signed by the authorized
officer of every branch designated by the Board of Directors. Authority to approve withdrawals below P200
may be given by the VP in charge.

“The officer in charge of approving the withdrawal should
verify that:

“1) The amount being withdrawn is ‘available’ for
withdrawal. This means that the balance
of the account is sufficient and is not against a check deposit which is not
yet cleared.

“In case it is
against a check which is presumed to be cleared having been deposited for more
than three (3) commercial banking days and with no notice of return, inorder (sic) to exercise more care, further
verification may be made from depository bank and our check registry as to date
of deposit, clearance, etc. in order to be doubly sure that the check deposited
was good.” (Records, Exhibit
D)

“x x x.”

During the term of the
herein petitioner, she received an order to stop DAUD which brought about the
following quoted telegram sent by her on March 30, 1976 to AVP Ramirez:

“AVP GERRY RAMIREZ

FAMILY SAVINGS BANK

CEBU CITY

“I HAVE FOLLOWED YOUR ORDER TO STOP
DAUD. BUT MANY CANNOT COVER-UP THEIR OD
AS OF NOW. WHICH WOULD BE BETTER TO
ISSUE PN AS PER LILIAN’S (DE LEON) ADVICE OR TO CONTINUE GIVING ACCOMMODATION
UNTIL CLIENT CAN LIQUIDATE SIR, THE GIVING OF ACCOMMODATION AS YOU KNOW IS NOT
MY DOING, MINE IS ONLY A CONTINUATION OF THE PAST MANAGEMENT AND NOW THAT I
TRIED TO STOP THIS IS THE EFFECT, IN CASE OFFICERS WILL BE THE ONE TO ANSWER
FOR THIS I’LL ANSWER ONLY THOSE ACCOMMODATION WHICH ORIGINATED ON MY TERM OF
MANAGEMENT. THANK YOU.” (Records,
Exhibit 4)

On April 1, 1976,
petitioner received VP Ramirez’ response, to wit:

“REUR TELEGRAM DATED MARCH 31 I AGREE
WITH YOU WITH REGARDS TO THE RESPONSIBILITY OF THE PAST MANAGEMENT BECAUSE I
HAVE THE IMPRESSION THAT ALL THESE PRACTICES HAD BEEN DISCONTINUED BEFORE YOUR
ASSUMPTION AS MANAGER PLEASE FOLLOW AS INSTRUCTED BY LILIAN I SHALL BE THERE
BEFORE APRIL 9.” (Records, Exhibit 5)

It appears that the
accused, in violation of the bank’s policy and without authority from either
Ramirez or De Leon, not only continued to grant DAUD accommodations to old
depositors who had enjoyed such privilege
under her predecessors, but also
extended the same privilege to new clients of the bank. Among those new clients were Lourdes
Orpiano, her co-accused in Crim. Case No. 3349, and the spouses Lourdes and
Francisco Gonzales, her co-accused in Crim. Cases Nos. 3350 and 3351.

Hereunder are the events chronicled by both the trial and the
respondent appellate courts which led to the filing of the aforesaid criminal
charges:

“1.  Crim. Case No. 3349 – People v. Fermina
Ramos, Lourdes Orpiano and Mariano Barreto

“With the approval of the accused Fermina Ramos, Savings
Account No. 1531006558 of Lourdes Orpiano was opened on January 31, 1976 with
an initial deposit of P2,800 (Exh. F).

“Fermina Ramos approved ten (10) withdrawals against uncleared
check deposits of Lourdes Orpiano, on the following dates:

“March 23, 1976, the deposit and withdrawal of P52,000,
resulting in the filing of Criminal Case No. 3337 with Branch VIII;

“April 8, 1976, the deposit and withdrawal of P35,000.00,
resulting in the filing of Criminal Case No. 3331 with this Branch;

“April 10, 1976, the deposit and withdrawal of P35,000.00,
resulting in the filing of Criminal Case No. 3333 with this branch;

“April 12, 1976, the deposit and withdrawal of P35,000.00,
resulting in the filing of Criminal Case No. 3334 with this branch;

“April 26, 1976, the deposit and withdrawal of P29,000.00,
resulting in the filing of Criminal Case No.
3339 with Branch VIII;

“May 5, 1976, the deposit and withdrawal of P29,000.00
resulting in the filing of Criminal Case No. 3343 with this branch;

“May 6, 1976, the deposit and withdrawal of P10,000.00
resulting in the filing of Criminal Case No. 3345 with this branch; and

“May 17, 1976, the deposit and withdrawal of P29,000.00,
resulting in the filing of Criminal Case No. 3347 with Branch VIII.

“On May 19, 1976, PCIB DVO Check No. 77946, (Exh.
‘A-1-3349-B’), for P28,000.00 drawn by Lourdes Orpiano was deposited by her in
her savings account at the FSB Tagum, Branch (Exh. F-5). At that time, her account balance was only
P234.34.

“As a result of that ‘deposit’ her account balance went up to
P28,234.34.

On the same date, without waiting for the clearance of Orpiano’s
check, the Branch Manager, Fermina Ramos allowed her said co-accused to
withdraw from her account the amount of P28,000.00 (Exh. ‘A-1-3349-A’), the
very amount which she deposited that day with an uncleared check. Thus her balance returned to the original
amount of P234.34. The withdrawal was
paid to Orpiano by FSB in the form of RCBC Tagum Check No. 85297 for P28,000 drawn by FSB on its account at the
Rizal Commercial Banking Corporation in Tagum (Exh. A-1-3349-A). The check was payable to Orpiano who
indorsed it to Mariano Barretto. When
Orpiano’s PCIB Dvo Check was presented by FSB thru its depository bank for
clearing, it was dishonored by the drawee bank for having been drawn against
insufficient funds (Exh. A-1-3349-F).

“2.  Crim. Case No. 3350 – People v. Fermina
Ramos, Lourdes Gonzales, Francisco Gonzales and
Mariano Barretto.

“3.  Crim. Case No. 3351 – People v. Fermina
Ramos, Lourdes Gonzales, Francisco Gonzales, E.
Rivera and John Doe. (pp. 30-31, Rollo)

“The joint savings account no. 1504010272 of the spouses
Francisco Gonzales and Lourdes Gonzales was opened on March 4, 1976 with the
FSB Tagum Branch, with the approval of the accused Fermina Ramos. Their initial deposit was only P500 (Exh.
E-3).

“Four withdrawals against uncleared check deposits were made
by Francisco Gonzales and/or Lourdes Gonzales on the following dates, with the
approval of the branch manager Fermina Ramos:

“April 23, 1976
– drawing against uncleared check deposit of P39,000 resulting in the filing of
Criminal Case No. 3336 in this
Branch IX.

“April 27, 1976
– drawing against uncleared check deposit of P39,000 resulting in the filing of
Criminal Case No. 3352 in Branch VIII.

“May 19, 1976 –
drawing against uncleared check deposit of
P39,000 resulting in the filing of
Criminal Case No. 3351 in Branch IX.

“May 19, 1976 –
drawing against uncleared check deposit of P38,400 resulting in the filing of
this Criminal Case No. 3350 in Branch IX also.

“On May 19, 1976 the standing balance in the ledger of the
joint savings account of Francisco and Lourdes Gonzales was only P3.25. On that day, an uncleared RCBC Check No. 186851 (sic) (Exh. C-1-3351) for
P39,000 drawn by a certain E. Rivera on the Rizal Commercial Banking
Corporation, Cagayan de Oro City, was deposited by the Gonzales spouses in
their joint savings account, thus raising their account balance to P39,003.25.

“On the same day, another uncleared check, BPI Tagum No.
100190 for P38,400 drawn by Lourdes Gonzales on her account at the Bank of the
Philippine lslands, Tagum Branch (Exh. C-1-3350-D), was deposited by her in her
and her husband’s joint savings account at the FSB, Tagum (Exh. E-2), further
raising their account balance to P77,403.25.

“Later on the same day, May 19, 1976,
Francisco Gonzales and Lourdes Gonzales made two withdrawals from their joint
savings account, with the approval of the accused
Fermina Ramos.

“The first was for P18,560.00 (Exh. C-1-3351-A) which was paid
to them in the form of a ‘cash’ check, BPI Tag Check No. 241132, drawn by the
FSB on its account in the Bank of the Philippine Islands in Tagum (Exh.
C-1-3351-A). This check later
found its way into Fermina Ramos’
Savings Account No. 6835 in the Rizal
Commercial Banking Corporation in Tagum (Exh.
C-1-3351-B). This transaction is
the subject of Crim. Case No. 3351.

“The second withdrawal was paid to Lourdes Gonzales in the
form of a BPI Tag Check No. 85325 in the amount of P20,440, payable
to ‘cash,’ drawn by the FSB Tagum branch on its account in the Bank of the Philippine Islands in
Tagum (Exh. C-1-3350-C). It was later
deposited in the Savings Account No. 6838 of Mariano Barreto in the Rizal
Commercial Banking Corporation, Tagum, Branch. This transaction is the subject of Crim. Case No. 3350.

“Both Rivera’s RCBC Check No. 1868051 and Lourdes
Gonzales’ BPI Check No. 100190 were dishonored by the drawee banks (Exh. E-2).

“x x x

“In June 1976, the deluge of bouncing checks deposited in the FSB
Tagum branch and withdrawn without prior clearance, pursuant to the DAUD
accommodations granted by the accused became unmanageable. Even the checks issued by the FSB Tagum
branch were no longer being honored by its depository banks. In her letter of May 30, 1976 to Mercedes
Gotianum, FSB Executive Vice-President, the accused disclosed that ‘we no
longer could withdraw against uncleared deposits. Out-of-town checks are to be credited to our account upon clearing only.’ (Exh. 8-A)

“An audit of the Tagum branch was ordered by the FSB central
office. It resulted in the filing of
twenty-three (23) criminal complaints for estafa against the depositors and
Fermina Ramos. Ten (10) of them were assigned
to Branch VIII and thirteen (13) were assigned to Branch IX, the sala of Judge
Felix Moya (Rollo, pp. 30-33).

As the other accused remained at large, petitioner was tried
separately. Thereafter, Judge Felix L.
Moya convicted her of estafa through reckless negligence in three (3) of the
thirteen (13) cases assigned to his sale and acquitted her in all the
rest. These three (3) cases are the
subject matter of this petition. The
other cases assigned to Branch VIII of the same Regional Trial Court were also
dismissed.

Petitioner appealed to the Court of Appeals which modified the
trial court’s decision and convicted the accused of estafa with unfaithfulness
or abuse of confidence under Article 315 subparagraph 1(b) of the Revised Penal
Code. Accordingly, the penalties
imposed by the trial court based on Article 365 were set aside by the
respondent Court which imposed the penalty prescribed under Article 315.

In this petition for review, petitioner raised the following
errors allegedly committed by the Court of Appeals:

1. Finding that there was evidence adduced in
3351 – regardless of whether it was competent and adequate or not;

2.    Finding that in 3349 and 3350 the evidence
adduced was competent and adequate for conviction;

3.    Finding that the acts complained of
constitute estafa under Art. 315 of the Revised Penal Code; and

4. Finding that there was conspiracy between
the several accused and so, where there was defraudation, there was deliberate
defraudation and not just defraudation made possible by negligence of the
petitioner Fermina Ramos. (Petitioner’s
Brief, p. 54, Rollo)

After a review of the records, the Court finds that the first two
(2) assignments of error made by the petitioner are untenable. Well-settled is the rule that factual
findings made by the trial court, as well as those of the Court of Appeals, are
entitled to great weight and respect. But even after a careful review of the said factual findings contained
in the records, this Court is not persuaded by the petitioner’s contention that
all the evidence presented are incompetent and inadequate for conviction in the
cases at bar.

Petitioner contends that the audit worksheets of Elrey Ramos and
xerox copies of the dishonored checks and check return slip in Crim. No. Case
3349 are inadmissible because they do not constitute the best evidence.

We see no error on the part of the trial judge in admitting the
testimony of the bank auditor Elrey Ramos based on the worksheets he prepared
in the process of his investigation regarding
the unauthorized DAUD extended by the petitioner to her co-accused. These worksheets, as correctly pointed out
by the Solicitor General, are organized data culled from the pertinent bank
documents which are not intended to supplant the probative value of said
documents. But together with the other
evidence presented such as the
account ledgers of petitioner’s co-accused, a number of inter-office
correspondence between the petitioner and her superiors as well as the xerox
copies of the uncleared checks deposited to the FSB and the checks issued by
the latter corresponding to the withdrawals against said uncleared checks, they
present indubitable proof that DAUD was allowed by petitioner even after that
practice was prohibited. Besides, these
documents and the testimony of another prosecution witness Francisco Juele,
Jr., an employee of the FSB, Tagum Branch, corroborate with each other. From the material dates, the amounts
involved, the check numbers and the names of the different depository banks, to the
signatures of the parties involved, especially that of the signature of the
herein petitioner as the approving officer, the authenticity of these documents
is apparent.

In Commissioner of Internal Revenue v. Fireman’s Fund Ins., Co.,
G.R. No. L-30644, March 9, 1987, 148 SCRA 315, 323, it was held that the court
is not precluded from admitting documents other than the best evidence to prove
a party’s allegations, thus:

“There is no argument to petitioner’s contention that the
insurance policies with the corresponding documentary stamps affixed are the best evidence to prove
payment of said documentary stamp tax. This rule however does not preclude the admissibility of other proofs
which are uncontradicted and of considerable weight, such as: copies of the applications for manager’s
checks, copies of the manager’s check vouchers of the bank showing the
purchases of documentary stamps corresponding to the various insurance policies
issued during the years 1952-1958 duly and properly identified by the witnesses
for respondent company during the hearing and admitted by the respondent Court
of Tax Appeals.”

Moreover, the entries in the account ledgers of the depositors
which are on file on the bank may be regarded as originals under paragraph c,
Section 4, Rule 130 of the Rules of Court, the pertinent provision of which
reads:

“Section 4(c). When an
entry is repeated in the regular course of business, one being copied from
another at or near the time of the transaction, all the entries are likewise
equally regarded as originals.”

The above-cited provision alone is sufficient to reject
petitioner’s contention that the documents admitted by the trial court which
were among the bases of her conviction do not constitute the best evidence.

We agree with respondent court that the cases-subject matter of
this petition do not involve violations of B.P. 22 or estafa under paragraph
2(d) of Article 315 of the Revised Penal Code but rather, estafa with
unfaithfulness or abuse of confidence under Article 315 subparagraph 1(b) of
the same code, in that the herein petitioner conspired and cooperated with her co-accused
to defraud the bank by allowing them to withdraw funds of the bank against
their worthless check deposits.

As correctly ruled by the respondent court, the Regional Trial
Court erred in convicting the petitioner under Article 365 (criminal negligence)
in connection with Article 315 of the Revised Penal Code, instead of under
Article 315, solely, as co-principal. The pertinent portion of the respondent court’s decision reads:

“The crime committed
by the accused was estafa with unfaithfulness or abuse of confidence under
Article 315 subparagraph 1(b) of the Revised Penal Code, in that she conspired
and cooperated with her co-accused to defraud the bank by allowing them to
withdraw funds of the bank against their worthless check deposits. Her cooperation was intentional, deliberate
and malicious, not unwitting or merely negligent. Consequently, as correctly pointed out by the Solicitor General,
the trial court erred in penalizing her under Article 365, instead of under
Article 315, of the Revised Penal Code which provides:

‘Art. 315. Swindling
(estafa). – Any person who shall
defraud another by any of the means mentioned hereinbelow shall be punished by:

‘1st. 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. 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.

‘1.    with unfaithfulness or abuse of confidence,
namely:

x x x              x x x

‘(b)  by misappropriating or
converting, to the prejudice of another, money, goods, or 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.'” (pp. 36-37, Rollo)

It is not, however, sufficient to hold that petitioner conspired
with her co-accused to defraud the bank on the basis of a showing that the
checks deposited to the bank indeed bounced. There is still a need to prove conspiracy which, on the other hand, can
be shown by circumstantial evidence. It
is well?settled that direct proof is not essential to show
conspiracy. It need not be shown that
the parties actually came together and agreed in expressed terms to enter in and pursue a common
design. The existence of the assent of
minds which is involved in a conspiracy may be, and, from the secrecy of the crime, usually must be, inferred by
the court from proof of facts and circumstances which, taken together,
apparently indicate that they are merely parts of some complete whole.

In resume, it is clear from the evidence that petitioner allowed
withdrawals on uncleared checks deposited into the accounts of her co-accused,
i.e., four (4) withdrawals for the spouses Francisco and Lourdes Gonzales and
ten (10) withdrawals on the accounts of Lourdes Orpiano. These, by themselves, are irregular and
suspicious acts. Firstly, they were
contrary to specific bank’s policies and procedures (Exh. “D”). Petitioner’s justification that she was
merely following her predecessor’s practice, is belied by the fact that her
co-accused were not included in the list of depositors allowed DAUD
accommodations as said co-accused opened their accounts only when the manager
of the FSB was already the petitioner. Furthermore, it was admitted by the petitioner herself that she was
repeatedly ordered by her superiors to stop giving DAUD accommodations. Notwithstanding the specific instructions,
petitioner repeatedly granted accommodations in at least fourteen (14)
instances and despite her knowledge that prior checks deposited by her
co-accused turned out to be unfunded. See these clearly indicate that she acted maliciously or in bad faith by
assuming to dispose the money of the bank as if it were her own, thereby
committing conversion and a clear breach of trust. She performed an indispensable act necessary to enable her and
her co-accused to accomplish the criminal purpose they had in mind. Apart from the foregoing, conspiracy was
further strengthened by the testimonial evidence given by one of the employees
of the bank, Mr. Francisco Juele who testified as follows:

“Fiscal Isagani Fuentes:

Q –   Could
you remember what other transaction transpired in the bank when this depositor
made transactions there?

A –   She
instructed us that whenever this depositor comes, she has to attend to her
transaction personally.

Q –   With
Mrs. Gonzales?

A –   Yes,
Sir. (TSN, March 1, 1978, p. 14)

x x x

Q – And again, will you please tell us
if there was anything that the accused Mrs. Ramos have instructed the bank
about this particular depositor?

A –   The
instruction was, she has to attend to the transaction personally.

Q – And aside from these transactions
made by the accused Lourdes Orpiano, was there any other transactions with the
bank aside from these?

A –   None,
Sir. (Ibid, pp. 18-19)

x x x

Q – And will you please tell this Honorable Court what instructions did you
receive with respect to the transaction made by Segundina Orpiano?

A –   The
instruction was, she has to attend to it personally. (Ibid, p. 21)

x x x

Q –   And
will you please tell us again if any instruction was given to you or to the
bank regarding these transactions of Mr. Barreto in the bank?

A –   The
instruction was, she has to attend personally to the transaction of the
depositor. (Ibid, pp. 23-24)

What is even more alarming is the fact
that there was one check (BPI Tag Check No. 241132, drawn by the FSB on its
account in the Bank of P.I. in Tagum, Exh. C-1-3351-A), proceeds of a withdrawal, which went into the
personal account of petitioner Fermina Ramos. This is a clear proof of her evident intention to benefit from these
transactions. And despite this very
disturbing evidence, petitioner made no effort to justify the same.

ACCORDINGLY, the petition is hereby DENIED and the
assailed decision of the respondent Court of Appeals is AFFIRMED.

SO ORDERED.

Narvasa, (Chairman), Cruz, and
Feliciano, JJ., concur.

Grino-Aquino, J., no part.