SECOND DIVISION

GORETTI ONG, G.R. No. 165275

Petitioner,
Present:

QUISUMBING, J., Chairperson,

CARPIO MORALES,
- versus - TINGA,
VELASCO, JR., and
BRION, JJ.

PEOPLE OF THE PHILIPPINES, Promulgated:

Respondent. September 23, 2008

x--------------------------------------------------x

DECISION

CARPIO MORALES, J.:

Goretti Ong (petitioner) was, by Information dated August 10, 1995, charged
before the Regional Trial Court (RTC) of Manila for Estafa, without specification
under what mode in Article 315 of the Revised Penal Code the offense was allegedly
committed. The Information alleged as follows:

That on or about December 12, 1994, in the City of Manila, Philippines, the
said accused, did then and there willfully, unlawfully and
feloniously defraud ROSA CABUSO in the following manner, to wit: the said
accused, well knowing that [s]he did not have sufficient funds in the bank,
 and without informing the said Rosa Cabuso of such fact, drew, made out
and issued to the latter the following checks, to wit:
Allied Bank Check No. 76000242 dated January 13, 1995 in the amount of
P76,654.00;

Banco de Oro Check No. 026265 dated January 15, 1995 in the amount of
P76,654.00;

PS Bank Check No. 000928 dated January 18, 1995 in the amount of
P100,000.00;

Banco de Oro Check No. 026270 dated January 15, 1995 in the amount of
P100,000.00;

Banco de Oro Check No. 026266 dated January 20, 1995 in the amount of
P76,654.00;

Banco de Oro Check No. 026267 dated January 25, 1995 in the amount of
P96,494.00;

PS Bank Check No. 000927 dated January 31, 1995 in the amount of
P96,494.00;

Banco de Oro Check No. 026271 dated January 31, 1995, in the amount of
P100,000.00;

Banco de Oro Check No. 26268 dated January 31, 1995 in the amount of
P76,654.00; and

PS Bank Check No. 000950 dated January 31, 1995 in the amount of
P144,000.00.

all in the total amount of P923,110.00, in payment of assorted pieces of jewelry

which the said accused ordered, purchased and received from the said complainant
on the same day; that upon presentment of the said checks to the bank for payment,
the same were dishonored and payment thereof refused for the
reason ACCOUNT CLOSED and said accused, notwithstanding due notice to
her by said complainant of such dishonor of the said checks, failed and refused
and still fail[s] and refuse[s] to deposit the necessary amount to cover the
amount of the checks, to the damage and prejudice of the said Rosa Cabuso in
the aforesaid amount of P923,110.00, Philippine [c]urrency.[1] (Emphasis and
underscoring supplied)

[VAC1]

Petitioner had for years been buying jewelry from Gold Asia which is owned
and operated by the family of Rosa Cabuso (the private complainant). While she
normally bought jewelry on cash basis, she was allowed to issue postdated checks to
cover the jewelry she bought in December 1994 up to February 1995, upon her
assurance that the checks would be funded on their due dates. When, on maturity, the
checks were deposited, they were returned with the stamp Account Closed.

Hence, petitioner was indicted for Estafa. She was likewise indicted for 10
counts of violation of B.P. 22 before the RTC of Manila, docketed as Criminal Case
Nos. 213645-CR to 213654-CR.

The evidence presented by the prosecution in the Estafa case consisted of, inter
alia, the 10 dishonored checks and the transcript of stenographic notes[2] taken during
the trial of the B.P. 22 cases, which transcripts included those of the testimonies of
representatives of the drawee banks Allied Bank, PSBank and Banco de Oro.

Petitioner, denying having intended to defraud the private complainant, gave

her side of the case as follows:

On December 12, 1994, all the personal checks she had issued matured at the
same time, but as her business was faring poorly, she was not able to fund those
which she issued to the private complainant. On her request, however, the private
complainant allowed her to pay on installment the amounts covered by the checks
and she had in fact paid a total of P338,250, a fact admitted by the prosecution.

By Decision[3] of March 31, 2003, Branch 8 of the Manila RTC convicted

petitioner of Estafa under Article 315, paragraph 2(a) of the Revised Penal Code in
this wise:
While the parties are of the impression that the accused is charged with and
is being tried for the crime of estafa committed by means of the issuance of
bouncing checks [Art. 315, 2(d) of the Revised Penal Code], this Court is of the
opinion that the Information sufficiently charges estafa through false
pretenses under Paragraph 2(a) of the same article which provides:

Art. 315. Swindling (estafa). Any person who shall defraud

another . . .

xxxx
 2. By means of any of the following false pretenses or
fraudulent acts executed prior to or simultaneously with
the commission of the fraud:

a) By using a fictitious name or falsely pretending to

possess power, influence, qualifications, property,
credit, agency, business or imaginary transactions; or
by means of similar deceits.[4] (Emphasis and
underscoring supplied)

Thus the trial court disposed:

WHEREFORE, the Court hereby renders judgment finding accused Goretti

Ong GUILTY BEYOND REASONABLE DOUBT of the crime of Estafa defined
and penalized under Article 315, paragraph 2(a) of the Revised Penal Code and
hereby imposes on said accused the penalty of TWELVE (12) YEARS
imprisonment and to pay private complainant Rosa Cabuso the amount
of FIVE HUNDRED EIGHTY FOUR THOUSAND EIGHT HUNDRED SIXTY
(P584,860.00) PESOS and cost of suit.[5] (Underscoring supplied)

Petitioner challenged the trial courts decision before the Court of Appeals,
raising the issue of whether she could be convicted of Estafa under Article 315,
paragraph 2(a) of the Revised Penal Code when she was, in the Information, charged
of Estafa under Article 315, paragraph 2(d) of the same Code. She additionally raised
the following issues:
xxxx

2. WHETHER OR NOT THE DECISION OF THE TRIAL COURT IS

VALID EVEN IF IT FAILED TO COMPLY WITH THE PROVISIONS OF THE
INDETERMINATE SENTENCE LAW;

3. WHETHER OR NOT THE ACCUSED-APPELLANT CAN BE

CONVICTED OF THE CRIME OF ESTAFA DESPITE THE FAILURE OF THE
PROSECUTION TO PROVE HER GUILT BEYOND REASONABLE
DOUBT[.][6] (Underscoring supplied)

The Court of Appeals affirmed the conviction on appeal but modified the
penalty and the amount of indemnity,[7] disposing as follows:
 WHEREFORE, premises considered, the present appeal is hereby
DISMISSED for lack of merit. The appealed decision dated March 31, 2003 of the
trial court in Criminal Case No. 95-144421 is hereby AFFIRMED with
MODIFICATION in that the accused-appellant is hereby instead sentenced to
suffer an indeterminate prison term of four (4) years and two (2) months of prision
correccional, as minimum, to twenty (20) years of reclusion temporal as
maximum, and to indemnify the complaining witness in the amount of
P585,514.00.

With costs against the accused-appellant.[8]

Her Motion for Reconsideration[9] having been denied,[10] petitioner filed the
present petition,[11] faulting the appellate court for convicting her of Estafa despite
her good faith and lack of criminal intent, and violating her constitutional right to be
informed of the nature and cause of the accusation against her by affirming the trial
courts decision finding her guilty of Estafa under Article 315, paragraph 2(a), when
she was charged under paragraph 2(d) of the same Article.[12]

The appeal is impressed with merit.

Section 14(2) of Article III of the Constitution grants the accused the right to
be informed of the nature and cause of the accusation. This is to enable the accused
to adequately prepare for his defense. An accused cannot thus be convicted of an
offense unless it is clearly charged in the complaint or information.[13]

From the allegations in an information, the real nature of the crime charged is
determined.17 In the case at bar, the Information alleged that petitioner issued the
questioned checks knowing that she had no funds in the bank and failing to fund
them despite notice that they were dishonored. These allegations clearly constitute
a charge, not under paragraph 2(a) as the lower courts found but, under paragraph
2(d) of Article 315 of the Revised Penal Code which is committed as follows:

xxxx

2(d) 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 check. The failure of the drawer of the
check to deposit the amount necessary to cover this check within three (3)
days from receipt of notice from the bank and/or the payee or holder that said
 check has been dishonored for lack or insufficiency of funds shall be prima
facie evidence of deceit constituting false pretense or fraudulent act.

x x x x (Underscoring supplied)

Although the earlier quoted paragraph 2(a) and the immediately quoted
paragraph 2(d) of Article 315 have a common element false pretenses or fraudulent
acts the law treats Estafa under paragraph 2(d) by postdating a check or issuing a
bouncing check differently. Thus, under paragraph 2(d), failure to fund the
check despite notice of dishonorcreates a prima facie presumption of deceit
constituting false pretense or fraudulent act, which is not an element of a violation
of paragraph 2(a).

Under paragraph 2(d), if there is no proof of notice of dishonor, knowledge of

insufficiency of funds cannot be presumed, and unless there is a priori intent, which
is hard to determine and may not be inferred from mere failure to comply with a
promise, no Estafa can be deemed to exist. So holds the 2004 case of People v.
Ojeda.[14]

x x x [N]otice of dishonor is required under both par. 2(d) Art. 315 of the
R[evised] P[enal] C[ode] and Sec. 2 of BP 22. While the RPC prescribes that the
drawer of the check must deposit the amount needed to cover his check
within three days from receipt of notice of dishonor, BP 22, on the other hand,
requires the maker or drawer to pay the amount of the check within five days from
receipt of notice of dishonor. Under both laws, notice of dishonor is necessary
for prosecution (for estafa and violation of BP 22). Without proof of notice of
dishonor, knowledge of insufficiency of funds cannot be presumed and no
crime (whether estafa or violation of BP 22) can be deemed to
exist.[15] (Emphasis and underscoring supplied)

Notice of dishonor being then an element of a charge under Article 2(d) under
which petitioner was clearly charged, failure to prove it is a ground for acquittal
thereunder.

In affirming the trial courts decision, the Court of Appeals relied on the ruling
in the 2003 case of Garcia v. People[16] wherein this Court upheld the appellate
courts affirmance of the trial courts conviction of the accused for Estafa under
Article 315, Section 2(2) [sic] of the Revised Penal Code. In that case, the accused
was charged as follows:

That on or about and during the period comprised between June 20, 1995,
and August 15, 1995, inclusive, in the City of Manila, Philippines, the said accused
did then and there willfully, unlawfully and feloniously defraud DOLORES S.
APOLONIO in the following manner, to wit: the said accused by means of false
manifestations and fraudulent representations which she made to said DOLORES
S. APOLONIO to the effect that accused has three (3) checks which according to
her have sufficient funds and if encashed, the same will not be dishonored; and by
means of other deceits of similar import, induced and succeeded in inducing the
said DOLORES S. APOLONIO to accept the following checks:

Name of Bank Check No. Amount Date Payable to

Phil. Natl. Bank 046884 P28,000.00 6-20-95 Cash
- do - 047416 34,000.00 8-15-95 - do -
Pilipinas Bank 60042087 25,000.00 7-25-95 Garcia Vegetable
Dealer

as payments of assorted vegetables which accused purchased and received from

said DOLORES S. APOLONIO in the amount of P87,000.00, said
accused knowing fully well that the said manifestations and representations were
all false and untrue as said checks when presented to the bank for payment were all
dishonored for the reason Drawn Against Insufficient Funds, and were made solely
for the purpose of obtaining, as in fact she did obtain assorted vegetables in the
amount of P87,000.00; which once in her possession and with intent to defraud, she
willingly, unlawfully and feloniously misappropriated, misapplied and converted
the said assorted vegetables or the value thereof to her own personal use and benefit,
to the damage and prejudice of the said owner in the aforesaid amount
of P87,000.00, Philippine Currency.[17] (Underscoring supplied)

The therein accused Garcia argued that since, under the above-quoted
Information, she was charged of Estafa under Article 315, paragraph 2(a) of the
Revised Penal Code, it was error for the appellate court to affirm her conviction by
the trial court under Article 315, paragraph 2(d).

The Court in Garcia held that there is no basis for [her] to conclude that she
was convicted under Article 315, paragraph 2(d), but that [e]ven supposing that the
trial court apparently discussed estafa under Article 315, paragraph 2(d), it was only
pointing out the absurdity of [Garcias] argument that she could not be held liable
under Article 315 paragraph 2(d) as she was
not the drawer of the therein involved checks. Reliance on Garcia is thus misplaced.

In the case at bar, as priorly stated, petitioner was charged under paragraph
2(d), but there is no evidence that petitioner received notice of dishonor of all, except
one (Allied Bank Check No. 7600042 for P76,654), of the questioned
checks. Hence, with respect to all but one of the checks, the prima facie presumption
of knowledge of insufficiency of funds did not arise.

This leaves it unnecessary to pass on the evidence for the defense. Suffice it
to state that petitioners defenses of good faith and lack of criminal intent, defenses
to a malum in se like Estafa, are not difficult to credit. For, on notice of the lack of
sufficient funds in her bank account, to cover the Allied Bank check, petitioner
offered to pay in installment, to which the private complainant agreed, the amount
covered by the said check, as well as the others. As reflected above, the prosecution
stipulated that petitioner had made a total payment of P338,250, which amount is
almost one-third of the total amount of the ten checks or more than the amount
covered by the P76,654 Allied Bank check.

IN FINE, the prosecution having failed to establish all the elements of Estafa
under Article 315, paragraph 2(d) under which petitioner was clearly charged, her
acquittal is in order. The judgment bearing on her civil liability stands, however.

WHEREFORE, the petition is partly GRANTED. Petitioner, Goretti Ong,

is ACQUITTED of the crime charged for failure of the prosecution to prove her guilt
beyond reasonable doubt. The decision bearing on her civil liability is AFFIRMED,
however.
Costs against petitioner.

SO ORDERED.

CONCHITA CARPIO MORALES

Associate Justice