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Estafa and the
Bouncing Checks, Law and Jurisprudence
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OTHER INTERESTING ARTICLES |
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WHEREFORE, the
petition is GRANTED. The decision of the Court of
Appeals in CA-G,.R. CR No. 17222 dated
April 30, 1997 and its resolution dated August 28,
1997 are REVERSED and SET ASIDE. Petitioner Virgie
Serona is ACQUITTED of the crime charged, but is
held civilly liable in the amount of P424,750.00 as
actual damages, plus legal interest, without
subsidiary imprisonment in case of insolvency.
SO ORDERED.
ART. 316. Other forms of swindling. —
The penalty of arresto mayor in its minimum and
medium periods and a fine of not less than the value
of the damage caused and not more than three times
such value, shall be imposed upon:
1. Any person who, pretending to be the owner of any
real property, shall convey, sell, encumber or
mortgage the same.
2. Any person who, knowing that real property is
encumbered, shall dispose of the same, although such
encumbrance be not recorded.
3. The owner of any personal property who shall
wrongfully take it from its lawful possessor, to the
prejudice of the latter or any third person.
4. Any person who, to the prejudice of another,
shall execute any fictitious contract.
5. Any person who shall accept any compensation
given him under the belief that it was in payment of
services rendered or labor performed by him, when in
fact he did not actually perform such services or
labor.
6. Any person who, while being a surety in a bond
given in a criminal or civil action, without express
authority from the court or before the cancellation
of his bond or before being relieved from the
obligation contracted by him, shall sell, mortgage,
or in any other manner, encumber the real property
or properties with which he guaranteed the
fulfillment of such obligation.
Swindle and Swindler defined.
Swindle means to cheat a person out of property. A
swindler is a person who willfully defrauds or
cheats another.33 A swindler is one guilty of
defrauding another person34Aside from those
mentioned in Article 315 of the Revised Penal Code,
other forms of swindling are punishable under
Article 316 thereof.
ART. 317. Swindling a minor.—
Any person who, taking advantage of the inexperience
or emotions or feelings of a minor, to his
detriment, shall induce him to assume any obligation
or to give any release or execute a transfer of any
property right in consideration of some loan of
money, credit or other personal property, whether
the loan clearly appears in the document or is shown
in any other form, shall suffer the penalty of’
arresto mayor and a fine of a sum ranging from 10 to
50 per cent of the value of the obligation
contracted by the minor.
Minor defined.
A minor is a person who has not reached legal age, a
child or juveni1e,3 not emancipated or who is under
parental control. Emancipation takes place by the
attainment of majority. Unless otherwise provided,
majority commences at the age of eighteen years.
ART. 318. Other deceits.—
The penalty of arresto mayor and a fine of not less
than the amount of the damage caused and not more
than twice such amount shall be imposed upon any
person who shall defraud or damage another by any
other deceit not mentioned in the preceding articles
of this chapter.
Any person who, for profit or gain, shall interpret
dreams, make forecasts, tell fortunes, or take
advantage of the credulity of the public in any
other similar manner, shall suffer the penalty of
arresto minor or a fine not exceeding 200 pesos.
Other punishable deceits.
Aside from the offense of swindling specifically
defined and punishable under Article 315, 316, and
317 of the Revised Penal Code, there are “other
deceits” punishable under Article 318 thereof. All
kinds of swindling or deceits which causes damage to
another, therefore, is punishable under the Revised
Penal Code, as amended.
The case People vs. Dinglasan, (387 SCRA 71).
In this case, the Supreme Court held that: “Section
11, RULE 110 of the 2000 Revised Rules on Criminal
Procedure lays down two rules with respect to the
averment of the date the offense was committed in
the complaint or information: (1) where the time is
not a material ingredient of the offense, it is
sufficient that the information alleges that the act
constitutive of the offense was committed at a time
as near as to the actual date when the same was
carried out, but (2) where time is a material
ingredient of the offense, it must be correctly
alleged in the information. Moreover, “failure of
the drawer of the check to deposit an amount
sufficient to cover the check within three days from
receipt of notice from the bank and/or payee or
holder that said check has been dishonored for lack
or insufficiency of funds shall be prima facie
evidence of deceit constituting the false pretense
or fraudulent act. Portions of the decision follow.
For resolution, the issues are: (1) whether
appellant’s guilt has been proven with moral
certainty; and (2) whether the penalty imposed is
proper.
Appellant does not deny issuing the dishonored
checks. Nonetheless, he insists that he did not
employ any deceit or fraud against private
complainant. Appellant contends that his failure to
make good on the checks was due to the losses
sustained by Sia. Appellant, in praying for
acquittal, relies heavily on our rifling in People
vs. Singson where we held that:
Although in the case of bouncing check under B.P.
Bldg. 22, failure of the drawer to deposit the
amount necessary to cover his checks within three
clays from notice of dishonor shall be prima facie
evidence of fraud or deceit, under Article 315 of
the Revised Penal Code, mere failure to make such
deposit cannot be the basis for conviction if the
surrounding circumstances tend to show the absence
of bad faith or deceit. In the present case, we find
the evidence not sufficient to establish the
existence of fraud or deceit on the part of the
accused.39
For the State, the Office of the Solicitor General
(OSG) counters that deceit and fraud were present
when appellant issued the checks in question. The
OSG stresses that were it not for the subject
checks, complainant would not have sold appellant
the tires. The OSG further points out that appellant
failed to rebut the prima facie presumption of fraud
and deceit due to his failure to make the necessary
deposit to cover the checks he issued. Finally, the
OSG submits that appellant’s reliance on People vs.
Singson is misplaced, as the facts in said case are
not on all fours with the factual circumstances in
the present case.
At the outset, we find that two of the dates alleged
in the information during which appellant supposedly
committed estafa are at variance materially with the
prosecution’s evidence: (1) With respect to Check
No. 029014, the date of transaction was alleged in
the information as July 30, 1994. Yet, the
prosecution’s evidence shows that it was issued for
the purchase of six sets of tires on July 1994. (2)
Check No. 029020 was issued for the purchase of July
1994, and not July 24, 1994, as alleged in the
charge sheet. In these two instances, the checks
were postdated September 30, 1994 and September 24,
1994. Obviously, the change in regard to these two
checks is fatally flawed, for the alleged dates of
the corresponding transactions in the charge are
false, or better said inexistent, as hereafter
discussed. It is only with respect to Check No.
029021, postdated September 25, 1994, which was
issued in payment of the purchase made on July 25,
1994 that the correct date of the corresponding
transaction is alleged in the information and
supported by the prosecution’s evidence.
Section 11, Rule 110 of the 2000 Revised Rules of
Criminal Procedure lays clown two rules with respect
to the averment of the date of offense was committed
in the complaint or information: (1) where time is
not a material ingredient of the offense, it is
sufficient that the information alleges that the act
constitutive of the offense was committed at a time
as near to the actual date when the same was carried
out4° but (2) where time is a material ingredient of
the offense, it must be correctly alleged in the
information. 4t
Appellant was charged and convicted of estafa under
Article 315 (2) (d) of the Revised Penal Code.42 The
elements of the offense are: (1) postdating or
issuing a check in payment of an obligation
contracted at the time the check was issued; (2)
lack of insufficient funds to cover the check; (3)
knowledge on the part of the offender of such
circumstances; and (4) damage to the complainant.
The first element of the offense requires that the
dishonored check must have been postdated or issued
at the time the obligation was contracted.
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