G.R. No. 123567. June 05, 1998
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. ROBERTO TONGKO, ACCUSED-APPELLANT.
PUNO, J.:
the RTC of Pasig City, Branch 156 finding him guilty of estafa under
Article 315(2)(d) of the Revised Penal Code. He was sentenced to suffer
twenty seven (27) years of reclusion perpetua and to indemnify Carmelita
V. Santos by way of actual damages in the sum of P100,000.00 and to pay
the cost of suit.
Accused was charged under the following Information:
“That on or about the 20th day of August, 1993, in the Municipality
of Pasig, Metro Manila, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, by means of deceit and false
pretenses committed prior to or simultaneously with the commission of
the fraudulent acts, did then and there willfully, unlawfully and
feloniously make or draw and issue to one, Carmelita Santos to apply on
account or for value, the check described below:
said accused 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 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 “Account
Closed” and despite the lapse of three (3) banking days from receipt of
notice that said check has been dishonored, the accused failed to pay
said payee the face amount of such check or to make arrangement for full
payment thereof, to the damage and prejudice of said Carmelita Santos
in the total amount of P100,000.00.CONTRARY TO LAW.”
Accused pled not guilty and underwent trial.
The evidence for the prosecution shows that on September 21, 1990, accused opened savings and current accounts with Amanah Bank.[1]
In the morning of August 20, 1993, Marites Bo-ot brought the accused to
the office of Carmelita V. Santos at Room 504 Pacific Place, Pearl
Drive, Ortigas Center, Pasig City to borrow money.[2] The accused asked for P50,000.00 to be paid not later than December 1993.[3]
He assured Santos that his receivables would come in by November 1993.
He persuaded Santos to give the loan by issuing five (5) checks, each in
the sum of P10,000.00, postdated December 20, 1993 and by signing a
promissory note.[4] The
promissory note was co-signed by Bo-ot. In the afternoon of the same
date, the accused returned to Santos and borrowed an additional
P50,000.00. Again, he issued five (5) checks, each worth P10,000.00
postdated December 20, 1993. He also signed a promissory note together
with Bo-ot.[5]
On September 14, 1993, Amanah Bank closed accused’s current
account for lack of funds. On October 19, 1993, accused himself
requested for the closing of his savings account.[6]
Santos did not present accused’s checks to the drawee bank on their due date upon the request of accused himself.[7] Instead, the checks were presented on March 1, 1994 but were dishonored as accused’s accounts had been closed.[8]
Accused was informed that his checks had bounced. He promised to make
good the checks. He failed to redeem his promise, hence, the case at
bar.[9]
The accused testified for himself. Nobody corroborated his
testimony. He admitted the evidence of the prosecution but alleged that
the postdated checks were issued a day or two after he signed the
promissory notes.[10] Obviously, he was relying on the defense that the checks were in payment of a pre-existing obligation.
As aforestated, the trial court convicted the accused. He appealed to this Court and changed his counsel.[11] He now contends:
“I
THE TRIAL COURT ERRED IN HOLDING THAT THE ISSUANCE OF THE TEN (10)
POSTDATED CHECKS (EXHS. “C” TO “L”) BY THE ACCUSED-APPELLANT CONSTITUTED
FRAUD WHICH INDUCED THE PRIVATE COMPLAINANT TO EXTEND THE LOANS. IT IS
RESPECTFULLY SUBMITTED THAT THE INDUCEMENT WAS THE EXECUTION OF THE TWO
(2) PROMISSORY NOTES AS WELL AS THE CO-SIGNING THEREOF BY MA. THERESA
DEL ROSARIO BO-OT (WHO INTRODUCED ACCUSED-APPELLANT TO PRIVATE
COMPLAINANT), IN A JOINT AND SEVERAL CAPACITY.II
THE TRIAL COURT ERRED IN NOT HOLDING THAT THE POST-DATED CHECKS WERE IN PAYMENT OF PRE-EXISTING OBLIGATIONS.
III
THE TRIAL COURT ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY OF
ESTAFA AS CHARGED, AND IN IMPOSING A STIFF PRISON TERM OF 27 YEARS OF
RECLUSION PERPETUA, A PENALTY “TOO HARSH AND OUT OF PROPORTION” AS TO BE
VIOLATIVE OF THE CONSTITUTION.”
The appeal is without merit.
Estafa, under Article 315, paragraph 2(d) of the Revised Penal
Code, as amended by Republic Act No. 4885, has the following elements:
(1) postdating or issuance of a check in payment of an obligation
contracted at the time the check was issued; (2) lack of sufficiency of
funds to cover the check; and (3) damage to the payee thereof.
To avoid the first element, appellant contends that he was able
to borrow P100,000.00 from Santos due to the promissory notes he
co-signed with Bo-ot and not due to the postdated checks he issued. We
reject this contention. Firstly, this contention was contrived only
after appellant’s conviction in the trial court. The records show that
appellant did not raise this defense in the trial court. He cannot fault
the trial court for failing to consider a defense which he never
raised. Secondly, Santos is the best person who can testify on what
induced her to lend P100,000.00 to the appellant. Santos categorically
declared that it was the issuance of postdated checks which persuaded
her to part with her money. We quote her testimony, viz.:[12]
“Q What happened to those checks you mentioned in the promissory note?
A When presented to the bank they were all returned by the bank for reason, account closed.
Q Before this was deposited to the bank when the accused came
to your office and loaned money from you, what was his representation if
any to you?A That his collection will come in by Nov. 1993 and also the
checks issued to me will be definitely funded on the date that it will
become due.Q Were you persuaded as a result of the statement of the
accused that these checks will be good that you parted away the amount?A Yes, sir.”
There is likewise no merit to the submission of appellant that his
postdated checks were in payment of a pre-existing obligation. Again, we
note appellant’s change of theory in foisting this argument. In the
trial court, appellant testified that he issued the postdated checks,
thru Bo-ot, a day or two after he obtained the P100,000.00 loan from
Santos.[13] The falsity of the
uncorroborated claim, however, is too obvious and the trial court
correctly rejected it. The claim cannot succeed in light of Santos’
testimony that the issuance of said checks persuaded her to grant the
loans. A look at the two promissory notes will show that they bear the
date August 20, 1993 and they referred to the postdated checks issued by
the appellant. There could be no reference to the postdated checks if
they were issued a day or two after the loans. In this appeal, however,
appellant offers the new thesis that since the checks were postdated
December 1993, ergo, they were issued in payment of the P100,000.00 he
got from Santos on August 20, 1993. The postdating of the checks to
December 1993 simply means that on said date the checks would be
properly funded. It does not mean that the checks should be deemed as
issued only on December 1993.
Lastly, appellant contends that the penalty of twenty seven (27)
years of reclusion perpetua is too harsh and out of proportion to the
crime he committed. He submits that his sentence violates section 19(1),
Article III of the Constitution which prohibits the infliction of
cruel, degrading or inhuman punishment. We are not persuaded. In People
v. de la Cruz,[14] we held
that “x x x the prohibition of cruel and unusual punishments is
generally aimed at the form or character of the punishment rather than
its severity in respect of duration or amount, and apply to punishments
which never existed in America or which public sentiment has regarded as
cruel or obsolete x x x for instance those inflicted at the whipping
post, or in the pillory, burning at the stake, breaking on the wheel,
disemboweling, and the like…” In People v. Estoista,[15] we further held:
“It takes more than merely being harsh, excessive, out of
proportion, or severe for a penalty to be obnoxious to the Constitution.
The fact that the punishment authorized by the statute is severe does
not make it cruel and unusual. Expressed in other terms, it has been
held that to come under the ban, the punishment must be “flagrantly and
plainly oppressive,” “wholly disproportionate to the nature of the
offense as to shock the moral sense of the community.”
The legislature was not thoughtless in imposing severe penalties for
violation of par. 2(d) of Article 315 of the Revised Penal Code. The
history of the law will show that the severe penalties were intended to
stop the upsurge of swindling by issuance of bouncing checks. It was
felt that unless aborted, this kind of estafa “… would erode the
people’s confidence in the use of negotiable instruments as a medium of
commercial transaction and consequently result in the retardation of
trade and commerce and the undermining of the banking system of the
country.”[16] The Court cannot impugn the wisdom of Congress in setting this policy.
IN VIEW WHEREOF, the Decision dated January 16,
1996 of the RTC of Pasig City, Br. 156 in Criminal Case No. 106614
convicting appellant is affirmed. Costs against appellant.
SO ORDERED.
Regalado (Chairman), Mendoza, and Martinez, JJ., concur.
Melo, J., on leave.
[1] TSN, November 16, 1994, p. 3.
[2] TSN, September 20, 1994, p. 4.
[3] Ibid., pp. 5-6.
[4] Ibid., p. 6.
[5] Ibid., p. 10.
[6] TSN, November 16, 1994, pp. 9-10.
[7] TSN, November 9, 1994, p. 10.
[8] Ibid., pp. 7, 8, 10.
[9] Ibid., pp. 11-12.
[10] TSN, June 7, 1995, pp. 9, 11.
[11] In the trial
court, accused was represented by Atty. Fernando Fernandez. On appeal,
he hired the services of Atty. Manuel Tomacruz.
[12] TSN, November 9, 1994, p. 7.
[13] TSN, June 7, 1995, p. 7.
[14] 92 Phil. 906 [1953].
[15] 93 Phil. 647 [1954].
[16] See “whereas” clauses of P.D. 818.