ROBERTO CRUZ, PETITIONER, VS. COURT OF APPEALS, PEOPLE OF THE PHILIPPINES, RESPONDENTS.

The sole issue to be resolved in the instant petition is whether or
not petitioner is liable for violation of Batas Pambansa Bilang 22 for issuing
a check knowing he does not have credit with drawee bank and thereafter
claiming that the said check was not intended for circulation and negotiation,
the same having been issued only to serve as mere evidence or memorandum of
indebtedness.

The relevant antecedents are as follows, viz:

Complaining witness Andrea Mayor is a businesswoman engaged,
among others, in granting interest-bearing loans and in rediscounting checks.^[1]
Sometime in 1987, she was introduced to herein petitioner, Roberto Cruz who at
that time was engaged in the business of selling ready-to-wear clothes at the
Pasay Commercial Center.^[2] From
then on, petitioner has been borrowing money from Mayor.^[3] On
March 15, 1989, petitioner borrowed from Andrea Mayor one hundred seventy six
thousand pesos (P176,000.00).^[4] On
April 6, 1989, Mayor delivered the said amount to petitioner himself in the
latter’s stall at the Pasay Commercial Center. Cruz, in turn, issued Premiere Bank Check No. 057848 postdated April 20,
1989 for same amount.^[5] When
the check matured, complaining witness presented it to the drawee bank for
payment but the same was dishonored and returned for reason “account
closed.” When notified of the dishonor, petitioner promised to pay his
obligation in cash. No payment was
made, hence, an information for violation of Batas Pambansa Bilang 22 was filed
against the petitioner.^[6]

Upon arraignment, petitioner entered a plea of not guilty.^[7]

At the pre-trial, petitioner admitted the existence of the check.^[8]

During trial, the prosecution presented two (2) witnesses, Andrea
Mayor, herein complainant, and Marcelo Ladao, a representative of Premiere
Development Bank.

Andrea Mayor testified that she is a businesswoman engaged in the
business, among others, of rediscounting checks and lending money at an
interest of 3% to 5% monthly; that she came to know the accused Roberto Cruz
through the latter’s sisters sometime in 1987; that the accused is engaged in
the RTW business at the Pasay Commercial Center; that she rediscounted some of
the checks of the accused in previous transactions as shown by Exhibits
“C,” “C-1” to “C-3,” in the amounts of
P20,000.00, P5,000.00, P9,000.00, and P5,000.00, respectively, which were
personal checks issued by the accused for the sums he borrowed and which checks
bounced when presented for payment but were paid in cash by the accused when
the latter was notified of the dishonor.^[9]

Complaining witness Andrea Mayor further testified that on March
15, 1989, accused told her that he needed P176,000.00 and asked to be lent the
said amount; that complainant gave the accused the said amount at the latter’s
store at the Pasay City Commercial Center; that accused, in turn, issued a
check^[10]
for the same amount; that the check was signed in her presence and she was told
that accused might be able to pay before the due date on April 20, 1989; that
the check was dishonored upon
presentment by the drawee bank; that accused was notified of the dishonor and he promised to raise
the amount on May 15, 1989; that accused failed to make good his commitment,
hence, she consulted a lawyer and caused the preparation of a complaint.^[11]

Marcelo Ladao, a representative of Premiere Development Bank,
testified that accused opened Current Account No. 0101-00250-5 on May 15, 1987
and, accordingly, affixed three (3) signatures on the signature card provided
by the bank for account applicants; that the said account was closed on October
2, 1989 and that accused was duly advised of the said closure by the Branch
Manager of the Pasay City Branch. Ladao, likewise, identified the stamp marked on the face of the check in
question, which stamp indicated that the account of the depositor is already
closed.^[12]
On cross-examination, the same witness explained that the subject account was
closed at the discretion of the branch manager and that closure is normally a
result of a series of checks issued without sufficient funds.^[13]

The accused testified in his defense and proffered the defense of
denial. He denied (a) having issued the
subject check; (b) the signature “R. Cruz” appearing thereon as his;
and (c) knowing complainant Andrea Mayor and existence of previous transactions
with her.^[14]
He declared that he saw the check in question for the first time only on
January 16, 1991 when it was showed to him by the fiscal and that he never met
Andrea Mayor before.^[15] He
admitted, however, opening Current Account No. 0101-00250-37 with Premiere
Development Bank.^[16]

The trial court rejected accused’s defense and rendered judgment
as follows, to wit:

“IN VIEW OF THE FOREGOING, accused is hereby found guilty
beyond reasonable doubt of the offense charged in the information, and
conformably with the penal provision of Batas Pambansa Blg. 22, accused is
hereby sentenced to suffer the straight penalty of one (1) year imprisonment
and to indemnify the offended party in the amount of P176,000.00, Philippine
Currency. With costs.”^[17]

Aggrieved by the ruling, petitioner appealed the case to the
Court of Appeals.

On January 26, 1993, the Court of Appeals rendered judgment
affirming the trial court’s decision.^[18]

Now petitioner comes to this Court by way of a petition for
review on certiorari seeking the reversal of the respondent court’s
decision. Petitioner cites the following
for allowance of his petition, viz:

“A. Respondent Court Committed Reversible Error
and Grave Abuse Of Discretion Amounting To Lack Or Excess Of Jurisdiction in
Affirming The Finding of The Trial Court On The Basis Of Surmises, Conjectures
and Unfounded Conclusions.

x x x

“B. Respondent Court Gravely Erred In Holding
The Petitioner Liable Under BP No. 22, Despite Knowledge of the Complaining
Witness That The Account Had Long been Closed.

x x x

“C. Respondent Court Gravely Erred In Holding
That The ‘Complete Turnabout’ of the Petitioner, As Claimed By The Solicitor
General, Rendered Petitioner’s Appeal Devoid of Merit.

x x x”^[19]

Petitioner, in this case, cannot seem to make up his mind. First, he denies having issued the questioned
check, then, he claims that when he issued the same, it was more in the nature
of a memorandum of indebtedness and, as such, does not fall within the purview
of Batas Pambansa Blg. 22.

However, the issuance of the check subject of the present case is
no longer at issue since the petitioner himself, on appeal to the respondent
court, admitted having issued the check after he received the amount of
P176,000.00 from the complaining witness. Therefore, the only issue in the case at bench is whether or not
petitioner can be convicted for violation of B.P. 22.

We answer in the affirmative.

A check issued as an evidence of debt, though not intended to be
presented for payment has the same effect of an ordinary check,^[20]
hence, falls within the ambit of B.P. 22 which merely provides that “any
person who makes or draws and issues any
check to apply for an
account or for value, knowing at the time of issue that he does, not have
sufficient funds in or credit with the drawee bank x x x which check is subsequently dishonored by the drawee bank
for insufficiency of funds on credit x x
x shall be punished by imprisonment x x x“^[21]

When a check is presented
for payment, the drawee bank will generally accept the same regardless of
whether it was issued in payment of an obligation or merely to guarantee the
said obligation. What the law punishes
is the issuance of a bouncing check^[22] not the purpose for which it was issued nor
the term and conditions relating to its issuance. The mere act of issuing a worthless check is malum prohibitum.^[23]
This point has been made clear by this
Court, thus:

“’It is now settled that Batas Pambansa Bilang 22 applies even in
cases where dishonored checks are issued merely in the form of a deposit or a
guarantee. The enactment in question does
not make any distinction as to whether the checks within its contemplation are
issued in payment of an obligation or merely to guarantee the said
obligation. In accordance with the
pertinent rule of statutory construction, inasmuch as the law has not made any
distinction in this regard, no such distinction can be made by means of
interpretation or application. Furthermore, the history of the enactment of subject statute evinces the definite legislative intent to make the
prohibition all-embracing, without making any exception from the operation
thereof in favor of a guarantee. This
intent may be gathered from the statement of the sponsor of the bill (Cabinet
Bill No. 9) which was enacted later into Batas Pambansa Bilang 22, when it was
introduced before the Batasan Pambansa, that the bill was introduced to
discourage the issuance of bouncing checks, to prevent checks from becoming
‘useless scraps of paper’ and to restore respectability to checks, all without
distinction as to the purpose of the issuance of the checks. The legislative intent as above said is made
all the more clear when it is considered that while the original text of
Cabinet Bill No. 9, supra, had contained a proviso excluding from
the coverage of the law a check issued as a mere guarantee, the final version
of the bill as approved and enacted by the Committee on the Revision of Laws in
the Batasan deleted the abovementioned qualifying proviso deliberately for the
purpose of making the enforcement of the act more effective (Batasan Record,
First Regular Session, December 4, 1978, Volume II, pp. 1035-1036).

“’Consequently, what are important are the facts that the
accused had deliberately issued the checks in question to cover accounts and
that the checks were dishonored upon presentment regardless of whether or not
the accused merely issued the checks as a guarantee.’ (pp. 4-5, Dec. IAC) [pp.
37-38, Rollo].”^[24]

The importance of arresting the proliferation of worthless checks
need not be underscored. The mischief
created by unfunded checks in circulation is injurious not only to the payee or
holder, but to the public as well. This
harmful practice “can very well pollute the channels of trade and
commerce, injure the banking system and eventually hurt the welfare of society
and the public interest.”^[25]

Petitioner likewise opines that the payee, herein complaining
witness, was aware of the fact that his account with Premiere Development Bank
was closed. He claims that the payee’s
knowledge verily supports his contention that he did not intend to put the said
check in circulation much less ensure its payment upon presentment.

Knowledge of the payee of the insufficiency or lack of funds of
the drawer with the drawee bank is immaterial as deceit is not an essential
element of an offense penalized by B.P. 22. As already aforestated, the gravamen of the offense is the issuance of a
bad check,^[26]
hence, malice and intent in the issuance thereof are inconsequential. Moreover, the fact that the check issued is
restricted is likewise of no moment. Cross checks or restricted checks are negotiable instruments within the
coverage of B.P. 22.

Petitioner, on appeal, changed his theory from complete denial
that he issued the questioned check to an admission of its issuance without
intent to circulate or negotiate it. Such a change of theory however, cannot be allowed. When a party adopts a certain theory, and
the case is tried and decided upon that theory in the court below, he will not
be permitted to change his theory on appeal for to permit him to do so would
not only be unfair to the other party but it would also be offensive to the
basic rules of fair play, justice and due process.^[27]

Finally, the issue raised primarily involves a question of
fact. Our jurisdiction in cases brought
to us from the Court of Appeals is limited to reviewing the errors of law
imputed to the latter, its findings of fact being conclusive. Therefore, barring any showing that the
findings complained of are totally devoid of support in the record, such
findings must stand.^[28] After a careful consideration of the
records, we sustain the conclusion of the respondent court.

WHEREFORE, premises considered, the instant petition is
DISMISSED and the questioned decision of the respondent court is hereby
AFFIRMED en toto. Costs against the petitioner.

SO ORDERED.

Cruz, (Chairman), Davide, Jr., Bellosillo, and Quiason, JJ., concur.

^[1]
TSN, November 23, 1990, pp. 3-4.

^[2]
Id., pp. 4-5.

^[3]
Id., pp. 6-14.

^[4]
Id., p. 15.

^[5]
Id., pp. 15-18.

^[6]
Original Records, p. 1.

^[7]
Original Records, p. 14.

^[8]
Pre-Trial Order, p. 1; Original Records,
p. 25; TSN, October 5, 1990, pp. 4,5.

^[9]
TSN, November 23, 1990, pp. 3-14.

^[10]
Exhibit “B”

^[11]
Id., pp. 15-19.

^[12]
TSN, November 9, 1990, pp. 7-14.

^[13]
Id, pp. 21-23.

^[14]
TSN, May 6, 1991, p. 2.

^[15]
Id., p. 3.

^[16]
Id., p. 7.

^[17]
Decision, p. 7; Original Records, p. 120.

^[18]
Penned by Justice Minerva P.
Gonzaga-Reyes and concurred in by Justices Luis A. Javellana and Consuelo
Ynares-Santiago.

^[19]
Petition, pp. 5-7; Rollo, pp.
12-14.

^[20]
People vs. Nitafan, 215 SCRA 79,
82, citing Cushing vs. Gore, 15 Mass. 69 and Dykers vs. Leather
Manufacturers’ Bank, 11 Paige 612.

^[21]
Section 1, B.P. 22, Emphasis ours.

^[22]
Lozano vs. Martinez, 146 SCRA 523; People vs.
Veridiano II, 132 SCRA 523.

^[23]
Que vs. People, 154 SCRA 160.

^[24]
Id., pp. 164-165.

^[25]
Lozano vs. Martinez, supra,
p. 340.

^[26]
Ibid.

^[27]
BA Finance Corporation vs. Court of Appeals, 201 SCRA 157; Galicia vs.
Palo, 179 SCRA 375; Ramos vs. Intermediate Appellate Court, 175 SCRA 70;
Ganzon vs. Court of Appeals, 161 SCRA 641; Dulos Realty and Development Corporation
vs. Court of Appeals, 157 SCRA 425; Dihiansan, et al. vs. Court
of Appeals, et al., 153 SCRA 712; Dela Santa vs. Court of Appeals, et
al., 140 SCRA 44; Soriano vs. Philippine National Railways, 84 SCRA 722;
Mejorada vs. Municipal Council of Dipolog, 52 SCRA 451.

^[28]
Bunag, Jr. vs. Court of Appeals, 211 SCRA 440; Morales vs.
Court of Appeals, et al., 197 SCRA 391.