THIRD DIVISION
G.R. No. 196289, August 15, 2016
ELIZABETH ALBURO, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.
D E C I S I O N
PERALTA, J.:
For resolution of this Court is the Petition for Review on Certiorari under Rule 45 of the 1997 Rules of Civil Procedure, dated May 16, 2011, of petitioner Elizabeth Alburo assailing the Resolutions1 dated October 26, 2010 and March 24, 2011 of the Court of Appeals (CA) dismissing, based on technicality, her appeal of the cases filed against her for violation of Batas Pambansa Bilang 22 (B.P 22) that she was eventually convicted by the Municipal Trial Court in Cities (MTCC), Branch 2, Angeles City and affirmed by the Regional Trial Court (RTC), Branch 58, Angeles City.
The following are the antecedent facts:
chanRoblesvirtualLawlibraryPetitioner and her husband bought a house and lot from petitioner's sister-in-law, Elsa Alburo-Walter, who is married to James Walter, through Aurelio Tapang in his capacity as attorney-in-fact of Elsa and James Walter. The subject property is located at Villasol Subdivision, Brgy. Santol, Angeles City, covered by TCT No. 71458. The agreed consideration is Fifty Thousand U.S. Dollars ($50,000.00) or its peso equivalent. Petitioner and her husband made a partial payment of Twenty-One Thousand U.S. Dollars ($21,000.00) and the remaining balance has been paid through four (4) postdated checks issued by petitioner, now the subjects of this case. The checks eventually bounced, thus, four (4) separate Informations for violation of B.P. 22 were filed with the MTCC, Branch 2, Angeles City against petitioner, that read as follows:
CRIMINAL CASE NO. 01-777After trial on the merits, the MTCC,2 on January 7, 2008, found the petitioner guilty beyond reasonable doubt of the offense charged and sentenced her to the following:ChanRoblesVirtualawlibrary
That sometime in the first week of July 2000, in the City of Angeles, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused did then and there willfully, unlawfully, and feloniously draw and issue to the complainant, AURELIO TAPANG of Tapang Realty Company, a Land Bank, Dau Branch Check, bearing Check No. 0048902 post-dated/dated August 5, 2000 in the amount of P300,000.00, well-knowing that she has no sufficient funds in the bank, which check when presented for payment was dishonored for reason of "DRAWN AGAINST INSUFFICIENT FUNDS," and demands notwithstanding for more than five (5) days from notice of dishonor, the accused failed and refused, and still fails and refuses to redeem the said check, to the damage and prejudice of said complainant, AURELIO TAPANG, in the afore-mentioned amount of THREE HUNDRED THOUSAND PESOS (P300,000.00), Philippine Currency.
ALL CONTRARY TO LAW.
CRIMINAL CASE NO. 01-778
That sometime in the first week of July 2000, in the City of Angeles, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused did then and there willfully, unlawfully, and feloniously draw and issue to the complainant, AURELIO TAPANG of Tapang Realty Company, a Land Bank, Dau Branch Check, bearing Check No. 0048902 post-dated/dated September 5, 2000 in the amount of P300,000.00, well-knowing that she has no sufficient funds in the bank, which check when presented for payment was dishonored for reason of "DRAWN AGAINST INSUFFICIENT FUNDS," and demands notwithstanding for more than five (5) days from notice of dishonor, the accused failed and refused, and still fails and refuses to redeem the said check, to the damage and prejudice of said complainant, AURELIO TAPANG, in the afore-mentioned amount of THREE HUNDRED THOUSAND PESOS (P300,000.00), Philippine Currency.
ALL CONTRARY TO LAW.
CRIMINAL CASE NO. 01-779
That sometime in the first week of July 2000, in the City of Angeles, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused did then and there willfully, unlawfully, and feloniously draw and issue to the complainant, AURELIO TAPANG of Tapang Realty Company, a Land Bank, Dau Branch Check, bearing Check No. 0048903 post-dated/dated August 5, 2000 in the amount of P300,000.00, well-knowing that she has no sufficient funds in the bank, which check when presented for payment was dishonored for reason of "DRAWN AGAINST INSUFFICIENT FUNDS," and demands notwithstanding for more than five (5) days from notice of dishonor, the accused failed and refused, and still fails and refuses to redeem the said check, to the damage and prejudice of said complainant, AURELIO TAPANG, in the afore-mentioned amount of THREE HUNDRED THOUSAND PESOS (P300,000.00), Philippine Currency.
ALL CONTRARY TO LAW.
CRIMINAL CASE NO. 01-780
That sometime in the first week of July 2000, in the City of Angeles, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused did then and there willfully, unlawfully, and feloniously draw and issue to the complainant, AURELIO TAPANG of Tapang Realty Company, a Land Bank, Dau Branch Check, bearing Check No. 0048906 post-dated/dated November 5, 2000 in the amount of P363,460.00, well-knowing that she has no sufficient funds in the bank, which check when presented for payment was dishonored for reason of "DRAWN AGAINST INSUFFICIENT FUNDS," and demands notwithstanding for more than five (5) days from notice of dishonor, the accused failed and refused, and still fails and refuses to redeem the said check, to the damage and prejudice of said complainant, AURELIO TAPANG, in the afore-mentioned amount of THREE HUNDRED-SIXTY THREE THOUSAND FOUR HUNDRED SIXTY PESOS (P363,460.00), Philippine Currency.
ALL CONTRARY TO LAW.
WHEREFORE, in view of the foregoing facts and circumstances, accused Elizabeth Alburo is hereby adjudged GUILTY beyond reasonable doubt [of] violation of Batas Pambansa Bilang 22 and she is, hereby, sentenced to suffer penalty as follows:On appeal, the RTC affirmed the MTCC, the dispositive portion of its Resolution4 reading as follows:
chanRoblesvirtualLawlibrarya. Criminal Case No. 01-777 –one year imprisonment and to pay the amount of Three hundred thousand pesos (P300,000.00) Philippine currency face value of the check, as civil indemnity plus legal interest of six percent (6%) per annum from the filing of the information on May 25, 2001 until the finality of herein decision. Then after the judgment becomes final and executory until the obligation is satisfied the amount due shall earn an interest of 12% per year;
b. Criminal Case No. 01-778 – one year imprisonment and to pay the amount of Three hundred thousand pesos (P300,000.00) Philippine currency face value of the check, as civil indemnity plus legal interest of six percent (6%) per annum from the filing of the information on May 25, 2001 until the finality of herein decision. Then after the judgment becomes final and executory until the obligation is satisfied the amount due shall earn an interest of 12% per year,
c. Criminal Case No. 01-779 – one year imprisonment and to pay the amount of Three hundred thousand pesos (P300,000.00) Philippine currency face value of the check, as civil indemnity plus legal interest of six percent (6%) per annum from the filing of the information on May 25, 2001 until the finality of herein decision. Then after the judgment becomes final and executory until the obligation is satisfied the amount due shall earn an interest of 12% per year, and
d. Criminal Case No. 01-780 – one year imprisonment and to pay the amount of Three hundred sixty-three thousand four hundred sixty pesos (P363,460.00) Philippine currency face value of the check, as civil indemnity plus legal interest of six percent (6%) per annum from the filing of the information on May 25, 2001 until the finality of herein decision. Then after the judgment becomes final and executory until the obligation is satisfied the amount due shall earn an interest of 12% per year;
Finally, accused Elizabeth is ordered to pay Sixty thousand pesos (P60,000.00) as reasonable attorney's fees and cost of the suit amounting to P19,056.00.
SO ORDERED.3
WHEREFORE, finding no justifiable reason to warrant the reversal of the assailed Decision dated January 7, 2008 of the Municipal Trial Court in Cities, Branch II, Angeles City, the same is hereby AFFIRMED IN TOTO. Consequently, the appeal is hereby dismissed. Costs against accused/appellant.Petitioner filed a petition for review with the CA that was dismissed by the latter in its Resolution dated October 26, 2010. The said Resolution reads, in part, as follows:ChanRoblesVirtualawlibrary
Upon finality of this Resolution, let the entire original records of these cases be remanded to its court of origin for its disposition.
SO ORDERED.5
This Court resolves to dismiss the petition in view of the following infirmities:Petitioner's motion for reconsideration was denied in the CA's Resolution7 dated March 24, 2011; hence, the present petition.1. There is no allegation of material dates as to when the questioned Order dated March 5, 2009 was received and the motion for reconsideration was filed;SO ORDERED.6
2. The Office of the Solicitor General was not furnished [a] copy of the petition;
3. There are no copies of pleadings attached; and
4. The case is erroneously captioned "People of the Philippines, Respondent vs. Elizabeth Alburo, Accused-Petitioner."
In substance, petitioner argues that the prosecution failed to prove: (1) the second element of the crime charged; (2) she had knowledge when she issued the subject checks; and (3) she does not have sufficient funds for payment thereof. She adds that the only evidence presented is a demand letter which was allegedly sent to petitioner through registered mail and received by petitioner's housemaid.I.
THE HONORABLE COURT OF APPEALS ERRED IN OUTRIGHTLY DENYING THE PETITIONER'S AMENDED PETITION FOR REVIEW FOR STILL NOT BEARING COPIES OF THE PLEADINGS FILED BELOW DESPITE ATTACHMENT OF THE REQUIRED DOCUMENTS UNDER THE LAW, THEREBY SACRIFICING SUBSTANTIAL JUSTICE.II.
THE HONORABLE COURT OF APPEALS LIKEWISE GRAVELY ERRED IN DENYING PETITIONER'S MOTION FOR RECONSIDERATION WITH MOTION FOR LEAVE TO ADMIT ATTACHED AMENDED PETITION FOR REVIEW SINCE ITS DENIAL WOULD RESULT TO DENIAL OF RIGHT TO SUBSTANTIAL JUSTICE.III.
THE HONORABLE COURT OF APPEALS ERRED IN NOT CONSIDERING THE MERITORIOUS GROUND RAISED BY THE PETITIONER IN HER AMENDED PETITION FOR REVIEW.
Section 1. Filing of petition with Supreme Court. — A party desiring to appeal by certiorari from a judgment, final order or resolution of the Court of Appeals, the Sandiganbayan, the Court of Tax Appeals, the Regional Trial Court or other courts, whenever authorized by law, may file with the Supreme Court a verified petition for review on certiorari. The petition may include an application for a writ of preliminary injunction or other provisional remedies and shall raise only questions of law, which must be distinctly set forth. The petitioner may seek the same provisional remedies by verified motion filed in the same action or proceeding at any time during its pendency.As an exception to the rule, questions of fact may be raised in a Rule 45 petition if any of the following is present:
(1) when there is grave abuse of discretion; (2) when the findings are grounded on speculations; (3) when the inference made is manifestly mistaken; (4) when the judgment of the Court of Appeals is based on a misapprehension of facts; (5) when the factual findings are conflicting; (6) when the Court of Appeals went beyond the issues of the case and its findings are contrary to the admissions of the parties; (7) when the Court of Appeals overlooked undisputed facts which, if properly considered, would justify a different conclusion; (8) when the findings of the Court of Appeals are contrary to those of the trial court; (9) when the facts set forth by the petitioner are not disputed by the respondent; and (10) when the findings of the Court of Appeals are premised on the absence of evidence and are contradicted by the evidence on record.16A question of fact exists "when the doubt or difference arises as to the truth or the falsehood of alleged facts."17 On the other hand, a question of law exists "when the doubt or difference arises as to what the law is on a certain state of facts."18chanrobleslaw
(1) The making, drawing, and issuance of any check to apply for account or for value;There is no dispute that the first and the third elements are present in this case. It was proven that petitioner issued the subject Landbank checks in favor of Aurelio Tapang as payment for the balance of the purchase of the house and lot owned by Elsa Alburo-Walter and when presented for payment, the same checks were dishonored for the reason of being drawn against insufficient funds.
(2) The knowledge of the maker, drawer, or issuer that at the time of issue there were no sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment; and cralawlawlibrary
(3) The dishonor of the check by the drawee bank for insufficiency of funds or credit or the dishonor for the same reason had not the drawer, without any valid cause, ordered the drawee bank to stop payment.19
To hold a person liable under B.P. Blg. 22, the prosecution must not only establish that a check was issued and that the same was subsequently dishonored, it must further be shown that accused knew at the time of the issuance of the check that he did not have sufficient funds or credit with the drawee bank for the payment of such check in full upon its presentment.The MTCC, as affirmed by the RTC, found the existence of the second element. The RTC ruled:This knowledge of insufficiency of funds or credit at the time of the issuance of the check is the second element of the offense. Inasmuch as this element involves a state of mind of the person making, drawing or issuing the check which is difficult to prove, Section 2 of B.P. Blg. 22 creates a prima facie presumption of such knowledge. Said section reads:SEC. 2. Evidence of knowledge of insufficient funds. — The making, drawing and issuance of a check payment of which is refused by the drawee because of insufficient funds in or credit with such bank, when presented within ninety (90) days from the date of the check, shall be prima facie evidence of knowledge of such insufficiency of funds or credit unless such maker or drawer pays the holder thereof the amount due thereon, or makes arrangements for payment in full by the drawee of such check within five (5) banking days after receiving notice that such check has not been paid by the drawee.For this presumption to arise, the prosecution must prove the following: (a) the check is presented within ninety (90) days from the date of the check; (b) the drawer or maker of the check receives notice that such check has not been paid by the drawee; and (c) the drawer or maker of the check fails to pay the holder of the check the amount due thereon, or make arrangements for payment in full within five (5) banking days after receiving notice that such check has not been paid by the drawee. In other words, the presumption is brought into existence only after it is proved that the issuer had received a notice of dishonor and that within five days from receipt thereof, he failed to pay the amount of the check or to make arrangements for its payment. The presumption or prima facie evidence as provided in this section cannot arise, if such notice of nonpayment by the drawee bank is not sent to the maker or drawer, or if there is no proof as to when such notice was received by the drawer, since there would simply be no way of reckoning the crucial 5-day period.
A notice of dishonor received by the maker or drawer of the check is thus indispensable before a conviction can ensue. The notice of dishonor may be sent by the offended party or the drawee bank. The notice must be in writing. A mere oral notice to pay a dishonored check will not suffice. The lack of a written notice is fatal for the prosecution. 21
Accused also claims that the prosecution failed to prove that she received the demand letter (Exhibit B) sent to her, while the prosecution offered in evidence the Registry Receipt No. 3363 dated February 19, 2001 (Exhibit B-2) for the said letter and the Registry Return Card (Exhibit B-3) showing that the letter was received and signed for by a Jennifer Mendoza, who identified herself as a housemaid of the accused. Moreover, the representative of the Landbank, Dau, Mabalacat, Pampanga Branch testified that for each of the unfunded checks issued in these cases, they were given notices of dishonor (Exhibits P, P-l, P-2 and P-3).22A close reading of the above findings, however, would show that the RTC failed to mention that petitioner received any notice of dishonor and simply stated that a representative of Landbank, Dau, Mabalacat, Pampanga Branch testified that notices of dishonor were issued. It is necessary in cases for violation of Batas Pambansa Blg. 22, that the prosecution prove that the issuer had received a notice of dishonor.23 It is a general rule that when service of notice is an issue, the person alleging that the notice was served must prove the fact of service.24 The burden of proving notice rests upon the party asserting its existence.25cralawredchanrobleslaw
Endnotes:
* Designated Additional Member in lieu of Associate Justice Francis H. Jardeleza, per Raffle dated February 15,2016.
1 Penned by Associate Justice Amy C. Lazaro-Javier, with Associate Justices Rebecca De Guia-Salvador and Sesinando E. Villon, concurring.
2 Penned by Presiding Judge Katrina Nora S. Buan-Factora; rollo, pp. 56-62.
3Id. at 62. (Emphases omitted)
4 Penned by Presiding Judge Philbert I. Iturralbe; id. at 51-55.
5Rollo, p. 55. (Emphasis omitted)
6Id. at 33.
7Id. at 34-35.
8Id. at 257-258.
9Id. at 259.
10Id. at 260-270.
11Id at 287-299.
12Id at 302-304.
13Id. at 305-306. On February 17, 2016, this Court in a Resolution denied the same motion, however, this Court recalled the latter resolution, and herein proceeded with the resolution of the petition for review.
14Rollo, pp. 330-344.
15Id. at 352-364.
16Pagsibigan v. People, et al, 606 Phil. 233, 241-242 (2009) [Per J. Carpio, First Division]. See Medina v. Asistio, Jr., G.R. No. 75450, November 8, 1990, 191 SCRA 218, 223 [Per J. Bidin, Third Division] where this court enumerated for the first time the instances when the findings of fact by the trial courts and the Court of Appeals were passed upon and reviewed in a Rule 45 Petition.
17Benito v. People, G.R. No. 204644, February 11, 2015, 750 SCRA 450, 460, citing Sesbreno v. Honorable Court of Appeals, 310 Phil. 671, 679 (1995) [Per J. Quiason, First Division], Bernardo v. Court of Appeals, G.R. No. 101680, December 7, 1992, 216 SCRA 224, 232 (1992) [Per J. Campos, Jr., Second Division].
18Id.
19Ting v. Court of Appeals, 398 Phil. 481,458 (2000).
20 492 Phil. 534 (2005).
21Dico v. Court of Appeals, supra, at 547-548. (Citations omitted)
22Rollo, p. 54.
23Resterio v. People, 695 Phil. 693, 707 (2012), citing Ting v. Court of Appeals, supra note 19, at 492-493.
24Id. (Citation omitted)
25cralawred Id
26Id.
27Caras v. Court of Appeals, 418 Phil. 655, 667 (2001).
28Idos vs. Court of Appeals, 357 Phil. 198,214 (1998).
29Resterio v. People, supra note 23, at 705.
30Idos v. Court of Appeals, note 28, at 207.
31Resterio v. People, supra note 23, at 708.
32Caras v. Court of Appeals, supra note 27, at 666.
33 See King v. People, 377 Phil. 692, 710 (1999).
34Garcia v. Philippine Airlines, Inc., 498 Phil. 808, 821 (2005).
35Id.
36Caras v. Court of Appeals, supra note 27, at 668.