G.R. No. 122539 March 4, 1999
JESUS V. TIOMICO, petitioner,
vs.
THE HON. COURT OF APPEALS (FORMER FIFTH DIVISION) and PEOPLE OF THE PHILIPPINES, respondent.
PURISIMA, J.:
This is a petition for review by certiorari under Section 2, Rule 125, in relation to Section 1, Rule 45 of the Rules of Court to correct, reverse and annul the decision 1 of the Court of Appeals which affirmed the judgment 2 of the trial court convicting the petitioner herein for a violation of the Trust Receipts Law.
Petitioner Jesus V. Tiomico, (Tiomico) opened a Letter of Credit with the Bank of the Philippine Islands (BPI) for $5,600 to be used for the importation of two (2) units of Forklifts, Shovel loader and a truck mounted with crane. On October 29, 1982, the said machineries were received by the accused, as evidenced by the covering trust receipt. Upon maturity of the trust receipt, on December 28, 1982, he made a partial payment of US$855.94, thereby leaving an unpaid obligation of US$4,770.46. As of December 21, 1989, Tiomico owed BPI US$4,770.46, or P109,386.65, computed at P22.93 per US dollar, the rate of exchange at the time. Failing to pay the said amount or to deliver subject machineries and equipments, despite several demands, the International Operations Department of BPI referred the matter to the Legal Department of the bank. But the letter of demand sent to him notwithstanding, Tiomico failed to satisfy his monetary obligation sued upon.
Consequently, he was accused of a violation of PD 115, otherwise known as the Trust Receipts Law, under an Information 3
alleging:
That on or about the 29th day of October, 1982, in the Municipality of Makati, Metro, Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, executed a Trust Receipt Agreement for and in behalf of Paramount Calibrators Merchandising of which he is the sole proprietor in favor of the Bank of the Philippine Islands. In consideration of the receipt by the said accused of three (3) bares one unit Forklift Model FD-30 Toyota Branch 2-J70 Hp and one unit Forklift Model LM-301 Toyota Branch 2-J 70 Hp and one unit shovel loader Model SOT 130 HP, 6 Cyl-LC #2-16860, for which there is now due the sum of US$5600.00, wherein the accused agreed to sell the same and with the express obligation to remit to the complainant-bank the proceeds of the sale, and/or to turn over the same if not sold, on demand, but the accused once in possession of the said items, far from complying with his obligation, with unfaithfulness and abuse of confidence, did then and there wilfully, unlawfully and feloniously misappropriate, misapply and convert the same to his own personal use and benefit despite repeated demands, failed and refused and still fails and refuses account for and/or remit the proceeds of the sale thereof, to the damage and prejudice of the said complainant-bank as represented by Lourdes V. Palomo in the aforementioned amount of US $5600 or its equivalent in Philippine currency.
Contrary to law.
Arraigned thereunder, Tiomico entered a plea of Not Guilty, at which juncture, Assistant Provincial Prosecutor John B. Egana manisfested that he was authorizing the private prosecutor, Atty. Jose B. Soncuya, to prosecute the case subject to his direction, supervision and control.
On October 16, 1989, Gretel S. Donato was presented to testify for the prosecution. According to her, she worked for the Bank of the Philippine Islands (BPI) in 1981 and in 1982, she was assigned as one of the Letter of Credit processors in the International Operations Department of BPI. Her duty, among others, was to process letter of credit applications which included that of Tiomico. The trust receipt executed by the latter was given to her as part of the documents supporting his Letter of Credit.
The following documents presented in the course of the testimony of Donato were identified by her as follows:
(1) Exhibit "A" — Letter of Credit;
(2) Exhibit "B" — Pro Forma Invoice;
(3) Exhibit "C" — Letter of Credit Confirmation;
(4) Exhibit "D" — Trust Receipt; Exhibit D1-D4 — signatures thereon;
(5) Exhibit "E" — Statement of Account, the amount of P306,708.17 appearing therein, as Exhibit E-1, and the signature thereto of an unidentified bank officer, as Exhibit E-2;
(6) Exhibit "F" — Letter of Demand of the bank's legal department; a return card, as Exhibit F-1, and the signature of the addressee's agent, as Exhibit F-1 A.
Counsel for petitioner objected to the admission of Exhibits "A", "B", "C" and "D" on the ground that witness failed to identify the said documents inasmuch as her testimony regarding the signatures appearing therein were evidently hearsay. But the trial court admitted the said documentary evidence, despite the objections raised thereto by the defense. Thereafter, the prosecution rested.
After the People rested its case, petitioner begged leave to file a demurrer to the evidence, theorizing that the evidence on record does not suffice to prove beyond reasonable doubt the accusation against him. But instead of granting the said motion of the defense, the trial court ordered a re-opening of the case, so as to enable the prosecution to adduce more evidence. The defense objected but to no avail. The trial court proceeded with the continuation of trial "in the interest of justice".
On September 5, 1990, the-lower court denied the demurrer to evidence. The Motion for Reconsideration of the defense met the same fate. It was denied. The case was then set for continuation of trial on December 12, 1990. Reception of evidence for the defense was set on January 7, 1991. But on January 4, 1991, three days before the scheduled continuation of trial, the defense counsel filed an Urgent Motion for Postponement for the given reason that he had to appear before Branch 12 of the Metropolitan Trial Court of Manila on January 7, 1991.
On January 7, 1991, the lower court denied the Urgent Motion for Postponement and adjudged petitioner to have waived the right to introduce evidence on his behalf.
On January 30, 1991, the trial court promulgated its decision finding petitioner guilty of a violation of PD 115, and sentencing him accordingly.
On appeal, the Court of Appeals came out with a judgment of affirmance, the dispositive portion which, is to the following effect:
WHEREFORE, the Court finds JESUS V. TIOMICO guilty beyond reasonable doubt of violation of PD 115 and is hereby sentenced to suffer an indeterminate penalty of ten (10) years of prision mayor as minimum, to fifteen (15) years of reclusion temporal as maximum; to indemnify Bank of the Philippine Islands the sum of P109,386.65 and to pay the costs.
SO ORDERED. 4
Undaunted, petitioner found his way to this Court via the Petition for Review by Certiorari at bar, seeking to annul the decision 5 of the Court of Appeals; raising as issues:
(1) WHETHER OR NOT PD 115 OR TRUST RECEIPTS LAW IS UNCONSTITUTIONAL;
(2) WHETHER OR NOT A TESTIMONY CAN BE ADMITTED DESPITE THE ABSENCE OF FORMAL OFFER AS REQUIRED BY SECTIONS 34 AND 35, RULE 132, OF THE REVISED RULES OF COURT;
(3) WHETHER OR NOT THE TESTIMONY OF WITNESS WITH REGARD TO THE LETTER OF CREDIT AND OTHER DOCUMENT IS HEARSAY AND;
(4) WHETHER OR NOT THERE WAS DEPRIVATION OF DUE PROCESS ON THE RIGHTS OF THE ACCUSED WHEN THE TRIAL COURT DENIED THE MOTION FOR POSTPONEMENT BY THE DEFENSE COUNSEL.
As regards the first issue, the Court has repeatedly upheld the validity of the Trust Receipts Law and consistently declared that the said law does not violate the constitutional proscription againts imprisonment for non-payment of debts. (People vs. Cuevo, 104 SCRA 312; People vs. Nitafan, 207 SCRA 726; Lee vs. Rodil, 175 SCRA 100). Such pronouncement was thoroughly explained in Lee vs. Rodil (supra) thus:
Verily, PD 115 is a declaration by the legislative authority that, as a matter of public policy, the failure of a person to turn over the proceeds of the sale of goods covered by a trust receipt or to return said goods if not sold is a public nuisance to be abated by the imposition of penal sanctions. As held in Lozano vs. Martinez (146 SCRA 323, 338):
. . . certainly, it is within the authority of the lawmaking body to prescribe certain act deemed pernicious and inimical to public welfare. Acts mala in se are not the only acts that the law can punish. An act may not be considered by society as inherently wrong, hence, not malum in se, but because of the harm that it inflicts on the community, it can be outlawed and criminally punished as malum prohibitum. The State can do this in the exercise of its police power.
In fine, PD 115 is a valid exercise of police power and is not repugnant to the constitutional provision of non-imprisonment for non-payment of debt.
In a similar vein, the case of People vs. Nitafan (supra) held:
The Trust Receipts Law punishes the dishonesty and abuse of confidence in the handling of money or goods to the prejudice of another regardless of whether the latter is the owner or not. The law does not seek to enforce payment of a loan. Thus, there can be no violation of the right against imprisonment for non-payment of a debt.
Anent the second issue, the pivotal question is: Should the testimony of a witness be admitted despite the failure of the proponent to offer it formally in evidence, as required by Section 34 of Rule 132 6? We rule on this issue in the affirmative.
Records disclose that the private prosecutor stated the purpose of the testimony in question although he did not formally offer the same. The proceedings 7 went on as follows:
ATTY. SONCUYA:
The purpose of the testimony of the witness is to prove that the accused applied for a letter of credit, for the opening of a letter of credit and for the importation of machinery from Japan and that those machinery were delivered and received by the accused as evidenced by the trust receipt and that the accused failed to comply with the terms and conditions of the said trust receipt, your Honor.
COURT:
All right, proceed.
As aptly stressed by the Solicitor General in his Comment, 8 "the absence of the words, 'we are formally offering the testimony for the purpose of . . .'" should be considered merely as an excusable oversight on the part of the private prosecutor.
It should be borne in mind that the rationale behind Section 34 of Rule 132 9 is to inform the Court of the purpose of the testimony, to enable the judge to rule whether the said testimony is necessary or is irrelevant or immaterial.
In the case under scrutiny, since the purpose of subject testimony was succinctly stated, the reason behind the requirement for its formal offer has been substantially complied with. What the defense counsel should have done should have been to interpose his objection the moment the private respondent was called to testify, on the ground that there was no prior offer made by the proponent. 10
The tendency of the rules on evidence, is towards substantial justice rather than strict adherence to technicalities. To condemn the disputed testimony as inadmissible due to the failure of the private prosecutor to properly observe the rules on presentation of evidence, would render nugatory, and defeat the proceedings before the lower court.
On the third issue — whether or not the witness can testify on subject documents introduced as evidence despite her admission that she did not see the accused sign the said exhibits, we likewise rule in the affirmative.
As aptly held by the appellate court: 11
Gretel Donato testified that she was not present when appellant affixed his signature on the documents in question (p. 22 ibid). She, however, identified the signatures thereon (Exhs. "A-1", "A-2", "D-1", "D-2" and "D-3", Letter of Credit; Exhibit B — Pro Forma Invoice; Exhibit C — Letter of Credit Confirmation; Exhibit D-Trust Receipt; Exhibit D1-D4 — signatures thereon; pp. 129 and 132 of Orig. Rec.) as those of the appellant Jesus V. Tiomico arising from her familiarity therewith inasmuch as she was the one who processed the papers pertinent to the transactions between the appellant and the complainant bank (TSN, Feb. 5, 1990, pp 4-6). Her testimony, therefore, cannot be considered hearsay because it is principally based on her personal knowledge of bank transactions and the documents and records which she processes in the regular course of the bank's business operations.
It is not essential to the competence of a lay witness to express opinions on the genuineness of handwritings that he did see the person in question
write.12 It is enough that the witness has so adopted the same into business transactions as to induce a reasonable presumption and belief of genuineness of the document. This is due to the fact that in the ordinary course of business, documents purporting to be written or signed by that person have been habitually submitted to the witness, or where knowledge of handwriting is acquired by him in an official capacity. 13
Did the witness gain familiarity with the signature of the accused? The answer is yes. Exhibits "A" to "D": Letter of Credit, Pro-Forma Invoice, Letter of Credit Confirmation and Trust Receipt, respectively, were all familiar to the witness since the said documents bearing the signature of the accused were all submitted to her for processing. It is therefore beyond cavil that she acquired sufficient familiarity to make witness competent to testify on the signatures appearing in subject documents. From the time of the application to its approval and when Tiomico defaulted, she (witness) was the one who had overseen the transactions and recommended the actions to be taken thereon. As a matter of fact, she was the one who referred the failure of Tiomico to pay his balance to Tiomico to pay his balance to the Legal Department of BPI, prompting the said legal department to send him (Tiomico) a demand letter.
Furthermore, whether there was due execution or authencity of such documents was impliedly admitted by the accused. On this point, we quote with approval the conclusion reached by the Court of Appeals, to wit: 14
On the other hand, appellant impliedly admitted the due execution of the assailed documents considering that he did not deny the fact that he opened a letter of credit. Neither did he deny that the signature appearing thereon is his. What appellant intended to dispute was merely the balance of his past due account with the complainant bank, thus:
COURT
Denied.
What is the defense of the accused?
Denial that he opened the letter of credit.
ATTY. EBRO
No, you honor.
COURT: What is the defense?
x x x x x x x x x
ATTY. EBRO.
Q: — Now you identified signatures allegedly of the accused on Exhibit A, which is the application for the letter of credit, I ask you Miss Donato, were you personally present when this signature was affixed to the document?
A: — (witness going over Exhibit A) I was the one of the ones who processed the letter of credit.
ATTY. EBRO
May we ask for an order directing that the witness respond to my question.
COURT
Just answer the question.
WITNESS
A: — No, sir.
COURT
Does the accused deny the signature?
ATTY. EBRO
No, your Honor. I am just showing also that she has been exaggerating.
(TSN, Feb. 5, 1990, pp. 12-13, p. 22)
In light of the foregoing, it stands to reason and conclude that the documents under scrutiny are admissible in evidence, as held by the trial court.
Anent the fourth issue, petitioner theorizes that the denial of the motion for postponement sent in by his lawyer violated his constitutional right to due process.
It should be stressed that subject Urgent Motion for Postponement was not the first motion for resetting ever presented by the counsel for petitioner. On December 12, 1990, upon motion of the latter, and without objection on the part of the prosecution, the reception of evidence for the defense was reset once more to January 7, 1991, at 8:30 in the morning.
The most basic tenet of due process is the right to be heard. Where a party had been afforded an opportunity to participate in the proceedings but failed to do so, he cannot complain of deprivation of due process. 15 Due process is satisfied as long as the party is accorded an opportunity to be heard. If it is not availed of, it is deemed waived or forfeited without violating the Bill of Rights. 16
It is further theorized by petitioner that the lower court should have at least granted him another trial date so as to enable him to present his evidence, so that the denial of his Urgent Motion for Postponement infringed his constitutional right to be heard by himself and by counsel. 17 This submission is unsustainable.
When an accused is accorded a chance to present evidence on his behalf but due to his repeated unjustifiable failure to appear at the trial without any justification, the lower court order's the case submitted for decision on the basis of the evidence on record, said judicial action is not tainted with grave abuse of discretion because in such a case, the accused is deemed to have waived the right to adduce evidence on his behalf. 18
Furthermore, records show that in this case the defense counsel did not even bother to appear for the scheduled reception of evidence for his client on January 7, 1991, notwithstanding the fact that the trial court did not act upon, much less grant, the Urgent Motion for Postponement which he filed on January 4, 1991. Lawyers should never presume that their motions for postponement would be granted. 19
A motion for continue or postponement is not a matter of right. It is addressed to the sound discretion of the Court. Action thereon will not be disturbed by appellate courts, in the absence of clear and manifest abuse of discretion resulting in a denial of substantial justice. 20
Motions for postponement are generally frowned upon by Courts if there is evidence of bad faith, malice or inexcusable negligence on the part of the movant.21 The inadvertence of the defense of the defense counsel in failing to take note of the trial dates and in belatedly informing the trial court of any conflict in his schedules of trial or court appearances, constitutes inexcusable negligence. It should be borne in mind that a client is bound by his counsel's conduct, negligence and mistakes in handling the case. 22
As gleanable from the records:
. . . Attached to the motion is the Order of said court dated November 19, 1990. Obviously, when the case was called on December 12, 1990, the counsel for the accused had already known of the scheduled hearing before the Metropolitan Trial Court, yet he agreed to the hearing on January 7, 1991. Counsel's conduct is not consistent with the thrust of the Judiciary to expedite the termination of cases under the Mandatory Continuous Trial . . . 23
A lawyer as an officer of the court is part of the judicial machinery in the administration of justice. As such, he has a responsibility to assist in the proper and sound administration of justice. Like the court itself, he is an instrument to advance its ends and the speedy, efficient, impartial, correct and inexpensive adjudication of cases. A lawyer should not only help to attain these objectives. He should also avoid improper practices that impede, obstruct or prevent their realization, charged as he is with the primary task of assisting the court in the speedy and efficient administration of justice. 24
Petitioner invites attention to the Affidavit of Desistance by the Bank of the Philippine Islands (BPI). This issue raised by the petitioner cannot be entertained as it was only raised for the first time on appeal. 25
Considering that the assailed decision is firmly anchored on prevailing law and established jurisprudence, the Court cannot help but deny the petition.
WHEREFORE, the petition is DENIED and the decision of the Court of Appeals, dated May 31, 1995, affirming the judgment of conviction rendered on January 28, 1991 by the court of origin AFFIRMED. No pronouncement as to costs.
SO ORDERED.
Romero and Gonzaga-Reyes, JJ., concur.
Vitug, J., abroad on official business.
Panganiban, J., is on leave.
Footnotes
1 CA G. R. No.11977, promulgated on May 31, 1995 by the Fifth Division of Court of Appeals, with Justice Martin Jr., ponente and Justices Morales, and Ramirez, members.
2 Criminal Case # 33723, dated Jan. 28, 1991, Branch 133 of the RTC of Makati, MM penned by Judge Buenaventura J. Guerrero (now Justice of the Court of Appeals).
3 Rollo, p. 128.
4 RTC Decision, p 4, Rollo, p. 134.
5 promulgated on May 31, 1995 by the Fifth Division of Court of Appeals in CA G.R. No. 11977.
6 Sec. 34 or Rule 132 of the Revised Rules of Court states that: "OFFER OF EVIDENCE — The Court shall consider no evidence which has not been formally offered. The purpose for which the evidence is offered must be specified."
7 t.s.n., p. 2, February 5, 1990.
8 Rollo, p. 178.
9 Catuira vs. Court of Appeals; 236 SCRA 398, p. 402, citing the Minutes of the Revision of Rules of Committee, 8 October 1986, p. 5.
10 Ibid, p. 400.
11 CA decision, p. 8; Rollo, p. 140.
12 Francisco, Revised Rules of Court: Evidence, p 440, 1973 ed.
13 20 Am Jur, 703.
14 CA Decision, p. 12; Rollo, p. 143.
15 Loong vs. COMELEC, 257 SCRA 1
16 Comendador vs De Villa, GR No. 93177, August 2, 1991, 200 SCRA 82, 89.
17 Petition, p. 50; Rollo, p. 59.
18 Siguian vs. People, GR No. 8219, March 13, 1989, citing People vs. Angco, 103 Phil 33 (1958).
19 Videogram Regulatory Board vs. Court of Appeals, 265 SCRA 50.
20 Pepsi Cola Products Phils., Inc. vs. Court of Appeals, G.R. No. 122629, promulgated December 2, 1998, citing the cases Belstar Transportation Inc. vs. Board of Transportation, 181 SCRA 209, 213 (1990), Alcarez vs. Racino, 125 SCRA 328, 334 (1983), Sumadchat vs. CA 111 SCRA 488.
21 Ching Heng So vs. Tan Boon Kong, 53 Phil 437.
22 Suerez vs. Court of Appeals, 220 SCRA, 274.
23 RTC Order dated January 7, 1991, p. 1, Rollo, p. 126.
24 Agpalo, The Code Professional Responsibility for Lawyers, First Ed., p. 127, cited in page 13-14 of CA Decision, Rollo, pp. 145-146.
25 C. Alcantara Sons Inc vs. National Labor Relations Commission, 229 SCRA 109.
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