CARLOS B. GONZALES, PETITIONER-APPELLANT, VS. EULOGIO SERRANO IN HIS CAPACITY AS CITY FISCAL OF MANILA AND LIBRADA ASIS, RESPONDENTS-APPELLEES.

Direct appeal by Carlos B. Gonzales, hereinafter referred to as
the complainant, from a decision of the Court of First Ins­tance of Manila,
dismissing his petition for a writ of mandamus to compel the City Fiscal of
Manila, hereinafter referred to as the City Fiscal, to file an information for estafa against Librada S. Asis, hereinafter referred to as the respondent.

Sometime after November
17, 1964, complainant filed with the office of the City Fiscal a
charge for estafa against the respon­dent, which was
referred to Assistant Fiscal Rodolfo A. Nocon,
hereinafter referred to as the prosecutor, for preliminary inves­tigation.  After conducting the same, the prosecutor
submitted to the City Fiscal a report recommending that said charge be dropped,
upon the ground that the obligation involved therein is civil in nature.  This recommendation having been approved by
the City Fiscal, com­plainant appealed to the Secretary of Justice, who upheld
the action appealed from.  Thereupon,
complainant commenced the present action for mandamus, in the Court of First
Instance of Manila, against the City Fiscal and respondent.  In due course, said Court rendered the
abovementioned decision dismissing the petition here­in, without pronouncement
as to costs.  Hence, this appeal by the
complainant.

As stipulated by the parties, the facts are correctly set forth
in the aforementioned report of the prosecutor, from which we quote:

“This is a complaint for estafa in
that res­pondent bought from
the complainant on October 27, 1964, assorted plastic flowers in the total
amount of P10,172.00.

“It is the contention of complainant that the agreement is
C.O.D. and for which respondent paid on the same date that she took delivery of
the flowers, P2,000 cash and the balance of P8,172.00 by EBC Check No. B.C.
907516.

“The next day, however, respondent went back to complainant to
request him not to deposit her check as she had no sufficient funds in the
bank, as she was not able to make
deliveries of the flowers to her customers during the night and subsequently
she was unable to replenish her bank account.

“Apparently, complainant agreed by not depositing her check,
and waited up to Nov. 17, 1964 for respondent to make a partial payment on ac­count
of said check by accepting P5,556.00 as evi­denced by a receipt to that effect.

“The amount of P5,556.00 plus the P2,000.00 paid previously,
show that respondent was able to make a total payment of P7,556.00, leaving a
bal­ance of P2,612. 00.

“It is the theory of respondent that she and complainant had
an agreement that those articles which could not be sold can be returned and
she was willing to return the same to complainant at any time.

“Be that it may, it appears that there was a novation
of contract between the parties, from a cash transaction, to an agreement to
pay the bal­ance later when complainant agreed not to cash the check and
accepted partial payment on Nov. 17, 1964. Furthermore,
the manifestation of respondent that she is ready and willing to return the
articles unsold, negates criminal liability. 
The obligation is civil in nature, one for specific performance with
damages and not for estafa.

“        x           
x        x         x          x          x          x          “

His Honor, the Trial Judge, sustained the City Fiscal’s theory, stating:

“While the original agreement for the sale of plastic flowers and
leaves was for cash on delivery (C.O.D,), nevertheless, the acceptance by
Gonzales of part of the consideration in check, was in effect a modification of
the terms thereof because a check is net it good tender of payment and need not
be accepted by a creditor entitled to cash (Keystone Grape Cc. vs. Hustis 122 N. E. 269). 
This is so because a check is only means of payment and the debt will
not he extinguished unless and until the check is presented to and honored by
the drawee bank (see par. 2, Art. 1249, Civil Code).

“Morever, early the day following
the delivery of the check, Asis requested Gonzales
not to present it for encashment because she did not have sufficient funds deposited in the bank to cover the
payment there of.  Gonzales apparently
agreed, and in effect the check in question was never deposited by him in his
current account.  On the other hand, on November 17, 1964 Asis tendered the sum of P7,556 to Gonzales, who accepted
the same as partial payment on account of the check and he issued to the former
the corresponding receipt.  Under this
situation, the original agreement of a cash sale transaction had been converted
into a sale payable in installments and as a result the relation of the parties
thereby became that of creditor and debtor. 
Hence, the failure of Asis to pay Gonzales the
balance of P2,612 would give rise only to a cause of action for the collection
thereof.

“Bet even granting hat the issuance of the check by on October
27, 1964, would constitute a violation of paragraph 2, sub-paragraph (d) of
Article 315 of the Revised Penal Code, nevertheless any incipient criminal
liability was deemed avoided, because the parties, a short time after the
delivery of the check, changed the original trust relation into an ordinary
creditor-debtor situation.

“It is true that after a crime has been committed, the
criminal liability of the offender cannot be compounded by subsequent
agreements between the offender and the offended party (U.S. vs. Montañez, 8 Phil. 620; People vs. Velasco, 42 Phil. 76),
but there seems to be no prohibition in our law to pre­vent the parties to a
contract to novate it so that any incipient criminal
liability under the first contract is thereby avoided (People vs. Trinidad, 53
O.G. 731).” (See also People vs. Galsim, 45 O.G.
3466; and People vs. Doniog, 43, O. G. 4500.)

“The ‘novation theory,’ which was
originally enunciated by the Court of Appeals, was impliedly recognized by the
Supreme Court in the case of People vs. Nery
(L-19567, Feb. 15, 1964), x x x

“        x           
x        x         x          x          x          x          “

“Considering that the novation of
the contract between Asia and Gonzales was made shortly after the delivery of
the check and long before the filing of a complaint by Gonzales with the Office
of the City Fiscal, this official was x x x justified in not filing an information for ‘estafa’ against Asis.

“Another fundamental barrier to the granting of the relief
prayed for is that the duty of the City Fis­cal to prosecute involves
discretion and, for this reason, it cannot be controlled by mandamus.  To this effect was the ruling of the Supreme
Court in the case of Beatriz Ramos Vda. de Bagatua vs. Pedro Revilla (55
O.G. 10399) x x x “.

We find no plausible reason to disturb the conclusions thus
reached in the decision appealed from, for;

1.    
Complainant alleges that the sale
to respondent was on a C.O.D. basis.  The
City Fiscal did not explicitly find it to be so, and was seemingly reluctant to
so characterize the transaction bet­ween them. 
Indeed, pursuant to complainant’s petition herein, respondent made a
P2,000 cash deposit several days before October 27, 1964. 
When the goods were delivered on that date, com­plainant accepted a
check for P8,172, which does not extinguish the obligation for this sum until
cashed.  When early the next day,
respondent asked complainant to hold off encashment, because, having failed to
deliver the goods to her customer the night before, she had been unable to
deposit sufficient funds to cover the amount of the check, complainant agreed
thereto.

2.     
As stated in the decision appealed
from, in the prelimi­nary investigation conducted by the prosecutor:

“x x x the
version of Gonzales (complainant) was to the effect that Asis
(respondent) received from him, on consignment, plastic flowers and
leaves valued at P10,172, with the obligation to sell them and to deliver to
him the proceeds thereof or to return those which she could not sell; that Asis did not return any unsold goods and turned over to him
only P7,556, thereby failing to account for the sum of P2,612.  On the other hand, Asis
claimed that the agreement she had with Gonzales was that she could return the
goods which could not be sold and that she was willing to do so at any time.

“        x           
x        x         x          x          x          x          “

Respondent’s “obligation to sell” the goods
aforementioned and “to deliver” to the complainant “the proceeds
thereof or to re­turn those which she (respondent) could not sell,”
is inconsistent with complainant’s theory to the effect that the
transaction between them was a C.O. D. sale, and suggests that their deal was
more in the nature of a sale on commission. 
This explains complainant’s behavior after delivery of the flowers to
respondent, particularly the acceptance of a check, in lieu of cash,
complainant’ s acquiescence to withholding encashment of said check, and the
fact that complainant had never presented it to the payee bank for the
collection of its face value.

3.     
The City Fiscal and the lower
court have correctly held that, even if the original agreement had been a
C.O.D. sale, the same should be deemed novated into a
sale on credit, in consequence of the subsequent acts of the parties to said
agreement, and that respondent’s failure to pay the balance of P2,612 produced
no more than a civil responsibility.

4.     
As pointed out in People vs. Nery^[1]
novation prior to the filing of the criminal
information – as in the case at bar – may con­vert the relation between
the parties into an ordinary creditor-debtor relation, and place the
complainant in estoppel to insist on the ori­ginal
transaction or “cast doubt on the true nature” thereof.

5.     
Damage, or prejudice2 as an essential element of estafa,
has not been sufficiently established. Although the balance of P2,612 has not
been paid, complainant is admittedly entitled to the return of the goods which
have not, as yet, been sold by respondent. 
The lat­ter is willing to turn them over to him but, apparently,
complainant is not interested in getting them back, for he has never demanded
the return thereof.

6.     
Since the City Fiscal is entitled
to use his judgment and a measure of discretion in the appreciation of the
evidence presented to him, it is clear that the exercise of such judgment and
discretion, under the facts and circumstances already adverted, may not be con­trolled
by mandamus.3

WHEREFORE, the decision appealed from is hereby affirmed,
with costs against petitioner, Carlos B. Gonzales.

IT IS SO ORDERED.

Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez,
Castro, Angeles, and Fernando, JJ., concur.

^[1]
L-19567, February 5, 1967.

2
People v. Habana, 76 Phil. 1.

3
People v. Agasang, 60 Phil. 182; Gonzalez v.
Court of First Instance, 63 Phil. 846; Suarez v. Platon,
69 Phil. 556; People v. Sope, 75 Phil. 810; Guiao v. Figueroa, 94 Phil. 1022; Maddela v. Aquino,
104 Phil. 433; Sy Ha v. Galang,
L-18513, April 27, 1963; Hodges v. Ganzon,
L-18086, August 31, 1964, Llanto v. Dimaporo, L-21905, March 31, 1966; Perez v. Monetary
Board, L-23307, June 30, 1967.