VICTORIANO ADA, PETITIONER, VS. HONODABLE JUDGE MARCIANO T. VIROLA, IN HIS CAPACITY AS PRESIDING JUDGE OF BR. 39 OF THE REGIONAL TRIAL COURT OF CALAPAN, ORIENTAL MINDORO AND CAL…

This is a petition for certiorari, prohibition and mandamus
seeking: (a) to annul and set aside all actions and proceedings in Criminal
Cases Nos. C-2434 and C-2435 For Estafa, entitled
“People of the Philippines v. Victoriano Ada” of the Regional Trial Court of Oriental Mindoro, Br. XXXIX (39), Calapan,
which denied in its Order dated September 2, 1987 petitioner’s motion to
dismiss said cases on the ground of double jeopardy; (b) to prohibit respondent
Court and private respondent from further proceeding with aforesaid cases; and
(c) to order and direct respondent Court to immediately dismiss them.  In the meantime, petitioner prays for a restraining order and/or a writ of
preliminary injunction.

Petitioner was initially charged in Criminal Case Nos. 2056 and
2057 of the Regional Trial Court of Oriental
Mindoro, Branch XXXIX in Calapan,
for violations of Batas Pambansa Blg.
22 consisting in the issuance of three (3) checks which subsequently
bounced.  After the prosecution had
rested its case and before the presentation of evidence by the defense,
petitioner was again charged before the same Regional Trial Court for Estafa as penalized under par. 2(d), Article 315 of the
Devised Penal Code in Criminal Cases Nos. C-2434 and C-2435 based on the same
act of issuing three (3) bouncing checks. 
Petitioner vehemently objected thereto, but his objections
notwithstanding, respondent Judge proceeded with petitioner’s arraignment and
after the latter’s plea of not guilty, allowed the prosecution to present its evidence in support of said new
cases which consisted mainly in the adoption of the same evidence presented in
the first two (2) cases.

After the prosecution had rested its case, petitioner filed a motion to dismiss the latter
cases, invoking as ground therefor the constitutional
guarantee against being placed twice in jeopardy
of punishment for the same act as provided under Section 21, Article III of the New Constitution.  In an Order dated September 2, 1987, the lower court denied
petitioner’s motion to dismiss Criminal Cases Nos. C-2434 and C-2435 on the
ground that under the first sentence
of Section 21 of Article III of the New Constitution one may be put in jeopardy
of punishment for the same act,
provided that he is charged with different offenses, or the offense charged in
one case is not included in, or does not include the crime charged in the other
case.^[1]
Petitioner’s subsequent motion for reconsideration of the aforesaid order was likewise denied.  Hence, this petition.

Petitioner maintains that his prosecution, first under Section 1
of Batas Pambansa Blg. 22
and again, under Article 315, par. 2(d) of the Revised Penal Code, based on the
same act of issuing three (3) bouncing checks, violates his constitutional right
against double jeopardy.

Article III (21) of the New Constitution reads: “No person shall
be twice put in jeopardy of punishment for the same offense.  If an act is punished by a law and an
ordinance, conviction or acquittal under either shall constitute a bar to
another prosecution for the same act.”

Under the above provision, the constitutional guarantee may not
only be invoked against the peril of a second punishment or a second trial for the same offense, but
also against being prosecuted twice for the same act where that act is
punishable by a law and an
ordinance.  Petitioner seeks recourse
under the second situation.  We find the
same unavailing.

It is a settled rule that to raise the defense of double
jeopardy, three requisites must be present: (1) a first jeopardy must have
attached prior to the second; (2) the first jeopardy must have been validly
terminated; and (3) the second jeopardy must be for the same offense, or the
second offense includes or is necessarily included in the offense charged in
the first information, or is an attempt to commit the same or a frustration
thereof.^[2]

These requisites do not exist in the case at bar.

The prohibition is against a second jeopardy for the same
offense. The plea of double jeopardy applies where the offenses in the two informations
are the same in law and in fact.  It is not necessarily decisive that
the two offenses may have material facts in common, or that they are similar,
where they are not in fact the same.  The
test is not whether the defendant has already been tried for the same act, but
whether he has been put in jeopardy for the same offense.^[3]
A single act may offend against two (or more) entirely distinct and unrelated
provisions of law, and if one provision of law requires proof of an additional
fact or element while the other does not, an acquittal or conviction or a
dismissal of the information under one does not bar prosecution under the
other.^[4]
In other words, where two different laws (or articles of the same Code) define
two crimes, prior jeopardy as to one of them is no obstacle to a prosecution of
the other, although both offenses arise from the same facts, if each crime
involves some important act which is not an essential Clement of the other.^[5]

A scrutiny of the two laws involved shows that the two offenses
punished therein are different and distinct from each other.  In the crime of Estafa
by postdating or issuing bad check/s under the Revised Penal Code, deceit and
damage are two essential elements of the offense and have to be established
with satisfactory proof to warrant conviction^[6]
with the further requisite that deceit in causing the defraudation
must be prior to or simultaneous
with the commission of the fraud.  For
violation of the Bouncing Checks Law under B.P. 22, on the other hand, these
elements are not necessary, the essential element being knowledge on the part
of the maker or drawer of the check of the insufficiency of his funds.  The gravamen of the
offense is the act of making and issuing a worthless check or a check that is
dishonored upon its presentation for payment and not the non-payment of an obligation.^[7]

Distinction between the two offenses is further found in their
nature.  Whereas the offense under
article 315, par. 2(d) of the Devised Penal Code is a malum
in se requiring proof of criminal intent on the part of the
offender as an essential ingredient focusing mainly an the damage caused to the
property rights of the victim, the crime under B.P. 22 makes the mere act of
issuing a worthless check malum prohibitum wherein criminal intent need not be proved because it is presumed and
considered violation thereof as one committed against public interest.

With these distinctions clarified, We hold that there is no identity of offenses here involved for
which legal jeopardy in one case
may be invoked in the other considering that the offenses charged in the informations for Estafa and for
violation of B.P. 22 are perfectly distinct in point of law however nearly they
may be connected in point of fact.  The
evidence required to prove one offense is not the same evidence required to
prove the other.  The defense of double
jeopardy cannot therefore prosper.

IN VIEW OF THE FOREGOING, the Court Resolved to DENY the instant petition.

SO ORDERED.

Gutierrez, Jr., Feliciano, Bidin, and Cortes, JJ., concur.

^[1]
Rollo, pp. 17-18

^[2]
People v. City Court of Manila, Branch VI, 154 SCRA 175, 180

^[3]
People v. Cabrera, 43 Phil. 97

^[4]
People v. Bacolod,
89 Phil. 622; U.S.
v. Capurro, 7 Phil. 24; People v. City
Court of Manila, supra

^[5]
People v. City Court of Manila, Br. VI, supra, citing People v. Alvarez, 45 Phil. 472

^[6]
People v. Grospe, 157 SCRA 154

^[7]
People v. Grospe, ibid, citing Lozano v. Martinez,
146 SCRA 323; Dingle v. Intermediate Appellate Court, 148 SCRA 595