FIRST DIVISION
G.R. Nos. 95796-97 May 2, 1997
ANTONIO NIEVA, JR., petitioner,
vs.
THE HONORABLE COURT OF APPEALS and THE PEOPLE OF THE PHILIPPINES, respondents.
Separate Opinions
PADILLA, J., concurring and dissenting:
I concur with the ponencia of Mr. Justice Hermosisima, insofar as it affirms the conviction of petitioner Antonio Nieva, Jr. under Section 1 of B.P. 22 (The Bouncing Checks Law).
There can be no dispute that when petitioner issued a post-dated check for P70,000.00, drawn against the Commercial Bank of Manila and payable to Atty. Joven as consideration for the dumptruck he bought from the latter, he knew that he did not have sufficient funds or credit with the drawee bank for the payment of such check in full upon its presentment. Thus, when the check was subsequently dishonored because of his closed account and his failure to pay the amount due thereon despite repeated demands from private respondent, his conviction was warranted under Sec. 1 of B.P. 22.
Upon the other hand, I am unable to agree with the majority in finding that petitioner cannot be convicted of Estafa under Art. 315 par. 2(d) of the Revised Penal Code because the issuance of the (post-dated) check was allegedly made in payment of a pre-existing obligation.
The ponencia states that petitioner and Atty. Joven entered into a deed of absolute sale (of the dumptruck) on 10 June 1985 but Atty. Joven did not ask for payment prior to or simultaneously with the execution of the deed. The ponencia then concludes that when petitioner issued the post-dated check as payment for the dumptruck a week later —
it was not by reason of the issuance of the check that petitioner has remained [sic] to be in possession of the dumptruck but the perfected contract of sale entered into by petitioner and Atty. Joven a week earlier than the issuance of the check.
In fine . . . petitioner did not commit the fraud or deceit envisioned in the law as to make him liable for Estafa when he issued the post-dated check. Such issuance having been clearly made in payment of a pre-existing obligation.
Under the facts laid down in the ponencia, I find it difficult to conceive that a lawyer like Atty. Joven could be induced to sell his property and not ask for payment upon the execution of the deed of absolute sale. It just doesn't make sense for Atty. Joven to allow petitioner continued possession of the dumptruck because of a "perfected" contract of sale when in reality no consideration was paid to him when he signed the deed of absolute sale.
Under contract law, a contract of sale is void and produces no effect whatsoever if the price which appears to have been paid had in fact not been paid. Normally, a seller would promise to execute a deed of absolute sale upon complete payment of the price, in which case the contract is not of (absolute) sale but a contract to sell. Thus, a seller is not bound to deliver the thing sold if the vendee has not paid the price, unless the thing is sold on credit (or by installments). Generally, payment and delivery of the thing sold are concurrent acts because in reciprocal obligations neither party incurs in delay if the other does not comply or is not ready to comply in a proper manner with what is incumbent upon him.1
In the case at bar, the contract executed between the parties is an absolute deed of sale. There is no evidence of an express provision in the contract that title shall not pass until full payment of the purchase price. This means that when the thing sold (dumptruck) was delivered through tradicio brevi manu, title or ownership was transferred to herein petitioner without prejudice to the right of Atty. Joven to claim payment of the price. The point, however, is that there is a disputable presumption that the ordinary course of business has been followed and it would be a contradiction to state that Atty. Joven "did not ask for payment" when the evidence shows that he executed an absolute deed of sale which otherwise stated that he received sufficient consideration (P70,000.00) for the dumptruck. Hence, the best evidence of payment was the deed of absolute sale.
It is not stated in the ponencia whether the introduction of parole evidence to establish that Atty. Joven "did not ask for payment" was objected to by the prosecution. A closer analysis of the testimony of Alberto Joven shows that what he could no longer remember was the exact date when his father received the post-dated check from petitioner. Nowhere in his testimony did he state that the exact date excludes the day when the deed of absolute sale was executed.
Otherwise stated, petitioner's "positive averment" is, at the same time, a self-serving testimony because he can now conveniently state any day except the day when the contract was executed in order to escape prosecution for estafa.ℒαwρhi৷ And this is because Atty. Joven, who was the real privy in the case, could no longer rise from his grave to contradict said testimony.
Article 315 sec 2 (d) of the Revised Penal Code punishes as a form of swindling "by means of any of the following false pretenses or fraudulent acts executed prior to or simultaneously with the commission of the fraud:
x x x x x x x x x
(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 his 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.
Note that the law states that the false pretense or fraudulent act must be executed prior to or simultaneously with the commission of the fraud. Nowhere in the provision does it state that the obligation must be contracted at the time of the issuance of a (worthless) check.
Petitioner's account with the drawee bank was already closed even before he executed the deed of absolute sale with Atty. Joven. This circumstance reinforces the fact that the act of issuing a worthless check remains a fraudulent act or a false pretense under par 2(d) whether or not it was issued in payment of an existing obligation. However, ever since the Court had interpreted this provision under the principle that laws that impose criminal liability are (to be) strictly construed,2 a wily estafador can never be convicted of estafa as long as he issues a worthless check not prior to or simultaneous with but after contracting an obligation.
I do not also subscribe to the view that damage in estafa should only be either pecuniary or material. In fact, this Court has held, as early as 1907, that disturbance of property rights is also a form of damage suffered by a creditor.3
The point is that a false pretense or fraudulent act must have a necessary consequence. And it cannot be truly said that Mr. Joven's property rights remained undisturbed when petitioner issued a worthless check. In this sense, the false pretense or fraudulent act of issuing a worthless check does not only occur at the time of contracting an obligation, but also at the time of payment. In both instances, the deceit is the efficient cause of the damage or defraudation.
I therefore vote to AFFIRM the decision of the Court of Appeals in toto.
Footnotes
1 Article 1169, last paragraph.
2 People v. Sabio, L-45490, November 20, 1978, 86 SCRA 569, p. 580.
3 U.S. v. Goyonochea, 8 Phil. 117, See also US v. Malong, 36 Phil 321; U.S. v. Sevilla, 43 Phil. 136 and People v. Santiago, 54 Phil. 814, cited in People v. Sabio, supra, p. 587.
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