Magdayao vs. People

A photocopy of a dishonored check is admissible as secondary evidence in a B.P. Blg. 22 prosecution when the original is in the custody or control of the accused, who, after reasonable notice, fails or refuses to produce it; and imprisonment remains an available penalty for B.P. Blg. 22 violations notwithstanding SC Circular No. 12-2000.

Engr. Bayani Magdayao and Ricky Olvis were parties to a joint venture in Ipil, from which Magdayao incurred an obligation to Olvis. Batas Pambansa Blg. 22, the statute under which Magdayao was charged, penalizes the making, drawing, and issuance of a check for account or value with knowledge of insufficient funds or credit, when the check is later dishonored for insufficiency of funds.

Engr. Bayani Magdayao and Ricky Olvis had a joint venture in Ipil, out of which Magdayao incurred an obligation to Olvis. On September 30, 1991, Magdayao drew and issued Philippine National Bank Check No. 399967, dated September 30, 1991, in the amount of P600,000, payable to Olvis in payment of his obligation. The check was drawn against Magdayao’s account with the PNB, Dipolog City Branch.

Olvis deposited the check on October 1, 1991 in his account with the BPI-Family Bank, Dipolog City Branch. The drawee bank dishonored the check for the reason “Drawn Against Insufficient Funds,” stamped on the dorsal portion of the check. When informed of the dishonor, Magdayao pleaded for time to pay the amount, but he reneged on his promise. Olvis then filed a criminal complaint against Magdayao for violation of B.P. Blg. 22 on September 4, 1992, docketed as I.S. No. 92-368. Magdayao again offered to repay Olvis by retrieving the dishonored check and replacing it with two other checks, one for P400,000 and another for P200,000, payable to Olvis. Taking pity on Magdayao, Olvis agreed and returned the original copy of the check to him. Magdayao again failed to make good on his promise and failed to pay the P600,000.

An Information was filed on September 16, 1993. When arraigned, Magdayao, assisted by counsel, pleaded not guilty. When the case was called for trial on June 7, 1995, Magdayao and his counsel were absent. On motion of the prosecution, the court allowed it to adduce evidence ex parte. Olvis testified and identified a photocopy of PNB Check No. 399967. Because Magdayao was absent, the direct examination could not be terminated; the prosecution moved to continue the trial and to order Magdayao to appear so that he could be identified as the drawer. The trial court granted the motion, set the continuation on June 13, 1995, and ordered Magdayao to appear under pain of contempt. The prosecution marked a photocopy of the check as Exhibit “A” and the dorsal portion as Exhibit “A-1.”

Magdayao and his counsel failed to appear on several subsequent trial dates despite postponements at his instance. On November 21, 1995, they again failed to appear. The prosecution offered the photocopy of PNB Check No. 399967 in evidence, which the court admitted, and the trial court thereafter declared the case submitted for decision. Magdayao filed a motion for reconsideration, which was denied, and later filed an Omnibus Supplemental Motion and a Special Manifestation complaining of the prosecution’s failure to produce the original check. He never produced the original or offered to produce it. The original check was not produced at trial because Olvis had returned it to Magdayao when the latter promised replacement checks. Magdayao admitted in his motion that he received the original copy of the dishonored check and that he caused the non-payment of the check.

• Best Evidence Rule: Petitioner argued that the photocopy of PNB Check No. 399967 was inadmissible under Rule 129, Section 1 of the Revised Rules of Evidence because the prosecution failed to produce the original, rendering the photocopy without probative weight.
• Failure to Present Bank Teller: Petitioner maintained that the prosecution failed to present the BPI-Family Bank teller to testify on the presentment of PNB Check No. 399967 and the dishonor thereof.
• Identity, Drawing, Delivery, and Notice: Petitioner asserted that the prosecution failed to prove that he drew and delivered the dishonored check to the private complainant and that he was properly notified of the dishonor of the check.
• Civil Indemnity: Petitioner claimed that there was no legal basis for the award of P6,000 as civil indemnity.
• Penalty: Petitioner faulted the trial court for imposing imprisonment instead of a fine, citing SC Circular No. 12-2000 and suggesting that, as a first offender, he should be sentenced to pay a fine double the amount of the check.

• Admissibility of Photocopy / Original Check: The prosecution averred that it dispensed with the presentation of the original of the dishonored check because the same had been returned to petitioner, and it pointed out that petitioner failed to object to the presentation of the photocopy.
• Penalty of Fine: The Office of the Solicitor General objected to petitioner’s plea for a penalty of fine on the ground that when petitioner drew and issued the dishonored check to the private complainant, he knew that the residue of his funds in the drawee bank was insufficient to pay the amount thereof.

• Admissibility of Photocopy: Whether the photocopy of PNB Check No. 399967 was inadmissible under the best evidence rule and without probative weight because the prosecution failed to produce the original.
• Proof of Dishonor: Whether the prosecution was required to present the BPI-Family Bank teller to testify on the presentment and dishonor of the check.
• Identity and Notice: Whether the prosecution proved that petitioner drew and delivered the dishonored check to the private complainant and that he was properly notified of its dishonor.
• Civil Indemnity: Whether there was legal basis for the award of civil indemnity to the private complainant.
• Penalty: Whether the trial court erred in imposing imprisonment instead of a fine under SC Circular No. 12-2000, considering petitioner’s claim that he was a first offender.

• Admissibility of Photocopy: No. The photocopy was admissible as secondary evidence because the original was in petitioner’s custody or control and he failed to produce it after notice; his deliberate withholding of the original did not render the photocopy inadmissible.
• Proof of Dishonor: No. The prosecution did not need to present the drawee bank employee because petitioner had already been informed of the dishonor and its reason when the original check was returned to him, and he issued replacement checks.
• Identity and Notice: No. Olvis was ready to identify petitioner, but petitioner and his counsel failed to appear despite the trial court’s order; his failure to appear prevented identification and resulted in waiver of cross-examination and defense evidence.
• Civil Indemnity: Yes. The trial court did not award P6,000; it ordered payment of P600,000, the amount of the check, and petitioner is liable therefor because he failed to pay.
• Penalty: No. Administrative Circular No. 13-2001 provides that Circular No. 12-2000 does not remove imprisonment as an alternative penalty; considering petitioner’s refusal to adduce evidence and the circumstances, imprisonment was proper.

• Admissibility of Photocopy: The Court agreed that the prosecution should have adduced the original copy of PNB Check No. 399967 to prove its contents, including the names of the drawer and endorsee, the date and amount, and the dishonor and its reason. Under Section 3, Rule 129 of the Revised Rules on Evidence, when the subject of inquiry is the contents of a document, no evidence is admissible other than the original, and photocopies are generally inadmissible absent a clear showing that the original has been lost or destroyed or cannot be produced in court. However, under Section 3(b), Rule 130, secondary evidence may be admitted when the original is in the custody or under the control of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice. Section 6, Rule 130 requires that the adverse party be given reasonable notice to produce the document, that he fails or refuses to produce it, and that the offeror offers satisfactory proof of its existence. The notice may be in the form of a motion for production, made in open court in the presence of the adverse party, or through a subpoena duces tecum. Here, Olvis testified that he returned the original check to petitioner after petitioner promised to replace it with two checks, one for P400,000 and another for P200,000. Petitioner admitted in his Motion to Suspend Proceedings that he received the original copy of the dishonored check and caused its non-payment. He complained of the prosecution’s violation of the best evidence rule but never produced the original or offered to produce it. He deliberately withheld the original as a bargaining chip to obtain an opportunity to adduce evidence, which he failed to do after numerous unjustified postponements. Thus, the photocopy was admissible.
• Proof of Dishonor: There was no longer a need for the prosecution to present as witness the employee of the drawee bank who made the notation at the dorsal portion of the dishonored check to testify that it was dishonored for having been drawn against insufficient funds. Petitioner had already been informed of the fact of dishonor and the reason therefor when Olvis returned the original of the check to him. As shown by Olvis’s testimony, petitioner even drew and issued two other separate checks, one for P400,000 and the other for P200,000, to replace the dishonored check.
• Identity and Notice: Petitioner’s contention that Olvis failed to identify him as the drawer of the subject check was without merit. Olvis was ready to identify petitioner after his direct examination, but petitioner and his counsel inexplicably failed to appear. The direct examination had to be continued to enable Olvis to point to and identify petitioner as the drawer. The trial court issued an Order on June 7, 1995, directing petitioner, under pain of contempt, to appear before it to enable Olvis to identify him. Petitioner defied the Order and failed to appear. Because of his dilatory tactics, petitioner failed to adduce evidence to overcome the prosecution’s evidence.
• Civil Indemnity: Contrary to petitioner’s claim, the trial court did not award P6,000 as civil indemnity in favor of Olvis; it ordered petitioner to pay him P600,000, the amount of the subject check. Having failed to pay the amount of the check, petitioner is liable therefor and should be ordered to pay the same to the private complainant.
• Penalty: Petitioner’s plea for a penalty of fine was barren of merit. Administrative Circular No. 13-2001 provides that Administrative Circular No. 12-2000 does not remove imprisonment as an alternative penalty for violations of B.P. Blg. 22; that judges may, in the exercise of sound discretion and considering the peculiar circumstances of each case, determine whether the imposition of a fine alone would best serve the interest of justice, or whether forbearing to impose imprisonment would depreciate the seriousness of the offense, work violence on the social order, or otherwise be contrary to the imperatives of justice; and that should only a fine be imposed and the accused be unable to pay the fine, there is no legal obstacle to the application of the Revised Penal Code on subsidiary imprisonment. The records showed that despite numerous opportunities given by the trial court, petitioner refused to adduce any evidence in his behalf, and the Court of Appeals found his appeal devoid of merit. Considering the factual milieu, the plea for a penalty of fine was rejected and the penalty of imprisonment imposed by the trial court was maintained.

• Elements of Violation of B.P. Blg. 22 — To warrant conviction under Section 1 of B.P. Blg. 22, the prosecution must prove: (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 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. The gravamen of the offense is the act of making or issuing a worthless check or a check that is dishonored upon presentment for payment. The Court applied these elements in affirming petitioner’s conviction.
• Prima Facie Knowledge of Insufficient Funds — Under Section 2 of B.P. Blg. 22, 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, is prima facie evidence of knowledge of such insufficiency of funds or credit unless the maker or drawer pays the holder 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 the check has not been paid by the drawee. The law creates prima facie knowledge on the insufficiency of funds or credit, coincidental with the attendance of the two other elements. The Court cited this provision in explaining the knowledge element of the offense.
• Best Evidence Rule and Secondary Evidence When Original Is in Adverse Party’s Custody or Control — When the subject of inquiry is the contents of a document, no evidence is admissible other than the original thereof, and photocopies are generally inadmissible absent a clear showing that the original has been lost or destroyed or cannot be produced in court. However, secondary evidence may be admitted when the original is in the custody or under the control of the party against whom the evidence is offered, and that party fails to produce it after reasonable notice. The offeror must prove that he has done all in his power to secure the best evidence by giving notice to the adverse party to produce the document. The notice may be made by motion, in open court, or through a subpoena duces tecum. The Court applied this exception in holding that the photocopy of the dishonored check was admissible because the original was in petitioner’s possession and he withheld it despite notice.
• Penalty under B.P. Blg. 22; Administrative Circular No. 13-2001 — Administrative Circular No. 12-2000 does not remove imprisonment as an alternative penalty for violations of B.P. Blg. 22. Judges may, in the exercise of sound discretion and considering the peculiar circumstances of each case, determine whether the imposition of a fine alone would best serve the interest of justice, or whether forbearing to impose imprisonment would depreciate the seriousness of the offense, work violence on the social order, or otherwise be contrary to the imperatives of justice. Should only a fine be imposed and the accused be unable to pay the fine, subsidiary imprisonment may apply. The Court applied this circular in rejecting petitioner’s plea for a fine and maintaining the penalty of imprisonment.
• Effect of Unjustified Postponements and Failure to Appear — A party who repeatedly fails to appear despite court orders and postpones trial without justification may be considered to have waived cross-examination and the right to present evidence in his defense. The Court noted petitioner’s dilatory tactics and his failure to adduce evidence despite numerous opportunities, which contributed to the affirmance of his conviction.

• "To warrant the petitioner’s conviction of the crime charged, the prosecution was burdened to prove the following essential elements thereof: (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 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." — This passage states the essential elements of a violation of B.P. Blg. 22, which the Court applied in affirming petitioner’s conviction.
• "The mere fact that the original of the writing is in the custody or control of the party against whom it is offered does not warrant the admission of secondary evidence. The offeror must prove that he has done all in his power to secure the best evidence by giving notice to the said party to produce the document." — This passage defines the requisites for admitting secondary evidence when the original document is in the adverse party’s custody or control, a key basis for admitting the photocopy of the dishonored check.
• "The petitioner deliberately withheld the original of the check as a bargaining chip for the court to grant him an opportunity to adduce evidence in his defense, which he failed to do following his numerous unjustified postponements as shown by the records." — This passage explains why petitioner could not object to the admission of the photocopy despite the best evidence rule.
• "Administrative Circular 12-2000 does not remove imprisonment as an alternative penalty for violations of BP 22;" — This passage is the controlling rule on penalty that the Court used to reject petitioner’s plea for a fine and to maintain the imprisonment imposed by the trial court.

• Wong vs. Court of Appeals, 351 SCRA 100 (2001) — Cited by the Court in setting out the essential elements of a violation of B.P. Blg. 22.
• Meriz vs. People, 368 SCRA 524 (2001) — Cited for the proposition that the gravamen of the offense is the act of making or issuing a worthless check or a check that is dishonored upon presentment for payment.
• Intestate Estate of the Late Don Mariano San Pedro vs. Court of Appeals, 265 SCRA 733 (1996) — Cited for the rule that photocopies must be disregarded as inadmissible evidence and barren of probative weight absent a clear showing that the original writing has been lost or destroyed or cannot be produced in court.

• Batas Pambansa Blg. 22, Section 1 — Defines the offense of making or drawing and issuing a check without sufficient funds and prescribes the penalty. Petitioner was convicted under this provision.
• Batas Pambansa Blg. 22, Section 2 — Creates prima facie evidence of knowledge of insufficient funds when a check is refused by the drawee for insufficiency of funds or credit and is presented within ninety (90) days from the date of the check, unless the maker or drawer pays the holder or makes arrangements for payment in full within five (5) banking days after receiving notice of non-payment. The Court cited this provision in explaining the knowledge element.
• Rule 129, Section 3, Revised Rules on Evidence — Provides the best evidence rule: when the subject of inquiry is the contents of a document, no evidence is admissible other than the original thereof. The Court acknowledged this rule but found that the secondary evidence exception applied.
• Rule 130, Section 3(b), Revised Rules on Evidence — Allows secondary evidence of a writing when the original is in the custody or under the control of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice. This provision supported the admission of the photocopy of the dishonored check.
• Rule 130, Section 6, Revised Rules on Evidence — Requires that the adverse party in custody or control of the original document be given reasonable notice to produce it, that he fails to produce it, and that satisfactory proof of its existence be offered before secondary evidence may be presented. The Court applied this provision in finding that petitioner had notice and withheld the original.
• Administrative Circular No. 13-2001 — Clarifies that Administrative Circular No. 12-2000 does not remove imprisonment as an alternative penalty for violations of B.P. Blg. 22; that judges may impose a fine alone depending on the circumstances; and that subsidiary imprisonment may apply if only a fine is imposed and the accused cannot pay. The Court relied on this circular in upholding the penalty of imprisonment.
• Administrative Circular No. 12-2000 — Cited by petitioner as basis for his plea for a fine; the Court held that it does not remove imprisonment as an alternative penalty for B.P. Blg. 22 violations.
• Rule 111, Section 1, Revised Rules of Criminal Procedure — Cited in connection with the civil indemnity awarded; the decision ordered petitioner to pay P600,000 to the private complainant.

Puno (Chairman), Austria-Martinez, Tinga, and Chico-Nazario, JJ., concur.