AURORA T. AQUINO, PETITIONER, VS. COURT OF APPEALS AND PEOPLE OF THE PHILIPPINES, RESPONDENTS.

This is a petition for review seeking the reversal of the November 15, 1989 decision of the
Court of Appeals, which affirmed a trial court decision finding the
accused-petitioner, Aurora Aquino, guilty of illegal recruitment.

The information filed against the accused-petitioner reads:

“That on or about and during the period comprised between May
23, 1974 to May, 1975, both dates inclusive, in the City of Manila,
Philippines, the said accused did then and there wilfully, unlawfully and
knowingly, being then a private individual, recruit workers for employment abroad
without first obtaining the required license or authority from the Ministry of
Labor, in violation of the said Article 25, Presidential Decree 442.”
(Rollo, pp. 17-18)

Upon arraignment, the accused pleaded not guilty.  Thereupon the trial ensued.

The facts according to the prosecution are as follows:

“1.     Sometime in January of 1973, Rodrigo
Nicolas, a laborer from Sta. Cruz, Manila,
met appellant Aurora Aquino when he applied at her Manila Hotel Office in
response to a published notice of alleged recruitment of workers for Guam.  At such meeting, he applied for the position
of carpenter.  One week later, he gave
appellant P1,000.00 as part payment of the P1,500.00 required of him (pp. 9-11,
TSN, June 20, 1979).  A second payment of the P500.00 was made by Nicolas
to appellant on September 24, 1974
(pp. 35-36, TSN, ibid.).  Of the total,
P1,500.00 Nicolas paid, P1,000.00 was later refunded directly to him by
appellant (pp. 12-14, TSN, ibid.) and the balance of P500.00 was included in an
alleged “group refund check” for P5,270.00 which could not be cashed
for lack of funds (pp. 34-35, TSN, ibid).

2.     
On or about March 12, 1973,
Braulio Sapitula, a farmer from Agoo, La Union, having learned that Mrs. Aurora
T. Aquino, (known hereafter as Appellant) was recruiting applicants for
employment in Guam, likewise applied for the position of carpenter at
appellant’s Manila Hotel Office and plunked down FIVE HUNDRED (P500.00) PESOS
as his initial payment of the recruitment fees. 
A second payment of ONE THOUSAND (P1,000.00) PESOS was delivered to
appellant by Sapitula on February
5, 1975 (p. 1, Decision).

3.     
Sometime in May of 1973, Aurelio
Costales, a resident of Sampaloc, Manila, met appellant at the Greenwich Travel
Agency, where Costales likewise applied for a job in Guam and made a partial
payment of P800.00 for the usual P1,500.00 recruitment fees appellant charged
job applicants (pp. 5-6, TSN, Jan. 4, 1980). 
A second payment of P550,00 was given by Costales to appellant on September 24, 1974 (pp. 35-36,
Ibid).  Later on, Costales, disappointed
at not being able to go to Guam, asked for a refund of
his money.  He was paid P700.00 by
appellant, and the balance of P650.00 was allegedly part of the alleged
“group refund check” for P5,270.00 issued by appellant which was
dishonored for lack of funds (pp. 15-17, Ibid.).

4.     
Sometime in June, 1974, Benito
Vertudez, a resident of Gen. Trias, Cavite,
applied for a Guam job at appellant’s agency.  At such time he filled out an application
form and paid P70.00 for “mailing expenses” (pp. 39-44, TSN, June 14, 1979).  Thereafter, in the course of following up his
application to work in Guam, Vertudez paid appellant
P500.00 in September, 1974, and another P500.00 in September, 1974 (pp. 51-52,
Ibid).  Due to appellant’s inability to
get him a job in Guam, Vertudez asked for the return of
his money.  He was issued a check for the
amount of P1,070.00 by appellant, but said check like the alleged “group
refund check” was dishonored for lack of funds (p. 54, Ibid).

5.     
On November 2, 1978, a complaint was filed against
appellant for violation of the Provisions of Article 24, of P.D. No. 442,
otherwise known as the labor Code of the Philippines,
before the Regional Trial Court of Manila, Branch VIII.” (Rollo, pp.
44-48)

The accused-appellant’s version, on the other hand, shows that:

“Aurora T. Aquino, 51 years old businesswoman, disclosed that
in 1973, she was a licensed contractor authorized to hire laborers as evidenced
by a Labor Contractor’s License (New) dated 22 May, 1973, Exh. 5, page 257,
record; 21-22 tsn, July 24, 1984; said license was issued after payment of
P6,000.00 for the year 1973-1974 (Exh. 5-A, page 256, record); in the
recruitment of workers, she was appointed by several employers of Guam and
London as their representative in the Philippines, like the Special Power of
Attorney executed by George J. Viegas, dated November 29, 1973, in the
territory of Agana, Guam (Exh. 6, page 258, record) authorizing her to recruit
Filipinos for Guam and likewise, for London (Exh. 7, 7-A, page 260, record);
she knows Benito Vertudes of General Trias, Cavite being one of the applicants
for Guam and also Braulio Sapitula of Sta. Fe. Agoo, La Union include (sic) Alfredo Empredo of Pasay City, Rodrigo
Nicolas of Sta. Cruz, Manila (30-31, tsn, ibid.) all of them having applied in
1973 for employment for abroad, hence, she processed their application and
submitted thereafter, their application to her employer abroad, George J. Viegas (32 tsn, ibid); they were
not able to leave for Guam because her employer had some trouble with his
contract with the government of Guam (33 tsn, ibid); she refunded P500.00 to
Sapitula (Exh. 1; 34 tsn, ibid); she refunded Alfredo Empredo on Jan. 28, 1974
P300.00 (Exh. 8, page 261, record), refunded P500.00 to Benito Vertudes (Exh. 9,
page 262, record), the amount of P2,200.00 in the form of check (Exh. 10, page
265, record), handwritten receipt of P5,270.00 (Exh. 11, page 264, ibid) which
was received by Aurelio Costales (41-42, TSN, Ibid); she refunded them when
said applicants cannot leave for Guam by issuing Exh. 11 for amounts indicated
in the receipts (Exhs. 8, 9, 10 (44 TSN, Ibid); she does not violated (sic)
Art. 25, P.D. 442 for illegal recruitment because she is a duly licensed labor
contractor because when she acted on the applications of the complaining
witnesses, she acted as representative in the Philippines of her employer
George Viegas (45 TSN, Ibid) and the money covered by the personal check (Exh.
11) belongs to the complainants; the receipts which she issued dated October
24, 1973, August 15, 1973, December 15, 1973, August 14, 1974 and June 19, 1974
show that on said dates she was a duly licensed contractor (47-48 TSN, Ibid);
on its expiration on 18 May, 1974, she applied for a renewal of her license by
writing a letter to the Bureau of Labor addressed to Minister Blas Ople (Exh.
12, dated Feb. 4, 1975; page 265, record; 5 TSN, August 14, 1984); which was a
follow up of her renewal letter dated July 4, 1974 and was just waiting for the
renewal of her license, so that meanwhile, she was able to talk with
Under-Secretary Amado Inciong concerning said renewal’s delay and at the time,
Sec. Ople was in Italy, hence,
she was told by said Under-Secretary Inciong to proceed with her operation
‘until such time as the Secretary will go home.’ (6-7 TSN, Ibid); when she did
not receive any reply to her Feb. 12, 1975 renewal communication she next made
another follow-up letter dated March 3, 1975 addressed to Minister Ople (Exh.
13, NOTE:  3 TSN, October 29, 1985 not
submitted and offered) and another letter dated April 29, 1975 [Exh. 14;
Note:  not submitted and offered, 3 TSN,
Oct. 29, 1985); she next waited for the renewal, but was not able to receive
any reply from the Department of Labor, hence, she stopped operations (13-14
TSN, Ibid) in 1976 (p. 15 TSN, Ibid); applicants Benito Vertudes, Sapitula,
Empredo, Nicolas, were not able to leave for Guam (15-16 TSN, Ibid);”
(Decision, pp. 4-5, Record, pp. 294-295). 
(Rollo, pp. 19-22)

After trial, the lower court found the accused guilty; the
dispositive portion of its decision reads:

“WHEREFORE, in view of the foregoing, the Court finds accused
Aurora T. Aquino, GUILTY beyond reasonable doubt of Illegal Recruitment in
violation of Art. 25, PD 442 and penalized under Art. 39 par. (b), Labor Code,
sans mitigating circumstance, and applying the Indeterminate Sentence Law,
hereby sentences her to an indeterminate imprisonment of FOUR (4) YEARS up to
SEVEN (7) YEARS and fine of P20,000.00, with the accessory penalties of the
law; to indemnify the complainants in the total amount of P5,270.00 with the
legal rate of interest reckoned from the filing of instant information on Dec.
1, 1978 until fully paid, but without subsidiary imprisonment in case of
insolvency; and finally, to pay the cost of the proceeding.

Due to the gravity of the sentence, it is further ordered that
accused serves her imprisonment at the National Penitentiary at Muntinlupa,
Rizal.” (Rollo, p. 22)

The accused-petitioner appealed the decision of the lower court
to the Court of Appeals.  After
submission of memorandums, the Court of Appeals affirmed the decision of the
lower court.

The dispositive portion of the decision reads:

“WHEREFORE, the guilt of appellant of the crime charged having
been established beyond reasonable doubt, the appealed decision is hereby
AFFIRMED in all aspects.  No costs.”
(Rollo, p. 25)

The petition for review was initially denied by this Court on March 21, 1990.  A motion for reconsideration was filed by the
petitioner on April 5, 1990.  On May
9, 1990, we gave due course to the motion for reconsideration.

The petitioner relies on the following reasons for the allowance
of her petition:

I

 The Court of Appeals erred
in not dismissing the case for want of jurisdiction by the Regional Trial Court
of Manila.

II

The Court of Appeals erred in holding that the accused illegally
recruited the complainants after her license expired on May 18, 1974.

III

Even if the Regional Trial Court of Manila had jurisdiction, the Court
of Appeals erred in sustaining the indemnification by the accused petitioner of
the sum of P5,270.00 in favor of the complainants.

The jurisdiction of a Court is determined by the allegations of
the information as to the situs of the crime. 
If the information alleges that the crime was committed in the place
where the court is seated, then the court has jurisdiction, in the first
instance, to hear the case.  (Colmenares
v. Villar, 33 SCRA 186 [1970]); People v. Galano, 75 SCRA 193 [1977])

In this case, the then accused never raised the ground of lack of
jurisdiction in the proceedings before the lower court and before the Court of
Appeals.  Only after she received the
decision of the Court of Appeals affirming the decision of the lower court, did
the appellant question the jurisdiction of the court a quo.

In the interest of sound administration of justice, such practice
cannot be tolerated.  If we are to sanction this argument, then
all the proceedings had before the lower court and the Court of Appeals while
valid in all other respects would simply become useless.

In the landmark case of Tijam v. Sibonghanoy
(23 SCRA 29 [1968]), we held that a party who has affirmed and invoked the jurisdiction
of a court to secure an affirmative relief, may not afterwards deny that same
jurisdiction to escape a penalty.  A
party’s active participation in the proceedings before the court without
jurisdiction will estop the party from assailing such lack of
jurisdiction.  (Echaus v. Blanco, 179
SCRA 704 [1989]; Crisostomo v. Court of Appeals, 32 SCRA 54 [1970]; Libudan v. Gil, 45 SCRA 17 [1972]; and People
v. Casuga y Munar, 53 SCRA 278
[1973])

Anent the second issue, the Court on the basis of the evidence on
record finds the accused-petitioner not guilty of illegal recruitment.

Although as a general rule, the findings of fact of the Court of
Appeals are conclusive upon the Supreme Court, this is, however, not without
exceptions.

In certain instances, the Supreme Court may review the findings
of fact of the Court of Appeals as when the inference made is manifestly
mistaken or when the judgment is based on misapprehension of facts or when the
Court of Appeals manifestly overlooked certain relevant facts not disputed by
the parties and which if properly considered, would justify a different
conclusion.  (Moran v. Court of Appeals,
133 SCRA 88 [1984]; Sacay v.
Sandiganbayan, 142 SCRA 593 [1986]; Manlapaz v. Court of Appeals, 147 SCRA 236
[1987])

There are relevant
factual circumstances which the Court of Appeals manifestly misconstrued, thus,
necessitating the Court to re-examine the facts.

The information charges
the accused-petitioner with violating Article 25 of the Labor Code which
provides:

“Travel agencies prohibited to recruit.  – Travel
agencies are prohibited from engaging in the business of recruitment and
placement of workers for overseas employment whether for profit or not.

The Secretary of Labor shall issue rules and regulations
establishing the requirements and the procedures for the issuance of a license
or authority.

Every existing authority or license to hire or recruit workers on
the date of effectivity of this Code shall remain valid for the duration
indicated therein unless sooner cancelled, revoked, or suspended for cause by
the Secretary of Labor.  However, said
authority or license to hire or recruit may be renewed provided that the
holders thereof shall comply with all applicable provisions of this Code and
its implementing rules and regulations.”

While the charge is for a
violation of Article 25, the Solicitor General states that it was really
Article 24 which was violated (Rollo, pp. 43, 53-54).  Article 24 reads:

“Authority or license to recruit.  – No individual or entity may engage in the
business of a private fee-charging employment agency without first obtaining a
license from the Department of Labor.”

“No individual or entity may operate a private non-fee
charging employment agency without first obtaining an authority from the Department
of Labor.”

There is no dispute that
the accused-petitioner had a valid license before May 18, 1974.  She
contends that her license was not renewed, not because of any violations, but
because of a Ministry of Labor policy phasing out all private
recruitment agencies.  She never received
any letter from the Labor Ministry about any illegal activities and never was
her office raided.  She claims that her
activities were above-board and states that the Ministry was merely
implementing a policy that no new application for
a license to operate shall be entertained upon the effectivity of the Code and
that all private employment agencies would be phased out within four years from
that date.  She argued that the phrase
“no new application” should not include renewal of old
applications.

The information was filed
against Ms. Aquino because she “wilfully, unlawfully, and knowingly x x x
recruit(ed) workers for employment abroad without first obtaining the required
license or authority x x x.” The Solicitor General contends that
when Ms. Aquino continued to charge and collect fees from her
applicants/recruits after May 18, 1974,
she engaged in illegal recruitment violative of Article 24 of the Labor Code.

We must emphasize that
this case involves a criminal prosecution for a violation of
a penal provision.  We are not concerned
with whether or not the accused-petitioner’s license should be renewed nor with
the administrative actions taken by the Labor Department against recruitment
agencies.  By no stretch of the imagination
should an acquittal in this case mean that the Court does not support the
legitimate activities of the Government against illegal recruiters preying on
the gullibility of poor laborers, seamen, domestics, and other workers who see employment abroad as the
only way out of their grinding poverty. 
We simply apply the principles of Criminal Law that an accused is
presumed innocent until proven guilty and that the burden of establishing guilt
must be satisfactorily met by the prosecution beyond reasonable doubt.

Does the receipt of
payments, after the expiration of the license, for services rendered before
said expiration constitute illegal recruitment? 
We believe that it does not, at least not for purposes of criminal prosecutions.

Recruitment refers to the
offering of inducements to qualified personnel to enter a particular job or employment.  The advertising, the promise of future employment and other come-ons took place
while Ms. Aquino was still licensed. 
True, the payments for services rendered are necessary consequences of
the applications for overseas employment. 
However, it is asking too much to expect a licensed agency to absolutely at the stroke of midnight stop all transactions on the day its license
expires and refuse to accept carry-over payments after the agency is
closed.  In any business, there has to be
a winding-up after it ceases operations. 
The collection of unpaid accounts should not be the basis of a criminal
prosecution.

Thus, in the case of the
complainant Braulio Sapitula, the recruitment took place at the very latest on
February 12, 1973, when Sapitula went to the office of the petitioner at the
annex of Manila Hotel, and correspondingly, filed his application papers for
overseas employment (Rollo, p. 28); as for Rodrigo Nicolas when he met the
petitioner in January, 1973 (Rollo, p. 30); and Aurelio Costales, when sometime
in May, 1973, he submitted his application papers for overseas employment at
the office of the accused at the Manila
Hotel annex.  (Rollo, pp. 30-31)  Other than receipt of carry-over payments,
there is no evidence of recruiting activities after May 18, 1974.

It has been suggested
that once a license expires, the recruiter should turn over all continuing
activities such as collections of unpaid accounts to another licensed agency in
order to give teeth to the campaign against illegal recruiters.  There is nothing to prevent the law from
being amended to avoid the problem exemplified by this case but certainly no
speculations on what could have been done should enter into the resolution of a
criminal case.

The Government did not
question the legality of the payments as such. 
The prosecution is based on the date of the prohibited activity, not on
the payments being illegal exactions even if effected during the correct
period.  The payments are necessary in
order to defray the expenses entailed in any overseas contract of
employment.  They are intended for
administrative and business expenses and for the travelling expenses of the
applicants once cleared for overseas travel.

In the case of one
complainant, Benito Vertudes, the prosecution alleges that he filed his
application paper sometime in June of 1974, a month after the expiration of
Aquino’s license to operate (Rollo, p. 47). 
On the other hand, the petitioner in her testimony before the lower
court stated that Vertudes applied in 1973, within the period when her license
to operate the employment agency had not yet expired.  (Rollo, p. 20)

This accusation against
the petitioner constitutes a negative allegation where the negative fact of
recruiting without a license forms an essential element of the crime
charged.  Hence, it was incumbent upon the prosecution to satisfactorily establish the date
when Vertudes was recruited.

It has not been clearly
established that the petitioner is guilty of recruiting Benito Vertudes after
May 18, 1974.

The prosecution relied on
the sole testimony of Benito Vertudes, that he applied sometime in
June of 1974.  His
testimony was flatly denied by the petitioner who gave an earlier date.  No other evidence was proferred by the
prosecution particularly in relation to the recruitment of Benito
Vertudes.  (Rollo, pp. 29-30)

In the absence of any
corroborating evidence to support such particular fact, and considering that
the prosecution’s main theory is that collection of carry-over payments
constitutes recruitment, the Court is constrained to resolve the issue in favor
of the accused consistent with the rule on the construction of penal laws, that
they are strictly construed against the government and liberally in favor of the accused.  (See People v. Yu Hai, 99 Phil.
725 [1956])

Article 25 (it should be Article 24) of the Labor Code, the
violation of which was imputed to
Aurora Aquino, states only that no person may operate a private fee – charging
employment agency without the necessary license.

Inferentially, it is the operation of this kind of employment
agency without the proper license which constitutes the act of illegal
recruitment.

If the factual circumstances are otherwise, as when the accused
does not operate any employment agency, then all activities including the
acceptance of the application papers and the collection of payment would
constitute acts of recruitment within the meaning of the law.  Or if accused continued to
operate as before, even after the license is denied renewal, this would be
punishable under the law.

The facts of this case,
however, conspicuously show that the recruitment activities, namely the
continued operation of the Greenwich Travel Agency, the advertisements that the
agency was recruiting workers for overseas employment and the active
solicitation of workers ceased upon the non-renewal of Aurora Aquino’s license
to operate the said agency.

After May 18, 1974, Aquino closed her office at the Manila Hotel
Annex and settled in her residential home in Quezon City from where she
conducted the winding-up of her business.

Two of the complainants, namely, Aurelio Costales and Rodrigo
Nicolas filed affidavits of desistance although these affidavits were not filed
in the case at bar but in another criminal case of estafa filed against the
petitioner.

This, notwithstanding, the causes of action of the two criminal
cases arose from the same factual circumstances.  The importance of these affidavits cannot
just be ignored.

As a rule, affidavits of desistance should not be given too much
credit.  Under the circumstances of this
case, however, they serve to create serious doubts as to the criminal liability
of the petitioner.  At the very least,
they call for a second look at the records of the case and the basis for the
judgment of conviction.  (People v. Lim,
190 SCRA 706 [1990])

Anent the final argument questioning the order of the trial
court, affirmed by the Court of Appeals, which required Aquino to pay the
complainants the sum of P5,270.00 as reimbursements of the payments made by the
latter, the court after considering the records of the case resolved to affirm the order of the Court of Appeals with modification.

The petitioner professes
that she has reimbursed the complainants by issuing them a group-check in the
amount of P5,270.00.  She states that if
indeed the check bounced as alleged by the complainants, then why did not the
complainants present the dishonored check or the bank’s return slip to show
that the checks were not encashed.  (
Rollo, p. 12)

If that be the case, then the resultant query would be:  why did the petitioner not produce the check
issued by her to the complainants to show that it had been honored by the
drawee bank and correspondingly deducted from her account, evidencing
therefore, the fact of payment?

The petitioner issued a check to reimburse the complainants for
the sums of money paid by the latter by virtue of the “failed” overseas
contract.

The controversy arose
when the check was dishonored by the drawee bank due to lack of funds.  The petitioner, on the other hand, claims
full satisfaction of the sum owed by her since she already issued a check in
favor of the complainants.

The argument of the
petitioner is unconvincing.

It has been the consistent ruling of this Court that the issuance
of a check is not payment until the check has been encashed.  Although a check, as a negotiable instrument,
is regarded as a substitute for money,
it is not money.  Hence, its mere delivery does not, by itself,
operate as payment.  (PAL v. Court of
Appeals, 181 SCRA 557 [1990])

To this end, it was de
rigueur for the petitioner to have presented the check she issued to the
complainants which had been honored by the drawee bank in order to show that
the amount covered by the check has been received evidencing, therefore,
full satisfaction of the sums of money
owed to the complainants.

The records reveal
nothing of this sort.  Nowhere during the
proceedings before the lower court did the accused present any evidence showing
that the check was actually encashed. 
In the absence of any evidence regarding this matter, the conclusion of
the Court of Appeals must be sustained.

In view, however, of the
affidavits of desistance executed by Aurelio Costales and Rodrigo Nicolas where
both admitted that the petitioner had satisfied her monetary obligations to
them (Rollo, pp. 107-108), in the amount of P650.00 and P500.00 respectively,
these sums should be deducted from the total amount of P5,270.00.  (Rollo, p.18)

WHEREFORE, the judgment of conviction is hereby REVERSED
and accused-petitioner Aurora Aquino is ACQUITTED
of the crime of illegal recruitment.  The
accused-petitioner is, however, ordered to pay to the remaining
complainants the sum of FOUR THOUSAND ONE HUNDRED SEVENTY PESOS (P4,170.00),
with legal rate of interest reckoned from the filing of the information on December 1, 1978 until fully paid.

SO ORDERED.

Fernan, C.J., (Chairman), Bidin, Davide, Jr., and Romero, JJ., concur.