Republic of the Philippines Supreme Court Manila SECOND DIVISION JAIME ALFEREZ, G.R. No.

Petitioner, 182301 Present: CARPIO, J., - versus Chairpers on, NACHURA, PERALTA, ABAD, and MENDOZA, JJ. Promulgated : January 31, 2011

goods, he issued three (3) checks for the total amount of P830,998.40. However, the checks were dishonored for having been drawn against a closed account. Petitioner was thus charged with three (3) counts of violation of Batas Pambansa Bilang (B.P. Blg.) 22 before the Municipal Trial Court in Cities (MTCC), Cebu City. The cases were raffled to Branch 3 and docketed as Criminal Case Nos. 40985-R to 40987R.[3] During the trial, the prosecution presented its lone witness, private complainant Pingping Co.[4] Thereafter, the prosecution formally offered the following documentary evidence: 1. BPI Check No. 492089 dated 29 April 1994 in the sum of P78, 889.95; BPI Check No. 492010 dated 22 June 1994 in the sum of P30,745.90; BPI Check No. 492011 dated 22 June 1994 in the sum of P721,362.55; The demand letter dated 7 July 1994 addressed to petitioner; The registry receipt of the Post Office; The face of the Registry Return Receipt; The dorsal side of the Registry Return Receipt; The Returned Check Ticket dated 23 June 1994; and The reason for the dishonor.[5]

PEOPLE OF THE PHILIPPINES and PINGPING CO, Responde nts.

x-----------------------------------------------------------------------------------x DECISION NACHURA, J.: This is a petition for review on certiorari under Rule 45 of the Rules of Court, assailing the Court of Appeals (CA) Decision[1] dated December 13, 2007 and Resolution[2] dated March 4, 2008 in CAG.R. CEB-CR No. 00300. The facts of the case, as culled from the records, are as follows: Petitioner Jaime Alferez purchased construction materials from Cebu ABC Sales Commercial. As payment for the

2.

3.

4.

5. 6.

7.

8.

9.

the filing of the complaint. Instead of presenting evidence, petitioner filed a Demurrer to [6] Evidence on August 8, 2003, or approximately ten (10) months after the prosecution rested its case. Petitioner averred that the prosecution failed to show that he received the notice of dishonor or demand letter. On March 4, 2005, the MTCC issued a resolution[7] denying petitioners Demurrer to Evidence, and rendering judgment finding petitioner guilty as charged, the dispositive portion of which reads: WHEREFORE, the Court finds the accused guilty beyond reasonable doubt of the crime of issuing bouncing checks as defined and penalized under Section 1 of Batas Pambansa Blg. 22 and hereby sentences the accused the following: 1. To pay a fine of Php830,998.40 and in case of insolvency to suffer subsidiary imprisonment; 2. To pay private complainant the total face value of the checks in the amount of Php830,998.40 plus 1% interest per month beginning from SO ORDERED.[8]

Aggrieved, petitioner appealed to the Regional Trial Court (RTC), Branch 21, Cebu City. The RTC rendered [9] Judgment affirming in toto the MTCC decision. Petitioner moved for reconsideration, but it was denied in an Order[10] dated December 16, 2005. In the same Order, the RTC modified the MTCC resolution by sentencing petitioner to suffer the penalty of imprisonment for six (6) months for each count of violation of B.P Blg. 22, instead of fine as originally imposed. Undaunted, petitioner elevated the matter to the CA via a petition for review under Rule 42 of the Rules of Court. In the assailed Decision, the CA dismissed the petition for lack of merit. It sustained petitioners conviction as the elements of the crime had been sufficiently established. As to the service on petitioner of the notice of dishonor, the appellate court pointed out that petitioner did not testify, and that he did not object to the prosecutions evidence aimed at proving the fact of receipt of the notice of dishonor. Consequently, the registry receipt and the return card adequately show the fact of receipt. As to petitioners contention that he was denied his right to present evidence after the denial of his demurrer to evidence, the CA held that there was no such denial since it was merely the

consequence of the filing of demurrer without leave of court. Finally, as to the imposition of the penalty of imprisonment instead of fine, the CA found no grave abuse of discretion on the part of the RTC since it was shown that petitioner acted in bad faith.[11] On March 4, 2008, the CA denied petitioners motion for reconsideration. Hence, this petition anchored on the following issues: Whether the Registry Receipt and Registry Return Receipt alone without presenting the person who mailed and/or served the demand letter is sufficient notice of dishonor as required by BP 22. Whether the filing of the Demurrer of (sic) Evidence without leave and denied by the trial court is a waiver of the right of the petitioner (the accused before the trial court) to present his evidence in support and to rebut the evidence of the respondent particularly with respect to the civil aspect of the case. On the alternative (if the petitioner is guilty), whether the accused should only be mete[d] the penalty of fine as imposed by the trial court (MTCC).[12] The petition is partly meritorious.

After a careful evaluation of the records of the case, we believe and so hold that the totality of the evidence presented does not support petitioners conviction for violation of B.P. Blg. 22. Section 1 of B.P. Blg. 22 defines the offense, as follows:[13] Section 1. Checks without sufficient funds. Any person who makes or draws and issues any check to apply on account or for value, knowing at the time of issue that he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment, which check is subsequently dishonored by the drawee bank for insufficiency of funds or credit or would have been dishonored for the same reason had not the drawer, without any valid reason, ordered the bank to stop payment, shall be punished by imprisonment of not less than thirty days but not more than one (1) year or by a fine of not less than but not more than double the amount of the check which fine shall in no case exceed Two Hundred Thousand Pesos, or both such fine and imprisonment at the discretion of the court. The same penalty shall be imposed upon any person who, having sufficient funds in or credit with the drawee bank when

he makes or draws and issues a check, shall fail to keep sufficient funds or to maintain a credit to cover the full amount of the check if presented within a period of ninety (90) days from the date appearing thereon, for which reason it is dishonored by the drawee bank. Where the check is drawn by a corporation, company or entity, the person or persons who actually signed the check in behalf of such drawer shall be liable under this Act.

establish, Section 2 of B.P. Blg. 22 creates a presumption of knowledge of insufficiency of funds under the following circumstances:[15] Sec. 2. Evidence of knowledge of insufficient funds. The making, drawing, and issuance of a check payment of which is refused by the drawee because of insufficient funds in or credit with such bank, when presented within ninety days from the date of the check, shall be prima facieevidence of knowledge of such insufficiency of funds or credit unless such maker or drawer pays the holder thereof the amount due thereon, or makes arrangements for payment in full by the drawee of such check within five (5) banking days after receiving notice that such check has not been paid by the drawee.

Accordingly, this Court has held that the elements of the crime are, as follows: (1) the making, drawing, and issuance of any check to apply on account or for value; (2) the knowledge of the maker, drawer, or issuer that at the time of issue he does not have sufficient funds in or credit with the drawee bank for the payment of the check in full upon its presentment; and (3) the subsequent dishonor of the check by the drawee bank for insufficiency of funds or credit, or dishonor for the same reason had not the drawer, without any valid cause, ordered the bank to stop payment.[14] In this case, the first and third elements of the crime have been adequately established. The prosecution, however, failed to prove the second element. Because this element involves a state of mind which is difficult to

In Suarez v. People,[16] which is on all fours with the instant case, two Informations for violation of B.P. Blg. 22 were filed against petitioner therein. After the prosecution presented its evidence, petitioner filed a Demurrer to Evidence without leave of court on the ground that no notice of dishonor had been sent to and received by him. When the case reached this Court, we acquitted petitioner on reasonable doubt as there was insufficient proof that he received notice of dishonor. We explained that:

The presumption arises when it is proved that the issuer had received this notice, and that within five banking days from its receipt, he failed to pay the amount of the check or to make arrangements for its payment. The full payment of the amount appearing in the check within five banking days from notice of dishonor is a complete defense. Accordingly, procedural due process requires that a notice of dishonor be sent to and received by the petitioner to afford the opportunity to avert prosecution under B.P. Blg. 22. x x x. [I]t is not enough for the prosecution to prove that a notice of dishonor was sent to the petitioner. It is also incumbent upon the prosecution to show that the drawer of the check received the said notice because the fact of service provided for in the law is reckoned from receipt of such notice of dishonor by the drawee of the check. A review of the records shows that the prosecution did not prove that the petitioner received the notice of dishonor. Registry return cards must be authenticated to serve as proof of receipt of letters sent through registered mail.[17]

In this case, the prosecution merely presented a copy of the demand letter, together with the registry receipt and the return card, allegedly sent to petitioner. However, there was no attempt to authenticate or identify the signature on the registry return card.[18] Receipts for registered letters and return receipts do not by themselves prove receipt; they must be properly authenticated to serve as proof of receipt of the letter, claimed to be a notice of dishonor.[19] To be sure, the presentation of the registry card with an unauthenticated signature, does not meet the required proof beyond reasonable doubt that petitioner received such notice. It is not enough for the prosecution to prove that a notice of dishonor was sent to the drawee of the check. The prosecution must also prove actual receipt of said notice, because the fact of service provided for in the law is reckoned from receipt of such notice of dishonor by the drawee of the check.[20] The burden of proving notice rests upon the party asserting its existence. Ordinarily, preponderance of evidence is sufficient to prove notice. In criminal cases, however, the quantum of proof required is proof beyond reasonable doubt. Hence, for B.P. Blg. 22 cases, there should be clear proof of [21] notice. Moreover, for notice by mail, it must appear that the same was served on the addressee or a duly authorized agent of the addressee. From the registry receipt alone, it is possible that petitioner or his authorized agent did receive the demand letter.[22] Possibilities, however, cannot

replace
[23]

proof

beyond

reasonable

may still be adjudged civilly liable. The extinction of the penal action does not carry with it the extinction of the civil action where (a) the acquittal is based on reasonable doubt as only preponderance of evidence is required; (b) the court declares that the liability of the accused is only civil; and (c) the civil liability of the accused does not arise from or is not based upon the crime of which the accused was acquitted.[30] In a number of similar cases, we have held that an acquittal based on reasonable doubt does not preclude the award of civil damages.[31] In view of the foregoing, we sustain the findings of the trial court, as affirmed by the CA, as to petitioners civil liability. Finally, in answer to petitioners insistence that he should have been allowed by the trial court to present his evidence on the civil aspect of the case, suffice it to state that when petitioner filed a demurrer to evidence without leave of court, the whole case was submitted for judgment on the basis of the evidence presented by the prosecution as the accused is deemed to have waived the right to present evidence. At that juncture, the court is called upon to decide the case including its civil aspect.[32] WHEREFORE, premises considered, the Court of Appeals Decision dated December 13, 2007 and Resolution dated March 4, 2008 in CA-G.R. CEB-CR No. 00300 are MODIFIED. Petitioner

doubt. The consistent rule is that penal statutes have to be construed strictly against the State and liberally in favor of the accused.[24] The absence of a notice of dishonor necessarily deprives the accused an opportunity to preclude a criminal prosecution.[25] As there is insufficient proof that petitioner received the notice of dishonor, the presumption that he had knowledge of insufficiency of funds cannot arise.[26] This is so even if petitioner did not present his evidence to rebut the documentary evidence of the prosecution as he had waived his right to present evidence for having filed a demurrer to evidence without leave of court. We must emphasize that the prosecution has the burden of proving beyond reasonable doubt each element of the crime as its case will rise or fall on the strength of its own evidence, never on the weakness or even absence of that of the defense.[27] The failure of the prosecution to prove the receipt by petitioner of the requisite notice of dishonor and that he was given at least five (5) banking days within which to settle his account constitutes sufficient ground for his acquittal.[28] Nonetheless, petitioners acquittal for failure of the prosecution to prove all elements of the offense beyond reasonable doubt does not include the extinguishment of his civil liability for the dishonored checks.[29] In case of acquittal, the accused

Jaime

Alferez

is ACQUITTED on

reasonable doubt of violation of B.P. Blg. 22. However, the civil liability imposed on petitioner is AFFIRMED. SO ORDERED.

ANTONIO EDUARDO B. NACHURA Associate Justice

City declaring petitioner guilty of nine (9) counts of violations of Batas Pambansa Bilang 22 (B.P. FIRST DIVISION 22), otherwise known as the

Bouncing Checks Law. On August 16, 1994, Francisco M. Bax, petitioner, was charged with violations of B.P. 22 (10 counts) before the Metropolitan Trial

FRANCISCO M. BAX, Petitioner,

Court (MeTC), G.R. No. 149858

Branch

71,

Pasig

City,[3] docketed as Criminal Cases Nos. 14354 to 14363. Present: The Information in Criminal Case No. 14354 reads: PUNO, C.J., Chairperson, That on or about the SANDOVAL-GUTIERREZ, 13th day of March 1994 in the CORONA, Municipality of Pasig, Metro AZCUNA, Manila, and Philippines and within GARCIA, the JJ. jurisdiction of this

versus

Honorable Court, the abovePEOPLE OF THEPHILIPPINES and named accused, did then and Promulgated: there willfully, unlawfully and feloniously make or draw and September issue 5, 2007 to Ilyon Corporation to Industrial apply on

ILYON INDUSTRIAL CORPORATION, Respondents.

x --------------------------------------------------------------------------------------x account or for value the check described below: DECISION Check SANDOVAL-GUTIERREZ, J.: No. : Drawn against Challenged in the instant Petition for Review on Certiorari[1] are the Decision[2] of the Court of Appeals dated December 19, 2000 and its Resolution dated September 5, 2001 in CA-G.R. CR No. 23356 affirming in toto the Decision dated December 14, 1998 of the Regional Trial Court (RTC), Branch 70, Pasig amount : United AGRO94438

Coconut Planters Bank In : the P47,250.00 :

Dated/Postdated March 13, 1994 Payable

I n d u s t r i a l

C o r p .

r e : p .

b y

B e n e d i I l y o T c t

a n

(VACHMAN), purchased 80 metric tons of chemical compounds, known as caustic soda flakes, from Ilyon Industrial Corporation

said accused well knowing that at the time of issue he did not have sufficient funds in or credit with the drawee bank for the payment in full of the face amount of such check upon its presentment, which check could have been

(ILYON), respondent. On December 6, 1993, ILYON

delivered 27 metric tons of caustic soda flakes to petitioner. Again in January 1994, ILYON delivered another 27 metric tons of caustic soda flakes to petitioner. In payment therefor, petitioner issued ten (10) checks amounting to P464,750.00 in favor of ILYON. Upon presentment of the checks to the United Coconut Planters Bank for payment, they were dishonored for being drawn against insufficient funds. Despite ILYONs demand, petitioner failed to make good the bounced checks for the reason that he has been encountering financial problems. As a result, ILYON caused the filing of ten (10) Informations against petitioner. After hearing or on March 27, 1998, the MeTC rendered a Decision finding petitioner guilty as charged, thus: WHEREFORE, in

dishonored for insufficiency of funds had not the accused, without any valid reason, ordered the bank to Stop Payment, and despite receipt of notice of such dishonor, the accused failed to pay said payee the face amount of the said check or made

arrangement for full payment thereof within five (5) banking days after receiving notice.

CONTRARY LAW.

TO

view of all the foregoing, the Court hereby renders

judgment finding the accused, Francisco Bax, GUILTY of Except as to the numbers and dates of the other nine checks issued by petitioner, and the reason for their dishonor (drawn against insufficient funds), the Informations in the crime of Violations of Batas Pambansa Bilang 22, (10) counts, and accordingly sentences him of to six suffer (6)

Criminal Cases Nos. 14355-14363 and the above Information are similarly worded. The facts are: Sometime in October 1993, petitioner, for and in behalf of Vachman Industries, Inc.

imprisonment

months in each case and to pay the offended party the sum of P464,750.00, the

amount of all the ten (10) checks and to pay the cost. On appeal,[4] the Court of Appeals in CA-G.R. CR No. 23356 rendered its Decision SO ORDERED. on December 19, 2000 affirming in totothe RTC Decision. Petitioner filed a motion for reconsideration but it was denied by the On appeal, the RTC, Branch appellate court in a Resolution

70, Pasig City, presided by Judge Pablito Rojas, rendered 14, a Joint Decision with

datedSeptember 5, 2001. Hence the instant petition. The basic issue is whether the prosecution was able to prove the guilt of petitioner by evidence beyond reasonable doubt. The Solicitor General contends that the Court of Appeals did not err in affirming the RTC Joint Decision sustaining that of the MeTC because all the elements of violation of

dated December

1998 affirming

modification the MeTC Decision, thus: WHEREFORE, in

view of the foregoing, the Decision of the Court a quo is hereby AFFIRMED with the following MODIFICATIONS:

(a)

accused in

is Criminal

B.P. 22 are present in each case.

Petitioner,

ACQUITTED case No. 14354;

on the other hand, maintains that since he did not receive a written notice of dishonor, not all the elements of the offense have been

(b) imposed

the on

sentence accused in

established by the prosecution. Accordingly, he should be acquitted. We agree with petitioner. It is settled that factual findings of the trial court are accorded great weight, even finality on appeal, except when it has failed to appreciate certain facts and circumstances which, if taken into account, would materially

Criminal Case Nos. 14355 to 14363 of six (6) months imprisonment for each is

hereby increased to ONE (1) YEAR in each case; and

(c)

the total amount

affect the result of the case. This exception is present here.[5] Section 1 of B.P. 22 provides: SECTION 1. Checks without sufficient funds. - Any person who makes or draws

of indemnity to be paid by the accused to the complainantcorporation 417,500.00. is PHP

SO ORDERED.

and issues any check to apply on account or for value,

knowing at the time of issue that he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment, which check is subsequently dishonored by the drawee bank for insufficiency of funds or credit or would have been dishonored for the same reason had not the drawer, without any valid reason, ordered the bank to stop payment, shall be punished by imprisonment of not less than thirty days but not more than one (1) year or by a fine of not less than but not more than double the amount of the check which fine shall in no case exceed Two hundred thousand pesos, or both such fine and imprisonment at the discretion of the court. The same penalty shall be imposed upon any person who having sufficient funds in or credit with the drawee bank when he makes or draws and issues a check, shall fail to keep sufficient funds or to maintain a credit to cover the full amount of the check if presented within a period of ninety (90) days from the date appearing

thereon, for which reason it is dishonored by the drawee bank. Where the check is drawn by a corporation, company or entity, the person or persons who actually signed the check in behalf of such drawer shall be liable under this Act.

Thus, the prosecution must prove the following essential elements of the offense: (1) the making, drawing, and issuance of any check to apply for

account or for value; (2) the knowledge of the maker, drawer, or issuer that at the time of issue there are no sufficient funds in or credit with the drawee bank for the payment of such check in full upon its

presentment; and (3) the subsequent

dishonor of the check by the drawee bank for insufficiency of funds or credit or dishonor for the same reason had not the drawer, without any valid cause, ordered the bank to stop payment.[6] We find that the prosecution failed to prove the second element.

To hold petitioner liable for violation of B.P. 22, it is not enough that the issued check was subsequently dishonored for insufficiency of funds. It must be shown beyond reasonable doubt that he knew of the insufficiency of funds issued.
[7]

Under B.P. 22, the prosecution must prove not only that the accused issued a check that was subsequently dishonored. It must also establish that the accused was actually

notified that the check was dishonored, and that he or she failed, within five banking days from receipt of the notice, to pay the holder of the check the amount due thereon or to make arrangement for its payment. Absent proof that the accused received such notice, a

at

the

time

the

check

was

Hence, the law provides that he

must be notified of the dishonor, thus: SEC. 2. Evidence of knowledge of insufficient funds. The making, drawing and issuance of a check payment of which is refused by the drawee bank because of insufficient funds in or credit with such bank, when

prosecution for violation of the Bouncing Checks Law cannot prosper.[9] In Domagsang Appeals,
[10]

v.

Court

of

we held that the notice of dishonor

of a check to the maker must be in writing. A mere oral notice to the drawer or maker of the dishonor of his check is not enough, thus: While, indeed,

presented within ninety (90) days from the date of the check, shall beprima

facie evidence of knowledge of such insufficiency of funds or credit, unless such maker or drawer pays the holder thereof the amount due thereon, or makes arrangements for

Section 2 of B.P. Blg. 22 does not state that the notice of dishonor be in writing, taken in conjunction, however, with Section 3 of the law. i.e., that where there are no sufficient funds in or credit with such drawee bank, such fact shall always be explicitly stated in the notice of dishonor or refusal, a mere oral notice or demand to pay would appear to be insufficient for

payment in full by the drawee of such check within five (5) banking days after receiving notice that such check has not been
[8]

paid

by

the

drawee.

While it is true that ILYON, through its president, Benedict Tan, asked petitioner to pay the dishonored checks, however, such kind of notice is not the one required by B.P. 22.

conviction

under

the

law. The Court is convinced that both the spirit and letter of the Bouncing Checks Law would require for the act to be

punished thereunder not only that the accused issued a check that is dishonored, but that likewise the accused has actually writing of been the notified in fact of

to P425,250.00. In Criminal

Case

No.

14354, petitioner was acquitted by the RTC since the reason for the dishonor was his stop payment order to the drawee bank to enable VACHMAN to reconcile its accounts with ILYON. Hence, only the face value of the remaining nine (9) checks should be included in the computation of petitioners civil liability. Each check has a face value

dishonor. The consistent rule is that penal statutes have to be construed strictly against the State and liberally in favor of the accused. (Emphasis supplied)

of P47,250.00 which, if we multiply by nine, yields P425,250.00. WHEREFORE, we REVERSE the

Decision of the Court of Appeals. Petitioner Francisco M. Bax is acquitted in Criminal Since petitioner did not receive a Cases Nos. 14355 to 14363 for violations of B.P. 22 for failure of the prosecution to prove his guilt beyond reasonable doubt. He is ordered, however, to pay the offended party, ILYON, the face value of the nine (9) checks in the total amount of P425,250.00 with 12% interest per annum from the filing of the Informations until fully paid. SO ORDERED.

written notice of dishonor of the checks, obviously, there is no way of determining when the 5-day period prescribed in Section 2 of B.P. 22 would start and end. Thus, the prima facie evidence of petitioners knowledge of the insufficiency of funds or credit at the time he issued the checks did not arise.
[11]

We thus find that the prosecution failed to prove by evidence beyond reasonable doubt that petitioner is guilty of violations of B.P. 22. However, petitioner should pay the face value of the nine (9) dishonored checks plus legal interest. It is well settled that the civil liability is not extinguished by acquittal where such acquittal is based on lack of proof beyond cases.[12] We however modify the award of petitioners civil liability to ILYON reasonable doubt, since only

preponderance of evidence is required in civil

from P417,500.00

government employee. He insisted that the import of the memorandum affected his credibility and the performance of his official functions as Assistant Solicitor General among others. After the preliminary investigation, Investigating Prosecutor Filipinas Z. AguilarAta (Prosecutor Ata) issued on November 21, 1997, a Resolution making the following findings and recommendation: We find the words "x x x, there is no such thing as 'palabra de honor as far as ASG del Rosario is concerned,' x x x contained in the memorandum dated June 13, 1997 issued by respondent, defamatory as it imputes a kind of detect on complainant's part which tends to discredit his integrity as an Assistant Solicitor General and the other functions he [holds]. Malice is thus presumed from the defamatory imputation. Moreover, the respondent's disposition of having addressed the Memorandum not only to the Solicitor General but to all Assistants [sic] Solicitors] General reveals the absence of good intention on her part in making the imputation. There was, therefore, undue publication of the libelous Memorandum as in fact, the same was received and read by the officers concerned. In line, the evidence has sufficiently established a probable cause to indict respondent with the crime of libel, and accordingly, [the] undersigned respectfully recommends that the corresponding information be filed in Court[5] What transpired then were the following events and proceedings. On December 8, 1997, the City Prosecutor's Office of Makati City approved the Resolution of Prosecutor Ata. Accordingly, an Information for libel was filed against petitioner with the Regional Trial Court (RTC) of Makati City. Petitioner's appeal from the prosecutor's resolution was not given due course by NCR Regional Prosecutor/Chief State Prosecutor Jovencito R. Zuo on March 10, 1998.[6] Her motion for reconsideration was likewise denied on September 8, 1998.[7] Petitioner appealed to the Department of Justice (DOJ) assailing the resolution of the City Prosecutor's

FIRST DIVISION [G.R. No. 149261 : December 15, 2010] AZUCENA B. CORPUZ, PETITIONER, VS. ROMAN G. DEL ROSARIO, RESPONDENT. DECISION

DEL CASTILLO, J.: It is a rule too firmly established that the "determination of probable cause for the filing of an Information in court is an executive function, one that properly pertains at the first instance to the public prosecutor and, ultimately, to the Secretary of Justice."[1] "judicial review of the resolution of the Secretary of Justice is limited to a determination of whether there has been a grave abuse of discretion amounting to lack or excess of jurisdiction considering that the full discretionary authority has been delegated to the executive branch in the determination of probable cause during a preliminary investigation."[2] Challenged in the present petition for review on certiorari under Rule 45 of the Rules of Court is the Decision[3] dated July 27, 2001 of the Court of Appeals (CA) in CA- G.R. SP No. 56434 denying petitioner's petition for certiorari. The controversy has its root in an affidavitcomplaint[4] filed with the City Prosecutor's Office of Makati City by Assistant Solicitor General Roman G. del Rosario accusing herein petitioner Assistant Solicitor General Azucena B. Corpuz for Libel. In said complaint, respondent claimed that petitioner's June 13, 1997 memorandum was maliciously issued without any good intention but to discredit and cause dishonor to his good name as a

Office of Makati City. On August 17, 1999, the DOJ Secretaiy considered the appeal as a second motion for reconsideration and resolved to deny the appeal with finality.[8] Petitioner then elevated the matter via a petition for certiorari before the CA contending that the public prosecutors gravely abused their discretion in finding a prima facie case of libel against her and exceeded their jurisdiction when her appeal from the resolution of the City Prosecutor's Office of Makati City was not given due course. Ruling of the Court of Appeals

and 3. (In) ruling that the extraordinary writ of certiorari is not available since other remedies are obtainable with the trial court.[11] Per directive[12] of the Court, respondent filed his Comment[13] to the Petition on December 12, 2001. On January 30, 2002, the Court required petitioner to file her reply,[14 ]which she complied with on April 30, 2002.[15] Pursuant to our Resolution dated June 3, 2002[16] the parties submitted their respective memoranda. Significantly, in her Reply,[17] petitioner made an absolute turnaround and manifested that she is not assailing in the instant petition the following findings of the Prosecutor: First, that malice is presumed from the defamatory imputation. Second, that the subject memorandum was addressed not only to the Solicitor General but also to all the Assistant Solicitors General who received and read them. Third, that the words "there is no such thing as 'palabra de honor' as far as ASG del Rosario is concerned" imputes a kind of defect on respondent tending to discredit his integrity as an Assistant Solicitor General and the other functions he holds. Petitioner expressly concedes that the main issue in the present petition is whether the CA correctly ruled that no grave abuse of discretion was committed by the Assistant City Prosecutor in concluding that her findings have prima facie established the elements of libel despite their not being in accordance with law and jurisprudence on the matter. Petitioner avers that there are no findings of facts to support the conclusion that the elements of libel exist. She also points out that the findings of the prosecutor are not sufficient to constitute probable cause. Our Ruling The contentions of petitioner are devoid of merit. We have examined the records of the case and have found no such error much less abuse of discretion committed by the prosecutor and the C A justifying a reversal of their resolutions

On July 27, 2001, the CA issued its herein assailed Decision[9] denying the petition. It found that the petitioner failed to clearly show exceptional circumstances to justify her resort to the extraordinary remedy of the writ of certiorari. The appellate court likewise found petitioner's assertions that the memorandum is a privileged communication which was issued without malice are matters of defense which should be properly discussed during trial. The CA disposed the matter in this wise: WHEREFORE, finding no grave abuse of discretion, amounting to lack or excess of jurisdiction on the part of public respondents, the Petition is DENIED. SO ORDERED.[10] The unsuccessful quest by petitioner to reverse the resolutions of the City Prosecutor's Office of Makati City, the Chief State Prosecutor, the DOJ Secretary and the CA did not hamper her struggle. Petitioner is now before us via the instant recourse ascribing to the CA the following assignment of errors: 1. (In) concluding that the findings of the Makati City Prosecutor in the preliminary investigation are essentially factual in nature, and that in assailing such findings petitioner is raising questions of fact; 2. (In) holding that petitioner's arguments that subject memorandum is a privileged communication and that there is absence of malice in the issuance thereof being matters of defense should be resolved by the trial court,

since their unanimous findings of probable cause for libel against petitioner are based on law, jurisprudence and evidence on records. "Probable cause, for purposes of filing a criminal information, has been defined as such facts as are sufficient to engender a wellfounded belief that a crime has been committed and that respondent is probably guilty thereof."[18] A finding of probable cause needs only to rest on evidence showing that more likely than not a crime has been committed and was committed by the suspect. It "need not be based on clear and convincing evidence of guilt, neither on evidence establishing guilt beyond reasonable doubt and definitely, not on evidence establishing absolute certainty of guilt."[19] A prosecutor alone determines the sufficiency of evidence that will establish probable cause justifying the filing of criminal information against the respondent since the determination of existence of a probable cause is the function of the prosecutor. Judicial review is allowed only where respondent has clearly established that the prosecutor committed grave abuse of discretion.[20] "Grave abuse of discretion exists when there is an arbitrary or despotic exercise of power due to passion, prejudice or personal hostility; or a whimsical, arbitrary or capricious exercise of power that amounts to an evasion or refusal to perform a positive duty enjoined by law or to act at all in contemplation of law." Petitioner miserably failed to establish the existence of any of these exceptional circumstances to warrant further calibration of the parties' evidence presented during the preliminary investigation. Contrary to petitioner's contention, we find that in arriving at their unanimous conclusion that probable cause for libel exists, the prosecutor and the Secretary of Justice had clearly determined and carefully deliberated on the factual and legal antecedents of the case. The resolution of the prosecutor as sustained by the Secretary of Justice and the CA shows that it squarely addressed and took into consideration all the arguments and evidence submitted. The evidence before the prosecutor served as basis in arriving at her findings of fact.

As defined in Article 353 of the Revised Penal Code, the crime of libel has the following elements: 1. imputation of a crime, vice or defect, real or imaginary or any act, omission, condition, status or circumstance; 2. 3. the it imputation must be must given be malicious; and

publicity;

4. the victim must be identifiable. As extant from the resolution of the prosecutor, the presence of these elements was duly established during the preliminary investigation stage clearly showing prima facie a well-founded belief that a crime of libel has been committed and that petitioner probably committed it. It must be stressed that an accusation is not synonymous with guilt. That is why a trial has to follow, precisely to determine the guilt or innocence of the accused. Petitioner further contends that the memorandum is covered by the protective mantle of privileged communication under the first exception enumerated under Article 354, viz: 1. A private communication made by any person to another in the performance of any legal, moral or social duty. Petitioner's argument is essentially evidentiary in nature and a matter of defense that must be presented and heard during the trial of the criminal case. Whether the subject memorandum is a privileged communication is a question which requires an examination of the parties' evidence. Being a matter of defense, the tenability of her challenge needs to be tested in the crucible of a full-blown trial where she can prove her Innocence if her defense be indeed true than at the preliminary investigation level. It must be stressed that this Court cannot assess the merit of the said claim as it is not a trier of facts. All told, the undisputed facts of the case negate any showing of grave abuse of discretion or manifest error on the part of the public officers concerned considering their

finding of probable cause to indict petitioner is supported by the evidence on record. "[C]ourts should give credence, in the absence of a clear showing of arbitrariness, to the findings and determination of probable cause by prosecutors in a preliminary investigation."[22] WHEREFORE, the instant petition is hereby DENIED. The Decision dated July 27, 2001 of the Court of Appeals in CA-G.R. SP No. 56434 is AFFIRMED. SO ORDERED.

THIRD DIVISION

[G.R. NO. 139292. December 5, 2000] JOSEPHINE DOMAGSANG, petitioner, vs. THE HONORABLE COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents. DECISION
VITUG, J.: Petitioner was convicted by the Regional Trial Court of Makati, Branch 63, of having violated Batas Pambansa ("B.P.") Blg. 22 (Anti-Bouncing Check Law), on eighteen (18) counts, and sentenced to "suffer the penalty of One (1) Year imprisonment for each count (eighteen [18] counts)." Petitioner was likewise ordered to pay the private complainant the amount of P573,800.00.[1] The judgment, when appealed to the Court of Appeals (CA-G.R. CR No. 18497), was affirmed in toto by the appellate court. It would appear that petitioner approached complainant Ignacio Garcia, an Assistant Vice President of METROBANK, to ask for financial assistance. Garcia accommodated petitioner and gave the latter a loan in the sum of P573,800.00. In exchange, petitioner issued and delivered to the complainant 18 postdated checks for the repayment of the loan. When the checks were, in time, deposited, the instruments were all dishonored by the drawee bank for this reason: Account closed. The complainant demanded payment allegedly by calling up petitioner at her office. Failing to receive any payment for the value of the dishonored checks, the complainant referred the matter to his lawyer who supposedly wrote petitioner a letter of demand but that the latter ignored the demand. On 08 May 1992, Criminal Case No. 924465 was lodged against petitioner before the Regional Trial Court ("RTC") of Makati. The Information read:

"That on or about the 24th day of June, 1991, in the Municipality of Makati, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously make out, draw and issue to complainant Ignacio H. Garcia, Jr., to apply on account or for value the dated check/described below: "Check No. Drawn Against Royal Bank In the Amount of : Dated/Postdated 24, 1991 Payable to io H. Garcia, Jr.

149900

Traders

P50,000.00 : June

Ignac

"said accused well knowing that at the time of issue thereof, she did not have sufficient funds in or credit with the drawee bank for the payment in full of the face amount of such check upon its presentment, which check when presented for payment within ninety (90) days from the date thereof was subsequently dishonored by the drawee bank for the reason `ACCOUNT CLOSED' and despite receipt of notice of such dishonor, the accused failed to pay said payee the face amount of said check or to make arrangement for full payment thereof within five (5) banking days after receiving notice.
"CONTRARY TO LAW."[2] Subsequent Informations, docketed Criminal Cases No. 92-4466 to No. 92-4482, inclusive, similarly worded as in Criminal Case No. 92-

4465 except as to the dates, the number, and the amounts of the checks hereunder itemized -

No. 182090 1991

December 30, 100,000.00"

[3]

"Check Number

Dated/Postdated Amount TRB No. 161181 July 18, 1991 P6,000.00 TRB No. 149906 July 24, 1991 3,000.00 No. 182074 July 30, 1991 29,700.00 No. 182084 August 30, 1991 9,300.00 No. 182078 September 15, 1991 6,000.00 No. 161183 September 18, 1991 6,000.00 No. 161177 September 18, 1991 100,000.00 No. 182085 September 30, 1991 9,000.00 No. 182079 October 15, 1991 6,000.00 No. 182086 October 30, 1991 10,500.00 No. 182080 November 15, 1991 6,000.00 No. 182087 November 30, 1991 11,400.00 No. 182081 December 15, 1991 6,000.00 No. 182082 December 15, 1991 100,000.00 No. 182088 December 30, 1991 12,000.00 No. 182089 December 30, 1991 100,000.00

were also filed against petitioner. The cases were later consolidated and jointly tried following the "not guilty" plea of petitioner when arraigned on 02 November 1992. On 07 September 1993, petitioner filed a demurrer to the evidence, with leave of court, premised on the absence of a demand letter and that the checks were not issued as payment but as evidence of indebtedness of petitioner or as collaterals of the loans obtained by petitioner. Opposed by the prosecution, the demurrer was denied by the trial court. In the hearing of 17 February 1994, petitioner, through counsel, waived her right to present evidence in her defense. Relying solely then on the evidence submitted by the prosecution, the lower court rendered judgment convicting petitioner. The decision, as heretofore stated, was affirmed by the Court of Appeals in its decision of 15 February 1999. Reconsideration was also denied in the resolution, dated 09 July 1999, of the appellate court. Hence, the instant petition where petitioner raised the following issues for resolution by the Court -

"1. Whether or not an alleged verbal demand to pay sufficient to convict herein petitioner for the crime of violation of B.P. Blg. 22; "2. Whether or not the Honorable Court of Appeals committed reversible error when it affirmed the judgment of conviction rendered by the trial court, on the ground that a written notice of dishonor is not necessary in a prosecution for violation of B.P. Blg. 22, contrary to the pronouncement of the Supreme Court in the case of Lao vs. Court of Appeals, 274 SCRA 572; (and) "3. Whether or not the Honorable Court of Appeals erred in considering the alleged written demand letter, despite failure of the prosecution to formally offer the same."
[4]

The pertinent provisions of B.P. Blg. 22 "Bouncing Checks Law," provide:

"SECTION 1. Checks without sufficient funds. Any person who makes or draws and issues any check to apply on account or for value,knowing at the time of issue that he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment, which check is subsequently dishonored by the drawee bank for insufficiency of funds or credit or would have been dishonored for the same reason had not the drawer, without any valid reason, ordered the bank to stop payment, shall be punished by imprisonment of not less than thirty days but not more than one (1) year or by fine of not less than but not more than double the amount of the check which fine shall in no case exceed Two Hundred Thousand pesos, or both such fine and imprisonment at the discretion of the court. "The same penalty shall be imposed upon any person who having sufficient funds in or credit with the drawee bank when he makes or draws and issues a check, shall fail to keep sufficient funds or to maintain a credit to cover the full amount of the check if presented within a period of ninety (90) days from the date appearing thereon, for which reason it is dishonored by the drawee bank. "Where the check is drawn by a corporation, company or entity, the person or persons who actually signed the check in behalf of such drawer shall be liable under this Act. "SEC. 2. Evidence of knowledge of insufficient funds. The making, drawing and issuance of a check payment of which is refused by the drawee because of insufficient funds in or credit with such bank, when presented within ninety (90) days from the date of the check, shall beprima facie evidence of knowledge of

such insufficiency of funds or credit unless such maker or drawer pays the holder thereof the amount due thereon, or makes arrangements for payment in full by the drawee of such check within five (5) banking days after receiving notice that such check has not been paid by the drawee. "SEC. 3. Duty of drawee; rules of evidence. It shall be the duty of the drawee of any check, when refusing to pay the same to the holder thereof upon presentment, to cause to be written, printed or stamped in plain language thereon, or attached thereto, the reason for drawee's dishonor or refusal to pay the same: Provided, That where there are no sufficient funds in or credit with such drawee bank, such fact shall always be explicitly stated in the notice of dishonor or refusal. In all prosecutions under this Act, the introduction in evidence of any unpaid and dishonored check, having the drawee's refusal to pay stamped or written thereon, or attached thereto, with the reason therefor as aforesaid, shall be prima facie evidence of the making or issuance of said check, and the due presentment to the drawee for payment and the dishonor thereof, and that the same was properly dishonored for the reason written, stamped or attached by the drawee on such dishonored check. "Notwithstanding receipt of an order to stop payment, the drawee shall state in the notice that there were no sufficient funds in or credit with such bank for the payment in full of such check, if such be the fact." (Underscoring supplied.)
[5]

The law enumerates the elements of the crime to be (1) the making, drawing and issuance of any check to apply for account or for value; (2) the knowledge of the maker, drawer, or issuer that at the time of issue he does not have sufficient funds in or credit with the drawee bank for the payment of the check in full upon its presentment; and (3) the subsequent dishonor of the check by the

drawee bank for insufficiency of funds or credit or dishonor for the same reason had not the drawer, without any valid cause, ordered the bank to stop payment.[6] There is deemed to be a prima facie evidence of knowledge on the part of the maker, drawer or issuer of insufficiency of funds in or credit with the drawee bank of the check issued if the dishonored check is presented within 90 days from the date of the check and the maker or drawer fails to pay thereon or to make arrangement with the drawee bank for that purpose. The statute has created the prima facie presumption evidently because "knowledge" which involves a state of mind would be difficult to establish.[7] The presumption does not hold, however, when the maker, drawer or issuer of the check pays the holder thereof the amount due thereon or makes arrangement for payment in full by the drawee bank of such check within 5 banking days after receiving notice that such check has not been paid by the drawee bank. In Lao vs. Court of Appeals,[8] this Court explained:

days from notice of dishonor is a `complete defense. The absence of a notice of dishonor necessarily deprives an accused an opportunity to preclude a criminal prosecution. Accordingly, procedural due process clearly enjoins that a notice of dishonor be actually served on petitioner. Petitioner has a right to demand and the basic postulates of fairness require that the notice of dishonor be actually sent to and received by her to afford her the opportunity to avert prosecution under B.P. Blg. 22.
[9]

In the assailed decision, the Court of Appeals predicated the conviction of petitioner on the supposed fact that petitioner was informed of the dishonor of the checks through verbal notice when the complainant had called her up by telephone informing her of the dishonor of the checks and demanding payment therefor. The appellate court said:

x x x. Section 2 of B.P. Blg. 22 clearly provides that this presumption arises not from the mere fact of drawing, making and issuing a bum check; there must also be a showing that, within five banking days from receipt of the notice of dishonor, such maker or drawer failed to pay the holder of the check the amount due thereon or to make arrangement for its payment in full by the drawee of such check. It has been observed that the State, under this statute, actually offers the violator `a compromise by allowing him to perform some act which operates to preempt the criminal action, and if he opts to perform it the action is abated. This was also compared `to certain laws allowing illegal possessors of firearms a certain period of time to surrender the illegally possessed firearms to the Government, without incurring any criminal liability. In this light, the full payment of the amount appearing in the check within five banking

"The maker's knowledge of the insufficiency of his funds is legally presumed from the dishonor of his check (People vs. Laggui, 171 Phil. 305). The law does not require a written notice of the dishonor of such check. "In the instant case, appellant had knowledge that her checks were dishonored by the bank when complainant Garcia made several oral demands upon her to pay the value of the checks in the amount of P573,800.00. Despite said demands, appellant failed and refused to pay the same. Moreover, complaining witness further testified that his lawyer made a written demand upon appellant but the latter ignored said demand (tsn., May 27, 1993, pp. 13-14). In this connection, appellant waived her right to present evidence or rebut complainant's testimony that he made oral demands upon appellant to make good the dishonored checks and his lawyer wrote her a demand letter. "Likewise, appellant did not object to the admission of the complainant's testimony with regard to the written demand by

moving that it be stricken off the record for being hearsay, hence, the same is admissible evidence. In the case of People vs. Garcia, 89 SCRA 440, the Supreme court ruled: "`x x x (It) must be noted that neither the defendant nor his counsel below objected to the admission of the testimonies which are now being assailed as hearsay. This is fatal to defendant-appellant's present posture since the failure to object to hearsay evidence constitutes a waiver of the x x right to cross-examine the actual witness to the occurrence, rendering the evidence admissible.'"
[10]

the presence of "actual insufficiency of funds."[16]

knowledge

of

The prosecution may have failed to sufficiently establish a case to warrant conviction, however, it has clearly proved petitioner's failure to pay a just debt owing to the private complainant. The total face value of the dishonored checks, to wit-

Check Number

Petitioner counters that the lack of a written notice of dishonor is fatal. The Court agrees. While, indeed, Section 2 of B.P. Blg. 22 does not state that the notice of dishonor be in writing, taken in conjunction, however, with Section 3 of the law, i.e., "that where there are no sufficient funds in or credit with such drawee bank, such fact shall always be explicitly stated in the notice of dishonor or refusal,"[11] a mere oral notice or demand to pay would appear to be insufficient for conviction under the law. The Court is convinced that both the spirit and letter of the Bouncing Checks Law would require for the act to be punished thereunder not only that the accused issued a check that is dishonored, but that likewise the accused has actually been notified in writing of the fact of dishonor.[12] The consistent rule is that penal statutes have to be construed strictly against the State and liberally in favor of the accused.[13] Evidently, the appellate court did not give weight and credence to the assertion that a demand letter was sent by a counsel of the complainant because of the failure of the prosecution to formally offer it in evidence. Courts are bound to consider as part of the evidence only those which are formally offered[14]for judges must base their findings strictly on the evidence submitted by the parties at the trial.[15] Without the written notice of dishonor, there can be no basis, considering what has heretofore been said, for establishing

Dated/Postdated Amount TRB No. 149900 June 24, 1991 P50,000.00 TRB No. 161181 July 18, 1991 6,000.00 TRB No. 149906 July 24, 1991 3,000.00 No. 182074 July 30, 1991 29,700.00 No. 182084 August 30, 1991 1,300.00 No. 182078 September 15, 1991 6,000.00 No. 161183 September 18, 1991 6,000.00 No. 161171 September 18, 1991 100,000.00 No. 182085 September 30, 1991 9,900.00 No. 182079 October 15, 1991 6,000.00 No. 182086 October 30, 1991 10,500.00 No. 182080 November 15, 1991 6,000.00 No. 182087 November 30, 1991 11,400.00 No. 182081 December 15, 1991 6,000.00

No. 182082 1991 No. 182088 1991 No. 182089 1991 No. 182090 1991

December 15, 100,000.00 December 30, 12,000.00 December 30, 100,000.00 December 30, 100,000.00"
[17]

"Notwithstanding receipt of an order to stop payment, the drawee shall state in the notice that there were no sufficient funds in or credit with such bank for the payment in full of such check, if such be the fact.

or the sum of P563,800, has yet to be made good by petitioner. This amount, with 12% legal interest per annum from the filing of the information until the finality of this decision, must be forthwith settled. WHEREFORE, the decision of the Court of Appeals is MODIFIED. Petitioner Josephine Domagsang is acquitted of the crime charged on reasonable doubt. She is ordered, however, to pay to the offended party the face value of the checks in the total amount of P563,800.00 with 12% legal interest, per annum, from the filing of the informations until the finality of this decision, the sum of which, inclusive of the interest, shall be subject thereafter to 12%, per annum, interest until the due amount is paid. Costs against petitioner. SO ORDERED. Melo, (Chairman), Panganiban, and Gonzaga-Reyes, JJ., concur.

[11] SEC. 3. Duty of drawee; rules of evidence. It shall be the duty of the drawee of any check, when refusing to pay the same to the holder thereof upon presentment, to cause to be written, printed or stamped in plain language thereon, or attached thereto, the reason for drawee's dishonor or refusal to pay the same: Provided, That where there are no sufficient funds in or credit with such drawee bank, such fact shall always be explicitly stated in the notice of dishonor or refusal. In all prosecutions under this Act, the introduction in evidence of any unpaid and dishonored check, having the drawee's refusal to pay stamped or written thereon, or attached thereto, with the reason therefor as aforesaid, shall be prima facie evidence of the making or issuance of said check, and the due presentment to the drawee for payment and the dishonor thereof, and that the same was properly dishonored for the reason written, stamped or attached by the drawee on such dishonored check.

SECOND DIVISION

to File Demurrer to Evidence to which he attached his Demurrer, asserting that the HUN HYUNG PARK, G.R. No. 165496 prosecution failed to prove that he received the Petitioner, notice of dishonor, hence, the presumption of Present: the element of knowledge of insufficiency of fundsJdid not arise.[4] QUISUMBING, ., Chairperson , CARPIO, By Order[5] of February 27, 2003, the - versus CARPIO MORALES, Metropolitan Trial Court (MeTC) of Makati, TINGA, and VELASCO,Branch JR., JJ.65 granted the Demurrer and dismissed the case. The prosecutions Motion for Reconsideration was denied.[6] Promulgated: EUNG WON CHOI, Petitioner appealed the civil Respondent. [7] aspect February 12, 2007 of the case to the Regional Trial Court (RTC) of Makati, contending that the x------------------------------dismissal of the criminal case should not - - - - - - - - - - - - - - - - - - - -x include its civil aspect. DECISION By Decision of September 11, 2003, Branch 60 of the RTC held that while the CARPIO MORALES, J.: evidence presented was insufficient to prove respondents criminal liability, it did not Petitioner, Hun Hyung Park, assails altogether extinguish his civil liability. It the Court of Appeals (CA) Resolutions [1] accordingly granted the appeal of petitioner dated May 20, 2004 and September 28, [2] and ordered respondent to pay him the amount 2004 in CA G.R. CR No. 28344 dismissing of P1,875,000 with legal interest.[8] his petition and denying reconsideration thereof, respectively. Upon respondents motion for [3] reconsideration, however, the RTC set aside its In an Information dated August 31, decision and ordered the remand of the case to 2000, respondent, Eung Won Choi, was the MeTC for further proceedings, so that the charged for violation defendant [-respondent herein] may adduce of Batas Pambansa Blg.22, otherwise known evidence on the civil aspect of the as the Bouncing Checks Law, for issuing case.[9] Petitioners motion for on June 28, 1999 Philippine National Bank reconsideration of the remand of the case Check No. 0077133 postdated August 28, having been denied, he elevated the case to the 1999 in the amount of P1,875,000 which was CA which, by the assailed resolutions, dishonored for having been drawn against dismissed his petition for the following insufficient funds. reasons: Upon arraignment, respondent, with 1. The verification and the assistance of counsel, pleaded not guilty certification of non-forum to the offense charged. Following the pre-trial shopping attached to the conference, the prosecution presented its petition does not fully evidence-in-chief. After the prosecution rested its case, respondent filed a Motion for Leave of Court
comply with Section 4, as amended by A.M. No. 00-210-SC, Rule 7, 1997 Rules

of Court, because it does not give the assurance that the allegations of the petition are true and correct based on authentic records. 2. The petition is not accompanied by copies of certain pleadings and other material portions of the record, (i.e., motion for leave to file demurrer to evidence, demurrer to evidence and the opposition thereto, and the Municipal [sic] Trial Courts Order dismissing Criminal Case No. 294690) as would support the allegations of the petition (Sec. 2, Rule 42, ibid.). 3. The Decision dated September 11, 2003 of the Regional Trial Court attached to the petition is an uncertified and illegible mere machine copy of the original (Sec. 2, Rule 42, ibid.). 4. Petitioners failed to implead the People of the Philippines as partyrespondent in the petition.[10]

under oath, verified accompanied by affidavit.

or

A pleading is verified by an affidavit that the affiant has read the pleading and that the allegations therein are true and correct of his personal knowledge or based on authentic records. A pleading required to be verified which contains a verification based on information and belief, or upon knowledge, information and belief, or lacks a proper verification shall be treated as an unsigned pleading.[12] (Emphasis and underscoring supplied)

Petitioner argues that the word or is a disjunctive term signifying disassociation and independence, hence, he chose to affirm in his petition he filed before the court a quo that its contents are true and correct of my own personal knowledge,[13] and not on the basis of authentic documents. On the other hand, respondent counters that the word or may be interpreted in a conjunctive sense and construed to mean as and, or vice versa, when the context of the law so warrants. A reading of the above-quoted Section 4 of Rule 7 indicates that a pleading may be verified under either of the two given modes or under both. The veracity of the allegations in a pleading may be affirmed based on either ones own personal knowledge or on authentic records, or both, as warranted. The use of the preposition or connotes that either source qualifies as a sufficient basis for verification and, needless to state, the concurrence of both sources is more than sufficient.[14] Bearing both a disjunctive and conjunctive sense, this parallel legal signification avoids a construction that will exclude the combination

In his present petition, petitioner assails the above-stated reasons of the appellate court in dismissing his petition. The manner of verification for pleadings which are required to be verified, such as a petition for review before the CA of an appellate judgment of the RTC,[11] is prescribed by Section 4 of Rule 7 of the Rules of Court:
Sec. 4. Verification. Except when otherwise specifically required by law or rule, pleadings need not be

of the alternatives or bar the efficacy of any one of the alternatives standing alone.[15] Contrary to petitioners position, the range of permutation is not left to the pleaders liking, but is dependent on thesurrounding nature of the allegations which may warrant that a verification be based either purely on personal knowledge, or entirely on authentic records, or on both sources. As pointed out by respondent, authentic records as a basis for verification bear significance in petitions wherein the greater portions of the allegations are based on the records of the proceedings in the court of origin and/or the court a quo, and not solely on the personal knowledge of the petitioner. To illustrate, petitioner himself could not have affirmed, based on his personal knowledge, the truthfulness of the statement in his petition[16] before the CA that at the pre-trial conference respondent admitted having received the letter of demand, because he (petitioner) was not present during the conference.[17] Hence, petitioner needed to rely on the records to confirm its veracity. Verification is not an empty ritual or a meaningless formality. Its import must never be sacrificed in the name of mere expedience or sheer caprice. For what is at stake is the matter of verity attested by the sanctity of an oath[18] to secure an assurance that the allegations in the pleading have been made in good faith, or are true and correct and not merely speculative.[19] This Court has strictly been enforcing the requirement of verification and certification and enunciating that obedience to the requirements of procedural rules is needed if fair results are to be expected therefrom. Utter disregard of the rules cannot just be rationalized by harking on the policy of liberal construction.[20] While the requirement is not jurisdictional in nature, it does not make it less a rule. A relaxed

application of the rule can only be justified by the attending circumstances of the case.[21] To sustain petitioners explanation that the basis of verification is a matter of simple preference would trivialize the rationale and diminish the resoluteness of the rule. It would play on predilection and pay no heed in providing enough assurance of the correctness of the allegations. On the second reason of the CA in dismissing the petition that the petition was not accompanied by copies of certain pleadings and other material portions of the record as would support the allegations of the petition (i.e., Motion for Leave to File Demurrer to Evidence, Demurrer to Evidence and the Opposition thereto, and the MeTC February 27, 2003 Order dismissing the case) petitioner contends that these documents are immaterial to his appeal. Contrary to petitioners contention, however, the materiality of those documents is very apparent since the civil aspect of the case, from which he is appealing, was likewise dismissed by the trial court on account of the same Demurrer. Petitioner, nonetheless, posits that he subsequently submitted to the CA copies of the enumerated documents, save for theMeTC February 27, 2003 Order, as attachments to his Motion for Reconsideration. The Rules, however, require that the petition must be accompanied by clearly legible duplicate original or true copies of the judgments or final orders of both lower courts, certified correct by the clerk of court.[22] A perusal of the petition filed before the CA shows that the only duplicate original or certified true copies attached as annexes thereto are the January 14, 2004 RTC Order granting respondents Motion for

Reconsideration and the March 29, 2004 RTC Order denying petitioners Motion for Reconsideration. The copy of the September 11, 2003 RTC Decision, which petitioner prayed to be reinstated, is not a certified true copy and is not even legible. Petitioner later recompensed though by appending to his Motion for Reconsideration a duplicate original copy. While petitioner averred before the CA in his Motion for Reconsideration that the February 27, 2003 MeTC Order was already attached to his petition as Annex G, Annex G bares a replicate copy of a different order, however. It was to this Court that petitioner belatedly submitted an uncertified true copy of the said MeTC Order as an annex to his Reply to respondents Comment. This Court in fact observes that the copy of the other MeTC Order, that dated May 5, 2003, which petitioner attached to his petition before the CA is similarly uncertified as true. Since both Orders of the MeTC were adverse to him even with respect to the civil aspect of the case, petitioner was mandated to submit them in the required form.[23] In fine, petitioner fell short in his compliance with Section 2 (d) of Rule 42, the mandatory tenor of which is discerniblethereunder and is well settled.[24] He has not, however, advanced any strong compelling reasons to warrant a relaxation of the Rules, hence, his petition before the CA was correctly dismissed.
Procedural rules are tools designed to facilitate the adjudication of cases. Courts and litigants alike are thus enjoined to abide strictly by the rules. And while the Court, in some instances, allows a relaxation in the application of

the rules, this we stress, was never intended to forge a bastion for erring litigants to violate the rules with impunity. The liberality in the interpretation and application of the rules applies only in proper cases and under justifiable causes and circumstances. While it is true that litigation is not a game of technicalities, it is equally true that every case must be prosecuted in accordance with the prescribed procedure to insure an orderly and speedy administration of [25] justice. (Emphasis supplied)

As to the third reason for the appellate courts dismissal of his petition failure to implead the People of the Philippines as a party in the petition indeed, as petitioner contends, the same is of no moment, he having appealed only the civil aspect of the case. Passing on the dual purpose of a criminal action, this Court ruled:
Unless the offended party waives the civil action or reserves the right to institute it separately or institutes the civil action prior to the criminal action, there are two actions involved in a criminal case. The first is the criminal action for the punishment of the offender. The parties are the People of the Philippines as the plaintiff and the accused. In a criminal action, the private complainant is merely a witness for the State on the criminal aspect of the action. The second is the civil action arising from the delict. The private complainant is the plaintiff and the accused is the defendant. There is a merger of the trial of the two cases to avoid multiplicity of

suits.[26] (Underscoring supplied)

It bears recalling that the MeTC acquitted respondent.[27] As a rule, a judgment of acquittal is immediately final and executoryand the prosecution cannot appeal the acquittal because of the constitutional prohibition against double jeopardy. Either the offended party or the accused may, however, appeal the civil aspect of the judgment despite the acquittal of the accused. The public prosecutor has generally no interest in appealing the civil aspect of a decision acquitting the accused. The acquittal ends his work. The case is terminated as far as he is concerned. The real parties in interest in the civil aspect of a decision are the offended party and the accused.[28] Technicality aside, the petition is devoid of merit. When a demurrer to evidence is filed without leave of court, the whole case is submitted for judgment on the basis of the evidence for the prosecution as the accused is deemed to have waived the right to present evidence.[29] At that juncture, the court is called upon to decide the case including its civil aspect, unless the enforcement of the civil liability by a separate civil action has been waived or reserved.[30] If the filing of a separate civil action has not been reserved or priorly instituted or the enforcement of civil liability is not waived, the trial court should, in case of conviction, state the civil liability or damages caused by the wrongful act or omission to be recovered from the accused by the offended party, if there is any.[31] For, in case of acquittal, the accused may still be adjudged civilly liable. The

extinction of the penal action does not carry with it the extinction of the civil action where (a) the acquittal is based on reasonable doubt as only preponderance of evidence is required; (b) the court declares that the liability of the accused is only civil; and (c) the civil liability of the accused does not arise from or is not based upon the crime of which the accused was acquitted.[32] The civil action based on delict may, however, be deemed extinguished if there is a finding on the final judgment in the criminal action that the act or omission from which the civil liability may arise did not exist.[33] In case of a demurrer to evidence filed with leave of court, the accused may adduce countervailing evidence if the court denies the demurrer.[34] Such denial bears no distinction as to the two aspects of the case because there is a disparity of evidentiary value between the quanta of evidence in such aspects of the case. In other words, a court may not deny the demurrer as to the criminal aspect and at the same time grant the demurrer as to the civil aspect, for if the evidence so far presented is not insufficient to prove the crime beyond reasonable doubt, then the same evidence is likewise not insufficient to establish civil liability by mere preponderance of evidence. On the other hand, if the evidence so far presented is insufficient as proof beyond reasonable doubt, it does not follow that the same evidence is insufficient to establish a preponderance of evidence. For if the court grants the demurrer, proceedings on the civil aspect of the case generally proceeds. The only recognized instance when an acquittal on demurrer carries with it the dismissal of the civil aspect is when there is a finding that the act or omission from which the civil liability may arise did not exist. Absent such determination, trial as to the civil aspect of the case must perforce continue. Thus this Court, in Salazar v. People,[35] held:

If demurrer is granted and the accused is acquitted by the court, the accused has the right to adduce evidence on the civil aspect of the caseunless the court also declares that the act or omission from which the civil liability may arise did not exist.[36]

jurisdiction over the subject matter and over the person of the accused, and the crime was committed within its territorial jurisdiction, the court necessarily exercises jurisdiction over all issues that the law requires it to resolve. One of the issues in a criminal case being the civil liability of the accused arising from the crime, the governing law is the Rules of Criminal Procedure, not the Rules of Civil Procedure which pertains to a civil action arising from the initiatory pleading that gives rise to the suit.[39] As for petitioners attribution of waiver to respondent, it cannot be determined with certainty from the records the nature of the alleged oral objections of respondent to petitioners motion for reconsideration of the grant of the demurrer to evidence. Any waiver of the right to present evidence must be positively demonstrated. Any ambiguity in the voluntariness of the waiver is [40] frowned upon, hence, courts must indulge every reasonable presumption against it.[41] This Court therefore upholds respondents right to present evidence as reserved by his filing of leave of court to file the demurrer. WHEREFORE, the petition is, in light of the foregoing discussions, DENIED. The case is REMANDED to the court of origin, Metropolitan Trial Court of Makati Cit y, Branch 65 which is DIRECTED to forthwith set Criminal Case No. 294690 for further proceedings only for the purpose of receiving evidence on the civil aspect of the case. Costs against petitioner.

In the instant case, the MeTC granted the demurrer and dismissed the case without any finding that the act or omission from which the civil liability may arise did not exist. Respondent did not assail the RTC order of remand. He thereby recognized that there is basis for a remand. Indicatively, respondent stands by his defense that he merely borrowed P1,500,000 with the remainder representing the interest, and that he already made a partial payment of P1,590,000. Petitioner counters, however, that the payments made by respondent pertained to other transactions.[37] Given these conflicting claims which are factual, a remand of the case would afford the fullest opportunity for the parties to ventilate, and for the trial court to resolve the same. Petitioner finally posits that respondent waived his right to present evidence on the civil aspect of the case (1) when the grant of the demurrer was reversed on appeal, citing Section 1 of Rule 33,[38] and (2) when respondent orally opposed petitioners motion for reconsideration pleading that proceedings with respect to the civil aspect of the case continue. Petitioners position is tenuous.

SO ORDERED. Petitioners citation of Section 1 of Rule 33 is incorrect. Where a court has