ChanRobles Virtual law Library
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PHILIPPINE SUPREME
COURT
DECISIONS
ENGR. BAYANI
MAGDAYAO,
G.R.
No.
152881
-versus- chanroblesvirtualawlibrary PEOPLE OF THE PHILIPPINES, Respondent.
D E C I S I O N
CALLEJO, SR., J.:chanroblesvirtuallawlibrary
Before us is a Petition for Review on Certiorari filed by petitioner Engr. Bayani Magdayao of the Decision[1] of the Court of Appeals in CA-G.R. CR No. 20549 affirming the decision[2] of the Regional Trial Court, Dipolog City, Branch 8, convicting the petitioner of violation of Batas Pambansa (B.P.) Blg. 22. The Antecedents An Information was filed charging petitioner with violation of B.P. Blg. 22 on September 16, 1993, the accusatory portion of which reads:chanrobles virtual law library
When arraigned, assisted by counsel, the petitioner entered a plea of not guilty. When the case for trial was called on June 7, 1995 for the prosecution to adduce its evidence, the petitioner and his counsel were absent. On motion of the prosecution, the court allowed it to adduce evidence. The prosecution presented the private complainant, Ricky Olvis, who testified on direct examination that on September 30, 1991, the petitioner drew and issued to him Philippine National Bank (PNB) Check No. 399967 dated September 30, 1991 in the amount of P600,000.00. The said check was drawn against the latter’s account with the PNB, Dipolog City Branch, and issued in payment of the petitioner’s obligation with Olvis. The latter deposited the check on October 1, 1991 in his account with the BPI-Family Bank, Dipolog City Branch, but the drawee bank dishonored the check for the reason “Drawn Against Insufficient Funds” stamped on the dorsal portion of the check. Olvis testified that when informed that his check was dishonored, the petitioner pleaded for time to pay the amount thereof, but reneged on his promise. Olvis then filed a criminal complaint against the petitioner for violation of B.P. Blg. 22 on September 4, 1992, docketed as I.S. No. 92-368. The petitioner again offered to repay Olvis the amount of the obligation by retrieving the dishonored check and replacing the same with two other checks: one for P400,000.00 and another for P200,000.00 payable to Olvis. Taking pity on the petitioner, he agreed. He then returned the original copy of the check to the petitioner, but the latter again failed to make good on his promise and failed to pay the P600,000.00.cralaw:red The prosecution wanted Olvis to identify the petitioner as the drawer of the check, but because of the latter’s absence and that of his counsel, the direct examination on the witness could not be terminated. The prosecution moved that such direct examination of Olvis be continued on another date, and that the petitioner be ordered to appear before the court so that he could be identified as the drawer of the subject check. The trial court granted the motion and set the continuation of the trial on June 13, 1997. In the meantime, the prosecution marked a photocopy of PNB Check No. 399967 as Exhibit “A,” and the dorsal portion thereof as Exhibit “A-1.”chanrobles virtual law library After several postponements at the instance of the petitioner, he and his counsel failed to appear before the court for continuation of trial. They again failed to appear when the case was called for continuation of trial on November 21, 1995. The prosecution offered in evidence the photocopy of PNB Check No. 399967, which the court admitted. The trial court, thereafter, issued an Order declaring the case submitted for decision.[4] The petitioner filed a motion for a reconsideration of the Order, which the trial court denied on January 26, 1996.cralaw:red The petitioner then filed an Omnibus Supplemental Motion and to Allow Him to Adduce Evidence alleging, inter alia, that:chanrobles virtual law library h) Despite the absence of the original, with only a xerox copy of the PNB Check worth P600,000.00, and further stressing that the same was paid, the prosecutor insisted, against the vigorous objection of accused, in filing the case in Court. Plenty of water passed under the bridge since then;[5] In its Opposition to the said motion, the prosecution averred that it dispensed with the presentation of the original of the dishonored check because the same had been returned to the petitioner. It also pointed out that the petitioner failed to object to the presentation of the photocopy of the dishonored check.cralaw:red In a Special Manifestation, the petitioner insisted that the photocopy of the subject check was inadmissible in evidence because of the prosecution’s failure to produce the original thereof. On July 8, 1996, the trial court issued an Order denying the petitioner’s motion. The petitioner’s motion for reconsideration thereon was, likewise, denied by the trial court.chanrobles virtual law library On January 29, 1996, the trial court rendered judgment convicting the petitioner of the crime charged. The fallo of the decision reads:chanrobles virtual law library
On appeal to the Court of Appeals, the petitioner assigned the following errors:chanroblesvirtuallawlibrary
On December 21, 2001, the CA rendered judgment affirming the decision of the trial court. The appellate court also denied the petitioner’s motion for reconsideration. In his petition at bar, the petitioner, merely reiterates the errors he ascribed to the RTC in his appeal before the CA, and prays that the decisions of the trial and appellate courts be set aside.chanrobles virtual law library The Ruling of the Court
The petition has no merit.cralaw:red On the first three assignments of error, the petitioner avers that the prosecution failed to prove his guilt beyond reasonable doubt of the crime charged because of the following: (a) the photocopy of PNB Check No. 399967 adduced in evidence by the prosecution is inadmissible in evidence under Rule 129, Section 1 of the Revised Rules of Evidence; hence, has no probative weight; b) the prosecution failed to present the BPI-Family Bank teller to testify on the presentment of PNB Check No. 399967 and the dishonor thereof; and (c) the prosecution failed to prove that it was he who drew and delivered the dishonored check to the private complainant, and that he was properly notified of the dishonor of the said check. The petitioner also asserts that there was no legal basis for the award of the amount of P6,000.00 as civil indemnity.chanrobles virtual law library We rule against the petitioner.cralaw:red Section 1 of B.P. Blg. 22 for which the petitioner was charged, reads:chanrobles virtual law library
To warrant the petitioner’s conviction of the crime charged, the prosecution was burdened to prove the following essential elements thereof:chanroblesvirtuallawlibrary
The gravamen of the offense is the act of making or issuing a worthless check or a check that is dishonored upon presentment for payment.[9] As to the second element, knowledge on the part of the maker or drawer of the check of the insufficiency of the funds in or credit with the bank to cover the check upon its presentment refers to the state of mind of the drawer; hence, it is difficult for the prosecution to prove. The law creates a prima facie knowledge on the insufficiency of funds or credit, coincidental with the attendance of the two other elements. As such, Section 2 provides:chanroblesvirtuallawlibrary
We agree with the petitioner that it was incumbent upon the prosecution to adduce in evidence the original copy of PNB Check No. 399967 to prove the contents thereof, more specifically the names of the drawer and endorsee, the date and amount and the dishonor thereof, as well as the reason for such dishonor. Section 3, Rule 129 of the Revised Rules on Evidence specifically provides that when the subject of inquiry is the contents of the document, no evidence shall be admissible other than the original thereof. The purpose of the rule requiring the production by the offeror of the best evidence is the prevention of fraud, because if a party is in possession of such evidence and withholds it and presents inferior or secondary evidence in its place, the presumption is that the latter evidence is withheld from the court and the adverse party for a fraudulent or devious purpose which its production would expose and defeat.[10] As long as the original evidence can be had, the court should not receive in evidence that which is substitutionary in nature, such as photocopies, in the absence of any clear showing that the original writing has been lost or destroyed or cannot be produced in court. Such photocopies must be disregarded, being inadmissible evidence and barren of probative weight.[11] Furthermore, under Section 3(b), Rule 130 of the said Rules, secondary evidence of a writing may be admitted when the original is in the custody or under the control of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice. To warrant the admissibility of secondary evidence when the original of a writing is in the custody or control of the adverse party, Section 6 of Rule 130 provides that the adverse party must be given reasonable notice, that he fails or refuses to produce the same in court and that the offeror offers satisfactory proof of its existence:chanroblesvirtuallawlibrarychanrobles virtual law library When original document is in adverse party’s custody or control.— If the document is in the custody or under the control of the adverse party, he must have reasonable notice to produce it. If after such notice and after satisfactory proof of its existence, he fails to produce the document, secondary evidence may be presented as in the case of its loss.chanrobles virtual law library The mere fact that the original of the writing is in the custody or control of the party against whom it is offered does not warrant the admission of secondary evidence. The offeror must prove that he has done all in his power to secure the best evidence by giving notice to the said party to produce the document.[12] The notice may be in the form of a motion for the production of the original or made in open court in the presence of the adverse party or via a subpoena duces tecum, provided that the party in custody of the original has sufficient time to produce the same. When such party has the original of the writing and does not voluntarily offer to produce it or refuses to produce it, secondary evidence may be admitted.[13] In this case, Olvis, the private complainant, testified that after the check was dishonored by the drawee bank for insufficiency of funds, he returned it to the petitioner upon the latter’s offer to pay the amount of the check by drawing and issuing two checks, one for P400,000.00 and the other for P200,000.00. However, the petitioner still failed to satisfy his obligation to Olvis:chanrobles virtual law library Q Sometime in the month of May 1991, do you remember that (sic) you have any transaction with the accused? A Yes, Sir.chanrobles virtual law library Q What was the transaction about? A It was about our joint venture in Ipil.chanrobles virtual law library Q What did the accused in this case issue to you? A He issued me a check worth six hundred thousand pesos (P600,000.00).cralaw:red Q If the photostatic copy of the check [would] be presented to you, would you be able to identify it? A Yes, Sir.cralaw:red Q I am showing to you a photostatic copy of PNB Dipolog Branch Check # 399967 with a maturity date on September 30, 1991 in the amount of six hundred thousand pesos (P600,000.00), is this the check issued to you?chanrobles virtual law library A Yes, Sir.chanrobles virtual law library Q Here is a signature at the bottom corner of this check, whose signature is this? A Bayani Magdayao[‘s].cralaw:red Q In other words, this check was issued for a valuable consideration in connection with the project you have in Ipil? A Yes, Sir.cralaw:red Q What did you do with the check? A I deposited this in BPI-Family Bank, but it was drawn against insufficient fund.cralaw:red Q When did you deposit the check? A Sometime in October.cralaw:red Q October, what year? A In 1991, Sir.chanrobles virtual law library Q Within a reasonable period from the maturity date of the check, you caused it to be deposited? A Yes, Sir.chanrobles virtual law library Q And this check was dishonored by the depository bank, that the account to which it was drawn does not have sufficient fund, is that indicated in this check? A Yes, Sir.cralaw:red Q Where is that indication of dishonor for lack of sufficient fund? A Here, Sir.cralaw:red INTERPRETER: Witness pointing to the check.cralaw:red ATTY. CO:chanrobles virtual law library We pray, Your Honor, that the photostatic copy of the check be marked as Exhibit “A.” The reason why it was dishonored, found at the back of this check, indicated as “DAIF” meaning to say: “Drawn Against Insufficient Fund” be marked as Exhibit “A-1.”chanrobles virtual law library Q After being informed that the check was dishonored by the drawee bank, what did you do? A I went to Magdayao’s house and asked for payment but he refused to pay.cralaw:red Q When you say Magdayao, are you referring to the accused in this case, Bayani Magdayao? A Yes, Sir.cralaw:red Q It appears that this is merely a photostatic copy of the check, where is the original of the check? A Magdayao replaced the original check worth six hundred thousand pesos (P600,000.00), and he gave me another check worth four hundred thousand pesos (P400,000.00) and two hundred thousand pesos (P200,000.00).chanrobles virtual law library Q At the time the accused in this case replaced this check worth six hundred thousand (P600,000.00), was the case already pending before the City Fiscal’s Office or before this Honorable Court?chanrobles virtual law library A Yes, Sir, it is pending.chanrobles virtual law library Q Until now the amount of six hundred thousand pesos (P600,000.00) has not been paid to you? A Yes, Sir.[14] In his “Motion to Suspend Proceedings” in the trial court, the petitioner admitted that he received the original copy of the dishonored check from the private complainant[15] and that he caused the non-payment of the dishonored check.[16] The petitioner cannot feign ignorance of the need for the production of the original copy of PNB Check No. 399967, and the fact that the prosecution was able to present in evidence only a photocopy thereof because the original was in his possession. In fact, in the Omnibus Supplemental Motion dated February 8, 1996, and in his Special Manifestation filed on May 28, 1996, the petitioner complained of the prosecution’s violation of the best evidence rule. The petitioner, however, never produced the original of the check, much less offered to produce the same. The petitioner deliberately withheld the original of the check as a bargaining chip for the court to grant him an opportunity to adduce evidence in his defense, which he failed to do following his numerous unjustified postponements as shown by the records.cralaw:red There was no longer a need for the prosecution to present as witness the employee of the drawee bank who made the notation at the dorsal portion of the dishonored check[17] to testify that the same was dishonored for having been drawn against insufficient funds. The petitioner had already been informed of such fact of dishonor and the reason therefor when Olvis returned the original of the check to him. In fact, as shown by the testimony of Olvis, the petitioner drew and issued two other separate checks, one for P400,000.00 and the other for P200,000.00, to replace the dishonored check.chanrobles virtual law library Because of his dilatory tactics, the petitioner failed to adduce evidence to overcome that of the prosecution.cralaw:red The petitioner’s contention that Olvis failed to identify him as the drawer of the subject check is nettlesome. It bears stressing that Olvis was ready to identify the petitioner after his direct examination, but the latter and his counsel inexplicably failed to appear. The direct examination of Olvis had to be continued to enable him to point to and identify the petitioner as the drawer of the check. This is shown by the transcript of the stenographic notes taken during the trial, viz:chanrobles virtual law library ATTY. CO:chanrobles virtual law library Considering that the accused is not present, Your Honor, I would like to manifest that the private offended party be given the opportunity to identify the accused for purposes of this case.[18]chanrobles virtual law library The trial court issued an Order on June 7, 1995, directing the petitioner, under pain of contempt, to appear before it to enable Olvis to identify him:chanrobles virtual law library
The petitioner defied the Order of the court and failed to appear as directed, and as gleaned from the records:chanroblesvirtuallawlibrary
Contrary to the petitioner’s claim, the trial court did not award P6,000.00 as civil indemnity in favor of Olvis; it ordered the petitioner to pay him P600,000.00, the amount of the subject check. Having failed to pay the amount of the check, the petitioner is liable therefor and should be ordered to pay the same to the private complainant in this case.[21]chanrobles virtual law library On the second assigned error, the petitioner faulted the trial court for imposing a penalty of imprisonment instead of a penalty of fine, and cites SC Circular No. 12-2000 to bolster his contention. He suggests that since he is merely a first offender, he should be sentenced to pay a fine double the amount of the check.cralaw:red The Office of the Solicitor General, on the other hand, objects to the petitioner’s plea on the ground that when the latter drew and issued the dishonored check to the private complainant, he knew that the residue of his funds in the drawee bank was insufficient to pay the amount thereof.cralaw:red Considering the facts and circumstances attendant in this case, we find the petitioner’s plea to be barren of merit. Administrative Circular No. 13-2001 provides:chanrobles virtual law library
The records show that despite the numerous opportunities given to him by the trial court, the petitioner refused to adduce any evidence in his behalf. Moreover, the Court of Appeals found the petitioner’s appeal to be devoid of merit. Considering the factual milieu in this case, there is every reason for the Court to reject the plea for a penalty of fine and maintain the penalty of imprisonment the trial court imposed on the petitioner. IN LIGHT OF ALL THE FOREGOING, the petition is DENIED DUE COURSE. The assailed decision of the Court of Appeals is AFFIRMED. Costs against the petitioner.cralaw:red SO ORDERED.
Endnotes:chanroblesvirtuallawlibrary
[1]
Penned by Justice Cancio C. Garcia (now Presiding Justice of the Court
of Appeals), with Associate Justices Roberto A. Barrios and Bienvenido
L. Reyes, concurring.
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