G.R. Nos. L-54912-13. November 23, 1981
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. LEONORA DY Y ABENIS, DEFENDANT-APPELLANT.
MELENCIO-HERRERA, J.:
This case was certified to this Tribunal by the Court of Appeals[1] for
final determination pursuant to Section 12, paragraph 2, Rule 124 of the Rules
of Court, the imposable penalty being reclusion perpetua.
Leonora Dy y Abenis, herein appellant, was charged on June 30,
1977 with the crime of Estafa under Article 315, parag. 2(d) of the Revised Penal Code, committed by
means of bouncing checks, before the Court of First Instance of Rizal, in
Criminal Case No. Q-8078, under the following Information:
“That on or about the 19th day of May 1977, in Quezon City,
Philippines, the above-named accused, with intent of gain and by means of
deceit and false pretenses, executed prior to or simultaneously with the
commission of the fraud, did, then and there, wilfully, unlawfully and
feloniously defraud one PURITA COMANDANTE, in the following manner, as
follows: the said accused executed and
issued in favor of PURITA COMANDANTE, the following postdated checks, to wit:
1.
Phil. Banking Corp. Check #2753 dtd. 5/23/77
P10,000.00
2.
Phil. Banking Corp. Check #2754 dtd. 5/30/77
P10,000.00
3.
Phil. Banking Corp. Check #2755 dtd. 6/10/77
P10,000.00
4.
Phil. Banking Corp. Check #2756 dtd. 6/15/77
P5,000.00
5.
Phil. Banking Corp. Check #2758 dtd. 5/21/77
P10,000.00
6.
Phil. Banking Corp. Check #2759 dtd. 5/23/77
P10,000.00
Total = P55,000.00
in the total amount of P55,000.00,
Philippine Currency, drawn against PHILIPPINE BANKING CORPORATION, Cubao
Branch, in payment of her obligation, she knowing fully well at the time she
issued the said checks that her accounts with the said bank were insufficient
to cover up the amounts stated therein; consequently, these were dishonored by
the bank when presented for payment, and said accused having been informed
thereof, failed to redeem said checks despite repeated demands made upon her,
to the damage and prejudice of said PURITA COMANDANTE in the total amount of
P55,000.00, Phil. Currency.
“Contrary to law.”[2]
On the same date,
Appellant, together with Elizabeth Salen y Goong (at large), was charged with
the same offense of Estafa before the same Court in Criminal Case No. Q-8079,
under an Information which reads:
“That on or about the 19th day of May 1977, in Quezon City,
Philippines, the above-named accused, conspiring together, confederating with
and mutually helping one another, with intent of gain and by means of deceit
and false pretenses, executed prior to or simultaneously with the commission of
the fraud, did, then and there wilfully, unlawfully and feloniously defraud one
PURITA COMANDANTE in the following manner, as follows: the said accused pursuant to their conspiracy
executed and issued in favor of PURITA COMANDANTE the following postdated
checks, to wit:
PHIL. NAT. BANK Check No. D-71189-R dtd. May 23/77 P10,000.00
PHIL. NAT. BANK Check No. D-71190-R dtd. May 23/77 P57,000.00
in the total amount of P67,000.00,
Philippine Currency, drawn against PHILIPPINE NATIONAL BANK, Escolta Branch, in
payment of their obligation, they knowing fully well at the time they issued
the said checks that their accounts with the said bank were insufficient to
cover up the stated amounts therein; consequently, these were dishonored by
the bank when presented for payment, and said accused having been informed
thereof, failed to redeem said checks despite repeated demands made upon them,
to the damage and prejudice of said PURITA COMANDANTE in the total amount of
P67,000.00, Philippine Currency.
“Contrary to law.”[3]
Upon arraignment in both
cases, Appellant entered a plea of not guilty.
The two cases were subsequently ordered consolidated upon a defense
motion.[4]
After trial, the Court of
First Instance rendered judgment with the following dispositive portion:
“WHEREFORE, this Court finds the accused Leonora Dy y Abenis
guilty as principal and beyond reasonable doubt of this crime of Estafa under
Paragraph 2 (d) of Article 315 of the Revised Penal Code in both cases without
any attending circumstances and, under the Indeterminate Sentence Law, hereby
sentences her to suffer in each case an indeterminate penalty consisting of
imprisonment of FOUR (4) YEARS
and TWO (2) MONTHS of prision correccional as minimum and ELEVEN (11)
YEARS of prision mayor as maximum with the accessories provided for by
law. Further, she is sentenced to
indemnify Purita Comandante in the amount of P87,000.00 in the two cases and to
pay the costs of the proceedings.”[5]
As Appellant was able to return to
Complainant jewelry worth P35,000.00, that amount was eventually deducted from
the indemnity ordered by the trial Court to be paid to complainant in Criminal Case
No. Q-8079 thereby reducing her civil liability therein to P32,000.00.
On appeal, the Court of Appeals affirmed the conviction but
imposed the new and heavier penalties prescribed by Presidential Decree No.
818, which had taken effect on October 22, 1975. The dispositive portion of the Appellate
Court Decision reads:
“WHEREFORE, the conviction of the accused Leonora Dy y Abenis
is affirmed, but the penalties imposed upon her by the trial court are hereby
modified as follows:
“In Criminal Case No. Q-8078, she is hereby sentenced to
suffer a straight penalty of twenty-three (23) years of reclusion perpetua,
with the accessory penalties provided by law, to indemnify the complainant
Purita Comandante in the sum of P55,000, and to pay the costs.
“In Criminal Case No. Q-8079, the accused Leonora Dy y Abenis
is sentenced to suffer a straight penalty of twenty-one (21) years of reclusion
perpetua, with the accessory penalties provided by law, to indemnify the
complainant Purita Comandante in the sum of P32,000, and to pay the costs.
“We have imposed straight penalties on the accused because she
is precluded from enjoying the beneficent provisions of the Indeterminate
Sentence Law as the penalties imposable for the frauds she had committed fall
within the range of life imprisonment or reclusion perpetua (Sec. 2,
Indeterminate Sentence Law).” (Court of Appeals Decision, p.32, Record,
CA-G.R. Nos. 22632-33-CR).
However, instead of
entering judgment the Court of Appeals certified the two cases to this Court
for final determination, as earlier stated.
The facts as found by the
trial Court, adopted by Appellant, restated in the Court of Appeals Decision,
and as borne out by the records, are quoted hereunder:
“Purita Comandante first
met the two accused on May 16, 1977 at about 10:00 o’clock a.m., in the
Tanbunting Pawn Shop in Cubao, Quezon City.
They were introduced to her by a certain Aida, an appraiser of the pawn
shop, as buyers of jewelries. As she had
no jewelry for sale at the time, she told the two accused who had offered to
make some purchase ‘bukas na lang’.
She then met the two accused again on the following morning in the same
pawn shop and showed to them a
set of a pair of earrings and a ring.
The two accused paid for the same in cash and asked her to show them
more items of jewelry as they want to buy more.
After agreeing with them to meet again in the afternoon, she returned
to the pawn shop bringing along a bracelet and nine stones (90 points and 220
‘chispas’) valued at P35,000.00. The two
accused bought them and gave to her in payment four (4) postdated checks –
Philippine Banking Corporation Check No. 2753 for the amount of P10,000.00 and
dated May 23,1977 (Exh. ‘A’), PBC Check No. 2755 for the amount of P10,000.00
and dated June 10, 1977 (Exh. ‘B’), PBC Check No. 2756 for the amount of
P5,000.00 and dated June 15, 1977 (Exh. ‘C’), and PNB Check No. 71189 for the
amount of P10,000.00 and dated May 23,
1977 (Exh. ‘D’). The Philippine
Banking Corporation checks were drawn by accused Leonora Dy alone while the
Philippine National Bank checks were jointly drawn and signed by the two
accused. A receipt (Exh. ‘E’) for the
purchase and the payment therefor with four postdated checks was issued and
signed by the two accused. Also, both
accused noted down in a piece of paper (Exh. ‘E-3’) their respective addresses
and the telephone number of Leonora Dy and gave the same to Purita
Comandante. On the following day, May
18, 1977, at 11:00 o’clock a.m., the two accused saw her in her residence at
367 De la Alas Street in Pasay City.
They wanted more pieces of jewelry.
As she had no jewelry at the time, they agreed to meet again. Subsequently, she showed a set of a ring and
a pair of earrings, ‘brilliante & baget stone’. Again the accused bought and paid for them
with PBC Check No. 2759 issued by Leonora Dy for the amount of P10,000.00 and
dated May 23, 1977 (Exh. ‘F’). A
corresponding receipt showing the purchase and mode of payment was issued and
signed by both accused (Exh. ‘G’). The
check was given by Comandante to a certain Mrs. Nancy Ventura who is her
supplier. A ring valued at P7,000.00 was
also bought by the accused and paid for with another postdated check which was
subsequently retrieved by them and the value thereof incorporated and included in
three other postdated checks given for subsequent purchases. Comandante got a necklace with a ‘brilliante’
cross and a pair of diamond earrings from Mrs. Nancy Ventura. These two pieces of jewelry were shown to the
accused and they also agreed to buy them at the given price of P35,000.00
each. The accused first had the
jewelries appraised at the Tambunting Pawn Shop and being satisfied with their
quality, they paid for the same with three postdated checks – PNB Check No.
71190 for amount of P57,000.00 and dated May 23, 1977 (Exh. ‘H’), PBC Check No.
2758 for the amount of P10,000.00 and dated May 21, 1977 (Exh. ‘I’), and PBC
Check No. 2754 for the amount of P10,000.00 and dated May 30, 1977 (Exh.
‘J’). The amounts of these three checks
sum up to P77,000.00 as they included the other postdated check in the amount
of P7,000.00 which was taken back by the accused to be consolidated with said
three checks. This last transaction is
evidenced by a receipt (Exh. ‘L’) signed by both accused. All these transactions were consummated in
three days, from May 17 to May 19, 1977.
While the receipt marked as Exh. ‘G’ is dated May 20, 1977 and the
receipt marked as Exh. ‘L’ is dated May 23, 1977, they are not reflective of the
true dates of their execution. The receipt
marked Exh. ‘I’ is dated May 23, 1977, because it was on this date that the
accused promised to pay for all the jewelries or return them if unsold by
them. When presented for payment, all
the eight (8) checks given by the accused to Comandante were dishonored by the
drawee bank (Exhs. ‘A-5’, ‘B-A’, ‘C-4’, ‘D-5’, ‘F-3’, ‘H-3’, ‘I-3’ &
‘J-3’), for reasons of ‘insufficient fund’ or ‘no arrangement’. When the PBC Check dated May 21, 1977 was dishonored
when presented for payment on that date, Comandante became apprehensive and
immediately made arrangements with Leonora Dy to meet with her. They met at a place near the New Frontier
theater at Cubao, Quezon City, and Dy told Comandante to wait until the following
day as Elizabeth Salen was not around.
When they met on the following day, Comandante told Dy to just return
her jewelries. Dy then brought
Comandante to the house of Salen at San Mateo, Rizal, where Comandante again
told both accused this time that they return her jewelries and she in turn will
return their checks. The accused then
brought Comandante to Lerma St. in Sampaloc, Manila, ostensibly to look for
their buyer who had taken the pieces of jewelry. After going around the block of the Far
Eastern University, the accused, however, returned to San Mateo, Rizal. They told Comandante that the jewelries were
with a certain Josie Paz, also of San Mateo.
When Comandante and the two accused went to the house of Josie Paz, this
Josie Paz showed surprise. Elizabeth
Salen then whispered to the ears of Paz and after that Paz stated that the
jewelries were with Nena Carpio of Quirino District. Again, Comandante with the two accused
proceeded to the house of Nena Carpio at Caimito Street in Quirino District. When asked to give the jewelries, Carpio
blurted out: ‘I do not have the
jewelries. You sue them.’ Comandante
then told the two accused that they go to the Metrocom and they proceeded
thereto together with Bobot Reyes and Cecerina Comandante, daughter of
Purita. At the Metrocom headquarters,
the two accused gave written statements (Exhs. ‘M’ & ‘N’) admitting receipt
by them of the jewelries and their issuance of all the postdated checks in
question. The two accused were pointing
to each other as the one responsible for the disappearance of the jewelries.
“Purita Comandante identified the accused Leonora Dy as the
person who took her jewelries and issued and delivered to her the postdated
checks in question, and two photographs (Exhs. ‘P’ & ‘P-1’) as those of
Elizabeth Salen.
“Leonora Dy, taking the witness stand in her defense, denied
responsibility for Comandante’s jewelries and the dishonored checks, stating
that it was with Elizabeth Salen alone that Comandante transacted. She further stated that she met Elizabeth
Salen on May 7, 1977 at the Tambunting Pawn Shop where she (Dy) was then
pawning a Seiko wrist watch and a ring.
Salen proposed to buy the watch and ring and after agreement, Salen paid
her right then and there the amount of P350.00.
The balance of P300.00 was paid at the house of Salen in San Mateo,
Rizal where they proceeded to immediately.
Subsequently, Salen called her on the telephone and meeting at the
Tambunting Pawn Shop, Salen returned to her the wrist watch because it was of some
sentimental value to her. Salen asked
her to accompany her to the Philippine Banking Corporation for the purpose of
opening a checking account. Failing
there, they proceeded to the Philippine National Bank where they succeeded with
the help of a friend, Cesar Untalan, but with the condition that it be a joint
account with her as Salen was not known to the bank. She acceded to the arrangement and a joint
checking account was opened with an initial deposit of P1,000.00. The PNB checks (Exhs. ‘D’ & ‘H’) were
signed by her only because it was a joint account with Elizabeth Salen. With respect to the PBC Checks (Exhs. ‘A’,
‘B’, ‘C’, ‘F’, ‘I’ & ‘J’), she explained that they were borrowed by
Elizabeth Salen to pay the latter’s purchases from Purita Comandante with the
assurance that Salen will make the corresponding deposit at their due
dates. With the help of the Metrocom the
pair of earrings valued at P35,000.00 was recovered and returned to Purita
Comandante (Exh. ‘5’).”[6]
The defense charges the
trial Court with having erred in convicting Appellant of the crime of Estafa
contending that the sale of jewelries was null and void since complainant
Purita Comandante was not the owner of those items and, therefore, Appellant
was under no obligation to pay, and committed no deceit in issuing the rubber
checks. These checks, the defense adds,
were intended merely as “security or guaranty for the eventual sale of the
jewelries.”
We find no merit in those arguments.
The elements of the crime of Estafa committed by means of bouncing checks defined under
Article 315, paragraph 2(d) 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
or insufficiency of funds to cover the check; and (3) damage to the payee
thereof.[7]
Ownership is not a necessary element of the crime of Estafa.
As aptly pointed out by the Court of Appeals:
“x x In estafa, the person prejudiced or the immediate victim
of the fraud need not be the owner of the goods. Thus, article 315 of the Revised Penal Code
provides that ‘Any person who shall defraud another (it does not say
‘owner’) by any of the means mentioned hereinbelow shall be punished x x x.’
All that is necessary is that the loss should have fallen on someone other than
the perpetrators of the crime. (People
vs. Yu Chai Ho, 53 Phil. 874; People v. Samoa, CA-G.R. No. 20933-R, March 7,
1960; People v. Jacinto, CA-G.R. No. 5065-R, May 25, 1951; Wilson &
Dolores, 52 Phil. 919; U.S. vs. Almazan & Martinez, 20 Phil. 225; U.S. v.
Sotelo, 28 Phil. 147).”[8]
In Estafa, “to defraud is to deprive of some right, interest or property by a deceitful
device”.[9] Complainant had such interest in the
jewelries in question. Whether she
delivered those jewelries as the owner herself or on behalf of the true owner
is not of decisive importance.
There is no question that Appellant issued the postdated checks
to Complainant in payment for the jewelries handed to them on the same occasion
and not as mere guaranty or security for their return or eventual sale. As Appellant herself admitted in her
extrajudicial statement, Exhibit “N”, the checks were given by them
to Purita Comandante in payment for the pieces of jewelry they received
from the latter.[10]
Even in her direct testimony in Court, Appellant also declared that her checks
were used by Elizabeth Salen to pay for the pieces of jewelry.[11]
There is no question either about the presence of deceit. Were it not for the issuance by Appellant of
checks, which she falsely pretended to be covered by sufficient funds,
Complainant would not have parted with the jewelry. Insufficiency of funds to cover the checks
was substantiated by the evidence which showed that some of the postdated
checks in question were dishonored by the drawee banks for having been
“drawn against insufficient fund” and others for “no arrangement”. Further, appellant’s testimony showed that
with an initial deposit of only P1,000.00, she and Elizabeth Salen opened a
joint checking account with the Philippine National Bank in May 1977 and issued
in the same month postdated checks
against said checking account amounting to P67,000.00. Her testimony also disclosed that the highest
deposit she had in her personal checking account at the Philippine Banking
Corporation was only P2,000.00, yet, she issued against said checking account
postdated checks amounting to P55,000.00.
Lastly, the third essential element of this kind of Estafa, i.e.,
damage to the payee of the worthless checks, is also clearly present. Except for the jewelry recovered worth
P35,000.00, Complainant was damaged and prejudiced in the total amount of
P87,000.00 in the two cases.
During the pendency of
this case before this Tribunal, Atty. Tomas P. Matic, Jr. entered his
appearance as private prosecutor in substitution of Attys. Montano, Miguel and
Associates, and filed a Motion for Preliminary Attachment of the properties of
Appellant for the satisfaction of her liability of not less than P87,000.00 in
the event that the judgment of the Court of Appeals is affirmed by this Court,
pursuant to Section 1(b), Rule 57 and Section 1(b), Rule 127 of the Rules of
Court, claiming that the judgment under review is an action for property
embezzled or fraudulently misapplied or converted to her own use by an agent or
person in a fiduciary capacity. In his
Comment, the Solicitor General interposed no objection provided Complainant
executes the affidavit and posts the bond required by law.
That Motion for the
issuance of a Writ of Preliminary Attachment need no longer be acted on, however,
since by virtue of this Decision other processes may be issued for the
execution of the judgment herein rendered with the rules on civil cases
followed,[12] it being understood that as far as the civil
liability is concerned, execution may issue immediately upon promulgation of
the judgment.
We come now to the
penalty. We sustain the application of
and the penalties imposed by the Court of Appeals pursuant to Presidential
Decree No. 818, which took effect on October 22, 1975, the transactions subject
of this case having occurred in 1977.
Section 1(1st) of said Decree reads:
“SECTION 1. Any person
who shall defraud another by means of false pretenses or fraudulent acts as defined
in paragraph 2(d) of Article 315 of the Revised Penal Code, as amended by
Republic Act No. 4885, shall be punished by:
1st. 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 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.”
WHEREFORE, we hereby affirm the conviction of
appellant LEONORA DY y ABENIS of the crime of Estafa and sentence her to
suffer:
In Criminal Case G.R. No. L-54912 (Q-8078), the penalty of
twenty-three (23) years of reclusion
perpetua, with the
accessory penalties provided by law; to indemnify the complainant Purita
Comandante in the amount of P55,000.00; and to pay the costs;
In Criminal Case G.R. No. L-54913 (Q-8079), the penalty of
twenty-one (21) years of reclusion
perpetua, with the
accessory penalties provided by law, to indemnify the complainant Purita
Comandante in the amount of P32,000.00, and to pay the costs.
SO ORDERED.
Teehankee, (Acting Chief Justice), Makasiar, Fernandez, and Guerrero, JJ., concur.
[1]
Fourth Division, composed of JJ. Crisolito Pascual, Serafin R. Cuevas and
Carolina C. Griño-Aquino (ponente).
[2] p. 1, Record, Criminal Case No. Q-8078.
[3] p. 1, Record, Criminal Case No. Q-8079.
[4] p. 11, Ibid.
[5] p. 71, Record, Ibid.
[6]
Court of Appeals Decision, pp. 24-27, Record, CA-G.R. Nos. 22632-33-CR.
[7] People vs. Hon. Sabio Sr., 86 SCRA
568, 579-580 (1978).
[8] p. 30, Record, CA-G.R. Nos.
22632-33-CR.
[9] People vs. Quesada, 60 Phil. 515, 520
(1934).
[10] p. 14, Exhibits for prosecution.
[11] t.s.n., June 5, 1978, pp. 8-9; 13-14; 19-20.
[12] Eraña, et al vs. Panzani, 74 Phil. 272
(1943).