Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 178429 October 23, 2009
JOSE C. GO, Petitioner,
vs.
BANGKO SENTRAL NG PILIPINAS, Respondent.
D E C I S I O N
BRION, J.:
Through the present petition for review on certiorari,1 petitioner Jose C. Go (Go) assails the October 26, 2006 decision2 of the Court of Appeals (CA) in CA-G.R. SP No. 79149, as well as its June 4, 2007 resolution.3 The CA decision and resolution annulled and set aside the May 20, 20034 and June 30, 20035 orders of the Regional Trial Court (RTC), Branch 26, Manila which granted Go’s motion to quash the Information filed against him.
THE FACTS
On August 20, 1999, an Information6 for violation of Section 83 of Republic Act No. 337 (RA 337) or the General Banking Act, as amended by Presidential Decree No. 1795, was filed against Go before the RTC. The charge reads:
That on or about and during the period comprised between June 27, 1996 and September 15, 1997, inclusive, in the City of Manila, Philippines, the said accused, being then the Director and the President and Chief Executive Officer of the Orient Commercial Banking Corporation (Orient Bank), a commercial banking institution created, organized and existing under Philippines laws, with its main branch located at C.M. Recto Avenue, this City, and taking advantage of his position as such officer/director of the said bank, did then and there wilfully, unlawfully and knowingly borrow, either directly or indirectly, for himself or as the representative of his other related companies, the deposits or funds of the said banking institution and/or become a guarantor, indorser or obligor for loans from the said bank to others, by then and there using said borrowed deposits/funds of the said bank in facilitating and granting and/or caused the facilitating and granting of credit lines/loans and, among others, to the New Zealand Accounts loans in the total amount of TWO BILLION AND SEVEN HUNDRED FIFTY-FOUR MILLION NINE HUNDRED FIVE THOUSAND AND EIGHT HUNDRED FIFTY-SEVEN AND 0/100 PESOS, Philippine Currency, said accused knowing fully well that the same has been done by him without the written approval of the majority of the Board of Directors of said Orient Bank and which approval the said accused deliberately failed to obtain and enter the same upon the records of said banking institution and to transmit a copy of which to the supervising department of the said bank, as required by the General Banking Act.
CONTRARY TO LAW. [Emphasis supplied.]
On May 28, 2001, Go pleaded not guilty to the offense charged.
After the arraignment, both the prosecution and accused Go took part in the pre-trial conference where the marking of the voluminous evidence for the parties was accomplished. After the completion of the marking, the trial court ordered the parties to proceed to trial on the merits.
Before the trial could commence, however, Go filed on February 26, 20037 a motion to quash the Information, which motion Go amended on March 1, 2003.8 Go claimed that the Information was defective, as the facts charged therein do not constitute an offense under Section 83 of RA 337 which states:
No director or officer of any banking institution shall either directly or indirectly, for himself or as the representative or agent of another, borrow any of the deposits of funds of such banks, nor shall he become a guarantor, indorser, or surety for loans from such bank, to others, or in any manner be an obligor for money borrowed from the bank or loaned by it, except with the written approval of the majority of the directors of the bank, excluding the director concerned. Any such approval shall be entered upon the records of the corporation and a copy of such entry shall be transmitted forthwith to the appropriate supervising department. The office of any director or officer of a bank who violates the provisions of this section shall immediately become vacant and the director or officer shall be punished by imprisonment of not less than one year nor more than ten years and by a fine of not less than one thousand nor more than ten thousand pesos.
The Monetary Board may regulate the amount of credit accommodations that may be extended, directly or indirectly, by banking institutions to their directors, officers, or stockholders. However, the outstanding credit accommodations which a bank may extend to each of its stockholders owning two percent (2%) or more of the subscribed capital stock, its directors, or its officers, shall be limited to an amount equivalent to the respective outstanding deposits and book value of the paid-in capital contribution in the bank. Provided, however, that loans and advances to officers in the form of fringe benefits granted in accordance with rules and regulations as may be prescribed by Monetary Board shall not be subject to the preceding limitation. (As amended by PD 1795)
In addition to the conditions established in the preceding paragraph, no director or a building and loan association shall engage in any of the operations mentioned in said paragraphs, except upon the pledge of shares of the association having a total withdrawal value greater than the amount borrowed. (As amended by PD 1795)
In support of his motion to quash, Go averred that based on the facts alleged in the Information, he was being prosecuted for borrowing the deposits or funds of the Orient Bank and/or acting as a guarantor, indorser or obligor for the bank’s loans to other persons. The use of the word "and/or" meant that he was charged for being either a borrower or a guarantor, or for being both a borrower and guarantor. Go claimed that the charge was not only vague, but also did not constitute an offense. He posited that Section 83 of RA 337 penalized only directors and officers of banking institutions who acted either as borrower or as guarantor, but not as both.
Go further pointed out that the Information failed to state that his alleged act of borrowing and/or guarantying was not among the exceptions provided for in the law. According to Go, the second paragraph of Section 83 allowed banks to extend credit accommodations to their directors, officers, and stockholders, provided it is "limited to an amount equivalent to the respective outstanding deposits and book value of the paid-in capital contribution in the bank." Extending credit accommodations to bank directors, officers, and stockholders is not per se prohibited, unless the amount exceeds the legal limit. Since the Information failed to state that the amount he purportedly borrowed and/or guarantied was beyond the limit set by law, Go insisted that the acts so charged did not constitute an offense.
Finding Go’s contentions persuasive, the RTC granted Go’s motion to quash the Information on May 20, 2003. It denied on June 30, 2003 the motion for reconsideration filed by the prosecution.
The prosecution did not accept the RTC ruling and filed a petition for certiorari to question it before the CA. The Information, the prosecution claimed, was sufficient. The word "and/or" did not materially affect the validity of the Information, as it merely stated a mode of committing the crime penalized under Section 83 of RA 337. Moreover, the prosecution asserted that the second paragraph of Section 83 (referring to the credit accommodation limit) cannot be interpreted as an exception to what the first paragraph provided. The second paragraph only sets borrowing limits that, if violated, render the bank, not the director-borrower, liable. A violation of the second paragraph of Section 83 – under which Go is being prosecuted – is therefore separate and distinct from a violation of the first paragraph. Thus, the prosecution prayed that the orders of the RTC quashing the Information be set aside and the criminal case against Go be reinstated.
On October 26, 2006, the CA rendered the assailed decision granting the prosecution’s petition for certiorari.9 The CA declared that the RTC misread the law when it decided to quash the Information against Go. It explained that the allegation that Go acted either as a borrower or a guarantor or as both borrower and guarantor merely set forth the different modes by which the offense was committed. It did not necessarily mean that Go acted both as borrower and guarantor for the same loan at the same time. It agreed with the prosecution’s stand that the second paragraph of Section 83 of RA 337 is not an exception to the first paragraph. Thus, the failure of the Information to state that the amount of the loan Go borrowed or guaranteed exceeded the legal limits was, to the CA, an irrelevant issue. For these reasons, the CA annulled and set aside the RTC’s orders and ordered the reinstatement of the criminal charge against Go. After the CA’s denial of his motion for reconsideration,10 Go filed the present appeal by certiorari.
THE PETITION
In his petition, Go alleges that the appellate court legally erred in overturning the trial court’s orders. He insists that the Information failed to allege the acts or omissions complained of with sufficient particularity to enable him to know the offense being charged; to allow him to properly prepare his defense; and likewise to allow the court to render proper judgment.
Repeating his arguments in his motion to quash, Go reads Section 83 of RA 337 as penalizing a director or officer of a banking institution for either borrowing the deposits or funds of the bank, or guaranteeing or indorsing loans to others, but not for assuming both capacities. He claimed that the prosecution’s shotgun approach in alleging that he acted as borrower and/or guarantor rendered the Information highly defective for failure to specify with certainty the specific act or omission complained of. To petitioner Go, the prosecution’s approach was a clear violation of his constitutional right to be informed of the nature and cause of the accusation against him.
Additionally, Go reiterates his claim that credit accommodations by banks to their directors and officers are legal and valid, provided that these are limited to their outstanding deposits and book value of the paid-in capital contribution in the bank. The failure to state that he borrowed deposits and/or guaranteed loans beyond this limit rendered the Information defective. He thus asks the Court to reverse the CA decision to reinstate the criminal charge.
In its Comment,11 the prosecution raises the same defenses against Go’s contentions. It insists on the sufficiency of the allegations in the Information and prays for the denial of Go’s petition.
THE COURT’S RULING
The Court does not find the petition meritorious and accordingly denies it.
The Accused’s Right to be Informed
Under the Constitution, a person who stands charged of a criminal offense has the right to be informed of the nature and cause of the accusation against him.12 The Rules of Court, in implementing the right, specifically require that the acts or omissions complained of as constituting the offense, including the qualifying and aggravating circumstances, must be stated in ordinary and concise language, not necessarily in the language used in the statute, but in terms sufficient to enable a person of common understanding to know what offense is being charged and the attendant qualifying and aggravating circumstances present, so that the accused can properly defend himself and the court can pronounce judgment.13 To broaden the scope of the right, the Rules authorize the quashal, upon motion of the accused, of an Information that fails to allege the acts constituting the offense.14 Jurisprudence has laid down the fundamental test in appreciating a motion to quash an Information grounded on the insufficiency of the facts alleged therein. We stated in People v. Romualdez15 that:
The determinative test in appreciating a motion to quash xxx is the sufficiency of the averments in the information, that is, whether the facts alleged, if hypothetically admitted, would establish the essential elements of the offense as defined by law without considering matters aliunde. As Section 6, Rule 110 of the Rules of Criminal Procedure requires, the information only needs to state the ultimate facts; the evidentiary and other details can be provided during the trial.
To restate the rule, an Information only needs to state the ultimate facts constituting the offense, not the finer details of why and how the illegal acts alleged amounted to undue injury or damage – matters that are appropriate for the trial. [Emphasis supplied]
The facts and circumstances necessary to be included in the Information are determined by reference to the definition and elements of the specific crimes. The Information must allege clearly and accurately the elements of the crime charged.16
Elements of Violation of
Section 83 of RA 337
Under Section 83, RA 337, the following elements must be present to constitute a violation of its first paragraph:
1. the offender is a director or officer of any banking institution;
2. the offender, either directly or indirectly, for himself or as representative or agent of another, performs any of the following acts:
a. he borrows any of the deposits or funds of such bank; or
b. he becomes a guarantor, indorser, or surety for loans from such bank to others, or
c. he becomes in any manner an obligor for money borrowed from bank or loaned by it;
3. the offender has performed any of such acts without the written approval of the majority of the directors of the bank, excluding the offender, as the director concerned.
A simple reading of the above elements easily rejects Go’s contention that the law penalizes a bank director or officer only either for borrowing the bank’s deposits or funds or for guarantying loans by the bank, but not for acting in both capacities. The essence of the crime is becoming an obligor of the bank without securing the necessary written approval of the majority of the bank’s directors.
The second element merely lists down the various modes of committing the offense. The third mode, by declaring that "[no director or officer of any banking institution shall xxx] in any manner be an obligor for money borrowed from the bank or loaned by it," in fact serves a catch-all phrase that covers any situation when a director or officer of the bank becomes its obligor. The prohibition is directed against a bank director or officer who becomes in any manner an obligor for money borrowed from or loaned by the bank without the written approval of the majority of the bank’s board of directors. To make a distinction between the act of borrowing and guarantying is therefore unnecessary because in either situation, the director or officer concerned becomes an obligor of the bank against whom the obligation is juridically demandable.
The language of the law is broad enough to encompass either act of borrowing or guaranteeing, or both. While the first paragraph of Section 83 is penal in nature, and by principle should be strictly construed in favor of the accused, the Court is unwilling to adopt a liberal construction that would defeat the legislature’s intent in enacting the statute. The objective of the law should allow for a reasonable flexibility in its construction. Section 83 of RA 337, as well as other banking laws adopting the same prohibition,17 was enacted to ensure that loans by banks and similar financial institutions to their own directors, officers, and stockholders are above board.18 Banks were not created for the benefit of their directors and officers; they cannot use the assets of the bank for their own benefit, except as may be permitted by law. Congress has thus deemed it essential to impose restrictions on borrowings by bank directors and officers in order to protect the public, especially the depositors.19 Hence, when the law prohibits directors and officers of banking institutions from becoming in any manner an obligor of the bank (unless with the approval of the board), the terms of the prohibition shall be the standards to be applied to directors’ transactions such as those involved in the present case.
Credit accommodation limit is not an exception nor is it an element of the offense
Contrary to Go’s claims, the second paragraph of Section 83, RA 337 does not provide for an exception to a violation of the first paragraph thereof, nor does it constitute as an element of the offense charged. Section 83 of RA 337 actually imposes three restrictions: approval, reportorial, and ceiling requirements.
The approval requirement (found in the first sentence of the first paragraph of the law) refers to the written approval of the majority of the bank’s board of directors required before bank directors and officers can in any manner be an obligor for money borrowed from or loaned by the bank. Failure to secure the approval renders the bank director or officer concerned liable for prosecution and, upon conviction, subjects him to the penalty provided in the third sentence of first paragraph of Section 83.
The reportorial requirement, on the other hand, mandates that any such approval should be entered upon the records of the corporation, and a copy of the entry be transmitted to the appropriate supervising department. The reportorial requirement is addressed to the bank itself, which, upon its failure to do so, subjects it to quo warranto proceedings under Section 87 of RA 337.20
The ceiling requirement under the second paragraph of Section 83 regulates the amount of credit accommodations that banks may extend to their directors or officers by limiting these to an amount equivalent to the respective outstanding deposits and book value of the paid-in capital contribution in the bank. Again, this is a requirement directed at the bank. In this light, a prosecution for violation of the first paragraph of Section 83, such as the one involved here, does not require an allegation that the loan exceeded the legal limit. Even if the loan involved is below the legal limit, a written approval by the majority of the bank’s directors is still required; otherwise, the bank director or officer who becomes an obligor of the bank is liable. Compliance with the ceiling requirement does not dispense with the approval requirement.
Evidently, the failure to observe the three requirements under Section 83 paves the way for the prosecution of three different offenses, each with its own set of elements. A successful indictment for failing to comply with the approval requirement will not necessitate proof that the other two were likewise not observed.
Rules of Court allow amendment of insufficient Information
Assuming that the facts charged in the Information do not constitute an offense, we find it erroneous for the RTC to immediately order the dismissal of the Information, without giving the prosecution a chance to amend it. Section 4 of Rule 117 states:
SEC. 4. Amendment of complaint or information.—If the motion to quash is based on an alleged defect of the complaint or information which can be cured by amendment, the court shall order that an amendment be made.
If it is based on the ground that the facts charged do not constitute an offense, the prosecution shall be given by the court an opportunity to correct the defect by amendment. The motion shall be granted if the prosecution fails to make the amendment, or the complaint or information still suffers from the same defect despite the amendment. [Emphasis supplied]
Although an Information may be defective because the facts charged do not constitute an offense, the dismissal of the case will not necessarily follow. The Rules specifically require that the prosecution should be given a chance to correct the defect; the court can order the dismissal only upon the prosecution’s failure to do so. The RTC’s failure to provide the prosecution this opportunity twice21 constitutes an arbitrary exercise of power that was correctly addressed by the CA through the certiorari petition. This defect in the RTC’s action on the case, while not central to the issue before us, strengthens our conclusion that this criminal case should be resolved through full-blown trial on the merits.
WHEREFORE, we DENY the petitioner’s petition for review on certiorari and AFFIRM the decision of the Court of Appeals in CA-G.R. SP No. 79149, promulgated on October 26, 2006, as well as its resolution of June 4, 2007. The Regional Trial Court, Branch 26, Manila is directed to PROCEED with the hearing of Criminal Case No. 99-178551. Costs against the petitioner.
SO ORDERED.
ARTURO D. BRION
Associate Justice
WE CONCUR:
LEONARDO A. QUISUMBING
Associate Justice
Chairperson
ANTONIO T. CARPIO*
Associate Justice |
CONCHITA CARPIO MORALES
Associate Justice |
ROBERTO A. ABAD
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, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.
REYNATO S. PUNO
Chief Justice
Footnotres
* Designated additional Member of the Second Division in lieu of Associate Justice Mariano C. Del Castillo, per Special Order No. 757 dated October 12, 2009.
1 Under Rule 45 of the Rules of Court; rollo, pp. 9-26
2 Penned by Associate Justice Regalado Maambong (retired), with Associate Justice Marina Buzon and Associate Justice Japar Dimaampao, concurring; id., pp. 28-44.
3 Id., pp. 46-47.
4 Penned by Judge Oscar Barrientos; id., pp. 65-69.
5 Id., pp. 80-81.
6 Id., pp. 49-50.
7 Id., pp. 51-57.
8 Id., pp. 58-64.
9 Supra note 2.
10 Supra note 3.
11 Rollo, pp. 229-244.
12 CONSTITUTION, Article III, Section 14 (1).
13 RULES OF COURT, Rule 110, Section 9.
14 Id., Rule 117, Section 3 (a).
15 G.R. No. 166510, July 23, 2008.
16 Lazarte v. Sandiganbayan, G.R. No. 180122, March 13, 2009.
17 Supra note 15; See Section 5 of RA 7353 (An Act Providing For The Creation, Organization And Operation Of Rural Banks, And For Other Purposes) and Presidential Decree No. 264, as amended by RA 6848 (An Act Creating the Philippine Amanah Bank); See also Section 18 of RA 1300 (Revised Charter of the Philippine National Bank) and Section 16 of RA 3518 (An Act Creating The Philippine Veterans' Bank, And For Other Purposes).
18 See Ramos v. Court of Appeals, G.R. No. 117416, December 8, 2000, 347 SCRA 463.
19 See People v. Knapp, 28 N.Y.Crim.R. 285, 206 N.Y. 373, 99 N.E. 841.
20 Section 87. Unless otherwise herein provided, the violation of any of the provisions of the Act shall be punished by a fine of not more than two thousand pesos or by imprisonment for not more than two years, or by both. If the violation is committed by a corporation, the same shall, upon such violation being proved, be dissolved by quo warranto proceedings instituted by the Solicitor General: Provided, that nothing in this section shall be construed as repealing the other causes for the dissolution of corporations prescribed by existing law, and the remedy provided for in this section shall be considered as additional to the remedies already existing. [Emphasis supplied.]
21 Both the May 20, 2003 Order (granting Go’s motion to quash the Information) and the June 30, 2003 Order (denying the prosecution’s motion for reconsideration of the May 20, 2003 Order) of the RTC did not contain a provision requiring the prosecution to correct the allegedly defective Information.
The Lawphil Project - Arellano Law Foundation
CONCURRING OPINION
ABAD, J.:
Petitioner Philippine Economic Zone Authority (PEZA)1 and respondent Edison (Bataan) Cogeneration Corporation (Edison) entered into a 10-year power supply and purchase agreement (agreement) that was to take effect on October 25, 1997. Edison undertook to construct, operate, and maintain a power plant that would supply electricity to establishments operating at the PEZA zone in Bataan.
On October 22, 2004 Edison filed a complaint for specific performance against PEZA before the Regional Trial Court of Pasay City in Civil Case 04-0736-CFM.2 The complaint alleged in substance that a dispute arose between Edison and PEZA rooted on their agreement that Edison was to supply power to PEZA at a rate that was in some way pegged to what National Power Corporation (NPC) charged its Luzon utility customers.
Edison further alleged that, because the NPC began in 1999 to yield to popular demand for lower rates than what it costs to generate power, it was compelled to sell the power it produced to PEZA at artificially low rates. Still Edison managed to make a profit because of NPC’s fuel support scheme. When its side contract with NPC ended, however, Edison claimed that PEZA unjustifiably rejected its request for tariff rate increases to which it was entitled under their agreement.
Edison also claimed that PEZA granted tariff rate relief to a power supplier in Cebu but would not consider extending such relief to Edison, entitling the latter to terminate their agreement and recover a pre-termination fee of over ₱708 million. Because PEZA refused Edison’s demand for an end to their agreement and for PEZA to pay pre-termination fee arising from its violation of the agreement, Edison claimed a right to resort to arbitration as their agreement provided. But PEZA, according to Edison, declined its demands, entitling it to come to court conformably with the terms of their agreement and seek an order for the constitution of a committee of arbitrators to hear their disputes.
In its answer to the complaint,3 while PEZA admitted that Edison has claims against it for alleged refusal to grant tariff rate adjustments that it had given other power suppliers and that PEZA had refused to pay the pre-termination fee Edison asked, PEZA claimed that the supposed disputes were not proper for arbitration since the pre-termination fee in the agreement was "gravely onerous, unconscionable, greatly disadvantageous to the government, against public policy, and therefore, invalid and unenforceable."
PEZA further claimed a) that Edison’s termination of the agreement was whimsical and baseless, in itself a breach of the agreement; b) that during the negotiations for the requested power rate increase, Edison declined to submit relevant data that PEZA needed to act on the request; c) that, in utter bad faith, Edison cut off power supply to PEZA on August 13, 2004; d) that Edison’s motive was to maneuver PEZA into paying its demand for unconscionable and illegal pre-termination fee rather than to get its tariff rate adjusted; and e) that this ill motive was evidenced by the fact that Edison had been negotiating to sell its power engines to NPC even before it asked PEZA for tariff rate adjustment.
Edison filed a reply and a motion to render judgment on the pleadings, contending that since PEZA did not challenge the fact that there are disputes between the parties, Edison is entitled to a resolution of such disputes by a three-member arbitration committee to be constituted by the RTC. Acting on this motion and on the belief that PEZA’s answer did not tender a genuine issue, on April 5, 2005 the RTC issued an order constituting an Arbitration Committee with Chief Justice Andres Narvasa as chairman and retired Supreme Court Justices Hugo Gutierrez and Jose Y. Feria, as members with power to arbitrate the disputes between Edison and PEZA. The RTC denied PEZA’s motion for reconsideration of the order.
On appeal to the Court of Appeals, the latter court affirmed the RTC’s order under a decision dated April 10, 2007, prompting PEZA to come to this Court on petition for review by certiorari.
I fully agree with the ponencia of Justice Conchita Carpio Morales in holding that PEZA’s answer to the complaint acknowledged the existence of the remedy of arbitration concerning any dispute that might arise between them involving their agreement, in this case, PEZA’s alleged refusal to grant Edison tariff rate adjustments as their agreement provided. PEZA’s own answer alleged that it did not yet deny the requested tariff rate adjustments and that the delay in its action on such request had been brought about by Edison’s refusal to submit the documents and data required of it. Whether or not PEZA did deny such request itself actually presents a dispute between the parties. Arbitration of the disputes between them respecting alleged violations of the agreement is, therefore, inevitable.
I would like to add, however, that in voting to grant the petition, it is clear to me that the Court does not resolve today the issue that PEZA raises: whether or not the pre-termination clause of its agreement with Edison is "gravely onerous, unconscionable, greatly disadvantageous to the government, against public policy, and therefore, invalid and unenforceable." In fact, if the Arbitration Committee should uphold its defense that it had not arbitrarily denied Edison’s claim for tariff rate adjustment, the issue concerning the invalidity of the pre-termination clause of their agreement may not even come to pass.
ROBERTO A. ABAD
Associate Justice
Footnotes
1 A government-owned corporation created by P.D. 66 (1972).
2 Complaint, rollo, p. 121, in relation to the Request for Arbitration dated October 20, 2004, p. 260.
3 Answer, id. at 126.
The Lawphil Project - Arellano Law Foundation
