Pecho vs. Sandiganbayan

Section 3(e) of Republic Act No. 3019 penalizes only consummated offenses; an attempted or frustrated stage is not punishable because the provision demands proof of actual undue injury or damage. Where the information for a violation of Section 3(e) alleges facts that also constitute the complex crime of attempted estafa through falsification of public and commercial documents, the accused may be convicted of that necessarily included offense under Section 4, Rule 120 of the Rules of Court, provided all its elements are proved beyond reasonable doubt.

Petitioner Odon Pecho served as a Customs Guard at the Miscellaneous Bonded Warehouse Division, Bureau of Customs, South Harbor, Manila. Together with Jose Catre, he represented himself as an agent of Eversun Commercial Trading, a firm later proven non-existent, and engaged a customs broker to process the release of a container shipment declared to contain agricultural disc blades and irrigation water pumps. Upon inspection, the containers were found to hold diesel engines subject to substantially higher duties. The shipment was seized before release. The Sandiganbayan convicted Pecho of violating Section 3(e) of R.A. No. 3019 despite the absence of actual pecuniary loss to the government, raising the question of whether an attempt to commit the offense could be punished under that special law.

• The Scheme: On 15 March 1989, petitioner Odon Pecho, then a Customs Guard, and Jose Catre approached Constantino Calica, a licensed customs broker, at his office in Intramuros, Manila. They introduced themselves as duly authorized representatives of Eversun Commercial Trading and engaged Calica to prepare and file the import entry for a shipment, offering a fee equal to fifty percent of the authorized brokerage fee. Petitioner and Catre furnished Calica with a packing list, commercial invoice, bill of lading, and a sworn import entry declaration, all declaring the cargo as agricultural disc blades and irrigation water pumps. Based on these documents, the customs duties and taxes were computed at P53,164.00.

• Processing and Active Participation: On 16 March 1989, Calica’s son Dennis filed the import entry and internal revenue declaration at the Manila International Container Port. Petitioner and Catre approached Dennis at K-Line Shipping, introduced themselves, and rode with him in petitioner’s car to the port. They accompanied Dennis during the filing and received a copy of the entry. Two days later, Catre requested Calica’s assistance during the actual examination of the cargo. On 21 March 1989, Dennis met with Catre again for the processing of the examination request. Petitioner and Catre displayed extraordinary personal interest in securing the release of the cargo.

• Discovery and Intervention: On 27 March 1989, Chief Intelligence Officer Baltazar Morales requested a 100% examination of the shipment consigned to Eversun Commercial Trading. On 29 March 1989, Customs Senior Agent Ruperto Santiago conducted a spot check and discovered that the five containers held 300 units of automotive diesel engines, not the declared agricultural disc blades and water pumps. A random computation by Customs Appraiser Mamerto Fernandez revealed a discrepancy in taxes and duties of P1,027,321.00. A hold order and a warrant of seizure and detention were immediately issued by the District Collector of Customs, preventing the release of the goods.

• Investigation: Attys. Cesar Tugday and Crisanto Tamparong of the Internal Inquiry and Prosecution Division investigated the interception. Verification with the Securities and Exchange Commission and the Department of Trade and Industry showed that Eversun Commercial Trading was non-existent and its Tax Account Number was spurious. Petitioner was subpoenaed twice but failed to appear. The investigators recommended the filing of criminal charges, leading to the Information for violation of Section 3(e) of R.A. No. 3019.

• Defect in Preliminary Investigation: Petitioner argued that the information was invalid because the certification of the investigating prosecutor did not state that the accused had been informed of the complaint and evidence against him and given an opportunity to submit controverting evidence, in violation of Sections 3 and 4, Rule 112 of the Rules of Court, and Sections 6 and 7 of the Rules of Procedure of the Office of the Ombudsman. He also claimed he was not furnished a copy of the adverse resolution.

• Insufficiency of Evidence: Petitioner maintained that the prosecution failed to overcome the presumption of innocence and failed to prove the essential elements of the crime charged beyond reasonable doubt.

• Non-punishability of Attempted Violation: Petitioner contended that there is no such crime as attempted violation of Section 3(e) of R.A. No. 3019; the provisions of the Revised Penal Code on attempted and frustrated felonies do not apply to offenses penalized by that special law.

• Sandiganbayan’s Position — Waiver of Objection: The Sandiganbayan ruled that any defect in the preliminary investigation was waived when petitioner voluntarily entered a plea of not guilty, participated in the trial, and offered evidence.

• Sandiganbayan’s Position — Offense Always Consummated: The Sandiganbayan held that violations of Section 3(e) of R.A. No. 3019 are always consummated irrespective of whether the accused achieved his purpose; it is enough that the accused committed an act that would cause undue injury to the government. The argument that no actual damage resulted was deemed immaterial.

• Office of the Solicitor General’s Manifestation — No Consummated Offense: The OSG concurred with petitioner that the prosecution failed to prove the elements of the crime charged and its consummation, submitting that petitioner should be acquitted of the violation of Section 3(e), though it recommended that administrative charges be filed.

• Validity of Information: Whether the information was void for non-compliance with the requirements of preliminary investigation under the Rules of Court and the Ombudsman Rules of Procedure.

• Punishability of Attempted Stage: Whether the attempted or frustrated stage of the offense defined in Section 3(e) of Republic Act No. 3019 is punishable.

• Conviction for Included Offense: Whether the petitioner may be convicted of the complex crime of attempted estafa through falsification of official and commercial documents, an offense necessarily included in the charge of violating Section 3(e) of R.A. No. 3019.

• Validity of Information: The certification of the investigating prosecutor, stating that “a preliminary investigation has been conducted in this case,” was sufficient; it gave the solemn assurance that the investigation conformed to the requirements of the Rules. The absence of a certification, or mere deficiency in its wording, does not invalidate an information because the certification is not an essential part of the information itself. Moreover, the right to a preliminary investigation is not a fundamental right and may be waived expressly or by silence; petitioner waived any objection by pleading not guilty and participating in the trial without timely raising the issue. Non-service of a copy of the adverse resolution did not affect the validity of the information, and the defect was likewise waived.

• Punishability of Attempted Stage: Section 3(e) of R.A. No. 3019 penalizes only consummated offenses. Two principal reasons support this: first, the penalty of imprisonment under the special law does not correspond to any specific penalty under the Revised Penal Code, making Articles 50 and 51 on frustrated and attempted felonies inapplicable; second, the third element — “causing undue injury to any party, including the Government” — requires proof of actual injury or damage. The words “causing,” “undue,” and “injury” collectively denote that the injury must have been actually inflicted and established by evidence. Because the scheme was uncovered and the shipment seized before any release, no actual injury resulted; the offense remained only at the attempted stage, which is not punishable under Section 3(e). Consequently, the conviction for violation of Section 3(e) could not stand.

• Conviction for Included Offense: The information alleged all essential ingredients of the complex crime of estafa under paragraph 2(a), Article 315, in relation to Article 171 of the Revised Penal Code: the false representation that Eversun Commercial Trading was a legitimate importer and that the cargo consisted of agricultural equipment; the use of falsified shipping and import documents; and the intended defraudation of the Government in the amount of P1,027,321.00. Under Section 4, Rule 120 of the Rules of Court, when the offense proved is necessarily included in the offense charged, the accused may be convicted of the offense proved. The prosecution established beyond reasonable doubt that the elements of attempted estafa through falsification of official and commercial documents were present. The falsified documents were public and commercial in nature; petitioner and his co-accused were in possession of and used them without any satisfactory explanation, giving rise to the presumption that they were the authors of the falsification. The offense was only attempted because the fraud was foiled by customs authorities before delivery of the goods. Since falsification carries a higher penalty than attempted estafa, the penalty for the more serious offense — falsification under Article 171 — was applied in its maximum period pursuant to Article 48 of the Revised Penal Code. Petitioner was therefore convicted of the complex crime of attempted estafa through falsification of official and commercial documents.

• Actual Injury Requirement in Section 3(e) of R.A. No. 3019 — The third element of the offense, “causing undue injury to any party, including the Government,” demands proof of actual injury or damage that has been inflicted. The use of the present participle “causing” means the injury must have been effected or brought about; an attempted or frustrated violation is not penalized under this special law because the penalty structure does not accommodate the stages of execution under the Revised Penal Code. Article 6 of the Revised Penal Code does not supplement Section 3(e) in this respect.

• Conviction for an Included Offense under Rule 120 — Under Section 4, Rule 120 of the Rules of Court, when the evidence proves an offense that is necessarily included in the offense charged, the accused may be convicted of the offense proved, provided its essential elements are both alleged in the information and established by proof beyond reasonable doubt. An offense charged necessarily includes the offense proved when some of the essential ingredients of the former, as alleged, constitute the latter.

• Presumption of Authorship of Falsification — A person found in possession of and who used a falsified document, without offering a credible explanation, is presumed to be the material author of the forgery. This presumption is especially strong when the use is closely connected in time with the forgery and the possessor stood to benefit.

• Waiver of the Right to Preliminary Investigation — The right to a preliminary investigation is not a fundamental right and may be waived, either expressly or by silence. An accused who enters a plea of not guilty and participates in trial without raising any objection to the regularity of the preliminary investigation is deemed to have waived the right.

• “There are two principal reasons why Section 3(e) of R.A. No. 3019, as amended, can be said to penalize only consummated offenses. Firstly, the penalty imposed therefor … does not have the nomenclature and duration of any specific penalty in the Revised Penal Code. … Secondly, the third requisite of Section 3(e), viz., ‘causing undue injury to any party, including the government,’ could only mean actual injury or damage which must be established by evidence. … Taken together, proof of actual injury or damage is required.”

• “The rule is that if a person had in his possession a falsified document and he made use of it (uttered it), taking advantage of it and profiting thereby, the presumption is that he is the material author of the falsification. … In the absence of a satisfactory explanation, one who is found in possession of a forged document and who used or uttered it is presumed to be the forger.”

• “The right to a preliminary investigation is not a fundamental right and may be waived expressly or by silence. Where the accused pleaded to the charge, he is deemed to have foregone the right of preliminary investigation and the right to question any irregularity that surrounds it.”

• Ponce de Leon v. Sandiganbayan, 186 SCRA 745 (1990) — Enumerated the elements of Section 3(e) of R.A. No. 3019, which were adopted as the framework for determining the presence of the offense.

• Alejandro v. People, 170 SCRA 400 (1989) — Relied upon for the principle that one of the elements of Section 3(e) is that undue injury must have been caused, and proof of actual damage is required; cited to support acquittal where no injury was shown.

• Fernando v. Sandiganbayan, 212 SCRA 680 (1992) — Reiterated the necessity of proving undue injury, evident bad faith, or gross negligence; quoted to emphasize that absence of injury precludes conviction under Section 3(e).

• People v. Sendaydiego, 81 SCRA 120 (1978) — Reiterated the presumption that a person in possession of and using a falsified document is the author of the falsification, absent a satisfactory explanation.

• Alarcon v. Court of Appeals, 19 SCRA 688 (1967) — Affirmed the rule that one found in possession of a forged document and who uses it is presumed to be the forger.

• Esquerra v. People, 108 Phil. 1078 (1960) — Interpreted Section 4, Rule 120 of the Rules of Court on variance between allegation and proof, holding that an accused may be convicted only of an offense that is both charged and proved, provided one is included in the other.

• U.S. v. Basa, 8 Phil. 89 (1907) and People v. Ngan Te, 62 Phil. 588 (1935) — Affirmed the non-applicability of the provisions on attempted crimes to offenses punished by special laws, unless the special law itself penalizes an attempt.

• Section 3(e), Republic Act No. 3019 (Anti-Graft and Corrupt Practices Act) — Defined the offense charged; its element of “causing undue injury” was construed to require actual damage, rendering the consummated stage the only punishable stage.

• Article 6, Revised Penal Code — Defined consummated, frustrated, and attempted felonies; held inapplicable to Section 3(e) of R.A. No. 3019 because the special law’s penalty and elements do not accommodate incomplete stages.

• Article 48, Revised Penal Code — Applied to impose the penalty for the more serious offense (falsification) in its maximum period in the complex crime of attempted estafa through falsification of public and commercial documents.

• Article 51, in relation to Article 61(5), Revised Penal Code — Used to determine the penalty two degrees lower for the attempted stage of estafa.

• Article 171, Revised Penal Code — Penalty for falsification of public documents was applied as the more serious component of the complex crime.

• Article 315(2)(a), Revised Penal Code — Defined estafa by using a fictitious name or false pretenses; the information alleged the essential ingredients and proof established the attempted stage.

• Section 4, Rule 120, Rules of Court — Allowed conviction for an offense proved that is necessarily included in the offense charged, forming the procedural basis for the substituted conviction.

• Section 1301, Revised Tariff and Customs Code — Identified the Import Entry Declaration as a public and official document, supporting its classification as a document susceptible to falsification.

Narvasa, C.J., Padilla, Bidin, Regalado, Romero, Bellosillo, Melo, Quiason, Puno, Vitug, Kapunan, Mendoza, JJ.

N/A (Feliciano, J., on leave; no dissenting opinions registered.)