SECOND DIVISION

[G.R. No. 120672. August 17, 2000]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MARIO MYRNO TAN, accused-appellant.

D E C I S I O N

QUISUMBING, J.:

On appeal is the decision rendered on January 26, 1995, by the Regional Trial Court of Antipolo, Rizal, Branch 74, in Criminal Case No. 91-6398, finding appellant Mario Myrno Tan guilty of estafa under paragraph 2 (d) of Article 315 of the Revised Penal Code and sentencing him to reclusion perpetua.

In an Information dated January 11, 1991, Prosecutor Eduardo Fabian charged appellant with the crime of estafa allegedly committed as follows:

That in or about and during the month of July 1990 up to September 1990, in the Municipality of Antipolo, Province of Rizal, Philippines, within the jurisdiction of this Honorable Court, the above-named accused, with intent to defraud New Durawood Company Inc., herein represented by one, Wilson M. Gaw and by means of deceit and false representation, did then and there wilfully, unlawfully and feloniously make out and issue Security Bank and Trust Company Check No. 293232 postdated October 1, 1990 in the amount of P254,037.00, to apply on account, well-knowing 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 when presented for payment within ninety (90) days from the date thereof was subsequently dishonored by the drawee bank for the reason of Drawn Against Insufficient Funds and, despite receipt of notice of such dishonor the accused failed to pay said payee the face amount of said check or make arrangement for full payment thereof within three (3) days after receiving notice, to the damage and prejudice of the said New Durawood Company, Inc. in the aforementioned amount of P254,037.00.

CONTRARY TO LAW.¹ [Rollo, p. 5.]

Upon arraignment, appellant, assisted by counsel, entered a plea of not guilty to the charge.² RTC Records, p. 85.] Thereafter, trial on the merits ensued. Subsequently, the trial court rendered its verdict finding appellant guilty as charged. The dispositive portion of its decision reads:

WHEREFORE, in view of the foregoing, and computing the penalty corresponding to the P254,037.00 amount defrauded in accordance with the foregoing provision, the Court hereby sentences accused Mario Myrno Tan to suffer the penalty of Reclusion Perpetua (the Indeterminate Sentence Law not being applicable to persons convicted of offenses punished with death or life imprisonment (Section 2, Act. No. 4105 as amended by Act. No. 4225), the Court cannot therefore impose a minimum penalty that is one degree lower than Reclusion Perpetua). In addition accused is likewise sentenced to indemnify complainant New Durawood Company the amount of P254,037.00 by way of actual damages plus legal interest and to pay the Costs.

SO ORDERED.³ [Rollo, p. 19.]

In view of the penalty imposed, the case is now before us on appeal.

The facts of this case on record are as follows:

Private complainant New Durawood Company is engaged in the buy and sell of construction materials, with Wilson Gaw (Gaw) serving as manager of its branch in Mayamot, Antipolo, Rizal. Appellant Mario Myrno Tan, owner of Hocson Trading, was among the regular customers of the company.

As a matter of practice between the parties, appellant would first place his orders for construction materials with private complainant. Then private complainant would compute the total amount involved and then show it to appellant. Thereafter, the company would prepare the invoice and appellant would issue post-dated checks in payment for the ordered supplies. The materials would then be delivered later either to appellant’s warehouse in Caloocan City or the construction site. It was appellant’s caretaker who received the materials and signed the delivery receipts.

Complainant’s branch manager, Wilson Gaw, testified that:

Sometime in July or August 1990, appellant came to his store to procure construction supplies. After computing the total amount of the ordered materials, appellant issued a check. Appellant told Gaw about his (appellant’s) big construction project and assured Gaw that the check appellant would issue as payment for the materials was as good as cash. Because of appellant’s representation, Gaw accepted appellant’s Security Bank and Trust Company (SBTC) Check No. 293232 post-dated October 1, 1990, in the amount of P254,037.00 corresponding to the amount of materials that appellant ordered. Thereafter, deliveries were made as evidenced by the following invoices⁴ Records, pp. 111-115.] issued by private complainant:

INVOICE NO. & DATE........AMOUNT........RECEIVED BY

17442....9-8-90............P76,000.00........Ernie Conwi

15117....9-8-90.... ........15,800.00........Nards A. Gabatin

15307....9-14-90 ........ 7,643.00........N. A. Gabatin

15308....9-14-90............151,554.00........unidentified person

15309....9-14-90 ........ 3,040.00........Nards A. Gabatin

....................P254,037.00

The SBTC check paid by appellant was deposited by private complainant at the Rizal Commercial and Banking Corporation. But the check was dishonored as it was drawn against insufficient funds.

Another witness for the prosecution, Sylvia Gaerlan, testified that she was the current account bookkeeper of SBTC at Salcedo Village, Makati. She said that she called up appellant to inform him of the dishonor of said check, but it was only appellant’s secretary who answered. The secretary in turn informed appellant of the check’s dishonor.

Gaw said he made several verbal demands upon appellant to make good his check. Gaw claimed that when he went to see appellant and demanded payment from the latter, appellant said that he had no money. Next, the company sent a letter to appellant demanding payment of all his checks that bounced which amounted already to P1,657,483.61, including SBTC Check No. 293232. Even after the written demand, appellant still failed to redeem the bouncing checks.

Finally, the company filed several criminal cases against appellant because of the several bouncing checks he had issued. These criminal cases were filed in the different branches of the Regional Trial Court in Antipolo, Rizal. The present case involves only the abovecited SBTC check.

Appellant was arrested on February 7, 1991 pursuant to the order of arrest issued by the trial court. Upon application, appellant was allowed to post bail for his provisional liberty. Thereafter, on motion of the prosecution, the trial court directed the Commissioner of Immigration and Deportation to include appellant in its hold order list to prevent appellant from leaving the country.⁵ [RTC Records, pp. 4, 15, 22.]

On the scheduled date of arraignment on March 13, 1991, appellant failed to appear and so the trial court ordered his immediate arrest. But in view of the valid reason manifested by appellant, the trial court recalled the warrant for appellant’s arrest. Nonetheless, appellant failed to appear for his arraignment on July 10, 1991. Accordingly, the trial court issued an alias warrant for appellant’s arrest and cancelled his bail bond in favor of the government. In the meantime, the case was archived until the appellant could be apprehended. On August 22, 1992, private complainant informed the trial court that appellant was being detained at the PNP Criminal Investigation Service field office in Cainta, Rizal in connection with other criminal cases filed against appellant. Based on said information, the trial court ordered the jail warden in PNP CIS in Cainta, Rizal to bring the appellant for the arraignment on October 21, 1992. Just the same, appellant failed to appear during said hearing.⁶ [RTC Records, pp. 26, 29, 32, 53, 62.]

Later on, the police reported that appellant escaped from their detention center. On January 24, 1993, appellant was rearrested and then detained at the Rizal Provincial Jail. When he was finally arraigned on May 10, 1993, appellant pleaded not guilty to the charge.⁷ [RTC Records, pp. 69, 76, 85.]

Testifying in his defense, appellant admitted issuing the check in question but vehemently denied having received the materials he ordered. Thus, he claimed he did not deposit the corresponding amount to fund the check. He declared that the persons who signed in the delivery receipts were not his authorized representatives. He also pointed out that all the invoices for the materials had a stamp marking them as paid for by MBTC (Metropolitan Bank and Trust Company) checks which were not his. He stated that Ernie Conwi, to whom the materials were delivered, had his own construction firm not in any way connected with his business.

Unfortunately, the trial court did not lend credence to the defense put up by appellant and on the basis of the evidence adduced by the prosecution, held appellant guilty as charged and sentenced him, as stated, to reclusion perpetua. Appellant seasonably filed his notice of appeal.⁸ [RTC Records, p. 257.]

Appellant now asserts before us that the trial court erred:

I

…IN FINDING THAT THE POST-DATED CHECK [EXH. “F”] WAS ISSUED IN PAYMENT OF AN OBLIGATION OR FOR A CONSIDERATION THAT WAS ACTUALLY DELIVERED TO THE ACCUSED

II

…IN NOT FINDING THAT THE GOODS COVERED BY SALES INVOICES HAD BEEN PAID FOR BY CHECKS BELONGING TO ANOTHER PERSON AND NOT TO THE ACCUSED-APPELLANT

III

…IN HOLDING THAT THE EVIDENCE ADDUCED ESTABLISHES BEYOND REASONABLE DOUBT THE GUILT OF THE ACCUSED FOR THE CRIME CHARGED

IV

…IN CONVICTING THE ACCUSED OF THE CRIME CHARGED.⁹ [Rollo, p. 52.]

The main issue is whether or not there is sufficient evidence to support the conviction of the appellant for estafa beyond reasonable doubt. In resolving this issue, we must inquire whether all the elements of estafa have been proved. In particular, we must find out if there was consideration for the issuance of the cited bouncing check.

Appellant contends that the prosecution failed to sufficiently prove that the merchandise he ordered were delivered to and received by him or his authorized representatives. Thus, appellant argues, he cannot be held liable for estafa since he was not able to obtain goods from the private complainant by means of the check he issued.

After a close study of the evidence on record in this case, we are convinced that the trial court erred in finding that appellant’s check was issued for consideration. Hence, it also erred in convicting appellant. We shall now discuss these points in detail.

Article 315 (2)(d) of the Revised Penal Code penalizes any person who shall defraud another by postdating a check or issuing a check in payment of an obligation when the offender has no funds in the bank or his funds deposited therein are not sufficient to cover the amount of check. The elements therefore of this form of estafa are (1) postdating or issuing a check in payment of an obligation contracted at the time the check was issued; (2) lack or insufficiency of funds to cover the check; and (3) damage to the payee thereof. Damage and deceit are essential elements of the offense and must be established with satisfactory proof to warrant conviction. The false pretense or fraudulent act must be committed prior to or simultaneously with the issuance of the bad check.¹⁰ [People vs. Chua, GR-130632, September 28, 1999, pp. 8-9. 10

The transaction between the parties here is in the nature of contract of sale whereby private complainant (seller) obligates itself to deliver construction materials to appellant (buyer) who, in turn, binds himself to pay therefor a sum of money or its equivalent (price). The contract of purchase and sale is reciprocal and from it arises not only the obligation to deliver the thing but also that of paying the price. There is actual delivery when the thing sold is placed in the control and possession of the buyer or his agent.¹¹ [De Leon, Comments and Cases on Sales, pp. 5, 151, 215 (1995)]

In this case, there is no ample proof that appellant or his representatives ever received the merchandise ordered. On the contrary, witness Gaw himself admitted that the construction materials were received by Ernie Conwi, Nards Gabatin and an unidentified person, all of whom were not authorized by appellant. Nor was it shown that these persons turned over the merchandise to appellant. During his cross-examination, Gaw declared:

ATTY. BELLA RAMONA ANTONANO

Q: Mr. Witness, for how long has the accused been your customer?

A: I cannot recall, mam, for quite 6 months.

Q: So, when he orders from you, who usually receive the goods he orders from you?

A: It is only his caretaker, mam.

Q: Were you ever furnish (sic) the name of the caretaker of Mr. Tan to receive the goods?

A: No, mam.

Q: So, you do not know as to who are these persons that receive for and in behalf of Mr. Tan?

A: No, but Mr. Tan said at his given address he has a person right there to receive those goods.

Q: And that at any rate no name has given to you by Mr. Tan as to who is going to receive the goods to be delivered?

A: Yes, mam.

Q: So, May I refer to your Exhibit “A”, your sales invoice marked as Exhibit “A” there appears to be a name Ernie Conwi which was also marked as Exhibit “A-1” for the prosecution. Now, do you know if this person is an authorized representative of Mr. Tan?

ATTY. DIAZ III: You honor, I think the best evidence would be the document itself.

ATTY. ANTONANO: Yes, your honor.

ATTY. DIAZ III: What does the document say, counsel?

ATTY. ANTONANO: Received the above goods in good order and condition. My question is do you know if this person is authorized representative of Mr. Tan to receive goods in his behalf?

COURT: Witness may answer.

A: No, but the address given here as per instruction of Mr. Tan he has the person who will receive these goods.

Q: But only a person you do not know of who specifically the person who will going to receive this?

A: Yes, mam.

ATTY. ANTONANO:

Q: And also showing to you Exhibits “B”, “C” and “E” there appears also here the name Nards A. Gabatin for these 3 exhibits, do you know if this person is an authorized representative of Mr. Tan to receive?

A: No.

Q: And also on Exhibit “D” there also appears a signature which cannot be determine (sic) who is the person signing for in this particular receipt. So, you do not know also who is this person who receive (sic) the goods which you delivered to Mr. Tan?

A: Yes, mam.

Q: Now, Mr. witness, in that particular case is it not the policy of your office also to ascertain whether the persons who received the items or the goods are authorized representative of your customer?

A: No, mam.

Q: Despite the substantial amount involved in the receipt, Mr. Witness?

A: Yes, mam.¹² [TSN, July 26, 1993, pp. 7-9.]

Furthermore, the records indicate that the materials, although addressed to Hocson Trading, were delivered to Conwi’s apartment in Karangalan Village, Cainta, Rizal.¹³ [Records, pp. 111-115.] This contravenes the standing arrangement between the parties. As a matter of practice, the merchandise should have been sent to appellant’s warehouse or the construction site designated by appellant. This fact lends credence to appellant’s assertion that he did not receive the materials he ordered.

Another factor which bolsters appellant’s defense is the fact that the invoices showed the materials were paid for by checks not belonging to appellant. Note that appellant was charged here of estafa for obtaining merchandise from the offended party by means of the SBTC Check No. 293232 he issued. But, as appellant pointed out, Sales Invoices Nos. 17442 and 15117 bear the stamp “PAID” and the handwritten notation reading “MB

TC 062382 9/19” while Sales Invoices Nos. 15307, 15308 and 15309 contain a similar stamp “PAID” and a notation “MBTC 062392 9/27”. Appellant stated that he does not have an account with MBTC, a claim not disputed by the prosecution. Hence, we can reasonably conclude that the merchandise covered by the aforesaid invoices were paid by MBTC Check Nos. 062382 and 062392 presumably drawn by another person, but not by appellant. Nor did they involve SBTC Check No. 293232 that appellant earlier issued though postdated October 1, 1990.

Clearly, one element of estafa is missing in this case: no damage was sustained by private complainant by reason of appellant’s issuance of his check. Based on the documentary and testimonial evidence, it was not proved that appellant received something of value from private complainant. Appellant had no obligation to pay him, or to make good the SBTC check. The evidence consisting of the invoices, deliveries of materials and the bouncing MBTC checks does not and could not incriminate appellant. Consequently, appellant cannot be held guilty of estafa for lack of evidence against him.

WHEREFORE, appellant MARIO MYRNO TAN is hereby ACQUITTED of the charge against him. He is ordered immediately RELEASED from confinement unless held for some other legal cause. No costs.

SO ORDERED.

Bellosillo, (Chairman), Mendoza, Buena, and De Leon, Jr., JJ., concur.