G.R. No. 120672. August 17, 2000
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. MARIO MYRNO TAN, ACCUSED-APPELLANT.
QUISUMBING, J.:
26, 1995, by the Regional
Trial Court of Antipolo, Rizal, Branch 74, in Criminal Case No. 91-6398,
finding appellant Mario Myrno Tan guilty of estafa under paragraph 2
(d) of Article 315 of the Revised Penal Code and sentencing him to
reclusion perpetua.
In an Information dated January 11, 1991, Prosecutor Eduardo Fabian
charged appellant with the crime of estafa allegedly committed as
follows:
That in or about and during the month of July 1990 up to September 1990,
in the Municipality of Antipolo, Province of Rizal, Philippines, within
the jurisdiction of this Honorable Court, the above-named accused, with
intent to defraud New Durawood Company Inc., herein represented by one,
Wilson M. Gaw and by means of deceit and false representation, did then
and there wilfully, unlawfully and feloniously make out and issue
Security Bank and Trust Company Check No. 293232 postdated October 1,
1990 in the amount of P254,037.00, to apply on account, well-knowing at
the time of issue he did not have sufficient funds in or credit with the
drawee bank for the payment in full of the face amount of such check
upon its presentment, which check when presented for payment within
ninety (90) days from the date thereof was subsequently dishonored by
the drawee bank for the reason of Drawn Against Insufficient Funds and,
despite receipt of notice of such dishonor the accused failed to pay
said payee the face amount of said check or make arrangement for full
payment thereof within three (3) days after receiving notice, to the
damage and prejudice of the said New Durawood Company, Inc. in the
aforementioned amount of P254,037.00.
CONTRARY TO LAW.[1]
Upon arraignment, appellant, assisted by counsel, entered a plea of
not guilty to the charge.[2]
Thereafter, trial on the merits ensued. Subsequently, the trial court
rendered its verdict finding appellant guilty as charged. The
dispositive portion of its decision reads:
WHEREFORE, in view of the foregoing, and computing the penalty
corresponding to the P254,037.00 amount defrauded in accordance with the
foregoing provision, the Court hereby sentences accused Mario Myrno Tan
to suffer the penalty of Reclusion Perpetua (the
Indeterminate
Sentence Law not being applicable to persons convicted of offenses
punished with death or life imprisonment (Section 2, Act. No. 4105 as
amended by Act. No. 4225), the Court cannot therefore impose a minimum
penalty that is one degree lower than Reclusion
Perpetua). In
addition accused is likewise sentenced to indemnify complainant New
Durawood Company the amount of P254,037.00 by way of actual damages plus
legal interest and to pay the Costs.
SO ORDERED.[3]
In view of the penalty imposed, the case is now before us on appeal.
The facts of this case on record are as follows:
Private complainant New Durawood Company is engaged in the buy and sell
of construction materials, with Wilson Gaw (Gaw) serving as manager of
its branch in Mayamot, Antipolo, Rizal. Appellant Mario Myrno Tan,
owner of Hocson Trading, was among the regular customers of the company.
As a matter of practice between the parties, appellant would first place
his orders for construction materials with private complainant. Then
private complainant would compute the total amount involved and then
show it to appellant. Thereafter, the company would prepare the invoice
and appellant would issue post-dated checks in payment for the ordered
supplies. The materials would then be delivered later either to
appellant’s warehouse in Caloocan City or the construction site. It was
appellant’s caretaker who received the materials and signed the
delivery receipts.
Complainant’s branch manager, Wilson Gaw, testified that:
Sometime in July or August 1990, appellant came to his store to procure
construction supplies. After computing the total amount of the ordered
materials, appellant issued a check. Appellant told Gaw about his
(appellant’s) big construction project and assured Gaw that the check
appellant would issue as payment for the materials was as good as cash.
Because of appellant’s representation, Gaw accepted appellant’s
Security Bank and Trust Company (SBTC) Check No. 293232 post-dated
October 1, 1990, in the amount of P254,037.00 corresponding to the
amount of materials that appellant ordered. Thereafter, deliveries were
made as evidenced by the following invoices[4] issued by private complainant:
& DATE
BY
The SBTC check paid by appellant was deposited by private complainant at
the Rizal Commercial and Banking Corporation. But the check was
dishonored as it was drawn against insufficient funds.
Another witness for the prosecution, Sylvia Gaerlan, testified that she
was the current account bookkeeper of SBTC at Salcedo Village, Makati.
She said that she called up appellant to inform him of the dishonor of
said check, but it was only appellant’s secretary who answered. The
secretary in turn informed appellant of the check’s dishonor.
Gaw said he made several verbal demands upon appellant to make good his
check. Gaw claimed that when he went to see appellant and demanded
payment from the latter, appellant said that he had no money. Next, the
company sent a letter to appellant demanding payment of all his checks
that bounced which amounted already to P1,657,483.61, including SBTC
Check No. 293232. Even after the written demand, appellant still failed
to redeem the bouncing checks.
Finally, the company filed several criminal cases against appellant
because of the several bouncing checks he had issued. These criminal
cases were filed in the different branches of the Regional Trial Court
in Antipolo, Rizal. The present case involves only the abovecited SBTC
check.
Appellant was arrested on February 7, 1991 pursuant to the order of
arrest issued by the trial court. Upon application, appellant was
allowed to post bail for his provisional liberty. Thereafter, on motion
of the prosecution, the trial court directed the Commissioner of
Immigration and Deportation to include appellant in its hold order list
to prevent appellant from leaving the country.[5]
On the scheduled date of arraignment on March 13, 1991, appellant failed
to appear and so the trial court ordered his immediate arrest. But in
view of the valid reason manifested by appellant, the trial court
recalled the warrant for appellant’s arrest. Nonetheless, appellant
failed to appear for his arraignment on July 10, 1991. Accordingly, the
trial court issued an alias warrant for appellant’s arrest and
cancelled his bail bond in favor of the government. In the meantime,
the case was archived until the appellant could be apprehended. On
August 22, 1992, private complainant informed the trial court that
appellant was being detained at the PNP Criminal Investigation Service
field office in Cainta, Rizal in connection with other criminal cases
filed against appellant. Based on said information, the trial court
ordered the jail warden in PNP CIS in Cainta, Rizal to bring the
appellant for the arraignment on October 21, 1992. Just the same,
appellant failed to appear during said hearing.[6]
Later on, the police reported that appellant escaped from their
detention center. On January 24, 1993, appellant was rearrested and
then detained at the Rizal Provincial Jail. When he was finally
arraigned on May 10, 1993, appellant pleaded not guilty to the
charge.[7]
Testifying in his defense, appellant admitted issuing the check in
question but vehemently denied having received the materials he ordered.
Thus, he claimed he did not deposit the corresponding amount to fund
the check. He declared that the persons who signed in the delivery
receipts were not his authorized representatives. He also pointed out
that all the invoices for the materials had a stamp marking them as paid
for by MBTC (Metropolitan Bank and Trust Company) checks which were not
his. He stated that Ernie Conwi, to whom the materials were delivered,
had his own construction firm not in any way connected with his
business.
Unfortunately, the trial court did not lend credence to the defense put
up by appellant and on the basis of the evidence adduced by the
prosecution, held appellant guilty as charged and sentenced him, as
stated, to reclusion perpetua. Appellant
seasonably filed his notice of appeal.[8]
Appellant now asserts before us that the trial court erred:
I
…IN FINDING THAT THE POST-DATED CHECK [EXH. “F”] WAS ISSUED
IN
PAYMENT OF AN OBLIGATION OR FOR A CONSIDERATION THAT WAS ACTUALLY
DELIVERED TO THE ACCUSEDII
…IN NOT FINDING THAT THE GOODS COVERED BY SALES INVOICES HAD
BEEN
PAID FOR BY CHECKS BELONGING TO ANOTHER PERSON AND NOT TO THE
ACCUSED-APPELLANTIII
…IN HOLDING THAT THE EVIDENCE ADDUCED ESTABLISHES BEYOND
REASONABLE DOUBT THE GUILT OF THE ACCUSED FOR THE CRIME CHARGEDIV
…IN CONVICTING THE ACCUSED OF THE CRIME CHARGED.[9]
The main issue is whether or not there is sufficient evidence to support
the conviction of the appellant for estafa beyond reasonable doubt. In
resolving this issue, we must inquire whether all the elements of
estafa have been proved. In particular, we must find out if there was
consideration for the issuance of the cited bouncing check.
Appellant contends that the prosecution failed to sufficiently prove
that the merchandise he ordered were delivered to and received by him or
his authorized representatives. Thus, appellant argues, he cannot be
held liable for estafa since he was not able to obtain goods from the
private complainant by means of the check he issued.
After a close study of the evidence on record in this case, we are
convinced that the trial court erred in finding that appellant’s check
was issued for consideration. Hence, it also erred in convicting
appellant. We shall now discuss these points in detail.
Article 315 (2)(d) of the Revised Penal Code penalizes any person who
shall defraud another by postdating a check or issuing a check in
payment of an obligation when the offender has no funds in the bank or
his funds deposited therein are not sufficient to cover the amount of
check. The elements therefore of this form of estafa are (1) postdating
or issuing 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. Damage and deceit are
essential elements of the offense and must be established with
satisfactory proof to warrant conviction. The false pretense or
fraudulent act must be committed prior to or simultaneously with the
issuance of the bad check.[10]
The transaction between the parties here is in the nature of contract of
sale whereby private complainant (seller) obligates itself to deliver
construction materials to appellant (buyer) who, in turn, binds himself
to pay therefor a sum of money or its equivalent (price). The contract
of purchase and sale is reciprocal and from it arises not only the
obligation to deliver the thing but also that of paying the price.
There is actual delivery when the thing sold is placed in the control
and possession of the buyer or his agent.[11]
In this case, there is no ample proof that appellant or his
representatives ever received the merchandise ordered. On the contrary,
witness Gaw himself admitted that the construction materials were
received by Ernie Conwi, Nards Gabatin and an unidentified person, all
of whom were not authorized by appellant. Nor was it shown that these
persons turned over the merchandise to appellant. During his
cross-examination, Gaw declared:
ATTY. BELLA RAMONA ANTONANO
Q: Mr. Witness, for how long has the accused been your customer?
A: I cannot recall, mam, for quite 6 months.Q: So, when he orders from you, who usually receive the goods he
orders from you?
A: It is only his caretaker, mam.Q: Were you ever furnish (sic) the name of the caretaker of Mr. Tan
to receive the goods?
A: No, mam.Q: So, you do not know as to who are these persons that receive for
and in behalf of Mr. Tan?
A: No, but Mr. Tan said at his given address he has a person
right there to receive those goods.Q: And that at any rate no name has given to you by Mr. Tan as to
who is going to receive the goods to be delivered?
A: Yes, mam.Q: So, May I refer to your Exhibit “A”, your sales invoice
marked
as Exhibit “A” there appears to be a name Ernie Conwi which was also
marked as Exhibit “A-1” for the prosecution. Now, do you know if this
person is an authorized representative of Mr. Tan?ATTY. DIAZ III: You honor, I think the best evidence would be the
document itself.ATTY. ANTONANO: Yes, your honor.
ATTY. DIAZ III: What does the document say, counsel?
ATTY. ANTONANO: Received the above goods in good order and
condition. My question is do you know if this person is authorized
representative of Mr. Tan to receive goods in his behalf?COURT: Witness may answer.
A: No, but the address given here as per instruction of Mr. Tan he
has the person who will receive these goods.Q: But only a person you do not know of who specifically the person
who will going to receive this?
A: Yes, mam.ATTY. ANTONANO:
Q: And also showing to you Exhibits “B”, “C” and “E” there
appears also here the name Nards A. Gabatin for these 3 exhibits, do you
know if this person is an authorized representative of Mr. Tan to
receive?
A: No.Q: And also on Exhibit “D” there also appears a signature
which
cannot be determine (sic) who is the person signing for in this
particular receipt. So, you do not know also who is this person who
receive (sic) the goods which you delivered to Mr. Tan?
A: Yes, mam.Q: Now, Mr. witness, in that particular case is it not the policy of
your office also to ascertain whether the persons who received the
items or the goods are authorized representative of your customer?
A: No, mam.Q: Despite the substantial amount involved in the receipt, Mr.
Witness?
A: Yes, mam.[12]
Furthermore, the records indicate that the materials, although addressed
to Hocson Trading, were delivered to Conwi’s apartment in Karangalan
Village, Cainta, Rizal.[13]
This contravenes the standing arrangement between the parties. As a
matter of practice, the merchandise should have been sent to appellant’s
warehouse or the construction site designated by appellant. This fact
lends credence to appellant’s assertion that he did not receive the
materials he ordered.
Another factor which bolsters appellant’s defense is the fact that the
invoices showed the materials were paid for by checks not belonging to
appellant. Note that appellant was charged here of estafa for obtaining
merchandise from the offended party by means of the SBTC Check No.
293232 he issued. But, as appellant pointed out, Sales Invoices Nos.
17442 and 15117 bear the stamp “PAID” and the handwritten notation
reading “MB
TC 062382 9/19” while Sales Invoices Nos. 15307, 15308 and 15309
contain a similar stamp “PAID” and a notation “MBTC 062392 9/27”.
Appellant stated that he does not have an account with MBTC, a claim not
disputed by the prosecution. Hence, we can reasonably conclude that the
merchandise covered by the aforesaid invoices were paid by MBTC Check
Nos. 062382 and 062392 presumably drawn by another person, but not by
appellant. Nor did they involve SBTC Check No. 293232 that appellant
earlier issued though postdated October 1, 1990.
Clearly, one element of estafa is missing in this case: no damage was
sustained by private complainant by reason of appellant’s issuance of
his check. Based on the documentary and testimonial evidence, it was
not proved that appellant received something of value from private
complainant. Appellant had no obligation to pay him, or to make good
the SBTC check. The evidence consisting of the invoices, deliveries of
materials and the bouncing MBTC checks does not and could not
incriminate appellant. Consequently, appellant cannot be held guilty of
estafa for lack of evidence against him.
WHEREFORE, appellant MARIO MYRNO TAN is
hereby
ACQUITTED of the charge against him. He is ordered immediately RELEASED
from confinement unless held for some other legal cause. No costs.
SO ORDERED.
Bellosillo, (Chairman), Mendoza, Buena, and
De Leon, Jr., JJ., concur.
[1] Rollo, p. 5.
[2] RTC Records,
p. 85.
[3] Rollo, p. 19.
[4] Records, pp.
111-115.
[5] RTC Records,
pp. 4, 15, 22.
[6] RTC Records,
pp. 26, 29, 32, 53, 62.
[7] RTC Records,
pp. 69, 76, 85.
[8] RTC Records,
p. 257.
[9] Rollo, p. 52.
[10] People vs.
Chua, GR-130632, September 28, 1999, pp. 8-9.
[11] De Leon,
Comments and Cases on Sales, pp. 5, 151, 215 (1995)
[12] TSN, July 26,
1993, pp. 7-9.
[13] Records, pp.
111-115.