Magdayao v People

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G.R. No. 152881 August 17, 2004

ENGR. BAYANI MAGDAYAO, petitioner, vs.PEOPLE

OF THE PHILIPPINES, respondent.

D E C I S I O N

CALLEJO, SR.,J.:

Before us is a petition for review on certiorari filed bypetitioner Engr. Bayani Magdayao of the Decision1 ofthe Court of Appeals in CA-G.R. CR No. 20549 affirming

the Decision2 of the Regional Trial Court, Dipolog City,Branch 8, convicting the petitioner of violation of BatasPambansa (B.P.) Blg. 22.

The Antecedents

An Information was filed charging petitioner withviolation of B.P. Blg. 22 on September 16, 1993, theaccusatory portion of which reads:

On or about September 30, 1991, at Dipolog City,Philippines, and within the jurisdiction of this HonorableCourt, the above-named accused, knowing fully wellthat he did not have sufficient funds in or credit with thedrawee bank, Philippine National Bank, Dipolog Branch,did then and there willfully, unlawfully and feloniouslymake, draw, issue and deliver to one RICKY OLVIS, inpayment of his obligation to the latter, PNB Check No.399967 dated September 30, 1991 in the amount of SIX

HUNDRED THOUSAND PESOS (P600,000.00), PhilippineCurrency, which check, however, when presented forpayment with PNB-Dipolog Branch, was dishonored and

refused payment for the reason that it was drawnagainst insufficient funds, and despite repeateddemands made by the private complainant on theaccused, the latter, failed to make good the checksvalue, to the damage and prejudice of RICKY OLVIS inthe aforestated amount.

CONTRARY TO LAW.3

When arraigned, the petitioner, assisted by counsel,entered a plea of not guilty.

When the case for trial was called on June 7, 1995 forthe prosecution to adduce its evidence, the petitionerand his counsel were absent. On motion of theprosecution, the court allowed it to adduce evidence.The prosecution presented the private complainant,Ricky Olvis, who testified on direct examination that onSeptember 30, 1991, the petitioner drew and issued tohim Philippine National Bank (PNB) Check No. 399967dated September 30, 1991 in the amount ofP600,000.00. The said check was drawn against the

latters account with the PNB, Dipolog City Branch, andissued in payment of the petitioners obligation withOlvis. The latter deposited the check on October 1,1991 in his account with the BPI-Family Bank, DipologCity Branch, but the drawee bank dishonored the checkfor the reason "Drawn Against Insufficient Funds"stamped on the dorsal portion of the check. Olvistestified that when informed that his check was
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dishonored, the petitioner pleaded for time to pay theamount thereof, but reneged on his promise. Olvis thenfiled 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 againoffered to repay Olvis the amount of the obligation byretrieving the dishonored check and replacing the samewith two other checks: one for P400,000.00 and anotherfor P200,000.00 payable to Olvis. Taking pity on thepetitioner, he agreed. He then returned the originalcopy of the check to the petitioner, but the latter againfailed to make good on his promise and failed to pay theP600,000.00.

The prosecution wanted Olvis to identify the petitioneras the drawer of the check, but because of the lattersabsence and that of his counsel, the direct examinationon the witness could not be terminated. Theprosecution moved that such direct examination ofOlvis be continued on another date, and that thepetitioner be ordered to appear before the court so thathe could be identified as the drawer of the subjectcheck. The trial court granted the motion and set thecontinuation of the trial on June 13, 1997. In themeantime, the prosecution marked a photocopy of PNB

Check No. 399967 as Exhibit "A," and the dorsal portionthereof as Exhibit "A-1."

After several postponements at the instance of thepetitioner, he and his counsel failed to appear beforethe court for continuation of trial. They again failed toappear when the case was called for continuation oftrial 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 areconsideration of the Order, which the trial courtdenied on January 26, 1996.

The petitioner then filed an Omnibus SupplementalMotion and to Allow Him to Adduce Evidence alleging,inter alia, that:

h) Despite the absence of the original, with only a xeroxcopy of the PNB Check worth P600,000.00, and furtherstressing that the same was paid, the prosecutor

insisted, against the vigorous objection of accused, infiling the case in Court. Plenty of water passed underthe bridge since then;5

In its Opposition to the said motion, the prosecutionaverred that it dispensed with the presentation of theoriginal of the dishonored check because the same hadbeen returned to the petitioner. It also pointed out thatthe petitioner failed to object to the presentation of thephotocopy of the dishonored check.

In a Special Manifestation, the petitioner insisted thatthe photocopy of the subject check was inadmissible inevidence because of the prosecutions failure toproduce the original thereof. On July 8, 1996, the trialcourt issued an Order denying the petitioners motion.The petitioners motion for reconsideration thereon was,likewise, denied by the trial court.
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On January 29, 1996, the trial court rendered judgmentconvicting the petitioner of the crime charged. The falloof the decision reads:

WHEREFORE, finding the guilt of the accusedestablished beyond reasonable doubt, the hereinaccused, Engr. Bayani Magdayao is convicted of thecrime charged against him for Violation of BatasPambansa Bilang 22, as principal by direct participation,and pursuant to Section 1 thereof sentenced to sufferthe penalty of imprisonment for a period of six (6)months of arresto mayor and to pay the costs. Theaccused is further ordered to pay the privatecomplainant the sum of P600,000.00 corresponding to

his obligation due to the private offended party.

SO ORDERED.6

On appeal to the Court of Appeals, the petitionerassigned the following errors:

I

THE LOWER COURT ERRED IN CONVICTING THEACCUSED OF THE CRIME CHARGED SOLELY ON THEBASIS OF THE FOLLOWING EVIDENCE:

A. MACHINE OR PHOTOSTATIC COPY OF PNB CHECK NO.399967 DATED SEPTEMBER 30, 1991;

B. WORD "DAIF" AT THE BACK OF THE PHOTOSTATICCOPY OF SAID CHECK;

C. UNCORROBORATED ORAL TESTIMONY OF PRIVATECOMPLAINANT.

II

THE LOWER COURT ERRED IN CONVICTING THEACCUSED WITHOUT HIM BEING POSITIVELY IDENTIFIEDBY THE COMPLAINANT OR OTHER WITNESS.

III

THE LOWER COURT ERRED WHEN IT RENDERED THEDECISION WITH ALLEGED FINDINGS OF FACTS NOTSUFFICIENTLY SUPPORTED BY EVIDENCE.

IV

THE LOWER COURT ERRED IN AWARDING CIVILINDEMNITY TO PRIVATE COMPLAINANT IN THE AMOUNTOF SIX HUNDRED THOUSAND PESOS.7

On December 21, 2001, the CA rendered judgmentaffirming the decision of the trial court. The appellatecourt also denied the petitioners motion for

reconsideration.

In his petition at bar, the petitioner merely reiteratesthe errors he ascribed to the RTC in his appeal beforethe CA, and prays that the decisions of the trial andappellate courts be set aside.

The Ruling of the Court
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The petition has no merit.

On the first three assignments of error, the petitioner

avers that the prosecution failed to prove his guiltbeyond reasonable doubt of the crime charged becauseof the following: (a) the photocopy of PNB Check No.399967, adduced in evidence by the prosecution, isinadmissible in evidence under Rule 129, Section 1 ofthe Revised Rules of Evidence; hence, has no probativeweight; b) the prosecution failed to present the BPI-Family Bank teller to testify on the presentment of PNBCheck No. 399967 and the dishonor thereof; and (c) theprosecution failed to prove that it was he who drew anddelivered the dishonored check to the private

complainant, and that he was properly notified of thedishonor of the said check. The petitioner also assertsthat there was no legal basis for the award of theamount of P6,000.00 as civil indemnity.

We rule against the petitioner.

Section 1 of B.P. Blg. 22 for which the petitioner wascharged, reads:

Section 1.Checks without sufficient funds. Any

person who makes or draws and issues any check toapply on account or for value, knowing at the time ofissue that he does not have sufficient funds in or creditwith the drawee bank for the payment of such in fullupon presentment, which check is subsequentlydishonored by the drawee bank for insufficiency offunds or credit or would have been dishonored for thesame reason had not the drawer without any valid

reason, ordered the bank to stop payment, shall bepunished by imprisonment of not less than thirty (30)days but not more than one (1) year or by a fine of not

less than but not more than double the amount of thecheck which fine shall in no case exceed Two HundredThousand Pesos, or both such fine and imprisonment atthe discretion of the court.

To warrant the petitioners conviction of the crimecharged, the prosecution was burdened to prove thefollowing essential elements thereof:

(1) The making, drawing and issuance of any check toapply for account or for value;

(2) The knowledge of the maker, drawer, or issuer thatat the time of issue he does not have sufficient funds inor credit with the drawee bank for the payment of suchcheck in full upon its presentment; and

(3) The subsequent dishonor of the check by the draweebank for insufficiency of funds or credit or dishonor forthe same reason had not the drawer, without any validcause, ordered the bank to stop payment.8

The gravamen of the offense is the act of making orissuing a worthless check or a check that is dishonoredupon presentment for payment.9 As to the secondelement, knowledge on the part of the maker or drawerof the check of the insufficiency of the funds in or creditwith the bank to cover the check upon its presentmentrefers to the state of mind of the drawer; hence, it isdifficult for the prosecution to prove. The law creates a
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prima facie knowledge on the insufficiency of funds orcredit, coincidental with the attendance of the two otherelements. As such, Section 2 provides:

SEC. 2. Evidence of knowledge of insufficient funds.The making, drawing and issuance of a check paymentof which is refused by the drawee because ofinsufficient funds in or credit with such bank, whenpresented within ninety (90) days from the date of thecheck, shall be prima facie evidence of knowledge ofsuch insufficiency of funds or credit unless such makeror drawer pays the holder thereof the amount duethereon, or makes arrangements for payment in full bythe drawee of such check within five (5) banking days

after receiving notice that such check has not been paidby the drawee.

We agree with the petitioner that it was incumbentupon the prosecution to adduce in evidence the originalcopy of PNB Check No. 399967 to prove the contentsthereof, more specifically the names of the drawer andendorsee, the date and amount and the dishonorthereof, as well as the reason for such dishonor. Section3, Rule 129 of the Revised Rules on Evidencespecifically provides that when the subject of inquiry is

the contents of the document, no evidence shall beadmissible other than the original thereof. The purposeof the rule requiring the production by the offeror of thebest evidence is the prevention of fraud, because if aparty is in possession of such evidence and withholds itand presents inferior or secondary evidence in its place,the presumption is that the latter evidence is withheldfrom the court and the adverse party for a fraudulent or

devious purpose which its production would expose anddefeat.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 theabsence of any clear showing that the original writinghas been lost or destroyed or cannot be produced incourt. Such photocopies must be disregarded, beinginadmissible evidence and barren of probative weight.11

Furthermore, under Section 3(b), Rule 130 of the saidRules, secondary evidence of a writing may be admittedwhen the original is in the custody or under the controlof the party against whom the evidence is offered, andthe latter fails to produce it after reasonable notice. To

warrant the admissibility of secondary evidence whenthe original of a writing is in the custody or control ofthe adverse party, Section 6 of Rule 130 provides thatthe adverse party must be given reasonable notice, thathe fails or refuses to produce the same in court and thatthe offeror offers satisfactory proof of its existence:

When original document is in adverse partys custodyor control. If the document is in the custody or underthe control of the adverse party, he must havereasonable notice to produce it. If after such notice and

after satisfactory proof of its existence, he fails toproduce the document, secondary evidence may bepresented as in the case of its loss.

The mere fact that the original of the writing is in thecustody or control of the party against whom it isoffered does not warrant the admission of secondaryevidence. The offeror must prove that he has done all in


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his power to secure the best evidence by giving noticeto the said party to produce the document.12 The noticemay be in the form of a motion for the production of the

original or made in open court in the presence of theadverse party or via a subpoena duces tecum, providedthat the party in custody of the original has sufficienttime to produce the same. When such party has theoriginal of the writing and does not voluntarily offer toproduce it or refuses to produce it, secondary evidencemay be admitted.13

In this case, Olvis, the private complainant, testifiedthat after the check was dishonored by the drawee bankfor insufficiency of funds, he returned it to the petitioner

upon the latters offer to pay the amount of the checkby drawing and issuing two checks, one for P400,000.00and the other for P200,000.00. However, the petitionerstill failed to satisfy his obligation to Olvis:

Q Sometime in the month of May 1991, do youremember that (sic) you have any transaction with theaccused?

A Yes, Sir.

Q What was the transaction about?

A It was about our joint venture in Ipil.

Q What did the accused in this case issue to you?

A He issued me a check worth six hundred thousandpesos (P600,000.00).

Q If the photostatic copy of the check [would] bepresented to you, would you be able to identify it?

A Yes, Sir.

Q I am showing to you a photostatic copy of PNBDipolog Branch Check # 399967 with a maturity dateon September 30, 1991 in the amount of six hundredthousand pesos (P600,000.00), is this the check issuedto you?

A Yes, Sir.

Q Here is a signature at the bottom corner of this

check, whose signature is this?

A Bayani Magdayao[s].

Q In other words, this check was issued for avaluable consideration in connection with the projectyou have in Ipil?

A Yes, Sir.

Q What did you do with the check?

A I deposited this in BPI-Family Bank, but it wasdrawn against insufficient fund.

Q When did you deposit the check?

A Sometime in October.


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Q October, what year?

A In 1991, Sir.

Q Within a reasonable period from the maturity dateof the check, you caused it to be deposited?

A Yes, Sir.

Q And this check was dishonored by the depositorybank, that the account to which it was drawn does nothave sufficient fund, is that indicated in this check?

A Yes, Sir.

Q Where is that indication of dishonor for lack ofsufficient fund?

A Here, Sir.

INTERPRETER: Witness pointing to the check.

ATTY. CO:

We pray, Your Honor, that the photostatic copy of thecheck be marked as Exhibit "A." The reason why it wasdishonored, found at the back of this check, indicatedas "DAIF" meaning to say: "Drawn Against InsufficientFund" be marked as Exhibit "A-1."

Q After being informed that the check wasdishonored by the drawee bank, what did you do?

A I went to Magdayaos house and asked forpayment but he refused to pay.

Q When you say Magdayao, are you referring to theaccused in this case, Bayani Magdayao?

A Yes, Sir.

Q It appears that this is merely a photostatic copy ofthe check, where is the original of the check?

A Magdayao replaced the original check worth sixhundred thousand pesos (P600,000.00), and he gaveme another check worth four hundred thousand pesos(P400,000.00) and two hundred thousand pesos(P200,000.00).

Q At the time the accused in this case replaced thischeck worth six hundred thousand (P600,000.00), wasthe case already pending before the City Fiscals Officeor before this Honorable Court?

A Yes, Sir, it is pending.

Q Until now the amount of six hundred thousandpesos (P600,000.00) has not been paid to you?

A Yes, Sir.14
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In his "Motion to Suspend Proceedings" in the trial court,the petitioner admitted that he received the originalcopy of the dishonored check from the private

complainant

15

and that he caused the non-payment ofthe dishonored check.16 The petitioner cannot feignignorance of the need for the production of the originalcopy of PNB Check No. 399967, and the fact that theprosecution was able to present in evidence only aphotocopy thereof because the original was in hispossession. In fact, in the Omnibus SupplementalMotion dated February 8, 1996, and in his SpecialManifestation filed on May 28, 1996, the petitionercomplained of the prosecutions violation of the bestevidence rule. The petitioner, however, never produced

the original of the check, much less offered to producethe same. The petitioner deliberately withheld theoriginal of the check as a bargaining chip for the courtto grant him an opportunity to adduce evidence in hisdefense, which he failed to do following his numerousunjustified postponements as shown by the records.

There was no longer a need for the prosecution topresent as witness the employee of the drawee bankwho made the notation at the dorsal portion of thedishonored check17 to testify that the same was

dishonored for having been drawn against insufficientfunds. The petitioner had already been informed of suchfact of dishonor and the reason therefor when Olvisreturned the original of the check to him. In fact, asshown by the testimony of Olvis, the petitioner drewand issued two other separate checks, one forP400,000.00 and the other for P200,000.00, to replacethe dishonored check.

Because of his dilatory tactics, the petitioner failed toadduce evidence to overcome that of the prosecutions.

The petitioners contention that Olvis failed to identifyhim as the drawer of the subject check is nettlesome. Itbears stressing that Olvis was ready to identify thepetitioner after his direct examination, but the latterand his counsel inexplicably failed to appear. The directexamination of Olvis had to be continued to enable himto point to and identify the petitioner as the drawer ofthe check. This is shown by the transcript of thestenographic notes taken during the trial, viz:

ATTY. CO:

Considering that the accused is not present, YourHonor, I would like to manifest that the private offendedparty be given the opportunity to identify the accusedfor purposes of this case.18

The trial court issued an Order on June 7, 1995,directing the petitioner, under pain of contempt, toappear before it to enable Olvis to identify him:

After the declaration of the first and only witness for theprosecution, the private prosecutor prayed to set thecase for continuation of the trial, and ordering thedefendant to appear to allow the prosecution toestablish his identity.

Set the case for continuation of the trial on June 13,1995, ordering the accused to appear personally forpurposes of his identification in court under pain of
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contempt if he fails to comply unjustifiably with thisorder. The defense shall be allowed to cross examinethe witness for the prosecution if desired, otherwise, his

right of cross-examination shall be considered waivedcompletely.

SO ORDERED.19

The petitioner defied the Order of the court and failed toappear as directed, and as gleaned from the records

(14) June 7, 1995 The accused and counsel did notappear; hence, the prosecution was allowed to presentits evidence ex-parte. The private complainant was

presented to testify in the direct-examination, reservingthe right of cross-examination on the part of theaccused, and setting the case for the purpose on June13, 1995.

(15) June 13, 1995 The accused did not appear, butthe defense counsel requested for a resetting of thecross-examination to be conducted. The request wasgranted over the objection of the prosecution, and setthe continuation of the trial to August 31, 1995.

(16) August 31, 1995 As in previous occasions, theaccused did not appear and defense counsel requestedfor another resetting, and despite the vigorousopposition by the prosecution, the trial was postponedto October 3, 1995, with the understanding that if theaccused will not appear, it would be taken to mean thathe waived his right to cross-examination and to presentevidence in his defense.

(17) October 3, 1995 Atty. Narciso Barbaso appearedas a new counsel for the accused but requested that hebe allowed to read first the transcript of the direct

testimony of the plaintiffs witness to be cross-examined. The request was granted, and the trial wasreset to November 21, 1995.

(18) November 21, 1995 The accused and his counselboth did not appear. The prosecution formally offeredExh. "A" in evidence, and upon its admission, theprosecution rested its case, and prayed that as stated inthe previous order of the court dated August 31, 1995,the case shall be considered submitted for judgment,which request was granted.

(19) December 7, 1995 The defense filed a motion forreconsideration of the order dated November 21, 1995.The court required the defense to file a supplementalmotion stating the nature of its evidence to bepresented if allowed to enable the court to determinethe merit of the motion for reconsideration, but despitethe lapsed (sic) of the period set by the court, theaccused did not comply; hence, the denial of the motionfor reconsideration, and set the case for promulgationof the judgment on February 19, 1996.

(20) Then came the Omnibus Supplemental Motion,etc., by the accused dated February 8, 1996, and byreason thereof, the promulgation of the judgment set onFebruary 19, 1996, was held in abeyance.

(21) The defense counsel filed a motion to withdraw ascounsel for the accused dated February 27, 1996, and
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which was granted by the order of the court datedMarch 1, 1996.

[(22)] May 28, 1996 A Special Manifestation datedMay 21, 1996 in support of the Omnibus SupplementalMotion filed thru another lawyer appearing as a newcounsel for the accused, now under consideration.20

Contrary to the petitioners claim, the trial court did notaward P6,000.00 as civil indemnity in favor of Olvis; itordered the petitioner to pay him P600,000.00, theamount of the subject check. Having failed to pay theamount of the check, the petitioner is liable thereforand should be ordered to pay the same to the private

complainant in this case.21

On the second assigned error, the petitioner faulted thetrial court for imposing a penalty of imprisonmentinstead of a penalty of fine, and cites SC Circular No.12-2000 to bolster his contention. He suggests thatsince he is merely a first offender, he should besentenced to pay a fine double the amount of thecheck.

The Office of the Solicitor General, on the other hand,

objects to the petitioners plea on the ground that whenthe latter drew and issued the dishonored check to theprivate complainant, he knew that the residue of hisfunds in the drawee bank was insufficient to pay theamount thereof.

Considering the facts and circumstances attendant inthis case, we find the petitioners plea to be barren of

merit. Administrative Circular No. 13-2001 provides:

It is, therefore, understood that:

1. Administrative Circular 12-2000 does not removeimprisonment as an alternative penalty for violations ofBP 22;

2. The Judges concerned may, in the exercise of sounddiscretion, and taking into consideration the peculiarcircumstances of each case, determine whether theimposition of a fine alone would best serve the interestof justice, or whether forbearing to imposeimprisonment would depreciate the seriousness of the

offense, work violence on the social order, or otherwisebe contrary to the imperatives of justice;

3. Should only a fine be imposed and the accused beunable to pay the fine, there is no legal obstacle to theapplication of the Revised Penal Code on subsidiaryimprisonment.22

The records show that despite the numerousopportunities given to him by the trial court, thepetitioner refused to adduce any evidence in his behalf.

Moreover, the Court of Appeals found the petitionersappeal to be devoid of merit. Considering the factualmilieu in this case, there is every reason for the Court toreject the plea for a penalty of fine and maintain thepenalty of imprisonment the trial court imposed on thepetitioner.

IN LIGHT OF ALL THE FOREGOING, the petition is
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DENIED DUE COURSE. The assailed decision of theCourt of Appeals is AFFIRMED. Costs against thepetitioner.

SO ORDERED.

Puno, (Chairman), Austria-Martinez, Tinga, and Chico-Nazario, JJ., concur.

Magdayao v People

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