ROMELITO ZAGADO, PETITIONER, VS. COURT OF APPEALS AND PEOPLE OF THE PHILIPPINES, RESPONDENTS.

This is a petition for review of the decision of the Court of
Appeals* dated August 28, 1986, affirming with modification,
the decision of the Regional Trial Court of Manila, Branch XXXIII, convicting
petitioner for estafa, and from the resolution denying petitioner’s motion for
reconsideration.

The factual antecedents are as follows:

Sometime in February, 1979, the petitioner was in need of cash to defray
expenses in connection with his appealed labor case. He sought assistance from his friend, Clemente Montuerto, and the
latter issued to him two (2) postdated pay-to-cash checks, a PCIB Check in the amount of P3,000.00 and another, a
Philippine Trust Co. Check in the amount of P2,000.00.

On February 28, 1979,
Apolinario Mercado, another friend of the petitioner, brought and introduced
the petitioner and Montuerto to complainant Josephine Serrano at the latter’s
office located at 504-A SMS Building, Juan Luna St., Manila. Petitioner and Montuerto requested the
complainant and her husband to exchange with cash the two postdated checks which
they had in their possession.

At first, complainant and
her husband did not accede. But Mercado
assured the complainant that the petitioner can afford to pay the money in
exchange of the postdated checks. The
peti­tioner then went to assure the complainant that the checks will be funded
when encashed.

Persuaded by the
representations and assurances of the peti­tioner, the complainant agreed to
cash the checks and handed the amount of P5,000.00 to the petitioner.

Upon maturity of the
checks, they were deposited but were dishonored and returned to the
complainant, the reason being “Account Closed.”

The complainant made
demands upon petitioner to make good the amount of the checks. She also sent petitioner and Montuerto a
demand letter for petitioner and Montuerto to make good the amount of the checks within five (5) days from the receipt of said letter.

In reply to the demand
letter of the complainant, the petitioner asked for a forty-five (45) days
grace period. But despite the
expiration of the 45 days grace period, petitioner failed to make
good the value of the checks.

When the case was brought by complainant before the Fiscal’s
Office, petitioner again promised to make good the amount of the checks, but
notwithstanding such promise, the checks in question were not redeemed.

Petitioner and Clemente Montuerto were charged with estafa, as defined in paragraph
2(d) of Article 315 of the Revised Penal Code, as amended by R.A. No. 4885 and
P.D. No. 818, before the Regional Trial Court of Manila, Branch XXXIII,
docketed as Criminal Case No.
55862. The information reads as
follows:

“That on or about the 28th day of February, 1979, in the City
of Manila, Philippines, the said accused, conspiring and confederating together
and mutually helping and aiding one another, with intent to gain, did, then and
there wilfully, unlawfully and
feloniously defraud spouses Angel and Josephine Serrano in the following
manner, to wit: the said accused, well
knowing that they had no sufficient funds, deposited in the bank and by means
of false manifestation and fraudulent representations which they made to that effect that their checks, Philippine
Commercial and Industrial Bank (Makati Branch) Check No. 115998 and Philippine
Trust Company (Caloocan Branch) Check No. 70642 in the amount of P3,000.00 and
P2,000.00, respectively, are good and covered with sufficient funds, and by
means of other similar deceits, induced said spouses Angel and Josephine
Serrano to exchange said checks with cash in the total amount of P5,000.00,
and to give and deliver to said accused
the amount of P5,000.00; that the said accused fully well knew their manifestations and representations were
false and untrue, as upon presentation of the said checks to the said banks for
payment, they were dishonored and payment refused, for reason ‘Account Closed’
and that notwithstanding due notice to them by the said Serranos that the said
checks have been dishonored, failed and refused to make good the said checks
and pay the said amount, to the
damage and prejudice of spouses Angel and Josephine Serrano in the aforesaid
amount of P5,00.00, Philippine Currency.

“Contrary to law.”

Accused Clemente
Montuerto has not been arrested and still remains at large. Consequently, only petitioner was arraigned. Upon said arraignment, he pleaded not guilty.

After due trial, the trial court rendered its decision, dated October 3, 1983, finding the petitioner
guilty of the crime charged. The dispositive portion of the decision
reads as follows:

“WHEREFORE, in view of all the foregoing considerations, the
Court finds the accused Romelito S. Zagado guilty beyond reasonable doubt of
the crime of estafa under paragraph 2(d) of Article 315 of the Revised Penal
Code, as amended, and there being no
mitigating or aggravating circumstances present to offset each other and taking
in favor of the accused the
provisions of the Indeterminate
Sentence Law, the Court hereby sentences the said accused to suffer the
indeterminate penalty of imprisonment ranging from FOUR (4) YEARS, TWO (2)
MONTHS and ONE (1) DAY of prision correccional as minimum to SIX (6) YEARS and EIGHT (8) MONTHS of prision
mayor as maximum with all the accessory penalties provided for
by law; to indemnify the com­plainant Josephine Serrano the amount of P5,000.00
without subsidiary imprisonment in case of insolvency and to pay the costs.

“It appearing that the accused Clemente Montuerto is still at
large notwithstanding the lapse of time since the order of his arrest was
issued and in order that this case against him may not appear pending for an
indefinite period of time, it is hereby ordered that the above-entitled case
with reference to said accused only, be sent to the files without prejudice on
the part of the prosecu­tion to prosecute him as soon as said accused is
apprehended.”

The petitioner appealed
to the Court of Appeals which affirmed with modification the trial court’s
decision in the following tenor:

“WHEREFORE, the decision appealed from is MODIFIED by imposing
on the appellant an indeter­minate sentence of from 6 years and 1 day of prision mayor to 8 years,
8 months and 1 day of prision mayor medium. In all other respects, the appealed decision is AFFIRMED. Costs against the appellant.

“SO ORDERED.”

His motion for
reconsideration and/or new trial having been denied, the petitioner filed the
instant petition.

In the resolution of
August 17, 1987, the Court gave due course to the petition and required the
parties to file their respective memoranda within twenty (20) days from notice
(Rollo, p. 100). The memorandum for the
petitioner was filed on October 6, 1987 (Rollo, p. 108), while the Solicitor General filed his manifestation and motion on
September 28, 1987, adopting his comment and rejoinder as his memorandum
(Rollo, p. 105).

Petitioner raised the
following assignments of error:

I

RESPONDENT COURT OF APPEALS, WITH DUE RESPECT, MISINTERPRETED THE
PROVISIONS OF ARTICLE 315 OF THE REVISED PENAL CODE INSOFAR AS HEREIN
PETITIONER IS CONCERNED.

II

RESPONDENT COURT OF APPEALS, ALSO WITH DUE RESPECT, MISAPPREHENDED THE
ESTABLISHED FACTS OF THE CASE THAT CLEARLY INDICATE THE ABSOLUTE ABSENCE OF
CRIMINAL INTENT ON THE PART OF HEREIN PETITIONER TO COMMIT THE OFFENSE CHARGED.

III

RESPONDENT COURT OF APPEALS, AGAIN WITH DUE RESPECT, ERRED IN
REFUSING TO ACQUIT HEREIN PETI­TIONER OF THE CRIME CHARGED DESPITE THE FAILURE
OF THE PROSECUTION TO PROVE NOT ONLY THE OFFENSE CHARGED BUT ALSO THE GUILT OF
HEREIN PETITIONER BEYOND REASONABLE DOUBT.

IV

EVEN ASSUMING, ARGUENDO ONLY, THAT HEREIN PETITIONER IS LIABLE BY
REASON OF THE AMOUNT HE RECEIVED FROM THE COMPLAINING WITNESS ON THE STRENGTH OF THE CHECKS DRAWN AND POSTDATED BY ACCUSED CLEMENTE MONTUERTO, SUCH LIABILITY IS
PURELY CIVIL AND NOT CRIMINAL IN NATURE.

The petition is devoid of merit.

The main issue in this
case is whether or not the liability of the petitioner is merely civil and not criminal in nature.

The petitioner contends
that under Article 315, 2(d) of the Revised Penal Code, estafa is committed by postdating a
check, or issuing a check in payment of an obligation when
the offender had no funds in the bank, or his funds deposited therein were not sufficient to cover the amount of the checks. Since it was Clemente Montuerto who issued,
indorsed and guaranteed the two checks in question, he (petitioner), who had
nothing to do whatsoever with the said checks, cannot be convicted of estafa as charged in the information.

It is further argued by the petitioner that the postdated checks
were issued as
securities for the money he received as a loan from the complainant and
his admission to the complainant’s lawyer of his obligation to pay within a
period of forty-five days from receipt of his letter-reply
indicates his good faith and lack of criminal intent to
defraud the complaining witness. For
having received the cash equivalent of the subject checks, his liability, if
any, is only civil in nature.

It was also stressed by the petitioner that in the absence of any
finding of conspiracy between him and Montuerto by the trial court and the
Court of Appeals, he cannot be convicted of the crime of estafa.

The Solicitor General
countered that even if the checks in question were issued by Clemente
Montuerto, it was the petitioner who directly and personally used the checks
and presented them to the complainant.

In negotiating directly and personally the
postdated checks issued by Montuerto and obtaining their cash value from the
com­plainant through deceit and fraudulent representations, both the trial and
appellate courts correctly interpreted the petitioner’s act as the efficient
cause which constitutes the crime of estafa as defined and penalized under
paragraph 2(d) of Article 315 of the Revised Penal Code.

It cannot be denied that
when Montuerto issued the two postdated checks, he had no funds in the bank, or
his funds deposited therein were not sufficient to cover the amount of the
checks. The fact that he went into
hiding after the incident is an evidence of guilt.

The contention of the
petitioner that he did not commit estafa because he did not issue or indorse
the postdated checks is devoid of merit. While it is true that he did not issue or indorse the postdated checks,
his and Montuerto’s concerted acts with common design and purpose in encashing
the questioned checks indicate the presence of conspiracy as charged in the information
filed against them.

But as correctly ruled by the Court of Appeals, even
without discussing the existence of conspiracy, appellant cannot escape
liability by the fact alone that he did not ascertain whether or not Montuerto
had sufficient funds to cover the check (Decision, CA-G.R. No. 02173, p. 4),
citing People vs. Isleta, 61 Phil. 332 [1935]).

It must be noted that
when the petitioner was in need of money, he asked the financial assistance of
his friend Montuerto, and the latter issued the two postdated checks. Since the petitioner could not encash the
postdated checks at the banks, he and Montuerto went to another friend,
Apolinario Mercado. Mercado brought and
introduced the petitioner and Montuerto to complainant Josephine Serrano at the
latter’s office. Petitioner and Montuerto requested the complainant and her
husband to exchange with cash the two postdated checks which they had in their
possession. At first, the Serranos
hesitated but with the assurance of Mercado and the petitioner to the
complainant that the checks will be funded when encashed, the latter exchanged
the two postdated checks with cash which she handed to the petitioner.

This issue has already been laid to rest by this Court in People v. Isleta and
Nuevo (61 Phil. 334 [1935]) where appellant without having issued or indorsed
the checks in question was held liable because of his guilty knowledge that his co-accused had no funds in the bank when he
negotiated the checks.

Both the trial court and
the Court of Appeals found the evidence of the prosecution proves beyond doubt
the guilt of the appellant, and this Court finds no cogent reason to disturb their findings and
conclusions.

WHEREFORE, the petition for review is Denied and
the assailed decision and resolution of the Court of Appeals are
Affirmed.

SO ORDERED.

Fernan, C.J., Gutierrez, Jr., Feliciano, and Cortes, JJ., concur.

* Penned by Justice Vicente V.
Mendoza and with the concurrence of Justices Josue N. Bellosillo and Hector C.
Fule.