GERUNCIO H. ILAGAN, CLARO PIÑON AND ROSENDO PIÑON, PETITIONERS, VS. HON. COURT OF APPEALS, HON. ARTURO A. ROMERO, SALVADOR Q. QUIMPO AND HOMETRUST DEVELOPMENT CORPORATION, RESPO…

This case presents another instance of the mode of advocacy that
bedevils our criminal justice system, evoking
thereby the jeremiad of herein respondent corporation against the abuse
of certiorari for unnecessary delay in the resolution of a mere interlocutory
order. Indeed, considering its revelations and the supporting annexes to its comment,^[1] this appeal as initially resolved by the
First Division was advisedly accepted by the Court En Banc so that we may write finis
to such a simple incident as
a motion to quash which for years has regrettably held up the adjudication on
the merits of the main criminal actions.

The records show that on July 21, 1992, eight informations were
filed and docketed as Criminal Cases Nos. C-40482 to C-40489 in the Regional
Trial Court, Branch 120, Kalookan City, charging herein petitioners Geruncio H.
Ilagan, Claro Piñon and Rosendo Piñon as co-conspirators in the crime of
estafa.

The information in Criminal Case No. C-40482^[2]
contained the following accusatory allegations:

That on or about covering the period from July, 1990 up to
December, 1991 in Kalookan City, MM, Philippines and within the jurisdiction of
this Honorable Court, the above-named accused bei(ng) then the President,
Finance Manager and Sales Director, respectively, of the Apple Realty and
Development Corporation, a Corporation duly appointed Agent of the HOMETRUST
DEVELOPMENT CORPORATION, herein represented by its Manager, one SALLY S. GO,
defrauded and deceived the latter in the following manner, to wit: said accused conspiring and confederating
with one another, by means of false manifestations and fraudulent
representations which they made to the prospective lots and houses and lots
buyers, namely: Erlinda Sayasa, Rogelio
Damasco, Gina G. Teston, Filomena Lanoz(o), Natividad Diaz, Florida Gargoles
and Marce(l)ita Ranara, that is, by representing themselves that they are
authorized to collect/receive and issue receipts of payments from said buyers,
accused knowing fully well that they are not authorized to do so, induced and
convinced herein buyers to give and deliver, as in fact, the latter did give
and deliver to said accused the total amount of P353,500.00, Philippine
Currency, who instead of remitting the same amount to the Hometrust Development
Corporation, with deliberate intent to defraud, did then and there wilfully,
unlawfully and feloniously misapply, misappropriate and convert to their own
personal use and benefit the said amount and despite repeated demands made upon
them, refused and failed and still fail and refuse to restitute the same, to
the damage and prejudice of the said Corporation, in the aforementioned total
amount of P353,500.00. (Corrections in
parentheses ours.)’

On the other hand, in Criminal Case No. C-40483,^[3]
the information alleged as follows:

That on or about the first week of June to Nov. 23, 1991 in
Kalookan City, MM, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, being then a President, Finance Manager and
Sales Director, respectively, of the Apple Realty and Development Corporation,
conspiring and confederating with one another, defrauded and deceived the
HOMETRUST DEVELOPMENT CORPORATION, herein represented by its MANAGER, one SALLY S. GO, in the following manner, to
wit: said accused being then duly
appointed as Agents of the said Corporation in a Contract of Agency dated July
30, 1990 and they are authorized to sell lots and/or houses and lots to
prospective buyers on a commission basis with the restrictions however, that
herein Agents cannot receive any form of payment from buyers as well as to
issue any receipt therefor, accused knowing fully well of the said agreement
the terms and conditions of which are embodied in the said Contract, induced
and convinced one MARCELITA RANARA to buy and purchase lots and/or house and
lots and receive payments and issue receipts therefor, as in fact herein
complainant did give the total amount of P24,000.00 to said accused,
representing as the reservation fee/downpayment of the lots and/or houses and
lots purchase price, when in truth and in fact, they are not entitled to do so,
much less, have no personality to collect whatever amount from said prospective
buyers, but said accused, once in possession of the said amount, with
deliberate intent to defraud, did then and there wilfully, unlawfully and
feloniously misapply, misappropriate and convert to their own personal use and
benefit the said amount, and despite repeated demands made upon them to
return/deliver the said amount, failed and refused and still fail and refuse to
restitute the same, to the damage and prejudice of the complainant thereof, in
the aforementioned amount of P24,000.00, Philippine Currency.

Uniformly, all the indictments in Criminal Cases Nos. C-40484 to
40489^[4]
contained the same allegations as those in Criminal Case No. C-40483, except
with respect to the offended party, the date of commission of the offense, and
the amount subject of the offense, thus:

I

According to petitioners, on July 30, 1992 they moved to quash the
informations in Criminal Cases Nos. C-40483 to C-40489 on the ground of
duplicity of offenses charged therein. The same was dismissed by the trial court in its order of December 10, 1992 which is hereunder reproduced:

Acting on the “Motion to Quash” and the “Opposition”
thereto, and considering, as urged, that each Information filed against the
accused in Crim. Cases Nos. 40482, 40483, 40484, 40485, 40486, 40487, 40488 and
40489 indubitably show different private complainants involving different
transactions committed on different dates, which assertion is further
reinforced by the averment in the affidavit-complaints executed by the
complainants in each (of the) aforesaid criminal cases, the movant’s contention
therefore that the ground alleged in the Motion to Quash is within the
provision of Sec. 3, Rule 117, is untenable.

The applicable rule on the question of duplicitous Information is
Sec. 2(e), Rule 117, not Sec. 3 of Rule 117 as urged.

As correctly pointed out by the public prosecutor, the duplicitous
Information presupposes one or more offenses contained in one or (a) single
Information under Sec. 2(e), Rule 117, Rules of Court.

But read as it should be, each Information here clearly alleges
only one offense for one single act, consequently, the Rule in question does
not apply.

Accordingly, the Motion to Quash is hereby DENIED.^[5]

Unfazed, and obviously for the same purpose since they raised
exactly the same contentions, petitioners sought the extraordinary writ of certiorari
and prohibition from the Court of Appeals to set aside the aforesaid denial
order of the trial court. In its
decision^[6]
in CA-G.R. SP No. 31021 promulgated on June 22, 1993, said appellate court made
short shrift of the pretensions of
petitioners in these terse observations:

Petitioners allege that the informations are duplicitous and the
trial court should have quashed them. They contend that the complainants in Criminal Case No. 40482 and the
individual complainants in the seven other cases (Criminal Case No.
40483-40489) are one and the same and that the acts alleged in the first case
(No. 40482) to have been committed during the period July, 1990 to December,
1991 are the same acts charged individually in the other seven cases (Nos.
40483-40489) on dates covered by the same period alleged in the first
case. Petitioners argue that in
refusing to quash the informations, the trial court committed a grave abuse of
discretion.

These contentions are without merit. To be sure, an information is considered duplicitous and
therefore subject to dismissal if it charges more than one offense except in
cases in which a single punishment is prescribed for various offenses. (Rule 117, Sec. 3(e]). In the case at bar, each information charges
only one offense of estafa and, therefore, there is no basis for moving to
quash on the ground of duplicity of offense.

Nonetheless, in an apparent gesture of understanding
accommodation and by way of guidance to petitioners on the error of their ways
even on such elementary procedural matters, respondent court deigned to proceed
further and extended this solicitous explanation to them:

What probably petitioners want to say is that for the same act
alleged to constitute the crime of estafa they are being held liable to two
complainants. For the theory of the
prosecution appears to be that during the period July 1990 to December 1991,
petitioners, as agents of the respondent Hometrust Development Corp. defrauded
and deceived both Hometrust Development and the lot buyers by representing to
the latter that they (petitioners) were authorized to receive payments when in
fact they were not, and were thus able to collect from the lot owners the total
amount of P353,000.00 which they subsequently misappropriated and converted to
their personal use and benefit. For
this reason eight informations were filed against petitioners from which it is
clear that the cases involve different parties and amounts and that the acts
alleged to constitute estafa were committed on different dates, to wit:

x x x

Thus for every single act of misappropriation both those from whom
the amounts were received and the Hometrust Development to which the payments
were intended have brought estafa cases against the herein petitioners in (the)
latter’s capacity as president, finance manager and sales director respectively
of the Apple Realty and Development Corp., sales agent (without authority to
receive payments) of Hometrust Development Corp. It is clear
that each information charges only one offense.^[7]

That was all, that was enough, and that was correct. In fine, respondent Court of Appeals
frontally and succinctly confronted the sole issue of the alleged
multifariousness of the informations which was the same and only ground invoked by petitioners in both
the trial court and the respondent court. It did not digress into the arcanum of the application to said criminal
cases of the rule on a delito continuado or the inapplicability of a supposed non-existent rule of litis
pendentia as applied to double jeopardy, as was done
during the deliberations in this case. Rationally, it did not have to and, legally, it could not do so.

For, in no uncertain terms, Section 2, Rule 117 of the 1985 Rules on Criminal Procedure, as
intentionally amended for that purpose, mandatorily provides that “(t)he
motion to quash shall be in writing signed by the accused or his counsel. It shall specify distinctly the factual
and legal grounds therefor and the court shall consider no grounds other
than those stated therein, except
lack of jurisdiction over the offense charged” (Stress supplied).

All the way from the lower court, through the respondent court,
and now before this Court, petitioners have at least been consistent in
obdurately cleaving and limiting their plaint to the lone issue of supposed
duplicitous informations. We cannot,
therefore, conceive of how the foregoing pithy dispositions of the two courts
before us could have failed to put that matter to rest. We also cannot understand why, despite the
aforecited prohibition in Rule 117, this Court should still be expected to
consider other grounds intrusive upon the merits of the criminal cases involved
which would disturb the correct pronouncements of the two lower courts, instead
of summarily denying this petition. However, if only to dissipate intransigent reservations on our decision
on this incident, and to serve as bearings to the court a quo with
regard to our ultimate resolution thereof, we shall tread on the virtual merits
of the estafa cases in question as
the facts thereof appear from the pleadings of record.

II

Indulging all inferences in favor of petitioners, what appears to
be the implication in their otherwise defective submissions is that despite the
number of aggrieved parties, they committed only one offense of estafa, and
solely against respondent corporation which is now the subject of Criminal Case
No. C-40482. They would postulate that
into said case should be deemed integrated the separate offenses complained of
by the seven individual lot buyers, instead of the latter being made the
respective subjects of Criminal Cases Nos. C-40483 to C-40489.

What would seem to be the reason for that theory is that the
essential allegations of facts and the specifications of the offenses charged
in the informations in Criminal Cases Nos. C-40483 to C-40489 are supposedly
the same as those stated in the information in Criminal Case No. C-40482, hence
respondent corporation is the offended party in all the eight
informations. They would rebuke
respondent Court of Appeals for holding that the seven complainants in the
seven other informations are different from the complainant corporation in
Criminal Case No. C-40482. Their thesis
would be that since the informations also state that petitioners had defrauded respondent
corporation, the allegations in the informations in Criminal Cases Nos. C-40483 to C-40489 that the acts
of petitioners caused damage and prejudice to the individual complainants
mentioned therein should be treated as superfluities.

Now, the function of the extraordinary writ of certiorari,
as it is here invoked, would be to annul and set aside a purported grave abuse of discretion by the prosecutor in
filing several informations involving, according to petitioners’ theory, one
and the same offense. This argument,
however, would completely ignore the fact that the ground of double jeopardy was never raised in a motion to quash,
hence that ground cannot be made the basis for attributing grave abuse of
discretion to the prosecutor. It is
also inconsistent with the reasoning advanced during our deliberations that
these cases would fall within the purview of the constitutional right against
double jeopardy were it not for the failure of existing rules on criminal
procedure to address the instant situation. If ex hypothesi there
is no rule on double jeopardy to govern such situation and, for that matter, it
has not even been invoked in the motion to quash, it is then unpardonably
absurd to claim that its non-application by the prosecutor could constitute
grave abuse of discretion on his part.

The core issue is, therefore, whether the offenses separately
charged in the eight informations actually constitute only one offense or were
correctly considered as eight separate crimes of estafa. No hearing on this issue was ever conducted in the court below
as it was never raised therein; and the sole ground of multifariousness was,
since it could properly be, resolved by the court only on the bases of the
allegations in the motion to quash without introduction of evidence aliunde.

The issue of double jeopardy should properly have been raised in
and resolved by the trial court in the first instance as it would necessitate
evidence on the terms of the contracts or documentation of the transactions
with the lot buyers, the rights and obligations of the parties thereunder, the
binding effects thereof, the resolutory conditions or grounds for rescission,
any confirmation or repudiation thereof as may have been made by respondent
corporation, and the like. In any event,
the present petition could also have been rejected outright, without thereby
causing any undue prejudice to the parties, even merely on the bases of the
present contents and state of the records before us.

1.  The crime of estafa
committed against respondent corporation, on the one hand, and those committed
against the lot buyers, on the other, are definitely separate felonies. They were dictated by different criminal intents, committed
under different modes of commission provided by the law on estafa,
perpetrated by different acts, consummated on different occasions,
and caused injury to different parties.

The crime of estafa against respondent corporation was committed through unfaithfulness
or abuse of confidence, specifically as provided in Paragraph 1(b) of Article
315, Revised Penal Code. The operative
act in the perpetration thereof was the failure to turn over or deliver to
respondent corporation the amounts collected by the accused, despite their duty
to do so. The felony was consummated on the dates when and at the
places where such amounts were to be delivered to respondent corporation under
the agency agreement therefor or within a reasonable time from receipt of the
payments made by the lot buyers. The
aggrieved party was respondent corporation which suffered damages basically to
the extent of the sums collected in its behalf but not delivered or accounted for by the accused.

With respect to the lot buyers, the offense of swindling was
committed by deceit or false pretenses employed prior to or simultaneously with
the commission of the fraud, more specifically as provided in Paragraph 2(a) of
the same article of the Code, that is, by the accused falsely pretending to
possess the power to collect the payments due from said buyers, despite the
peculiar but specific prohibition imposed by their said principal. The felony was perpetrated through the
aforesaid the deceitful misrepresentations which made possible the unauthorized
collections. The offense was
consummated upon receipt by the accused of the amounts in the different
occasions and places where the payments were made by the lot buyers. The aggrieved parties were the lot buyers
who individually and separately suffered damages by being deprived not only of
their money but primarily of their property rights to and in the lots they
respectively purchased.

In either instance, the requisite ingredients of estafa as
separate offenses are present, that is, for respondent corporation the elements
of abuse of confidence and damage, and for the lot buyers the elements of
deceit and damage. It has been held
that estafa can be committed with the attendance of both modes of commission,
that is, abuse of confidence and deceit employed against the same victim and
causing damage to him. Thus, where an
agent deliberately misrepresented to the landowner, the real position of the
prospective buyer of the land in order to induce said owner to agree to a lower
price and, thereafter, the agent sold the
land for the higher amount which was actually agreed upon by him and the buyer,
and he then clandestinely misappropriated the excess, the crime of estafa was
committed under both modes and he could be charged under either.^[8] Withal, it has also been held that such estafa is more
properly categorized as one committed through abuse of confidence.^[9]

With much more reason, therefore, should the offense of estafa
against respondent corporation be considered discretely and separately from
those committed against the lot buyers since, inter alia, different
modes of commission and different parties are concerned. Furthermore, to underscore the distinction
between the estafa committed against respondent corporation and the lot buyers,
in estafa through abuse of confidence prior demand should be made by the
offended party on the accused to comply with the obligation before the latter
may be charged criminally,^[10] but there is no such requirement where the
estafa was committed through deceit.^[11]

As earlier stated, the damage sustained by the lot buyers is distinct
from that suffered by respondent corporation, since, primarily, the injury to
the lot buyers was the deprivation of their rights or the exercise thereof over
the properties they respectively purchased. It has long been the rule that actual damage is not necessary in estafa,
as long as it is capable of pecuniary estimation, hence mere temporary
disturbance of property rights is equivalent to damage.^[12]
Even if the prejudice is temporary, that would suffice for the element of
damage in estafa.^[13]
Here, the lot buyers involved in the criminal cases subject of the present recourse have, as a direct consequence of the acts of
petitioners, been deprived of the exercise of their rights of actual or
potential ownership over their properties since 1991 up to the present.

That the names of the seven lot buyers and the amounts they paid
are mentioned in the information in Criminal Case No. C-40482 does not have the
significance claimed by petitioners. These were only mentioned therein to explain the source of and the
amounts involved, the totality whereof constituted the element of damage to
respondent corporation. On the other
hand, the statement in Criminal Cases Nos. C-40483 to C-40489 that the accused
“defrauded and deceived” respondent corporation is the phrase which
should be considered as a surplusage. The information in each of the latter seven cases
specifically refers to the individual complainant therein, alleges how the accused “induced and convinced (the complainant) to buy and purchase lots
and/or houses and lots and receive(d) payments and issue(d) receipts
therefor,” which amounts they represented “as the reservation
fee/downpayment” for the properties sold “when in truth and in
fact they were not entitled to do so x x x to the damage and prejudice of the
complainant thereof.” Such allegations constitute the estafa contemplated
in Paragraph 2(a) of Article 315, with the respective complainants as the
offended parties separately from respondent corporation.

2. Consequent to the theory of identity of the offense committed
against respondent corporation vis-a-vis those against the lot buyers, we
reject petitioners’ plea for the dismissal of Criminal Cases Nos. C-40483 to
C-40489 which were filed each
with one lot buyer as the offended party therein. While the felonious acts perpetrated against said lot buyers do
not constitute a delito continuado, there must be an explicitation as to
whether, under the taxonomy in the Spanish concept of concurso de delitos, the
seven acts of defraudation under said informations constitute material or real
plurality, hence there are seven crimes of estafa, or should be considered as
in the nature of formal or ideal plurality, hence there is only one crime of
estafa. We rule that said seven cases fall under the category of concurso real, hence there are
seven juridically independent crimes involving said lot buyers.

The series of acts committed against the seven lot buyers was not
the product of a single criminal intent. The misrepresentation or deceit was employed against each lot buyer on
different dates and in separate places, hence they originated from separate criminal intents and consequently resulted in
separate felonies.^[14] Furthermore, even assuming arguendo
that the defraudations were
pursuant to an identical design, they were committed over a period of about one
and a half years and at substantial intervals both in time and in distance of
situs.

More conclusive is the fact that, after the commission of one
estafa, the accused could not have had the foreknowledge as to when or whether
they could replicate the same felony against another victim still necessarily
unknown. This lack of prevision on
their part definitely proves that the criminal intent entailed in a preceding
swindle could not operate as the same criminal intent in futuro as
regards another subsequent estafa.^[15] The
inescapable conclusion is that, all told, a total of eight crimes of estafa
were actually committed by the accused against different victims.

3.  There is, therefore, no
cogency in the proposition that the prosecutor acted with grave abuse of
discretion in filing eight separate charges of estafa, or, for that matter,
that the trial court and respondent court are guilty of the same discretional
error in refusing to quash the eight informations.

If, as petitioners seem to apprehend, the adverse actions of two
lower courts could create a scenario of multiple prosecutions for the same
offense or, more candidly expressed, of double jeopardy, then this is neither
the procedural stage nor the proper occasion to pass upon that
possibility. For, squarely imputable to
petitioners is the evident lack of factual basis for and a grossly defective
presentation of that issue for this Court to rule thereon in this proceeding
and at this time.

However, this observation would not foreclose relief to
petitioners if at the trial of this case the evidence presented and the
developments therein suffice to establish the supervenient fact that indeed
there could possibly be a breach of the rule of double jeopardy. Under Section 8 of Rule 117, they can still
hereafter raise that defense of non bis in idem, provided that they can lay the evidentiary bases
therefor and refute from the standpoint of substantive penal law what was
earlier said on the nature and the non-­identity of the several crimes of
estafa involved which, to repeat, we pronounced purely on the bases of existing
records sans the benefit
of any evidentiary fact since none has been adduced.

ACCORDINGLY, the impugned decision of
respondent Court of Appeals is AFFIRMED and
the instant petition is hereby DENIED, with
treble costs against petitioners. This
judgment is immediately executory and, upon entry thereof in due course, the
record of this case is ordered to be forthwith remanded to the court a quo which is hereby DIRECTED to take appropriate action
therein with all deliberate and practicable dispatch.

SO ORDERED.

Narvasa, C.J., Padilla, Bidin, Davide, Jr., Romero, Bellosillo,
Melo, Puno, Vitug, and Kapunan, JJ., concur.

Quiason, J., see concurring
opinion.

Feliciano, J., on leave.

Mendoza, J., no part.

^[1]
Rollo, 39-84. The offenses
involved here were committed from July, 1990 to December, 1991, the challenged
informations were filed in July, 1992, but up to the present the accused,
petitioners herein, have yet to be arraigned. On the other hand, a criminal case (No. 92-­111175, RTC, Manila) and a
civil case (No. C-15413, RTC, Kalookan City) based on the same transactions
were filed at the instance of petitioners against private respondent and both
cases appear to have been dismissed by the trial courts.

^[2]
Ibid., 18-19.

^[3]
Ibid., 20-21.

^[4]
Ibid., 22-33.

^[5]
Ibid., 34; per Judge
Arturo A. Romero, in Criminal Case No. C-40482-9, RTC, Branch 120, Kalookan
City. The citation therein of
“Sec. 2(e)” should be understood to now refer to Sec. 3(e).

^[6]
Ibid., 13-14; penned by
Associate Justice Vicente V. Mendoza, with the concurrence of Associate
Justices Jorge S. Imperial and Quirino D. Abad Santos, Jr.

^[7]
Ibid., 14-15.

^[8]
U.S. vs. Lim, 36 Phil. 682 (1917).

^[9]
Balitaan vs. Court of First Instance of Batangas, etc., et al., L-38544,
July 30, 1982, 115 SCRA 729.

^[10]
U.S. vs. Bleibel, 34 Phil. 227 (1916); Cf. Tubb vs. People, et
al., 101 Phil. 114 (1957), and People vs. Sullano, L-18209, June 30, 1966,
17 SCRA 488.

^[11]
U.S. vs. Asensi, 34 Phil. 750 (1916); People vs. Claudett Scott, 62 Phil. 553 (1935).

^[12]
U.S. vs. Goyenechea, 8 Phil. 118 (1907); People vs. Sevilla, 43
Phil. 186 (1922).

^[13]
People vs. Santiago, 54 Phil. 814 (1930).

^[14]
People vs. Cid, 66 Phil. 354 (1938).

^[15]
People vs. Dichupa, L-16943-44, October 28, 1961, 3 SCRA 327; Gamboa, et
al. vs. Court of Appeals, et al., L-41054, November 28, 1975, 68 SCRA
308.

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