Although its decision is erroneous, that decision may not be annulled or set aside because it amounted to a judgment of acquittal. It became final and executory upon its promulgation. The State may not appeal that decision for it would place the accused twice in jeopardy of punishment for the offense in violation of his constitutional right against double jeopardy (Art. III, Sec. 21, 1987 Constitution).

Since in the present case the accused Eliseo Soriano had been arraigned, pleaded "not guilty," and was tried upon a valid and sufficient information (although the lower court erroneously thought otherwise) and the case against him was dismissed by decision of the trial court (hence, without his consent and not upon his motion), he has been placed in jeopardy or danger of punishment for the offense charged. For this Court to re-assess the evidence against him pursuant to the Government's appeal, would place him twice in jeopardy of punishment for the same offense.

Although the dismissal of the information against him may constitute a miscarriage of justice, the erroneous dismissal by the trial court may not be disturbed for it would violate his basic constitutional right to be exempt from double jeopardy.

In its decision dated September 1, 1986, the trial court ruled that the accused could not be convicted of a violation of the Bouncing Checks Law, B.P. Blg. 22, because the information failed to allege that he knew, when he issued the check, that he would not have sufficient funds for its payment in full upon its presentment to the drawee bank. In the opinion of the trial judge, the information did not charge an offense, hence, he dismissed it.

In this petition for certiorari and mandamus, the State alleges that the information is sufficient, hence, respondent Judge committed an error of law, and/or gravely abused his discretion, in dismissing Criminal Case No. 2934. We agree.

The accused was charged with having violated Batas Pambansa Blg. 22, which provides:

"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 in full upon 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 (30) days but not more than on (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." (Emphasis supplied.)

The elements of the offense are:

1.         the making, drawing and issuance of any check to apply to account or for value,

2.         the maker, drawer or issuer knows 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, and

3.         the 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.

The "defect" which respondent Judge perceived in the information was the failure to allege that the accused, as maker or drawer of the check at the time of issue, knew of the insufficiency of his funds in the bank for payment of the check in full "upon its presentment" (p. 56, Rollo). In the court's opinion, it was not enough for the information to have alleged that the accused knew when he issued the check that he then did not have sufficient funds in the bank; the information should have alleged that the accused knew that he would not have sufficient funds in the bank to pay the check in full "upon its presentment." It believed that the absence of an allegation that the accused foresaw or had foreknowledge of the insufficiency of his bank account upon presentment of the check for payment, was fatal to the information. 

The interpretation is erroneous. Section 2 of the law provides:

"Section 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 be prima 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." (Emphasis supplied.)

In other words the presence of the first and third elements of the offense constitutes prima facie evidence that the second element exists. The maker's knowledge of the insufficiency of his funds is legally presumed from the dishonor of his check for insufficiency of funds. This Court has ruled that:

"Violation of the bad checks act is committed when one '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' or 'having sufficient funds in or credit with the drawee bank . . . 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.'" (People vs. Manzanilla, 156 SCRA 279, 282.)

The gravamen of the offense under B.P. Blg. 22 is the act of making and issuing a worthless check or a check that is dishonored upon its presentment for payment. The law has made the mere act of issuing a bum check a malum prohibitum, an act proscribed by legislature for being deemed pernicious and inimical to public welfare. (Lozano vs. Martinez, Lobaton vs. Cruz, Datuin vs. Pano, Violago vs. Pano, Abad vs. Gerochi, Aguiluz vs. Isnani, Hojas vs. Peñaranda, People vs. Nitafan, G.R. Nos. L-63419, 66839-42, 71654, 74524-25, 75122-49, 75812-13, 75765-67 & 75789, December 18, 1986, 146 SCRA 323).

Since the information in Criminal Case No. 2934 did allege that the accused, for value received, unlawfully and feloniously issued the postdated check "knowing fully well that he had no funds and/or insufficient funds in the bank . . .and when the said check was presented for encashment, said check was dishonored and returned with the information that the said check is drawn against 'CLOSE ACCOUNT' . . ." (pp. 21-22, Rollo) the information satisfies the legal definition of the offense under Section 1, B.P. Blg. 22. It is sufficient. The trial court erred in dismissing it.

However, although its decision is erroneous, that decision may not be annulled or set aside because it amounted to a judgment of acquittal. It became final and executory upon its promulgation. The State may not appeal that decision for it would place the accused twice in jeopardy of punishment for the offense in violation of his constitutional right against double jeopardy (Art. III, Sec. 21, 1987 Constitution).

This case is somewhat similar to the case of US vs. Yam Tung Way, 21 Phil. 67, where this Court ruled that the defendant, after having been discharged by a competent court, cannot again be put on trial for the same offense "whether his discharge be the result of formal acquittal or of a ruling of the court upon some question of law arising at the trial; no appeal lies in such case on behalf of the government." The accused therein was charged with infringement of literary rights. After trial, he moved for the dismissal of the information on the ground that the evidence of the Government did not establish the commission of the offense charged. The Court reserved its judgment on the motion and required the defendant to submit his evidence. Afterwards, it discharged him on the ground that no copyright law existed then in the Philippines. The Government appealed. The Supreme Court held that the Government held no right to appeal:

"Defendant was regularly arraigned, pleaded not guilty, put upon his trial by the calling of the government's witnesses against him, and thereafter discharged by the trial court. It is true that the court made no express finding as to whether the defendant did or did not commit the specific acts set out in the information, and that the dismissal of the information was based on the court's conclusion of law that there being no copyright law in force in these Islands, the acts which it is alleged were committed by the defendant do not constitute the crime with which he was charged, nor any other offense defined and penalized by law. But the reasoning and authority of the opinion of the Supreme Court of the United States in the case of Kepner vs. United States, supra, is conclusively against the right of appeal by the government from a judgment discharging the defendant in a criminal case after he has been brought to trial, whether defendant was acquitted on the merits or whether defendant's discharge was based upon the trial court's conclusion of law that the trial had failed for some reason to establish the guilt of the defendant as charged.

"As indicated in the opinion in that case, the protection afforded by the prohibition against the putting of any person twice in jeopardy for the same offense, is a protection not merely against the peril of second punishment, but against being tried a second time for the same offense. In that case the court expressly held that:

"'It follows that Military Order No. 58, as amended by Act of the Philippine Commission, No. 194, insofar as it undertakes to permit an appeal by the Government after acquittal, was repealed by the Act of Congress of July, 1902, providing immunity from second jeopardy for the same criminal offense.'

"But the reasoning of the opinion goes further and denies the right to the Government to procure the reversal of erroneous proceedings and commence anew, save only in those cases in which the first proceeding did not create legal jeopardy. So that, without his own consent, a defendant who has once been brought to trial in a court of competent jurisdiction cannot be again put on trial for the same offense after the first trial has terminated by a judgment directing his discharge, whether his discharge be the result of a formal acquittal, or of a ruling of the court upon some question of law arising at the trial." (US vs. Yam Tung Way, 21 Phil. 67, 70-71.)

Since in the present case the accused Eliseo Soriano had been arraigned, pleaded "not guilty," and was tried upon a valid and sufficient information (although the lower court erroneously thought otherwise) and the case against him was dismissed by decision of the trial court (hence, without his consent and not upon his motion), he has been placed in jeopardy or danger of punishment for the offense charged. For this Court to re-assess the evidence against him pursuant to the Government's appeal, would place him twice in jeopardy of punishment for the same offense.

Although the dismissal of the information against him may constitute a miscarriage of justice, the erroneous dismissal by the trial court may not be disturbed for it would violate his basic constitutional right to be exempt from double jeopardy.

WHEREFORE, the petition for review of the trial court's decision dismissing the information in Criminal Case No. 2934, is denied.

Justice Grino-Aquino, FIRST DIVISION, PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. PEDRO G. LAGGUI, Presiding Judge of Branch XXXIV of the Regional Trial Court of Pampanga and ELISEO SORIANO, respondents, [G.R. Nos. 76262-63.  March 16, 1989.]

Petitioner argues that he would be placed in double jeopardy as all the elements of estafa under Article 315 (2-d) of the Revised Penal Code are also present in that crime punishable under Batas Pambansa Bilang 22 namely (1) "the postdating or issuance of 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."

Petitioner's contentions are devoid of merit.

Petitioner is charged with two (2) distinct and separate offenses, first under Section 1 of Batas Pambansa Bilang 22 approved on April 3, 1979 which provides that:

"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."

and, second, under Article 315, (2-d) of the Revised Penal Code which states as follows:

"Art. 315.            Swindling (estafa). Any person who shall defraud another by any of the means mentioned herein below . . . .

xxx                    xxx                    xxx

"2.        By means of any of the following false pretenses or fraudulent acts, executed prior to or simultaneously with the commission of the fraud;

xxx                    xxx                    xxx

"(d)      By postdating a check or issuing a check in payment of an obligation when the offender had no funds in the bank, or his funds deposited therein were not sufficient to cover the amount of the check."

What petitioner failed to mention in his argument is the fact that deceit and damage are essential elements in Article 315 (2d) Revised Penal Code, but are not required in Batas Pambansa Bilang 22. Under the latter law, mere issuance of a check that is dishonored gives rise to the presumption of knowledge on the part of the drawer that he issued the same without sufficient funds and hence punishable (People v. Veridiano, 132 SCRA 523) which is not so under the Penal Code. Other differences between the two also include the following: (1) a drawer of a dishonored check may be convicted under Batas Pambansa Bilang 22 even if he had issued the same for a pre-existing obligation, while under Article 315 (2-d) of the Revised Penal Code, such circumstance negates criminal liability; (2) specific and different penalties are imposed in each of the two offenses; (3) estafa is essentially a crime against property, while violation of Batas Pambansa Bilang 22 is principally a crime against public interest as it does injury to the entire banking system; (4) violations of Article 315 of the Revised Penal Code are mala in se, while those of Batas Pambansa Bilang 22 are mala prohibita.  LLpr

These differences are better understood by presenting the pertinent discussions on the passage of Batas Pambansa Bilang 22 between the author of the bill, former Solicitor General and Member of the Batasang Pambansa, the Honorable Estelito P. Mendoza, presented in the memorandum for the government as follows:

"MR. MENDOZA.            If there is evidence demonstrating that the act committed does not only violate this proposed Act but also the Revised Penal Code, there will be further prosecution under the Revised Penal Code. That is why it is proposed in this Act that there be a single uniform penalty for all violations in this Act. However the court is given the discretion whether to impose imprisonment or fine or both or also in whatever severity the court may consider appropriate under the circumstances.

xxx                    xxx                    xxx

"MR. VELOSO, F.            The other way around, it is not so. So precisely, if I file a case for estafa against a particular person for issuance of a bouncing check, then necessarily I can also be prosecuted under this proposed bill. On the other hand, if a person is prosecuted under the proposed bill, it does not necessarily follow that he can be prosecuted for estafa.

"MR. MENDOZA.            This is simply because that in a certain set of circumstances, the offense under this Act is the only offense committed while under a different set of circumstances, not only the offense described in this Act is committed but also estafa. So that, for example, if a check with sufficient funds is issued in payment of a pre-existing obligation and the position of the Government should turn out to be correct that there is no estafa, then the drawer of the check would only be liable under this Act but not under the Revised Penal Code. But if he issues a check in payment, or contemporaneously with incurring, of an obligation, then he will be liable not only for estafa but also for violation for this Act. There is a difference between the two cases. In that situation where the check was issued in payment of a pre-existing obligation, the issuance of the check does not cause damage to the payee and so it is but appropriate that he should not be held for estafa but only for violating this Act. But if he issued a check to induce another to part with a valuable consideration and the check bounces, then he does inflict an injury to the payee of the check apart from violating this law. In that case, it should be but fair that he be subject to prosecution not only for estafa but also for violating this law.

"MR. VELOSO, F. Yes, I agree with the Solicitor General on that point but my worry is with respect to situations where there is prosecution first to estafa.

"MR. MENDOZA. Well, if there is estafa . . . . .

"MR. VELOSO, F.            Estafa committed by the issuance of a bouncing check, in which case it will be mandatory on the part of the prosecuting official to also file a case for violation of this offense under the proposed bill.

"MR. MENDOZA.            Yes, that is correct. In such a situation because if the offender did not only cause injury on account of the issuance of the check but did issue a bouncing check penalized under this Act, then he will be liable for prosecution under both laws. I would admit that perhaps in such situation, the penalty may be somewhat severe. As a matter of fact, in other jurisdictions, the issuance of bouncing checks is penalized with substantially lower penalty. However, because of the situation in the Philippines, the situation being now relatively grave that practically everybody is complaining about bouncing checks, may be it is necessary at least initially, at this point in time for us to impose a rather severe penalty and even allow liability not only under this Act but also for estafa. Then perhaps after the necessary discipline has been inculcated in our people and that the incidence of the offense has been reduced, we may then decide to amend the law and reduce the penalty. But at this time, shall we say the evil is of such magnitude that only a dramatic and expeditious effort to prosecute persons who issue bouncing checks may be necessary to curb quickly this evil." (explanations given by Solicitor General ESTELITO P. MENDOZA at the Batasan Pambansa during his sponsorship speech of BP 22 which he authored, pages 1037-1038, Record of the Batasan, Plenary Session No. 70, Dec. 4, 1978). (Italics supplied)." (pp. 115-117, Rollo or pp. 9-11, Memorandum for respondents)

Furthermore, Section 5 of Batas Pambansa Bilang 22 provides that:

"Prosecution under this Act shall be without prejudice to any liability for violation of any provision of the Revised Penal Code."

While the filing of the two sets of Information under the provisions of Batas Pambansa Bilang 22 and under the provisions of the Revised Penal Code, as amended, on estafa, may refer to identical acts committed by petitioner, the prosecution thereof cannot be limited to one offense, because a single criminal act may give rise to a multiplicity of offenses and where there is variance or differences between the elements of an offense in one law and another law as in the case at bar there will be no double jeopardy because what the rule on double jeopardy prohibits refers to identity of elements in the two (2) offenses. Otherwise stated prosecution for the same act is not prohibited. What is forbidden is prosecution for the same offense. Hence, the mere filing of the two (2) sets of information does not itself give rise to double jeopardy (People v. Miraflores, 115 SCRA 570).

In the instant petition, certiorari is not the proper remedy. We have held in Acharon v. Purisima, et al. (13 SCRA 309) that "when a motion to quash a criminal case is denied, remedy is not certiorari but to go to court without prejudice to reiterating special defenses invoked in the motion, and if after trial on the merits, an adverse decision is rendered, to appeal therefrom in the manner authorized by law," invoking the rule laid down in People v. Magdaluyo (1 SCRA 990). If the petitioner cannot appeal at this state of the proceeding, it is because there is still a necessity for the trial on the merits wherein the parties may present proofs in support of their contentions and not because the remedy of appeal is unavailing.  cdphil

EN BANC, Justice Paras, PETER NIERRAS, petitioner, vs. HON. AUXENCIO C. DACUYCUY and HON. ANTONIO S. LOPEZ, in their capacity as Presiding Judge, Branch IV, Court of First Instance of Leyte, Palo, Leyte, and City Fiscal of Tacloban City, Leyte, respectively, respondents, [G.R. Nos. 59568-76.  January 11, 1990.]