People v. Nixon Co Xu

THIRD DIVISION

[G.R. No. 230616. January 17, 2018.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs. NIXON CO XU @ NIXON CHUA XU, accused-appellant.

NOTICE

Sirs/Mesdames :

Please take notice that the Court, Third Division, issued a Resolution datedJanuary 17, 2018, which reads as follows: HTcADC

"G.R. No. 230616 (People of the Philippines v. Nixon Co Xu @ Nixon Chua Xu)

This is an appeal from the Decision 1 dated April 14, 2016 and the Resolution 2 dated August 23, 2016 of the Court of Appeals (CA), in CA-G.R. CR-H.C. No. 07145. The CA decision affirmed the June 2, 2014 Decision 3 of the Regional Trial Court of Manila, Branch 30 (RTC) in Criminal Case No. 02-207337 convicting accused-appellant Nixon Co Xu @ Nixon Chua Xu (accused-appellant) of estafa under par. 2 (d), Article 315 of the Revised Penal Code (RPC).

The Antecedents

Accused-appellant was charged with estafa in an Information, the accusatory portion of which states:

That on or about February 21, 2002, in the City of Manila, Philippines, the said accused did then and there wilfully, unlawfully and feloniously defraud JAYME U. ANG, in the following manner to wit: the said accused well knowing that he did not have the sufficient funds in the bank and without informing the latter of such fact, drew, made out and issued the following checks, to wit:

Check No.	Date	Amount
4170004416	04-15-02	PhP199,221.00
4170004417	04-15-02	562,930.00
4170004418	04-15-02	250,000.00
4170004419	04-15-02	260,492.60
4170004428	04-15-02	250,000.00
4170004422	04-15-02	318,740.00
4170004423	04-15-02	500,000.00
4170004424	04-15-02	387,626.00

payable to CASH in the total amount of PHP2,729,009.60 in exchange for cash which the said accused received on the same day, that upon presentation of the said checks to the bank for payment, the same were dishonored and payment thereof refused for the reason "ACCOUNT CLOSED" and the said accused notwithstanding due notice to him by said Jayme U. Ang of such dishonor of said checks, failed and refused to deposit the necessary amount to cover the full amount of said checks, to the damage and prejudice of said Jayme U. Ang in the said amount of PHP2,729,009.60, Philippine Currency.

CONTRARY TO LAW. 4

On May 12, 2003, accused-appellant was arraigned and pleaded not guilty to the charge. 5 Thereafter, trial on the merits ensued.

Evidence for the Prosecution

The prosecution presented three (3) witnesses: private complainant Jayme U. Ang (Ang), Pablo Pineda (Pineda), and Rolando Dabu (Dabu), a Metrobank employee. From their testimonies, the prosecution was able to establish the following:

That sometime in 2002, accused-appellant was introduced to Ang by Ricardo Uy (Uy); that accused-appellant wanted Ang to rediscount his personal checks; that he assured Ang that the checks would be funded as he was married to the daughter of a known wealthy person in the Chinese community, and that he was a trustworthy businessman; that with such representation, Ang agreed to rediscount the checks; that accused-appellant then issued eight (8) Metrobank checks, which totalled to P2,729,009.60; that when the checks were presented to the bank for encashment, the same were dishonored by the drawee bank, Metrobank, for the reason "ACCOUNT CLOSED"; that Ang sent a demand letter through registered mail because an attempt to personally serve the demand letter was unsuccessful as accused-appellant's sister-in-law and househelp refused to receive it; that Ang made several calls to accused-appellant but the checks remained unpaid; and that Dabu testified that as of April 2, 2002, accused-appellant's current account had zero balance. 6

Evidence for the Defense

The defense presented accused-appellant as its witness and Ang as hostile witness. Accused-appellant admitted that the subject checks were his personal checks and the signatures appearing therein were his. He, however, denied that he transacted with Ang and issued the checks to the latter. He claimed that he signed the checks in blank and gave them to Uy; and that it had been their practice for five (5) or six (6) years. Ang testified that he and accused-appellant met about four (4) times; that they talked about the latter's background; and that upon accused-appellant's representations that he was a trustworthy international businessman and that the latter's father-in-law was known to be wealthy in the Chinese community, he agreed to rediscount the checks. 7 aScITE

The RTC Ruling

In its decision dated June 2, 2014, the RTC found that all the elements of estafa under Article 315, par. 2 (d) were present in this case. From the evidence presented, it concluded that accused-appellant issued the post-dated checks in exchange for cash, and Ang parted with his money because of accused-appellant's assurance that he would pay for the value of the checks or that the checks would be funded later. The RTC also noted accused-appellant's admission that the checks were issued and signed by him, and that his execution of the acknowledgment receipt dated February 20, 2002 belied his claim that he never transacted with Ang. According to the trial court, accused-appellant's claim that the checks were issued as payment to Uy was not supported by any other evidence other than his bare assertions. Finding accused-appellant guilty beyond reasonable doubt, the RTC thus ruled:

WHEREFORE, the court finds NIXON CO XU @ NIXON CHUA XU guilty beyond reasonable doubt of the crime of Estafa under paragraph 2(d), Article 315 of the Revised Penal Code. Applying the Indeterminate Sentence Law, he is hereby sentenced to suffer the penalty of imprisonment of SIX (6) years and ONE (1) DAY of Prision Mayor as minimum to THIRTY (30) years of Reclusion Perpetua as maximum and to indemnify Jayme U. Ang the sum of TWO MILLION SEVEN HUNDRED TWENTY NINE THOUSAND and NINE PESOS and SIXTY CENTAVOS (Php2,729,009.60) with interest at the rate of six percent (6%) per annum from the filing of the Information on October 30, 2002 until fully paid.

SO ORDERED. 8

Accused-appellant moved for reconsideration but it was denied by the RTC in its order dated September 18, 2014.

Aggrieved, accused-appellant appealed before the CA.

The CA Ruling

In its decision dated April 14, 2016, the CA affirmed the RTC decision holding that the deceit in the crime of estafa under par. 2 (d) of Article 315 was the fraudulent act of post-dating or issuing a check in payment of an obligation, and such act was the efficient cause of the damage to the offended party. It found that the false information provided by accused-appellant regarding his financial capacity and the wealth of his father-in-law improperly convinced Ang to enter into the rediscounting agreement with him. On the issue of the receipt of the notice of dishonor, the CA found the testimonies presented by the prosecution stating that the demand letter and notice were served but there was a refusal to sign or receive the same were credible. Finally, the appellate court ruled that given the finding of the RTC on the credibility of the witnesses and their testimonies, the prosecution was able to prove the guilt of accused-appellant beyond reasonable doubt. The CA thus found no reversible error in the RTC decision and affirmed the same in toto.

Accused-appellant filed a motion for reconsideration but it was denied by the CA in its resolution dated August 23, 2016.

Hence, this appeal.

Issue

Accused-appellant raises the issue of whether the CA erred in sustaining his conviction.

Accused-appellant reiterates his claim that he did not receive any amount in exchange for the checks he issued as payment for his obligation to Uy, who in turn negotiated the same without his knowledge; that his debt to Uy was already paid and that he did not receive anything from Ang; that the issuance of a check was only penalized as estafa if it was the immediate consideration for the reciprocal receipt of benefits; and that he did not defraud Ang as they had no transaction with each other.

The prosecution countered that the facts and evidence strongly established the guilt of accused-appellant; that the defense only offered denial without any positive evidence to support his claim; that accused-appellant also admitted the issuance of the checks, only that they were not issued to him; and that accused-appellant's resort to questioning the credibility of the prosecution witnesses should be unsuccessful as the RTC already found the testimonies of the prosecution witnesses worthy of belief.

The Court's Ruling

The Court resolves to dismiss the instant appeal for failure of accused-appellant to sufficiently show any reversible error in the challenged decision warranting the exercise of the Court's appellate jurisdiction.

The RTC and the CA agreed in their findings of fact. The rule is that findings of fact, when affirmed by the appellate court, are generally binding upon this Court, especially when it comes to the calibration of testimonies of witnesses and assessment of the probative weight thereof. The RTC findings are accorded high respect if not conclusive effect. 9 This Court may reverse the factual determination of the lower courts, provided it falls as an exception to the rule. There is no indication, however, that this case falls within those exceptions. HEITAD

As found by the courts a quo, the elements of estafa under Art. 315, par. 2 (d) of the RPC are present in this case. The elements that should be proven are the following:

1. That the offender postdated or issued a check in payment of an obligation contracted at the time of the postdating or issuance;

2. That at the time of the issuance of the check, the offender had no funds in the bank or the funds deposited were insufficient to cover the amount of the check; and

3. That the payee has been defrauded. 10

The first element, that the offender post-dated or issued a check in payment of an obligation contracted at the time of the post-dating or issuance, was undoubtedly proven by the prosecution. Accused-appellant admitted that he issued the checks in question and that he had a monetary obligation to Uy. To add to the acute observations of the RTC and the CA, the Court notes that the accused-appellant repeatedly cited the Affidavit 11 of Uy, even attaching the same to his appellant's brief and supplemental brief filed with this Court, which he claims supported his assertion that the obligation to Uy was already paid. A close reading of the subject affidavit would, however, contradict his claim of innocence as it unambiguously affirmed Ang's assertion that the obligation was paid through the money obtained by accused-appellant from him through the rediscounted checks, viz.:

2. I admit Nixon Co Xu had a substantial financial obligation with me but the same had already been paid by him; that I also know for a fact that the money he paid me for his said obligation was obtained by him from Jayme Ang through rediscounting of his (Nixon's) checks. I was in fact the one who told Nixon Co Xu that Mr. Ang is accepting checks for rediscounting. Mr. Jayme Ang is not actually a close friend but I know him to be in the business of rediscounting checks; that I am executing this affidavit in fairness also to Mr. Jayme Ang who I understand is being refused payment by Nixon. 12 (underscoring supplied)

The Court should not turn a blind eye to the contents of this affidavit, especially as these were referred to by accused-appellant in his own pleadings.

The second element is likewise proven without question. When Ang deposited the eight (8) checks on the date indicated therein, or on April 15, 2002, they were dishonored for the reason "ACCOUNT CLOSED." Not only were there no funds deposited in the account, there was even no account to speak of. This should satisfy the requirement for the second element. Finally, the prejudice to Ang is obvious as he was not paid the amount for which he rediscounted the checks in question, which was the money he turned over to accused-appellant.

The CA definitively found that there was a delivery of the amount based on Ang's testimony which stated that there was an exchange of the checks for the amounts indicated therein, and that this rediscounting happened on two (2) occasions. Accused-appellant's denial that he had no obligation to Ang, made in the face of positive and persuasive evidence, should be given scant consideration. With denial as his only defense, and without any showing of further evidence to support his claim, accused-appellant's appeal must fail. Previous rulings have categorically stated that denial is self-serving negative evidence that cannot be given evidentiary weight over the declaration of a credible witness who testified on affirmative matters. 13 Absent clear and convincing supporting evidence, denial is undeserving of weight in law, considered with suspicion, and received with caution. It is deemed inherently weak, unreliable, and easily fabricated and concocted. 14 Also, accused-appellant's contention that the debtor does not worry even if the checks were unreturned if there was an admission or acknowledgment of payment, or even that he issues blank checks, goes against human nature. His claim that he was a businessman for a number of years further militates against this practice as this is not the usual attitude of persons engaged in such line of livelihood. For evidence to be believed, it must be credible in itself, in that common experience and observation of mankind can approve as probable under the circumstances. If human testimony does note conform to knowledge, observation and experience, this should be considered outside of judicial cognizance. 15

In sum, as correctly held by the RTC and the CA, the evidence points to the guilt beyond reasonable doubt of herein accused-appellant. ATICcS

Modification of penalty

Insofar as the imposition of penalty is concerned, this Court applies Republic Act (R.A.) No. 10951 16 which adjusted the amounts on which the penalty is based in crimes such as estafa. The penalty imposed by the RTC on the accused-appellant as affirmed by the CA was imprisonment of six (6) years and one (1) day of prision mayor, as minimum, to thirty (30) years of reclusion perpetua, as maximum.

Under Presidential Decree (P.D.) 818, 17 the penalty for estafa is set at reclusion temporal if the amount involved is over P12,000.00 but does not exceed P22,000.00. Incremental penalties are then imposed for every P10,000.00 in excess of P22,000.00. It is settled jurisprudence that for the crime of estafa, the prescribed penalty to be used as basis to determine the minimum penalty under the Indeterminate Sentence Law (ISL) is reclusion temporal, without considering other modifying or attendant circumstances. 18 The minimum penalty for the crime of estafa, taking into consideration the ISL, is therefore prision mayor. Here, the RTC already imposed a minimum penalty of six (6) years and one (1) day of prision mayor, in accordance with jurisprudence. 19 In the absence of abuse, the discretion of the court a quo to fix the minimum term of the indeterminate sentence anywhere within the range provided by law will not be disturbed. 20

The maximum penalty imposed should now be modified to reflect the retroactivity of R.A. No. 10951 to the extent that it is favorable to the accused. 21 The said law provides the modified penalties for estafa under Art. 315, par. 2 (d), to wit:

1st. The penalty of reclusion temporal in its maximum period, if the amount of fraud is over Four million four hundred thousand pesos (P4,400,000.00) but does not exceed Eight million eight hundred thousand pesos (P8,800,000.00). If the amount exceeds the latter, the penalty shall be reclusion perpetua.

2nd. The penalty of reclusion temporal in its minimum and medium periods, if the amount of the fraud is over Two million four hundred thousand pesos (P2,400,000.00) but does not exceed Four million four hundred thousand pesos (P4,400,000.00).

xxx xxx xxx

In this case, the amount involved is P2,729,009.60. Thus, the penalty to be imposed against accused-appellant should be reclusion temporal in its minimum and medium periods as the amount of the fraud is over P2,400,000.00 but does not exceed P4,400,000.00. Following the ISL, the minimum imposable penalty is prision mayor in its medium and maximum periods or eight (8) years and one (1) day to twelve (12) years.

Considering that the minimum penalty of six (6) years and one (1) day of prision mayor is more favorable to the accused-appellant, such is retained as the minimum penalty in this case. 22 As regards the maximum, the range is from thirteen (13) years, nine (9) months and eleven (11) days to fifteen (15) years, six (6) months and twenty (20) days, there being no mitigating or aggravating circumstances to be considered. Thus, the Court imposes upon accused-appellant the maximum penalty of thirteen (13) years, nine (9) months and eleven (11) days of reclusion temporal.

WHEREFORE, the April 14, 2016 Decision of the Court of Appeals in CA-G.R. CR-H.C. No. 07145 affirming in toto the Decision, dated June 2, 2014, of the Regional Trial Court of Manila, Branch 30 in Criminal Case No. 02-207337 is AFFIRMED with MODIFICATION as to the penalty of imprisonment to six (6) years and one (1) day of prision mayor as minimum to thirteen (13) years and nine (9) months and eleven (11) days of reclusion temporal in its medium period, as maximum.

SO ORDERED."

Very truly yours,

(SGD.) WILFREDO V. LAPITANDivision Clerk of Court

Footnotes

1.Rollo, pp. 145-165. Penned by Associate Justice Leoncia Real-Dimagiba, Associate Justice Ramon R. Garcia and Associate Justice Jhosep Y. Lopez concurring.

2.Id. at 189-190.

3.Id. at 64-70, penned by Presiding Judge Lucia P. Purugganan.

4. CA rollo, p. 64.

5.Id.

6.Id. at 65-67.

7.Id. at 67.

8.Id. at 69.

9.Fullero v. People of the Philippines, 559 Phil. 524, 538 (2007).

10.People of the Philippines v. Flores, 426 Phil. 187, 194 (2002).

11.Rollo, p. 59.

12.Id.

13.Lejano v. People of the Philippines, J. Villarama dissenting, 652 Phil. 512, 735 (2010) citing People of the Philippines v. Watiwat, 457 Phil. 411, 425-426.

14.People of the Philippines v. Ocden, 665 Phil. 268, 289 (2011).

15.People of the Philippines v. Montaner, 672 Phil. 254, 262-263 (2011).

16. An Act Adjusting the Amount or the Value of the Property and Damage on which a Penalty is Based and the Fines Imposed under the Revised Penal Code. Published on September 1, 2017 in the Manila Bulletin and Business Mirror. Sec. 102 of the same law provides that the "x x x Act shall take effect within fifteen (15) days after its publication in at least two (2) newspapers of general circulation."

17. Amending Art. 315 of the Revised Penal Code by Increasing the Penalties for Estafa by Means of Bouncing Checks.

18.People of the Philippines v. Hernando, et al., 375 Phil. 1078, 1093-1094 (1999), People of the Philippines v. Panganiban, 390 Phil. 673, 690 (2000).

19. In previous cases, the Court has imposed a minimum penalty ranging from six (6) years and one (1) day of prision mayor [see People of the Philippines v. Booc, 569 Phil. 559 (2008), People of the Philippines v. Dinglasan, 437 Phil. 621 (2002)] to twelve (12) years (People of the Philippines v. Hernando, People of the Philippines v. Panganiban, supra note 14).

20.People of the Philippines v. Ignacio, 121 Phil. 166, 168 (1965).

21.Supra note 17 at section 99.

22. In the case of People of the Philippines v. Valdez, 364 Phil. 259 (1999), the Court gave R.A. No. 8249 retroactive application insofar as it was advantageous to the accused. However, the same law was not given retroactive effect when it was to add a special aggravating circumstance to the crime committed by the accused.