Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 154721 March 22, 2007
ALFONSO FIRAZA, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
D E C I S I O N
CARPIO, J.:
The Case
Before the Court is a petition for review1 assailing the 30 July 2002 Decision2 of the Court of Appeals in CA-G.R. CR No. 22679. The Court of Appeals affirmed with modification the 25 November 1998 Decision of the Regional Trial Court of Legaspi3 City, Branch 7 (trial court), in Criminal Case No. 7063.
The Antecedent Facts
Henry Samar, Jr. (private complainant) was the owner of a parcel of land with an area of 15,066 square meters covered by Transfer Certificate of Title No. 90243 and located in Peñafrancia, Daraga, Albay. In an Agreement dated 13 May 1994, private complainant sold the land to Alfonso Firaza (petitioner) under the following terms of payment:4
1) Down payment of ₱85,000.00 upon signing of [the] contract; and
2) Balance of ₱665,000.00 payable with postdated checks dated as follows:
a) ₱15,000.00 dated May 30, 1994, PNB Check No. 3955-30
b) ₱100,000.00 dated July 30, 1994, PNB Check No. 3955-31
c) ₱100,000.00 dated August 30, 1994, PNB Check No. 3955-325
d) ₱450,000.00 dated Nov. 30, 1994, PNB Check No. 3955-33.6
(Emphasis in the original)
When private complainant presented PNB Check No. 395532-S for payment, the Philippine National Bank (PNB) dishonored the check by reason of "account closed." Meanwhile, petitioner subdivided the land, sold the subdivided lots, and retained the unsold lots.
Despite verbal and written demands for the payment of the value of the check, petitioner failed to pay the amount of the dishonored check. Thus, private complainant charged petitioner with estafa for violation of paragraph 2(d), Article 315 of the Revised Penal Code. The Information reads:
That sometime in May, 1994, in the City of Legazpi, and within the jurisdiction of this Honorable Court, the above-named accused, with intent to defraud, by means of false pretenses or fraudulent acts executed prior to, or simultaneously with the commission of the fraud, did then and there wilfully, unlawfully and feloniously draw and issue a postdated PNB Check No. 395532-S dated August 30, 1994 in the amount of ₱100,000.00 in favor of one HENRY SAMAR, as payment of a parcel of land he purchased from the said HENRY SAMAR, knowing fully well that at the time he issued the check, he had no sufficient funds with the drawee bank to cover the amount called for therein and without informing the payee of such circumstances; that when said check was presented to the drawee bank for payment, the same was consequently dishonored and refused payment for the reason of "ACCOUNT CLOSED", that despite oral and written demands, accused had failed and refused and still fails and refused to pay the sum of ₱100,000.00, Philippine Currency, and/or make arrangement for the payment of said check, to the damage and prejudice of said HENRY SAMAR, in the aforementioned amount.
CONTRARY TO LAW.7
Upon his arraignment, petitioner pleaded not guilty to the charge.
The prosecution presented private complainant and Jose Biton (Biton), a PNB employee who testified that at the time of the issuance of the check, petitioner’s account balance was only ₱1,026.53. Biton further testified that petitioner closed his account on 27 May 1994, or about three months prior to the actual date of PNB Check No. 395532-S.
The defense presented petitioner and Eufemio Mediavillo (Mediavillo) as witnesses. The defense manifested that another witness would be presented but petitioner and his counsel did not appear at the scheduled hearing. The trial court deemed that petitioner had waived further presentation of evidence, and the case was submitted for resolution.
The Ruling of the Trial Court
In its Decision8 dated 25 November 1998, the trial court convicted petitioner, as follows:
PREMISES CONSIDERED, the court finds the accused to have violated beyond reasonable doubt Section 2, paragraph (d) of Article 315 of the Revised Penal Code. All the elements for its violation are present. He is, therefore, declared GUILTY of the offense charged. Pursuant to the provisions of P.D. 818 and applying the Indeterminate Sentence Law, accused is hereby sentenced to suffer the penalty of ten (10) years and one (1) day of prision mayor maximum, to seventeen (17) years, four (4) months and one (1) day of reclusion temporal maximum, considering that the amount involved is ₱100,000.00. Accused is likewise sentenced to suffer an additional penalty of seven (7) years of imprisonment, as an extra penalty for the ₱78,000.00 in excess of the ₱22,000.00 provided under the law, with all the accessory penalties provided therefor. Accused also is ordered to reimburse Henry Samar, Jr. the amount of ₱100,000.00 corresponding to the value of the check, with interest thereon at the legal rate, from the time it was drawn, until fully paid; likewise the amount of ₱20,000.00 as damages for and as attorney’s fees.
SO ORDERED.9
The trial court ruled that petitioner knew that at the time of the issuance of PNB Check No. 395532-S, the check was not funded. The trial court did not accept petitioner’s defense that private complainant knew that PNB Check No. 395532-S was not funded and that the check was issued only as a guaranty for the payment of the balance of the purchase price of the land.
Petitioner appealed the trial court’s decision.
The Ruling of the Court of Appeals
The Court of Appeals affirmed the trial court’s decision with modification, thus:
WHEREFORE, the appealed decision is hereby AFFIRMED with the MODIFICATION that the accused-appellant is hereby sentenced to suffer the indeterminate penalty of 4 years and 2 months of Prision Correccional, medium, to 20 years of Reclusion Temporal. Costs against accused-appellant.
SO ORDERED.10
The Court of Appeals ruled that petitioner defrauded private complainant because he issued PNB Check No. 395532-S to induce private complainant to execute the Deed of Sale in his favor. The Court of Appeals ruled that private complainant would not have parted with the title of the land had petitioner not issued several postdated checks, including PNB Check No. 395532-S. The Court of Appeals cited private complainant’s testimony that he was informed that petitioner’s account was in good standing and there was sufficient fund for the postdated checks issued by petitioner.
Petitioner filed a petition for review before this Court to assail the Decision of the Court of Appeals.
The Issue
The sole issue in this case is whether petitioner is guilty of estafa under paragraph 2(d), Article 315 of the Revised Penal Code.
The Ruling of this Court
The petition has no merit.
Elements of Estafa under paragraph 2(d), Article 315 of the Revised Penal Code
Paragraph 2(d), Article 315 of the Revised Penal Code provides:
ART. 315. Swindling (estafa). — any person who shall defraud another by any of the means mentioned hereinbelow shall be punished by:
x x x
2. 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
(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.
The elements of estafa under paragraph 2(d), Article 315 of the Revised Penal Code are the following:
1. postdating or issuance of a check in payment of an obligation contracted at the time the check was issued;
2. lack of sufficiency of funds to cover the check; and
3.damage to the payee.11
All the elements are present in this case. Petitioner issued PNB Check No. 395532-S to obtain the title of the land from private complainant. As found by the Court of Appeals, petitioner issued the check to induce private complainant to execute a deed of sale in his favor. Mediavillo, a defense witness, confirmed that the Deed of Absolute Sale was signed after petitioner gave the checks to private complainant. Thus:
Q. And you will agree with the fact that after the issuance and delivery of the check to Mrs. Samar and her subsequent acceptance thereof, the Deed of Sale, as you said, was in turn delivered to Mr. Firaza, did I get you correctly?
A. Yes, sir.
Q. In other words, we are clear of the fact that the reason why the Deed of Absolute Sale was signed already by the son of Mrs. Samar, the complainant herein, Henry Samar, is because Mr. Firaza already delivered several checks which constitute part of the balance of the consideration of this transaction of sale, is that correct?
A. Yes, sir.
Q. Putting it another way, this Deed of Absolute Sale could not have been signed or delivered to Mr. Firaza had Mr. Firaza not issued those checks which you mentioned?
A. They went together and I was with them when they went to the notary public.
Atty. Berches:
Q. But the point is, they agreed to the signing and subsequent notarization of this document only after Firaza had delivered the checks corresponding to the balance of the consideration.
A. Yes, sir.12
Petitioner did not dispute that at the time of the issuance of PNB Check No. 395532-S, petitioner’s account balance was only ₱1,026.53. It was also established that petitioner closed his account on 27 May 1994, three months before the date indicated in PNB Check No. 395532-S.
Petitioner argues that if he had sufficient funds to pay the balance of the purchase price, he would not have issued the checks. Hence, even without informing private complainant, private complainant could already have discerned that the checks had no funds. Thus, there was no deceit committed by petitioner.
The Court finds the argument untenable. Petitioner’s claim that private complainant knew that the checks did not have sufficient funds was denied by private complainant who testified that he was informed that petitioner’s account was in good standing and that there were sufficient funds for the postdated checks issued.13 It was established that private complainant would not have parted with his property if he knew that the checks were not funded.
The damage suffered by private complainant had also been established. Private complainant had already transferred the title to the property to petitioner who subsequently subdivided the land and started selling the subdivided portions of the land. Yet, despite several demands, petitioner failed to pay the value of the dishonored check. These factual findings of the trial court, adopted and confirmed by the Court of Appeals, are final and conclusive and may not be reviewed on appeal to this Court.14
Subsequent Desistance of Private Complainant
Will Not Absolve Petitioner
Petitioner filed before this Court a Motion dated 24 June 2005 praying for the reversal of his conviction. Petitioner alleges that he had fully settled his obligation and that private complainant did not suffer any damage as a consequence of the issuance of the check. The motion states:
M O T I O N
ACCUSED-APPELLANT, unto this Honorable Court, most respectfully set forth:
1. That the check which gave rise to this case for Estafa against the accused-appellant is Philippine National Bank Check No. 395[5]32-S dated August 30, 1994 in the amount of PhP100,000.00;
2. That private complainant Henry B. Samar, Jr. has admitted, in a public document no less, that accused has in fact paid and settled all his accounts with private complainant arising from the sale of a parcel of land, and it was only through sheer inadvertence of private complainant that the payments were overlooked, copy of the Affidavit is hereto attached as Annex "A";
3. That accused-appellant came across the abovementioned affidavit sometime this year in connection with the civil case pending before the Regional Trial Court Branch 10 of Legaspi City between the same parties involving the same sale of a parcel of land for which accused-appellant issued the check involved in this case;
4. That since the amount covered by the check has in fact been paid, there can be no Estafa as there was no damage accruing to the private complainant;
5. That had private complainant been more circumspect in keeping his financial records straight, accused would not have been convicted in the Regional Trial Court in the first place;
6. That extreme prejudice and injustice would result if accused-appellant will be imprisoned for a crime he did not commit;
WHEREFORE, IT IS RESPECTFULLY PRAYED OF THIS HONORABLE COURT THAT THE AFFIDAVIT OF PRIVATE COMPLAINANT BE CONSIDERED AND THAT THE DECISION OF THE COURT OF APPEAL[S] AFFIRMING THE CONVICTION OF THE ACCUSED-APPELLANT BE REVERSED.
Daraga, Albay for Manila City, Philippines, June 24, 2005.
ALFONSO FIRAZA
Accused-Appellant15
Petitioner relied on private complainant’s Affidavit to support his contention. The Affidavit states:
AFFIDAVIT
I, HENRY B. SAMAR, JR.[,] of legal age, married, Filipino and a resident of Pag-Asa, Legazpi City, after having been sworn to in accordance with law hereby depose and state that:
1. I am the private complainant in Criminal Case No. 7063 for Estafa entitled: "People of the Philippines - versus - Alfonso Firaza" filed before the Regional Trial Court Branch 7, Legazpi City;
2. The subject matter of the above-mentioned case is PNB Check No. 395[5]32-S, dated August 30, 1994 in the amount of One Hundred Thousand Pesos (₱100,000.00);
3. After a thorough review of my accounting records, I have discovered that in fact said check had already been paid and settled by the accused prior to the trial of the case;
4. This fact of payment was overlooked by me for which reason the above-entitled case had been filed at my instance;
5. I am executing this affidavit to attest to the truth of the foregoing statements for all legal purposes this may serve.
IN WITNESS WHEREOF, I have hereunto set my hand this 12th day of October 2003 at Tabaco City, Philippines.
HENRY B. SAMAR, JR.
(Affiant)16
Private complainant’s Affidavit partakes of the nature of an affidavit of desistance. As a rule, this Court frowns upon affidavits of desistance or recantation made after conviction of the accused. Such affidavits deserve scant consideration.17 The Court explained in length in Molina v. People:18
Affidavits of recantation made by a witness after the conviction of the accused is unreliable and deserves scant consideration.
"x x x. Merely because a witness says that what he had declared is false and that what he now says is true, is not sufficient ground for concluding that the previous testimony is false. No such reasoning has ever crystallized into a rule of credibility. The rule is that a witness may be impeached by a previous contradictory statement x x x not that a previous statement is presumed to be false merely because a witness now says that the same is not true. The jurisprudence of this Court has always been otherwise, i.e., that contradictory testimony given subsequently does not necessarily discredit the previous testimony if the contradictions are satisfactorily explained. (U.S. vs. Magtibay, 17 Phil. 417; U.S. vs. Briones, 28 Phil. 362; U.S. vs. Dasiip, 26 Phil. 503; U.S. vs. Lazaro, 34 Phil. 871)."
Indeed, it is a dangerous rule to set aside a testimony which has been solemnly taken before a court of justice in an open and free trial and under conditions precisely sought to discourage and forestall falsehood simply because one of the witnesses who had given the testimony later on changed his mind. Such a rule will make solemn trials a mockery and place the investigation of the truth at the mercy of unscrupulous witnesses. Unless there be special circumstances which, coupled with the retraction of the witness, really raise doubt as to the truth of the testimony given by him at the trial and accepted by the trial judge, and only if such testimony is essential to the judgment of conviction, or its elimination would lead the trial judge to a different conclusion, an acquittal of the accused based on such a retraction would not be justified.
This Court has always looked with disfavor upon retraction of testimonies previously given in court. The asserted motives for the repudiation are commonly held suspect, and the veracity of the statements made in the affidavit of repudiation are frequently and deservedly subject to serious doubt.
Such being the experience of this court, we should proceed with extreme caution and judicial prudence in according any probative value to affidavits of recantation in the light of the sad reality that the same can be easily secured from poor and ignorant witnesses for some financial consideration or through intimidation. Especially when the affidavit of retraction is executed by a prosecution witness after the judgment of conviction has already been rendered, "it is too late in the day for his recantation without portraying himself as a liar." At most, the retraction is an afterthought which should not be given probative value.
Mere retraction by a prosecution witness does not necessarily vitiate the original testimony if credible. The rule is settled that in cases where previous testimony is retracted and a subsequent different, if not contrary, testimony is made by the same witness, the test to decide which testimony to believe is one of comparison coupled with the application of the general rules of evidence. A testimony solemnly given in court should not be set aside and disregarded lightly, and before this can be done, both the previous testimony and the subsequent one should be carefully compared and juxtaposed, the circumstances under which each was made, carefully and keenly scrutinized, and the reasons or motives for the change, discriminatingly analyzed. The unreliable character of the affidavit of recantation executed by a complaining witness is also shown by the incredulity of the fact that after going through the burdensome process of reporting to and/or having the accused arrested by the law enforcers, executing a criminal complaint-affidavit against the accused, attending trial and testifying against the accused, the said complaining witness would later on declare that all the foregoing is actually a farce and the truth is now what he says it to be in his affidavit of recantation. And in situations, like the instant case, where testimony is recanted by an affidavit subsequently executed by the recanting witness, we are properly guided by the well-settled rules that an affidavit is hearsay unless the affiant is presented on the witness stand and that affidavits taken ex-parte are generally considered inferior to the testimony given in open court.19 (Emphasis supplied)
Private complainant’s Affidavit was executed almost eight years after the filing of the Information on 16 January 1996 and almost five years after petitioner’s conviction by the trial court. It is nothing but a last-minute attempt to save petitioner from punishment.20
Further, the belated payment of the amount of the obligation does not extinguish the criminal liability already incurred by the accused. Thus:
The reimbursement or restitution to the offended party of the sums swindled by the petitioner does not extinguish the criminal liability of the latter. It only extinguishes pro tanto the civil liability. Moreover, estafa is a public offense which must be prosecuted and punished by the State on its own motion even though complete reparation had been made for the loss or damage suffered by the offended party. The consent of the private complainant to petitioner’s payment of her civil liability pendente lite does not entitle the latter to an acquittal. Subsequent payments does not obliterate the criminal liability already incurred. Criminal liability for estafa is not affected by a compromise between petitioner and the private complainant on the former’s civil liability.21 (Emphasis supplied)
Hence, the payment of the amount of the check only absolves petitioner from his civil liability to private complainant.
Propriety of the Penalty Imposed
The penalty for the crime of estafa is prescribed under paragraph 1 of Article 315 of the Revised Penal Code, as amended by Presidential Decree No. 818 (PD 818),22 as follows:
1st. The penalty of reclusion temporal if the amount of fraud is over 12,000 pesos but does not exceed 22,000 pesos, and if such amount exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its maximum period, adding one year for each additional 10,000 pesos; but the total penalty which may be imposed shall in no case exceed thirty years. In such cases, and in connection with the accessory penalties which may be imposed under the Revised Penal Code, the penalty shall be termed reclusion perpetua[.]
The amount involved in this case is ₱100,000. Hence, the penalty of reclusion temporal should be imposed in its maximum period. The time included in reclusion temporal in its entirety is from 12 years and one day to 20 years. Since the amount of the check is ₱100,000, seven years should be added to the maximum penalty of 20 years, for a total of 27 years of reclusion perpetua.
Applying the Indeterminate Sentence Law, the minimum indeterminate sentence can be anywhere within the range of the penalty next lower in degree to the penalty prescribed by the Revised Penal Code for the offense.23 The determination of the minimum indeterminate sentence should be done without considering any modifying circumstance attendant to the commission of the crime and without reference to the periods into which it may be subdivided.24 The penalty prescribed under Article 315 of the Revised Penal Code, as amended by PD 818, is reclusion temporal. The penalty next lower in degree would be prision mayor. The minimum term of the indeterminate penalty should be anywhere within six years and one day to 12 years of prision mayor.
WHEREFORE, we AFFIRM the Decision of the Court of Appeals in CA-G.R. CR No. 22679 with MODIFICATION on the penalty imposed. Petitioner Alfonso Firaza is sentenced to an indeterminate penalty of imprisonment from six years and one day of prision mayor as minimum to twenty-seven years of reclusion perpetua as maximum. We DELETE the order of the trial court directing petitioner to pay private complainant Henry Samar, Jr. the amount of ₱100,000 corresponding to the value of PNB Check No. 395532-S.
Costs against petitioner.
SO ORDERED.
ANTONIO T. CARPIO
Associate Justice
WE CONCUR:
LEONARDO A. QUISUMBING
Associate Justice
Chairperson
CONCHITA CARPIO MORALES
Associate Justice |
DANTE O. TINGA
Asscociate Justice |
PRESBITERO J. VELASCO, JR.
Associate Justice
A T T E S T A T I O N
I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.
LEONARDO A. QUISUMBING
Associate Justice
Chairperson
C E R T I F I C A T I O N
Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson’s Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.
REYNATO S. PUNO
Chief Justice
Foonotes
1 Under Rule 45 of the 1997 Rules of Civil Procedure.
2 Rollo, pp. 17-28. Penned by Associate Justice Teodoro P. Regino with Associate Justices Eugenio S. Labitoria and Juan Q. Enriquez, Jr., concurring.
3 Legazpi in the Information.
4 It appears that the parties also executed a Deed of Absolute Sale dated 13 May 1994 stating that the purchase price is ₱100,000.
5 Also referred to as Check No. 395532-S.
6 Rollo, p. 19.
7 Id. at 17-18.
8 Records, pp. 134-139. Penned by Acting Presiding Judge Rafael P. Santelices.
9 Id. at 139.
10 Rollo, p. 28.
11 People v. Reyes, G.R. No. 154159, 31 March 2005, 454 SCRA 635.
12 TSN, 26 March 1998, pp. 11-12.
13 TSN, 15 January 1997, p. 4.
14 Chua v. People, G.R. Nos. 150926 and 30, 6 March 2006, 484 SCRA 161.
15 Rollo, pp. 65-66.
16 Id. at 68.
17 Villanueva v. People, 386 Phil. 912 (2000).
18 G.R. Nos. 70168-69, 24 July 1996, 259 SCRA 138.
19 Id. at 157-160.
20 See Vaca v. Court of Appeals, 359 Phil. 187 (1998).
21 Recuerdo v. People, G.R. No. 168217, 27 June 2006, 493 SCRA 517, 536.
22 Amending Article 315 of the Revised Penal Code by Increasing the Penalties for Estafa Committed by Means of Bouncing Checks.
23 See Ong v. Court of Appeals, 449 Phil. 691 (2003).
24 Id.
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