Special Penal Laws Reviewer, Part 1

INDETERMINATE SENTENCE LAW

(Act No. 4103 as amended by Act No. 4225)

WHEN AN ACCUSED IS SENTENCED TO RECLUSION PERPETUA, HE

IS NOT ENTITLED TO THE APPLICATION OF THE INDETERMINATE
SENTENCE LAW

Accused-appellant cannot avail of the benefits of the

Indeterminate Sentence Law because Indeterminate
Sentence Law does not apply to persons convicted of
offenses punishable with reclusion perpetua.
(People v. Aquino; GR 125906, Jan. 16, 98)

APPLICATION OF INDETERMINATE SENTENCE LAW EXPLAINED

In the case of People vs. Gabres, the Court has had

occasion to so state that

"Under the Indeterminate Sentence Law, the maximum term

of the penalty shall be 'that which, in view of the
attending circumstances, could be properly imposed'
under the Revised Penal Code, and the minimum shall be
within the range of the penalty next lower to that
prescribed' for the offense. The penalty next lower

should be based on the penalty prescribed by the Code

for the offense, without first considering any
modifying circumstance attendant to the commission of
the crime. The determination of the minimum penalty is
left by law to the sound discretion of the court and it
can be anywhere within the range of the penalty next
lower without any reference to the periods into which
it might be subdivided. The modifying circumstances are
considered only in the imposition of the maximum term
of the indeterminate sentence.

"The fact that the amounts involved in the instant case

exceed P22,000.00 should not be considered in the
initial determination of the indeterminate penalty;
instead, the matter should be so taken as analogous to
modifying circumstances in the imposition of the
maximum term of the full indeterminate sentence. This
interpretation of the law accords with the rule that
penal laws should be construed in favor of the accused.
Since the penalty prescribed by law for the estafa
charge against accused-appellant is prision
correccional maximum to prision mayor minimum, the
penalty next lower would then be prisioncorreccional
minimum to medium. Thus, the minimum term of the
indeterminate sentence should be anywhere within six
(6) months and one (1) day to four (4) years and two
(2) months . . ."

(People v. Saley; GR 121179, July 2, 98)

INDETERMINATE SENTENCE LAW; APPLICABLE ALSO IN DRUG

CASES:

The final query is whether or not the Indeterminate

Sentence Law is applicable to the case now before us.
Apparently it does, since drug offenses are not
included in nor has appellant committed any act which
would put him within the exceptions to said law and the
penalty to be imposed does not involve reclusion
perpetua or death, provided, of course, that the
penalty as ultimately resolved will exceed one year of
imprisonment. The more important aspect, however, is
how the indeterminate sentence shall be ascertained. It
is true that Section 1 of said law, after providing for
indeterminate sentence for an offense under the Revised
Penal Code, states that "if the offense is punished by
any other law, the court shall sentence the accused to
an indeterminate sentence, the maximum term of which
shall not exceed the maximum fixed by said law and the
minimum shall not be less than the minimum term
prescribed by the same" We hold that this quoted
portion of the section indubitably refers to an offense
under a special law wherein the penalty imposed was not
taken from and is without reference to the Revised
Penal Code, as discussed in the preceding
illustrations, such that it may be said that the
"offense is punished" under that law. There can be no
sensible debate that the aforequoted rule on
indeterminate sentence for offenses under special laws
was necessary because of the nature of the former type
of penalties under said laws which were not included or
contemplated in the scale of penalties in Article 71 of
the Code, hence there could be no minimum "within the
range of the penalty next lower to that prescribed by

the Code for the offense," as is the rule for felonies

therein. In the illustrative examples of penalties in
special laws hereinbefore provided, this rule applied,
and would still apply, only to the first and last
examples. Furthermore, considering the vintage of Act
No. 4103 as earlier noted, this holding is but an
application and is justified under the rule of
contemporaneaexpositio. Republic Act No. 6425, as now
amended by Republic Act No. 7659, has unqualifiedly
adopted the penalties under the Revised Penal Code in
their technical terms, hence with their technical
signification and effects. In fact, for purposes of
determining the maximum of said sentence, we have
applied the provisions of the amended Section 20 of
said law to arrive at prisioncorreccional and Article
64 of the Code to impose the same in the medium period.
Such offense, although provided for in a special law,
is now in the effect punished by and under the Revised
Penal Code.
(People v Martin Simon)

WHEN THE BENEFITS OF INDETERMINATE SENTENCE LAW IS NOT

APPLICABLE;

a. Offenses punished by death or life imprisonment.

b. Those convicted of treason (Art. 114), conspiracy or
proposal to commit treason (Art. 115).
c. Those convicted of misprision of treason (Art. 116),
rebellion (Art. 134), sedition (Art. 139), or espionage
(Art. 117).

d. Those convicted of piracy (Art. 122).

e. Habitual delinquents (Art. 62, par. 5).
f. Those who escaped from confinement or those who
evaded sentence.
g. Those granted conditional pardon and who violated
the terms of the same (Art. 159). (People v. Corral, 74
Phil. 359).
h. Those whose maximum period of imprisonment does not
exceed one year.
i. Those who are already serving final judgment upon
the approval of the Indeterminate Sentence Law.
j. those offenses or crimes not punishable by
imprisonment such as distierro and suspension.

RECIDIVISTS ARE ENTITLED TO THE BENEFITS OF THE

INDETERMINATE SENTENCE

Recidivists are entitled to an indeterminate sentence.

(People v. Jaramilla, L-28547, Feb. 22, 1974). Offender
is not disqualified to avail of the benefits of the law
even if the crime is committed while he is on parole.
(People v. Clareon, CA 78 O.G. 6701, Nov. 19, 1982).
(Bacar v. De Guzman)

NATURE OF PENALTY OF RECLUSION PERPETUA

In "People -vs- Conrado Lucas, 240 SCRA 66, the Supreme

Court declared that despite the amendment of Article 27
of the Revised Penal Code, reclusion perpetua remained
an indivisible penalty. Hence, the penalty does not
have any minimum, medium and maximum period. Hence,
there is no such penalty of medium period of reclusion
perpetua. (People versus TiburcioBaculi, 246 SCRA)

IMPOSITION OF WRONG PENALTY: IT DOES NOT OBTAIN

FINALITY

Suppose the court imposed a penalty of 25 years of

reclusion perpetua for the crime of rape and the
accused did not appeal, does the judgment become final
and executory? No, such judgment is null and void
because it imposed a non-existent penalty. Hence, the
court may nevertheless correct the penalty imposed on
the accused, that is, reclusion perpetua, it is merely
performing a duty inherent in the court. (People versus
Nigel Gatward, GR No. 119772-73, February 7, 1997)

DIFFERENCE BETWEEN RECLUSION PERPETUA AND LIFE

IMPRISONMENT

The penalty of reclusion perpetua is different from

life imprisonment. The former carries with it accessory
penalties, whereas life imprisonment does not carry
with it any accessory penalties; reclusion perpetua is
that provided for under the Revised Penal Code and

under crimes defined by special laws using the

nomenclature under the Revised Penal Code ; life
imprisonment is that provided for violations of the
Revised Penal Code. Reclusion Perpetua may be reduced
by one or two degrees while life imprisonment cannot be
so reduced. (People -vs- RolnandoMadriaga, GR No.
82293, July 23, 1992.)

WHICH IS MORE BURDENSOME LIFE IMPRISONMENT OF RECLUSION

PERPETUA

Reclusion perpetua has accessory penalties while life

imprisonment does not. However, life imprisonment does
not have a fixed duration or extent while reclusion
perpetua has a duration of from twenty years and one
day to forty years. life imprisonment may span the
natural life of the convict. (People -versus- Rallagan,
247 SCRA 537)

RECLUSION PERPETUA AND LIFE IMPRISONMENT CANNOT BE

INTER-CHANGE WHEN IMPOSED AS PENALTY

Where the law violated provides for the penalty of

reclusion perpetua, impose the said penalty and not the
penalty of life imprisonment. Where the law imposes the
penalty of life imprisonment, do not impose reclusion
perpetua. (People -vs- Rolando Madriaga, 211 SCRA 698)

THE REASON WHY RECLUSION PERPETUA HAS A RANGE DESPITE

THE SAME BEING INDIVISIBLE

There we also said that "if reclusion perpetua was

reclassified as a divisible penalty, then Article 63 of
the Revised Penal Code would lose its reason and basis
for existence." The imputed duration of thirty (30)
years of reclusion perpetua, therefore, only serves as
the basis for determining the convict's eligibility for
pardon or for the application of the three-fold rule in
the service of multiple penalties. (People -vsAspolinarRaganas, et al., GR No. 101188, October 12,
1999)

RARE CASE OF APPLICATION OF RPC IN A SUPPLETORY

CHARACTER DESPITE THE PENALTY BEING LIFE IMPRISONMENT

Where the accused committed qualified violation of PD

704 (fishing with the use of explosives), the imposable
penalty for which is life imprisonment to death. If the
accused is entitled to a mitigating circumstance of
voluntary surrender, the court should impose life
imprisonment applying, in a suppletory character,
Articles 13 and 63 of the Revised Penal Code. (People
-vs- Priscilla Balasa, GR No. 106357, September 3,
1998)

ACCUSED WHO IS SENTENCED TO RECLUSION PERPETUA IS STILL

ENTITLED TO EITHER FULL OR OF HIS PREVENTIVE
IMPRISONMENT

If, during the trial, the accused was detained but,

after trial, he was meted the penalty of reclusion
perpetua, he is still entitled to the full credit of
his preventive imprisonment because Article 29 of the
Revised Penal Code does not distinguish between
divisible and indivisible penalties. (People -vsRolando Corpuz, 231 SCRA 480)

QUALIFIED THEFT

QUALIFIED THEFT IS PENALIZED BY RECLUSION PERPETUA IF

AMOUNT INVOLVED IS OVER P22,000.00

Under Article 309 of the Revised Penal Code, the

maximum of the penalty for qualified theft is prision
mayor to reclusion temporal. However, under Article 310
of the Revised Penal Code, the penalty for the crime
shall be two (2) degrees higher than the specified in
Article 309 of the Code. Under Article 74 of the
Revised Penal Code, the penalty higher by one degree
than another given penalty, and if such higher penalty
is death, the penalty shall be reclusion perpetua of
forty (40) years with the accessory penalties of death
under Article 40 of the Revised Penal Code. The accused
shall not be entitled to pardon before the lapse of
forty (40) years. (People -vs- Fernando Canales, 297
SCRA 667)

THE PROBATION LAW (P.D. 968) AND ITS AMENDMENTS

PROBATION, ITS MEANING

A disposition under which a defendant, after conviction

and sentence, is subject to conditions imposed by the
Court and under the supervision of a probation officer.

PURPOSES OF PROBATION:

a. to promote the correction and rehabilitation of an

offender by providing him with personalized
community based treatment;
b. to provide an opportunity for his reformation and
reintegration into the community;
c. to prevent the commission of offenses.

SUBMISSION OF PETITION AND TIME OF FILING OFPETITION

The petition or application for probation must be filed

directly with the Court which sentenced the accused
within 15 days from date of promulgation of the
decision convicting the accused, or in short within the
period to appeal otherwise the judgment shall become
final and the accused shall be deemed to have waived
his right to probation.

EFFECT OF FILING OF PETITION FOR PROBATION

Upon filing of petition for probation, the court shall

suspend the execution of sentence.

Likewise, the filing of a petition for probation shall

be deemed a waiver of the right to appeal and in case
an appeal is made immediately after conviction, a
filing of petition for probation still within the
period to appeal, that is within fifteen days from date
of promulgation shall be deemed a withdrawal of the
appeal.

PENDING RESOLUTION OF PETITION, WHAT ARE THE PRIVILEDGE

THAT MAYBE GIVEN TO THE ACCUSED-PETITIONER?

1. if the accused, prior to the promulgation of

decision of conviction is out on bail, he may be
allowed on
temporary liberty under his bail filed in said case;

2. if he is under detention, upon motion, he may be

allowed temporary liberty, if he cannot post a bond, on
recognizance of a responsible member of a community who
shall guarantee his appearance whenever
required by the court.

IN CASE THE APPLICANT FOR PROBATION CANNOT BE PRODUCED

BY THE CUSTODIAN ON RECOGNIZANCE, WHAT HAPPENS?

The custodian must be asked to explain why he should

not be cited for contempt for failing to produce the
probationer when required by the court; Summary hearing
will be held for indirect contempt, and if custodian
cannot produce the petitioner, nor to explain his
failure to produce the petitioner, the custodian on
recognizance shall be held in contempt of court.

WHAT IS A POST SENTENCE INVESTIGATION REPORT?

It is a report of the Parole and Probation Officer

after conducting post sentence investigation and
interviews containing the circumstances surrounding the
offense for which the petitioner was convicted. The
findings should be drawn from the court records, police
records, statement of defendants, the aggrieved party
and other persons who may know the petitioner and all
other matters material to the petition.

It will also include the psychological and social

information regarding the probationer; evaluation of
the petitioner; suitability for probation; his
potential for rehabilitation; and may include the
program for supervision and suggested terms of
conditions of probation and a recommendation either to
deny or grant the probation.

WHAT ARE THE MANDATORY CONDITIONS OF PROBATION?

a. To present himself to the probation officer

concerned for supervision within 72 hours from receipt
of said
order and

b. to report to the probation officer at least once a

month during the period of probation.

WHAT ARE THE OTHER CONDITIONS OF PROBATION?

a. cooperate with a program of supervision;

b. meet his family responsibilities;
c. devote himself to a specific employment and not to
charge said employment without prior written
approval of the probation officer;
d. comply with a program of payment of civil liability
to the victim of his heirs;

e. undergo medical, psychological or psychiatric

examination and treatment and/or enter and remain in a
specific institution, when required for that purposes;
f. pursue a prescribed secular study or vocational
training;
g. attend or reside in a facility established for
instruction or recreation of persons on probation;
h. refrain from visiting houses of ill-repute;
i. abstain from drinking intoxicating beverages to
excess;
j. permit the probation officer or an authorized social
worker to visit his home and place of work;
k. reside at premises approved by the court and not to
change his residence w/o prior written approval; and
l. satisfy any other condition related to the
rehabilitation of the probationer and not unduly
restrictive of his
liberty or incompatible with his freedom of conscience.
m. plant trees ( see circular of the SC )

RULES ON OUTSIDE TRAVEL OF PROBATIONER

A probationer who desires to travel outside the

jurisdiction of the city or provincial probation
officer for not more than 30 days, the permission of
the parole and probation officer must be sought. If for

more than thirty (30) days, aside from the permission

of the parole and probation officer, the permission of
the court must likewise be sought.

EFFECT OF APPEAL BY THE ACCUSED OF HIS CONVICTION

a. If the accused appeals his conviction for the

purpose of totally reversing his conviction, he is
deemed to have waived his right to probation.

b. The rule that if the accused appeals his conviction

only with respect to the penalty, as he believes the
penalty is excessive or wrong, as the penalty is
probationable, and the appellate court sustains the
accused may still apply for probation, has already been
abandoned. An appeal therefore, irrespective of its
purpose, to overturn the entire decision or only with
respect to penalty is a waiver to probation, has
already been abandoned. An appeal therefore,
irrespective of its purpose, to overturn the entire
decision or only with respect to penalty is a waiver to
probation.

CONFIDENTIALITY OF RECORDS OF PROBATION

The investigation report and the supervision and

history of a probationer obtained under PD No. 968 and
under these rules shall be privileged and shall not be
disclosed directly or indirectly to anyone other than
the probation administration or the court concerned the

court which granted the probation or where the

probation was transferred may allow the probationer to
inspect the aforesaid documents or his lawyer, whenever
such disclosure may be desirable or helpful to them.

Any government office may ask for the records of

probation from the court for its official use or from
the administrator.

Sec. 29, PD 968: VIOLATION OF CONFIDENTIAL NATURE OF

PROBATION RECORDS. The penalty of imprisonment ranging
from six months and one day to six years and a fine
ranging from hundred to six thousand pesos shall be
imposed upon any person who violates Section 17 hereof.

MODIFICATION OF CONDITION OR PERIOD OF PROBATION

The court, on motion, or motupropio may modify the

conditions of probation or modify the period of
probation as circumstances may warrant.

WHO ARE DISQUALIFIED TO UNDERGO PROBATION

1. Those sentenced to serve a maximum term of

imprisonment of more than six years.
2. Those convicted of any offense against the security
of the state;

3. Those who have been previously convicted by final

judgment of an offense punished by imprisonment of not
less than one moth and one day and/or a fine of not
less than P200.00;
4. Those who have been once on probation under the
provisions of this decree.
5. Those convicted of RA 9156.
6. Those convicted of violation of election laws.

PERIOD OF PROBATION

1. If the probationer has been sentenced to an

imprisonment of not more than one year, the probation
shall not exceed two years;
2. In all other cases, not to exceed six years;
3. In case the penalty is fine, the probation shall not
be less than the period of subsidiary imprisonment nor
more than twice of the subsidiary imprisonment.

AMENDMENT TO SECTION 4 OF PD 968:

"Sec. 4.Grant of Probation. - Subject to the provisions

of this Decree, the trial court may, after it shall
have convicted and sentenced a defendant, and upon
application by said defendant within the period for
perfecting an appeal, suspend the execution of the
sentence and place the defendant on probation for such
period and upon such terms and conditions as it may

deem best; Provided, That no application for probation

shall be entertained or granted if the defendant has
perfected the appeal from the judgment of conviction.

"Probation may be granted whether the sentence imposes

a term of imprisonment or a fine only. An application
for probation shall be filed with the trial court. The
filing of the application shall be deemed a waiver of
the right to appeal.

"An order granting or denying probation shall not be

appealable."

Thus, a person who was sentenced to destierro cannot

apply for probation. Reason: it does not involved
imprisonment or fine. (PD 1990)

JURISPRUDENCE

UNDERLYING PHILOSOPHY OF PROBATION

The underlying philosophy of probation is indeed one of

liberality towards the accused. It is not served by a
harsh and stringent interpretation of the statutory
provisions. Probation is a major step taken by our
Government towards the deterrence and minimizing of

crime and the humanization of criminal justice. In line

with the public policy behind probation, the right of
appeal should not be irrevocably lost from the moment a
convicted accused files an application for probation.
Appeal and probation spring from the same policy
considerations of justice, humanity, and compassion.
(Yusi v Morales, 4/28/83)

PROBATION IS NOT A RIGHT BUT A PRIVILEGE

Probation is a mere privilege and its grant rests

solely upon the discretion of the court. As aptly noted
in U.S. vs. Durken, this discretion is to be exercised
primarily for the benefit of organized society and only
incidentally for the benefit of the accused. (Tolentino
v. Alconcel, G.R. No. 63400, 3/18/83). Even if a
convicted person is not included in the list of
offenders disqualified from the benefits of a decree,
the grant of probation is nevertheless not automatic or
ministerial, (Pablo Bernardo v. Balagot, 215 SCRA 526)
therefore a petition for probation may be denied by the
Court.

MAIN CRITERION FOR DETERMINING WHO MAY BE GRANTED

PROBATION.

The main criterion laid down by the Probation law in

determining who may be granted probation is based on

the penalty imposed and not on the nature of the crime.

By the relative lightness of the offense, as measured
by the penalty imposed, more than by its nature, as the
law so ordains the offender is not such a serious
menace to society as to be wrested away therefrom, as
the more dangerous type of criminals should be. Hence,
in the case at bar, the first reason given by the
respondent judge for his denial of the petition for
probation that, "probation will depreciate the
seriousness of the offense committed" would thus be
writing into the law a new ground for disqualifying a
first-offender from the benefits of probation. (Santos
v. Cruz-Pano, 1/17/83)

TIMELINESS OF FILING APPLICATION FOR PROBATION

The accused must file a Petition for Probation within

the period for appeal. If the decision of conviction
has become final and executory, the accused is barred
from filing a Petition for Probation (Pablo Francisco
v. C.A., 4/6/95).

ORDER DENYING PROBATION NOT APPEALABLE, REMEDY

CERTIORARI

Although an order denying probation is not appealable,

the accused may file a motion for Certiorari from said
order (Heirs of Francisco Abueg v. C.A., 219 SCRA 78)

EFFECT OF FILING PETITION FOR PROBATION, WAIVER OF

RIGHT TO APPEAL AND FINALITY OF JUDGEMENT

A judgment of conviction becomes final when the accused

files a petition for probation. However, the judgement
is not executory until the petition for probation is
resolved. The filing of the petition for probation is a
waiver by the accused of his right to appeal the
judgement of conviction (Heirs of Francisco Abueg v.
C.A., supra).

MULTIPLE CONVICTIONS IN SEVERAL CASES PROBATIONABLE IF

PENALTY FOR EACH CONVICTION IS PROBATIONABLE

." Evidently, the law does not intend to sum up the

penalties imposed but to take each penalty, separately
and distinctly with the others. Consequently, even if
petitioner was supposed to have served his prison term
of one (1) year and one (1) day to one (1) year and
eight (8) months of prisioncorreccional sixteen (16)
times as he was sentenced to serve the prison term for
"each crime committed on each date of each case, as
alleged in the information(s)," and in each of the four
(4) informations, he was charged with having defamed
the four (4) private complainants on four (4)
different, separate days, he was still eligible for

probation, as each prison term imposed on petitioner

was probationable. (Francisco v. CA; 4/16/95)

REASON FOR FIXING CUT OFF POINT AT A MAXIMUM OF SIX

YEARS IMPRISONMENT FOR PROBATION.

Fixing the cut-off point at a maximum term of six (6)

years imprisonment for probation is based on the
assumption that those sentenced to higher penalties
pose too great a risk to society, not just because of
their demonstrated capability for serious wrongdoing
but because of the gravity and serious consequences of
the offense they might further commit. The Probation
Law, as amended, disqualifies only those who have been
convicted of grave felonies as defined in Art. 9 in
relation to Art.25 of The Revised Penal Code, and not
necessarily those who have been convicted of multiple
offenses in a single proceeding who are deemed to be
less perverse. Hence, the basis of the disqualification
is principally the gravity of the offense committed and
the concomitant degree of penalty imposed. Those
sentenced to a maximum term not exceeding six (6) years
are not generally considered callous, hard core
criminals, and thus may avail of probation

VIOLATION OF RA 6425, A VALID CAUSE FOR DISMISSAL IN

SERVICE IN THE GOVERNMENT DESPITE PROBATION

Drug-pushing, as a crime, has been variously condemned

as "an especially vicious crime," "one of the most
pernicious evils that has ever crept into our society."
For those who become addicted to it "not only slide
into the ranks of the living dead, what is worse, they
become a grave menace to the safety of law-abiding
members of society," while "peddlers of drugs are
actually agents of destruction. The deserve no less
than the maximum penalty [of death]."

There is no doubt that drug-pushing is a crime which

involves moral turpitude and implies "every thing which
is done contrary to justice, honesty, modesty or good
morals" including "acts of baseness, vileness, or
depravity in the private and social duties which a man
owes to his fellowmen or to society in general,
contrary to the accepted rule of right and duty between
man and man." Indeed nothing is more depraved than for
anyone to be a merchant of death by selling prohibited
drugs, an act which, as this Court said in one
case,"often breeds other crimes. It is not what we
might call a 'contained' crime whose consequences are
limited to that crime alone, like swindling and bigamy.
Court and police records show that a significant number
of murders, rapes, and similar offenses have been
committed by persons under the influence of dangerous
drugs, or while they are 'high.' While spreading such
drugs, the drug-pusher is also abetting, through his
agreed and irresponsibility, the commission of other
crimes." The image of the judiciary is tarnished by
conduct, which involves moral turpitude. While indeed
the purpose of the Probation Law (P.D. No. 968, as
amended) is to save valuable human material, it must
not be forgotten that unlike pardon probation does not

obliterate the crime of which the person under

probation has been convicted. The reform and
rehabilitation of the probationer cannot justify his
retention in the government service. He may seek to
reenter government service, but only after he has shown
that he is fit to serve once again. It cannot be
repeated too often that a public office is a public
trust, which demands of those in its service the
highest degree of morality. (OCA v. Librado 260 SCRA
624, 8/22/96)

PETITIONER MAY STILL EXHORT OFFENDER TO PERFORM CERTAIN

ACTS DESPITE DISCHARGE FROM PROBATION IN CERTAIN CASES

Petitioner Arthur M. Cuevas, Jr.'s discharge from

probation without any infraction of the attendant
conditions therefor and the various certifications
attesting to his righteous, peaceful and civic-oriented
character prove that he has taken decisive steps to
purge himself of his deficiency in moral character and
atone for the unfortunate death of Raul I. Camaligan.
The Court is prepared to give him the benefit of the
doubt, taking judicial notice of the general tendency
of the youth to be rash, temerarious and uncalculating.
Let it be stressed to herein petitioner that the
lawyer's oath is not a mere formality recited for a few
minutes in the glare of flashing cameras and before the
presence of select witnesses. Petitioner is exhorted to
conduct himself beyond reproach at all times and to
live strictly according to his oath and the Code of
Professional Responsibility. And, to paraphrase Mr.

Justice Padilla's comment in the sister case of Re:

Petition of Al Argosino To Take The Lawyer's Oath, Bar
Matter No. 712, March 19, 1997, "[t]he Court sincerely
hopes that" Mr. Cuevas, Jr., "will continue with the
assistance he has been giving to his community. As a
lawyer he will now be in a better position to render
legal and other services to the more unfortunate
members of society". (In Re: Cuevas, Jr.; 1/27/98)

EXPIRATION OF PERIOD OF PROBATION IS NOT TERMINATION,

ORDER OF COURT REQUIRED

The mere expiration of the period for probation does

not, ipso facto, terminate the probation. Probation is
not co-terminus with its period, there must be an order
from the Court of final discharge, terminating the
probation. If the accused violates the condition of the
probation before the issuance of said order, the
probation may be revoked by the Court (Manuel Bala v.
Martinez, 181 SCRA 459).

ANTI-FENCING LAW
OF 1979 (PD NO. 1612)

DEFINITION

Fencing as defined in Sec. 2 of PD No. 1612 (AntiFencing Law) is the act of any person who, with intent
to gain for himself or for another, shall buy, receive,
possess, keep, acquire, conceal, sell or dispose of, or
shall buy and sell, or in any manner deal in any
article, item, object or anything of value which he
knows or should be known to him, or to have been
derived from the proceeds of the crime of robbery or
theft. (Dizon-Pamintuan vs. People, GR 111426, 11 July
94).

BRIEF HISTORY OF PD 1612 OR THE ANTI-FENCING LAW

Presidential Decree No. 1612 or commonly known as the

Anti-Fencing Law of 1979 was enacted under the
authority of therein President Ferdinand Marcos. The
law took effect on March 2, 1979. The Implementing
Rules and Regulations of the Anti-Fencing Law were
subsequently formulated and it took effect on June 15,
1979.

THE PURPOSE OF ENACTING PD 1612

The Anti-Fencing Law was made to curtail and put an end

to the rampant robbery of government and private
properties. With the existence of "ready buyers", the
"business" of robbing and stealing have become
profitable. Hence, a law was enacted to also punish

those who buy stolen properties. For if there are no

buyers then the malefactors could not profit from their
wrong doings.

WHAT IS FENCING LAW AND HOW IT CAN BE COMMITTED

"Fencing" is the act of any person who, with intent to

gain for himself or for another, shall buy receive,
possess, keep, acquire, conceal, sell or dispose of, or
shall buy and sell, or in any other manner deal in any
article, item, object or anything of value which he
knows, or should be known to him, to have been derived
from the proceeds of the crime of robbery or theft. A
"Fence" includes any person, firm, association
corporation or partnership or other organization who/
which commits the act of fencing.

WHO ARE LIABLE FOR THE CRIME OF FENCING; AND ITS

PENALTIES:

The person liable is the one buying, keeping,

concealing and selling the stolen items. If the fence
is a corporation, partnership, association or firm, the
one liable is the president or the manager or the
officer who knows or should have know the fact that the
offense was committed.

The law provide for penalty range for persons convicted

of the crime of fencing. Their penalty depends on the
value of the goods or items stolen or bought:

a. The penalty of prision mayor, if the value of the

property involved is more than 12,000 pesos but not
exceeding 22,000 pesos; if the value of such property
exceeds the latter sum, the penalty provided in this
paragraph shall be imposed in its maximum period,
adding one year for each additional 10,000 pesos; but
the total penalty which may be imposed shall not exceed
twenty years. In such cases, the penalty shall be
termed reclusion temporal and the accessory penalty
pertaining thereto provided in the Revised Penal Code
shall also be imposed.

b. The penalty of prisioncorreccional in its medium and

maximum periods, if the value of the property robbed or
stolen is more than 6,000 pesos but not exceeding 12,
000 pesos;

c. The penalty of prisioncorreccional in its minimum

and medium periods, if the value of the property
involved is more than 200 pesos but not exceeding 6,000
pesos;

d. The penalty of arresto mayor in its medium period to

prisioncorreccional in its minimum period, if the value
of the property involved is over 50 but not exceeding
200 pesos;

e. The penalty of arresto mayor in its medium period if

such value is over five (5) pesos but not exceeding 50
pesos.

f. The penalty of arresto mayor in its minimum period

if such value does not exceed 5 pesos.

RULES REGARDING BUY AND SELL OF GOODS PARTICULARLY

SECOND HAND GOODS

The law requires the establishment engaged in the buy

and sell of goods to obtain a clearance or permit to
sell "used second hand items", to give effect to the
purpose of the law in putting an end to buying and
selling stolen items. Failure of which makes the owner
or manager liable as a fence.

The Implementing Rules provides for the guidelines of

issuance of clearances or permits to sell used or
secondhand items. It provided for the definition of the
following terms:

1. "Used secondhand article" shall refer to any goods,

article, items, object or anything of value obtained
from an unlicensed dealer or supplier, regardless of
whether the same has actually or in fact been used.

2. "Unlicensed dealer/supplier" shall refer to any

persons, partnership, firm, corporation, association or
any other entity or establishment not licensed by the
government to engage in the business of dealing in or
of supplying the articles defined in the preceding
paragraph;

3. "Store", "establishment" or "entity" shall be

construed to include any individual dealing in the
buying and selling used secondhand articles, as defined
in paragraph hereof;

4. "Buy and Sell" refer to the transaction whereby one

purchases used secondhand articles for the purpose of
resale to third persons;

5. "Station Commander" shall refer to the Station

Commander of the Integrated National Police within the
territorial limits of the town or city district where
the store, establishment or entity dealing in the
buying and selling of used secondhand articles is
located.

PROCEDURE FOR SECURING PERMIT/CLEARANCE

The Implementing Rules provided for the method of

obtaining clearance or permit. No fee will be charged
for the issuance of the clearance/permit. Failure to

secure clearance/permit shall be punished as a fence,

that may result to the cancellation of business
license.

1. The Station Commander shall require the owner of a

store or the President, manager or responsible officer
in having in stock used secondhand articles, to submit
an initial affidavit within thirty (30) days from
receipt of notice for the purpose thereof and
subsequent affidavits once every fifteen (15) days
within five (5) days after the period covered, which
shall contain:
a. complete inventory of such articles including the
names and addresses from whom the articles were
acquired.
b. Full list of articles to be sold or offered for sale
including the time and place of sale
c. Place where the articles are presently deposited.

The Station Commander may, require the submission of an

affidavit accompanied by other documents showing proof
of legitimacy of acquisition.

2. Those who wish to secure the permit/clearance, shall

file an application with the Station Commander
concerned, which states:
a. name, address and other pertinent circumstances

b. article to be sold or offered for sale to the public

and the name and address of the unlicensed dealer or
supplier from whom such article was acquired.
c. Include the receipt or document showing proof of
legitimacy of acquisition.
3. The Station Commander shall examine the documents
attached to the application and may require the
presentation of other additional documents, if
necessary, to show satisfactory proof of the legitimacy
of acquisition of the article, subject to the following
conditions:
a. if the Station Commander is not satisfied with the
proof of legitimacy of acquisition, he shall cause the
publication of the notice, at the expense of the one
seeking clearance/permit, in a newspaper of general
circulation for two consecutive days, stating:
>articles acquired from unlicensed dealer or supplier
>the names and addresses of the persons from whom they
were acquired
>that such articles are to be sold or offered for sale
to the public at the address of the store,
establishment or other entity seeking the
clearance/permit.
4. If there are no newspapers in general circulation,
the party seeking the clearance/permit shall, post a
notice daily for one week on the bulletin board of the
municipal building of the town where the store, firm,
establishment or entity is located or, in the case of
an individual, where the articles in his possession are
to be sold or offered for sale.

5. If after 15 days, upon expiration of the period of

publication or of the notice, no claim is made to any
of the articles enumerated in the notice, the Station
Commander shall issue the clearance or permit sought.
6. If before expiration of the same period for the
publication of the notice or its posting, it shall
appear that any of the articles in question is stolen
property, the Station Commander shall hold the article
in restraint as evidence in any appropriate case to be
filed.
Articles held in restraint shall kept and disposed of
as the circumstances of each case permit. In any case
it shall be the duty of the Station Commander concerned
to advise/notify the Commission on Audit of the case
and comply with such procedure as may be proper under
applicable existing laws, rules and regulations.
7. The Station Commander shall, within seventy-two (72)
hours from receipt of the application, act thereon by
either issuing the clearance/permit requested or
denying the same. Denial of an application shall be in
writing and shall state in brief the reason/s thereof.
8. Any party not satisfied with the decision of the
Station Commander may appeal the same within 10 days to
the proper INP (now PNP) District Superintendent and
further to the INP (now PNP) Director. The decision of
the Director can still be appealed top the DirectorGeneral, within 10 days, whose decision may be appealed
with the Minister (now Secretary) of National Defense,
within 15 days, which decision is final.

PRESUMPTION

Mere possession of any good, article, item, object or

anything fo value which has been the subject of robbery
or thievery, shall be prima facie evidence of fencing.

ELEMENTS

1. A crime of robbery or theft has been committed;

2. The accused, who is not a principal or accomplice in
the commission of the crime of robbery or theft, buys,
receives, possess, keeps, acquires, conceals, sells, or
disposes, or buys and sells, or in any manner deals in
any article, item, object or anything of value, which
has been derived from the proceeds of the said crime;
3. The accused knows or should have known that the said
article, item, or object or anything of value has been
derived from the proceeds of the crime of robbery or
theft; and
4. There is, on the part of the accused, intent to gain
for himself or for another. (Dizon-Pamintuanvs People,
GR 111426, 11 July 94)

As regards the first element, the crime of robbery or

theft should have been committed before crime of
fencing can be committed. The person committing the
crime of robbery or theft, may or may not be the same
person committing the crime of fencing. As in the case
of D.M. Consunji, Inc., vs. Esguerra, quantities of

phelonic plywood were stolen and the Court held that

qualified theft had been committed. In People vs.
Lucero there was first a snatching incident, where the
bag of Mrs.Maripaz Bernard Ramolete was snatch in the
public market of Carbon, Cebu City, where she lost a
Chinese Gold Necklace and pendant worth some P4,000.00
to snatchers Manuel Elardo and ZacariasPateras. The
snatchers sold the items to Manuel Lucero.
Consequently, Lucero was charged with violation of the
Anti-Fencing Law. However, in this case, no eyewitness
pointed to Lucero as the perpetrator and the evidence
of the prosecution was not strong enough to convict
him.

The second element speaks of the overt act of keeping,

buying, receiving, possessing, acquiring, concealing,
selling or disposing or in any manner deals with stolen
items. It is thus illustrated in the case of Lim vs.
Court of Appeals, where the accused, Juanito Lim stored
and kept in his bodega and subsequently bought or
disposed of the nine (9) pieces of stolen tires with
rims owned by Loui Anton Bond.

The accused known or should have known that the goods

were stolen. As pointed out in the case of People vs.
Adriatico, the court in convicting Norma Adriatico,
stated that it was impossible for her to know that the
jewelry were stolen because of the fact that Crisilita
was willing to part with a considerable number of
jewelry at measly sum, and this should have apprised
Norma of the possibility that they were stolen goods.
The approximate total value of the jewelry were held to
be at P20,000.00, and Norma having bought it from

Crisilita for only P2,700. The court also considered

the fact that Norma engage in the business of buying
and selling gold and silver, which business is very
well exposed to the practice of fencing. This requires
more than ordinary case and caution in dealing with
customers. As noted by the trial court:

". . . the Court is not inclined to accept the

accused's theory of buying in good faith and disclaimer
of ever seeing, much more, buying the other articles.
Human experience belies her allegations as no
businessman or woman at that, would let go of such
opportunities for a clean profit at the expense of
innocent owners.

The Court in convicting Ernesto Dunlao Sr., noted that

the stolen articles composed of farrowing crates and
G.I. pipes were found displayed on petitioner's shelves
inside his compound. (Dunalao, Sr. v. CA, 08/22/96)

In the case of People v. Muere (G.R.12902, 10/18/94),

the third element was not proven. This case involves
the selling of alleged stolen Kenwood Stereo Unit in
the store Danvir Trading, owned by the spouses Muere.
The store is engaged in buying and selling of second
hand merchandise located at Pasay Road, Makati. The
said stereo was bought from Wynn's Audio, an existing
establishment. The court held that there is no proof
that the spouses Muere, had knowledge of the fact that
the stereo was stolen. The spouses Muere purchased the
stereo from a known merchant and the unit is displayed

for sale in their store. These actions are not

indicative of a conduct of a guilty person.

On the same vein, the third element did not exist in

the case of D.M. Consunji, Inc. (Consunji v. Esguerra,
07/30/96) where the subject of the court action are the
alleged stolen phelonic plywood owned by D.M. Consunji,
Inc., later found to be in the premises of MC
Industrial Sales and Seato trading Company, owned
respectively by Eduardo Ching and the spouses Sy.
Respondents presented sales receipts covering their
purchase of the items from Paramount Industrial, which
is a known hardware store in Caloocan, thus they had no
reason to suspect that the said items were products of
theft.

The last element is that there is intent to gain for

himself or for another. However, intent to gain need
not be proven in crimes punishable by a special law
such as the Anti-Fencing Law. The crimes punishable by
special laws are called "acts mala prohibita". The rule
on the subject is that in acts mala prohibita, the only
inquiry is that, has the law been violated? (inGatdner
v. People, as cited in US v. Go Chico, 14 Phils. 134)
When the act is prohibited by law, intent is
immaterial.

Likewise, dolo or deceit is immaterial in crimes

punishable by special statute like the Anti-Fencing
Law. It is the act itself which constitutes the offense
and not the motive or intent. Intent to gain is a
mental state, the existence if which is demonstrated by

the overt acts of the person. The mental state is

presumed from the commission of an unlawful act.
(Dunlao v. CA) again, intent to gain is a mental state,
the existence of which is demonstrated by the overt
acts of person, as the keeping of stolen items for
subsequent selling.

A FENCE MAY BE PROSECUTED UNDER THE RPC OR PD 1612

The state may thus choose to prosecute him either under

the RPC or PD NO. 1612 although the preference for the
latter would seem inevitable considering that fencing
is a malumprohibitum, and PD No. 1612 creates a
presumption of fencing and prescribes a higher penalty
based on the value of the property. (supra)

MERE POSSESSION OF STOLEN ARTICLE PRIMA FACIE EVIDENCE

OF FENCING

Since Sec. 5 of PD NO. 1612 expressly provides that

mere possession of any good, article, item, object or
anything of value which has been the subject of robbery
or thievery shall be prima facie evidence of fencing
it follows that the accused is presumed to have
knowledge of the fact that the items found in her
possession were the proceeds of robbery or theft. The
presumption does not offend the presumption of
innocence enshrined in the fundamental law.

DISTINCTION BETWEEN FENCING AND ROBBERY

The law on fencing does not require the accused to have

participation in the criminal design to commit or to
have been in any wise involved in the commission of the
crime of robbery or theft. Neither is the crime of
robbery or theft made to depend on an act of fencing in
order that it can be consummated. (People v De Guzman,
GR 77368).

Robbery is the taking of personal property belonging to

another, with intent to gain, by means of violence
against or intimidation of any person, or using force
upon anything.

On the other hand, fencing is the act of any person

who, with intent to gain for himself or for another,
shall buy, receive, possess, keep, acquire, conceal,
sell or dispose of, or shall buy and sell, or in any
other manner deal in any article, item, object or
anything of value which he knows, or shall be known to
him, to have been derived from the proceeds of the
crime of robbery or theft.

FENCING AS A CRIME INVOLVING MORAL TURPITUDE.

In violation of the Anti-Fencing Law, actual knowledge

by the "fence" of the fact that property received is
stolen displays the same degree of malicious
deprivation of one's rightful property as that which
animated the robbery or theft which by their very
nature are crimes of moral turpitude. (Dela Torre v.
COMELEC 07/05/96)

Moral turpitude can be derived from the third element accused knows or should have known that the items were
stolen. Participation of each felon, one being the
robber or the thief or the actual perpetrators, and the
other as the fence, differs in point in time and degree
but both invaded one's peaceful dominion for gain.
(Supra) Both crimes negated the principle of each
person's duty to his fellowmen not to appropriate
things that they do not own or return something
acquired by mistake or with malice. This signifies
moral turpitude with moral unfitness.

In the case of Dela Torre, he was declared disqualified

from running the position of Mayor in Cavinti, Laguna
in the last May 8, 1995 elections because of the fact
of the disqualification under Sec. 40 of the Local
Government Code, of persons running for elective
position -"Sec. 40 Disqualifications - (a) Those
sentenced by final judgement for an offense involving
moral turpitude..."

Dela Torre was disqualified because of his prior

conviction of the crime of fencing wherein he admitted
all the elements of the crime of fencing.

ESSENCE OF VIOLATION OF PD 1612, SEC. 2 OR ANTI-FENCING

PD 1612, Section 2 thereof requires that the offender

buys or otherwise acquires and then sells or disposes
of any object of value which he knows or should he
known to him to have been derived from the proceeds of
the crime of robbery or theft. (Caoili v CA; GR 128369,
12/22/97)

PROOF OF PURCHASE WHEN GOODS ARE IN POSSESSION OF

OFFENDER NOT NECESSARY IN ANTI-FENCING

The law does not require proof of purchase of the

stolen articles by petitioner, as mere possession
thereof is enough to give rise to a presumption of
fencing.

It was incumbent upon petitioner to overthrow this

presumption by sufficient and convincing evidence.
(Caoili v. CA; GR 128369, 12/22/97)

BATAS PAMBANSA BLG. 22

BOUNCING CHECKS LAW

ACTS PUNISHABLE:

a. 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 drawee,
without any valid reason, ordered the bank to stop
payment.

b. Any person who having sufficient funds in or credit

with the drawee bank when he makes or draws and issues
a check, 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 days from date
appearing thereon, for which reason, it is dishonored
by the drawee bank.

HOW TO ESTABLISH GUILT OF ACCUSED IN BP 22

To establish her guilt, it is indispensable that the

checks she issued for which she was subsequently
charged, be offered in evidence because the gravamen of
the offense charged is the act of knowingly issuing a
check with insufficient funds. Clearly, it was error to

convict complainant on the basis of her letter alone.

Nevertheless, despite this incorrect interpretation of
a rule on evidence, we do not find the same as
sufficiently constitutive of the charges of gross
ignorance of the law and of knowingly rendering an
unjust decision. Rather, it is at most an error in
judgment, for which, as a general rule, he cannot be
held administratively liable. In this regard, we
reiterate the prevailing rule in our jurisdiction as
established by current jurisprudence. (Gutierrez v
Pallatao; 8/8/98)

NOTICE, AN INDISPENSABLE REQUISITE FOR PROSECUTION

Section 3 of BP 22 requires that the holder of the

check or the drawee bank, must notify the drawer of the
check that the same was dishonored, if the same is
presented within ninety days from date of issuance, and
upon notice the drawer has five days within which to
make arrangements for the payment of the check or pay
the same in full.

DUTY OF THE DRAWEE BANK

The drawee bank has the duty to cause to be written,

printed or stamped in plain language thereon, or
attached thereto the reason for the draweesdishonor or

refusal to pay the same. If the drawee bank fails to do

so, prosecution for violation of BP 22 may not prosper.

RULE IN CASE OF DISHONOR DUE TO STOP PAYMENT

The drawee bank has not only the duty to indicate that
the drawer stopped the payment and the reason for the
stop payment. The drawee bank is further obligated to
state whether the drawer of the check has sufficient
funds in the bank or not.

AGREEMENT OF PARTIES REGARDING THE CHECK IS NOT A

DEFENSE

In the case of People vsNitafan, 215 SCRA, the

agreement of the parties in respect to the issuance of
the check is inconsequential or will not affect the
violation of BP 22, if the check is presented to the
bank and the same was dishonored due to insufficiency
of funds.

CHECKS ISSUED IN PAYMENT OF INSTALLMENT

Checks issued in payment for installment covered by

promissory note and said checks bounced, the drawer is
liable if the checks were drawn against insufficient

funds, especially that the drawer, upon signing of the

promissory note, closed his account. Said check is
still with consideration. (Caram Resources v.
Contreras)

In this case, the Judge was even held administratively

liable.

CHECK DRAWN AGAINST A DOLLAR ACCOUNT. RULE:

A check drawn against a dollar account in a foreign

country is still violative of the provisions of BP 22
so long as the check is issued, delivered or uttered in
the Philippines, even if the same is payable outside of
the Philippines (De Villa v. CA)

GUARANTEE CHECKS, DRAWER, STILL LIABLE

The mere act of issuing a worthless check is

punishable. Offender cannot claim good faith for it is
malum prohibitum.

In the case of Magnovs CA, when accused issued a check

as warranty deposit for lease of certain equipment,
even knowing that he has no funds or insufficient funds
in the bank is not liable, if the lessor of the
equipment pulled out the loaned equipment. The drawer

has no obligation to make good the check because there

is no more deposit to guaranty.

ISSUANCE OF GUARANTEE CHECKS WHICH WAS DISHONORED IN

VIOLATION AND PURPOSE OF THE LAW

The intention of the framers of BP 22 is to make a mere

act of issuing a worthless check malumprohibitum. In
prosecutions for violation of BP 22, therefore,
prejudice or damage is not prerequisite for conviction.

The agreement surrounding the issuance of the checks

need not be first locked into, since the law has
provided that the mere issuance of any kind of check;
regardless of the intent of the parties, i.e., whether
the check is intended merely to serve as guarantee or
deposit, but which checks is subsequently dishonored,
makes the person who issued the check liable. (Lazarovs
CA, et al., GR 105461).

CAN A PERSON BE HELD LIABLE FOR ISSUING A CHECK WITH

SUFFICIENT FUNDS FOR VIOLATION OF BP 22?

Yes. Paragraph 2 of Section 1 of BP 22 provides:

The same penalty shall be imposed upon any person who

having sufficient funds in or credit with the drawee
bank when he makes or draws and issues a check, 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 90 days from the date appearing
thereon, for which reason, it is dishonored by the
drawee bank.

RULE ON RENDERING UNJUST JUDGMENT, IGNORANCE, ETC. BY A

JUDGE

In the case of De la Cruz vs. Concepcion this Court

declared:

"Mere errors in the appreciation of evidence, unless so

gross and patent as to produce an inference of
ignorance or bad faith, or of knowing rendition of an
unjust decision, are irrelevant and immaterial in an
administrative proceeding against him. No one, called
upon to try facts or interpret the law in the process
of administering justice, can be infallible in his
judgment. All that is expected of him is that he follow
the rules prescribed to ensure a fair and impartial
hearing, assess the different factors that emerge
therefrom and bear on the issues presented, and on the
basis of the conclusions he finds established, with
only his conscience and knowledge of the law to guide
him, adjudicate the case accordingly." (Gutierrez v
Pallatao; Adm. Matter #RTJ-95-1326, July 8, 1998)

DIFFERENCE BETWEEN ESTAFA AND VIOLATION OF BP 22

In the crime of estafa, deceit and damage are essential

elements of the offense and have to be established with
satisfactory proof to warrant conviction. For violation
of the Bouncing Checks Law, on the other hand, the
elements of deceit and damage are neither essential nor
required. Rather, the elements of B.P. Blg. 22 are (a)
the making, drawing and issuance of any check to apply
to account or for value; (b) the maker, drawer or
issuer knows at the time of issuance 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, (c) 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 valid reason,
ordered the bank to stop payment. (Uy v Court of
Appeals, GR 119000, July 28, 1997)

JURISDICTION IN BP 22 CASES

In respect of the Bouncing checks case, the offense

also appears to be continuing in nature. It is true
that the offense is committed by the very fact of its
performance (Colmenares vs. Villar, No. L-27126, May

29, 1970, 33 SCRA 186); and that the Bouncing Checks

Law penalizes not only the fact of dishonor of a check
but also the act of making or drawing and issuance of a
bouncing check (People vs. Hon. Veridiano, II, No. L62243, 132 SCRA 523). The case, therefore, could have
been filed also in Bulacan. As held in Que vs. People
of the Philippines, G.R. Nos. 75217-18, September 11,
1987 "the determinative factor (in determining venue)
is the place of the issuance of the check". However, it
is likewise true that knowledge on the part of the
maker or drawer of the check of the insufficiency of
his funds, which is an essential ingredient of the
offense is by itself a continuing eventuality, whether
the accused be within one territory or another (People
vs. Hon. Manzanilla, G.R. Nos. 66003-04, December 11,
1987). Accordingly, jurisdiction to take cognizance of
the offense also lies in the Regional Trial Court of
Pampanga.

And, as pointed out in the Manzanilla case,

jurisdiction or venue is determined by the allegation
in the Information, which are controlling (Arches vs.
Bellosillo, 81 Phil. 190, cited in Tuzon vs. Cruz, No.
L-27410, August 28, 1975, 66 SCRA 235). The Information
filed herein specifically alleges that the crime was
committed in San Fernando Pampanga and therefore within
the jurisdiction of the Court below.

This ruling was reiterated in the case of Lim vs.

Rodrigo, 167 SCRA 487, where it was held:

Besides, it was held in People v. Hon. Manzanilla,

supra, that as "violation of the bad checks act is
committed when one 'makes or draws and issues any check
[sic] to apply on account or for value, knowing at the
time 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," "knowledge" is an
essential ingredient of the offense charge. As defined
by the statute, knowledge, is, by itself, a continuing
eventuality, whether the accused be within one
territory or another. This being the case, the Regional
Trial Court of Baguio City has jurisdiction to try
Criminal Case No. 2089-R (688).

Moreover, we ruled in the same case of People v. Hon.

Manzanilla, reiterated in People vs. Grospe, supra,
that jurisdiction or venue is determined by the
allegations in the information. The allegation in the
information under consideration that the offense was
committed in Baguio City is therefore controlling and
sufficient to vest jurisdiction upon the Regional Trial
Court of Baguio City.

In the case at bench it appears that the three (3)

checks were deposited in Lucena City. As to the second
error wherein the petitioner asserted that the checks
were issued "as a guarantee only for the feeds
delivered to him" and that there is no estafa if a
check is issued in payment of a pre-existing

obligation, the Court of Appeals pointed out that the

petitioner obviously failed to distinguish a violation
of B.P. Blg. 22 from estafa under Article 315 (2) [d]
of the Revised Penal Code. It further stressed that
B.P. Blg. 22 applies even in cases where dishonored
checks were issued as a guarantee or for deposit only,
for it makes no distinction as to whether the checks
within its contemplation are issued in payment of an
obligation or merely to guarantee the said obligation
and the history of its enactment evinces the definite
legislative intent to make the prohibition allembracing. (Ibascovs CA, 9/5/96)

ACTUAL KNOWLEDGE OF INSUFFICIENCY OF FUNDS ESSENTIAL IN

BP 22

Knowledge of insufficiency of funds or credit in the

drawee bank for the payment of a check upon its
presentment is an essential element of the offense.
There is a prima facie presumption of the existence of
this element from the fact of drawing, issuing or
making a check, the payment of which was subsequently
refused for insufficiency of funds. It is important to
stress, however, that this is not a conclusive
presumption that forecloses or precludes the
presentation of evidence to the contrary. (Lim Lao v
CA; 6/20/97)

WHEN LACK OF KNOWLEDGE AND LACK OF POWER TO FUND THE

CHECKS IN CASES OF BP 22 A DEFENSE

After a thorough review of the case at bar, the Court

finds that Petitioner Lina Lim Lao did not have actual
knowledge of the insufficiency of funds in the
corporate accounts at the time she affixed her
signature to the checks involved in this case, at the
time the same were issued, and even at the time the
checks were subsequently dishonored by the drawee bank.

The scope of petitioner's duties and responsibilities

did not encompass the funding of the corporation's
checks; her duties were limited to the marketing
department of the Binondo branch. Under the
organizational structure of Premiere Financing
Corporation, funding of checks was the sole
responsibility of the Treasury Department. (Lim Lao v
CA; 6/20/97

LACK OF ADEQUATE NOTICE OF DISHONOR, A DEFENSE

There can be no prima facie evidence of knowledge of

insufficiency of funds in the instant case because no
notice of dishonor was actually sent to or received by
the petitioner.

The notice of dishonor may be sent by the offended

party or the drawee bank. The trial court itself found
absent a personal notice of dishonor to Petitioner Lina
Lim Lao by the drawee bank based on the unrebutted
testimony of Ocampo "(t)hat the checks bounced when
presented with the drawee bank but she did not inform
anymore the Binondo branch and Lina Lim Lao as there
was no need to inform them as the corporation was in
distress." The Court of Appeals affirmed this factual
finding. Pursuant to prevailing jurisprudence, this
finding is binding on this Court. (Lim Lao v CA;
6/20/97)

ANTI-GRAFT & CORRUPT PRACTICES ACT

(RA NO 3019)

ANTI-GRAFT AND CORRUPT PRACTICES ACT

Corrupt practices of public officers.

(a) Persuading, inducing or influencing another public

officer to perform an act constituting a violation of
rules and regulations duly promulgated by competent
authority or an offense in connection with the official
duties of the latter, or allowing himself to be
persuaded, induced, or influenced to commit such
violation or offense.

(b) Directly or indirectly requesting or receiving any

gift, present, share, percentage, or benefit, for
himself or for any other person, in connection with any
contract or transaction between the Government and any
other part, wherein the public officer in his official
capacity has to intervene under the law.

(c) Directly or indirectly requesting or receiving any

gift, present or other pecuniary or material benefit,
for himself or for another, from any person for whom
the public officer, in any manner or capacity, has
secured or obtained, or will secure or obtain, any
Government permit or license, in consideration for the
help given or to be given, without prejudice to Section
thirteen of this Act.

(d) Accepting or having any member of his family accept

employment in a private enterprise which has pending
official business with him during the pendency thereof
or within one year after its termination.

(e) Causing any undue injury to any party, including

the Government, or giving any private party any
unwarranted benefits, advantage or preference in the
discharge of his official administrative or judicial
functions through manifest partiality, evident bad
faith or gross inexcusable negligence. This provision
shall apply to officers and employees of offices or
government corporations charged with the grant of
licenses or permits or other concessions.

( f ) Neglecting or refusing, after due demand or

request, without sufficient justification, to act
within a reasonable time on any matter pending before
him for the purpose of obtaining, directly or
indirectly, from any person interested in the matter
some pecuniary or material benefit or advantage, or for
the purpose of favoring his own interest or giving
undue advantage in favor of or discriminating against
any other interested party.

(g) Entering, on behalf of the Government, into any

contract or transaction manifestly and grossly
disadvantageous to the same, whether or not the public
officer profited or will profit thereby.
(h) Director or indirectly having financing or
pecuniary interest in any business, contract or
transaction in connection with which he intervenes or
takes part in his official capacity, or in which he is
prohibited by the Constitution or by any law from
having any interest.

(i) Directly or indirectly becoming interested, for

personal gain, or having a material interest in any
transaction or act requiring the approval of a board,
panel or group of which he is a member, and which
exercises discretion in such approval, even if he votes
against the same or does not participate in the action
of the board, committee, panel or group.
Interest for personal gain shall be presumed against
those public officers responsible for the approval of

manifestly unlawful, inequitable, or irregular

transaction or acts by the board, panel or group to
which they belong.

( j) Knowingly approving or granting any license,

permit, privilege or benefit in favor of any person not
qualified for or not legally entitled to such license,
permit, privilege or advantage, or of a mere
representative or dummy of one who is not so qualified
or entitled.

(k) Divulging valuable information of a confidential

character, acquired by his office or by him on account
of his official position to unauthorized persons, or
releasing such information in advance of its authorized
release date.

UNEXPLAINED WEALTH, MEANING

Prima facie evidence of and dismissal due to

unexplained wealth. If in accordance with the
provisions of RA 1379, a public official has been found
to have acquired during his incumbency, whether in his
name or in the name of other persons, an amount of
property and/or money manifestly out of proportion to
his salary and to his other lawful income, that fact
shall be a ground for dismissal or removal.

Note: Unsolicited gifts or presents of small or

insignificant value shall be offered or given as a mere

ordinary token of gratitude or friendship according to

local customs or usage shall be exempted from the
provision of this act.

MEANING OF CAUSING UNDUE INJURY

The act of giving any private party any unwarranted

benefit, advantage or preference is not an
indispensable element of causing any undue injury to
any part, although there may be instances where both
elements concur. (Santiago vsGarchitorena, et al., 2
Dec. 93).

In Mejoroda v Sandiganbayan, the Supreme Court has

ruled that the offender in causing undue injury does
not refer only to those who are in charge of giving
permits, licenses or concessions but all acts of public
officers or employees which have caused undue injury to
others.

ELEMENTS OF NEGLECT OF DUTY UNDER SEC. 3 OF RA 3019

a. the offender is a public officer;

b. the said officer has neglected or has refused to act
without sufficient justification after due demand or
request has been made upon him;

c. reasonable time has elapsed from such demand or

request without the public officer having acted on the
matter pending before him;
d. such failure to so act is for the purpose of
obtaining directly or indirectly from any person
interested in the matter some pecuniary or material
benefit or advantage in favor of an interested party or
discriminating against another. Coronado v
Sandiganbayan.

WHERE PUBLIC OFFICER ACTED WITH MANIFEST PARTIALITY,

EVIDENT BAD FAITH, OR INEXCUSABLE
NEGLIGENCE

Sec. 3.Corrupt practices of public officers. - In

addition to acts or omissions of public officers
already penalized by existing law, the following shall
constitute corrupt practices of any public officer and
are hereby declared to be unlawful:

xxxxxxxxx

(e). Causing any undue injury to any party, including

the Government, or giving any private party any
unwarranted benefits, advantage or preference in the
discharge of his official administrative or judicial
functions through manifest partiality, evident bad
faith or gross inexcusable negligence. This provision

shall apply to officers and employees of offices or

government corporations charged with the grant of
licenses or permits or other concessions.

VIOLATION OF SECTION 3 (E) OF RA 3019 REQUIRES PROOF OF

THE FOLLOWING FACTS, VIZ:

a. the accused is a public officer discharging

administrative or official functions or private persons
charged in conspiracy with them;

b. the public officer committed the prohibited act

during the performance of his official duty or in
relation to his public position;

c. the public officer acted with manifest partiality

evident bad faith or gross, inexcusable negligence; and

d. his action caused undue injury to the government or

any private party, or gave any party any unwarranted
benefit, advantage or preference to such parties.

CAUSING UNDUE INJURY UNDER SEC. 3, LETTER (e) OF RA

3019.MEANING.

Section 3 enumerates in eleven subsections the corrupt

practices of any public officer declared unlawful. Its
reference to any public officer is without distinction
or qualification and it specifies the acts declared
unlawful. We agree with the view adopted by the
Solicitor General that the last inclusion of officers
and employees of offices or government corporations
which, under the ordinary concept of public officer
may not come within the term. It is a strained
construction of the provision to read it as applying
exclusively to public officers charged with the duty of
granting license or permits or other concessions.
(Mejorada v Sandiganbayan, 151 SCRA 399).

SUSPENSION UNDER R.A. 3019 MANDATORY BUT COURTS ARE

ALLOWED TO DETERMINE
WHETHER INFORMATION IS VALID OR NOT

It is well settled that Section 13 of RA 3019 makes it

mandatory for the Sandiganbayan (or the Court) to
suspend any public officer against whom a valid
information charging violation of this law, Book II,
Title 7 of the RPC, or any offense involving fraud upon
government or public funds or property is filed in
court. The court trying a case has neither discretion
nor duty to determine whether preventive suspension is
required to prevent the accused from using his office
to intimidate witnesses or frustrate his prosecution or
continue committing malfeasance in office. All that is
required is for the court to make a finding that the
accused stands charged under a valid information for

any of the above-described crimes for the purpose of

granting or denying the sought for suspension.
(Bolastig vs. Sandiganbayan, G.R. No. 110503 [August 4,
1994], 235 SCRA 103).In the same case, the Court held
that "as applied to criminal prosecutions under RA
3019, preventive suspension will last for less than
ninety (90) days only if the case is decided within
that period; otherwise, it will continue for ninety
(90) days." (Conducto v. Monzon; A.M. No. MTJ-98-1147,
July 2, 1998)

PUBLIC OFFICER MAY BE SUSPENDED FROM HIS PRESENT

POSITION EVEN IF THE CRIME WHICH HE IS BEING CHARGED
WAS COMMITTED DURING HIS PREVIOUS TERM

Judge Monzon's contention denying complainant's Motion

for Suspension because "offenses committed during the
previous term (is) not a cause for removal during the
present term" is untenable. In the case of Rodolfo E.
Aguinaldo vs. Hon. Luis Santos and Melvin Vargas, 212
SCRA 768, the Court held that "the rule is that a
public official cannot be removed for administrative
misconduct committed during a prior term since his reelection to office operates as a condonation of the
officer's previous misconduct committed during a prior
term, to the extent of cutting off the right to remove
him therefor. The foregoing rule, however, finds no
application to criminal cases . . ."
Likewise, it was specifically declared in the case of
Ingco vs. Sanchez, G.R. No. L-23220, 18 December 1967,
21 SCRA 1292, that "The ruling, therefore, that 'when

the people have elected a man to office it must be

assumed that they did this with knowledge of his life
and character and that they disregarded or forgave his
faults or misconduct if he had been guilty of any'
refers only to an action for removal from office and
does not apply to a criminal case"

Clearly, even if the alleged unlawful appointment was

committed during Maghirang's first term as barangay
chairman and the Motion for his suspension was only
filed in 1995 during his second term, his re-election
is not a bar to his suspension as the suspension sought
for is in connection with a criminal case. (Conducto v.
Monzon; A.M. No. MTJ-98-1147, July 2, 1998)

RE-ELECTION IN PUBLIC OFFICE EXTINGUISHING ONLY HIS

ADMINISTRATIVE LIABILITY BUT
NOT HIS CRIMINAL LIABILITY

As early as 18 December 1967 in Ingco v. Sanchez, 17

this Court explicitly ruled that the re-election of a
public official extinguishes only the administrative,
but not the criminal, liability incurred by him during
his previous term of office, thus:

The ruling, therefore, that "when the people have

elected a man to his office it must be assumed that
they did this with knowledge of his life and character
and that they disregarded or forgave his faults or

misconduct if he had been guilty of any" refers only

to an action for removal from office and does not apply
to criminal case, because a crime is a public wrong
more atrocious in character than mere misfeasance or
malfeasance committed by a public officer in the
discharge of his duties, and is injurious not only to a
person or group of persons but to the State as a whole.
This must be the reason why Article 89 of the Revised
Penal Code, which enumerates the grounds for extinction
of criminal liability, does not include reelection to
office as one of them, at least insofar as a public
officer is concerned. Also, under the Constitution, it
is only the President who may grant the pardon of a
criminal offense. (Conducto v. Monzon; A.M. No. MTJ-981147, July 2, 1998)

PRE-CONDITION OF SUSPENSION (PREVENTIVE) UNDER SEC. 13,

RA 3019

It is mandatory for the court to place under preventive

suspension a public officer accused before it.
Imposition of suspension, however, is not automatic or
self-operative. A pre-condition thereof is the
existence of a valid information, determined at a presuspension hearing. Such a hearing is in accord with
the spirit of the law, considering the serious and farreaching consequences of a suspension of a public
official even before his conviction, and the demands of
public interest for a speedy determination of the
issues involved in the case. The purpose of the presuspension hearing is basically to determine the

validity of the information and thereby furnish the

court with a basis to either suspend the accused and
proceed with the trial on the merits of the case, or
refuse suspension of the latter and dismiss the case,
or correct any part of the proceeding which impairs its
validity. The accused should be given adequate
opportunity to challenge the validity or regularity of
the criminal proceedings against him; e.g. that he has
not been afforded the right to due preliminary
investigation; that the acts imputed to him do not
constitute a specific crime (under R.A. 3019 or the
Revised Penal Code) warranting his mandatory suspension
from office under Section 13 of the Act; or that the
information is subject to quashal on any of the grounds
set out in Rule 117 of the Rules of Court. But once a
proper determination of the validity of the information
has been made, it becomes the ministerial duty of the
court to forthwith issue the order of preventive
suspension. The court has no discretion, for instance,
to hold in abeyance the suspension of the accused
official on the pretext that the order denying the
latter's motion to quash is pending review before the
appellate courts. (Segovia v. Sandiganbayan; GR 124067,
Mar. 27, 1998)

GUIDELINES TO BE FOLLOWED IN PREVENTIVE SUSPENSION

CASES

"In the leading case of Luciano, et al. vs. Mariano, et

al. (L-32950, July 30, 1971, 40 SCRA 187), we have set
out the guidelines to be followed by the lower courts
in the exercise of the power of suspension under
Section 13 of the law, to wit:

(c) By way of broad guidelines for the lower courts in

the exercise of the power of suspension from office of
public officers charged under a valid information under
the provisions of Republic Act No. 3019 or under the
provisions of the Revised Penal Code on bribery,
pursuant to section 13 of said Act, it may be briefly
stated that upon the filing of such information, the
trial court should issue an order with proper notice
requiring the accused officer to show cause at a
specific date of hearing why he should not be ordered
suspended from office pursuant to the cited mandatory
provisions of the Act. Where either the prosecution
seasonably files a motion for an order of suspension or
the accused in turn files a motion to quash the
information or challenges the validity thereof, such
show-cause order of the trial court would no longer be
necessary. What is indispensable is that the trial
court duly hear the parties at a hearing held for
determining the validity of the information, and
thereafter hand down its ruling, issuing the
corresponding order of suspension should it uphold the
validity of the information or withhold such suspension
in the contrary case.

(d) No specific rules need be laid down for such presuspension hearing. Suffice it to state that the
accused should be given a fair and adequate opportunity
to challenge the validity of the criminal proceedings
against him, e.g., that he has not been afforded the
right of due preliminary investigation, the act for
which he stands charged do not constitute a violation
of the provisions of Republic Act No. 3019 or of the
bribery provisions of the Revised Penal Code which

would warrant his mandatory suspension from office

under Section 13 of the Act, or he may present a motion
to quash the information on any of the grounds provided
in Rule 117 of the Rules of Court. The mandatory
suspension decreed by the act upon determination of the
pendency in court or a criminal prosecution for
violation of the Anti-Graft Act or for bribery under a
valid information requires at the same time that the
hearing be expeditious, and not unduly protracted such
as to thwart the prompt suspension envisioned by the
Act. Hence, if the trial court, say, finds the ground
alleged in the quashal motion not to be indubitable,
then it shall be called upon to issue the suspension
order upon its upholding the validity of the
information and setting the same for trial on the
merits.' (Segovia v. Sandiganbayan)

WHEN MAY A PUBLIC OFFICER BE LIABLE FOR CAUSING UNDUE

INJURY UNDER SEC. 3(e) of RA 3019

xxxxxxxxx

(c) Causing any undue injury to any party, including

the Government, or giving any private party any
unwarranted benefits, advantage or preference in the
discharge of his official, administrative or judicial
functions through manifest partiality, evident bad
faith or gross inexcusable negligence. This provision
shall apply to officers and employees of offices or

government corporations charged with the grant of

licenses or permits or other concessions."

To hold a person liable under this section, the

concurrence of the following elements must be
established beyond reasonable doubt by the prosecution:

"(1) That the accused is a public officer or a private

person charged in conspiracy with the former;
(2) That said public officer commits the prohibited
acts during the performance of his or her official
duties or in relation to his or her public positions;
(3) That he or she causes undue injury to any party,
whether the government or a private party; and
(4) That the public officer has acted with manifest
partiality, evident bad faith or gross inexcusable
negligence." (Llorente v. Sandiganbayan; GR 122166,
Mar. 11, 1998)

MEANING OF BAD FAITH UNDER SECTION 3(e) OF RA 3019

"Bad faith does not simply connote bad judgment or

negligence; it imputes a dishonest purpose or some
moral obliquity and conscious doing of a wrong; a
breach of sworn duty through some motive or intent or
ill will; it partakes of the nature of fraud. (Spiegel
v Beacon Participations, 8 NE 2nd Series 895, 1007). It
contemplates a state of mind affirmatively operating

with furtive design or some motive of self interest or

ill will for ulterior purposes (Air France v.
Carrascoso, 18 SCRA 155, 166-167). Evident bad faith
connotes a manifest deliberate intent on the part of
the accused to do wrong or cause damage."

In Jacinto, evident bad faith was not appreciated

because the actions taken by the accused were not
entirely without rhyme or reason; he refused to release
the complainant's salary because the latter failed to
submit her daily time record; he refused to approve her
sick-leave application because he found out that she
did not suffer any illness; and he removed her name
from the plantilla because she was moonlighting during
office hours. Such actions were measures taken by a
superior against an erring employee who studiously
ignored, if not defied, his authority. (Llorente v.
Sandiganbayan)

WHEN OFFENDER IS NOT LIABLE UNDER SEC. 3(e) BUT UNDER

SEC. (f) OF RA 3019

It would appear that petitioner's failure or refusal to

act on the complainant's vouchers, or the delay in his
acting on them more properly falls under Sec. 3[f]:

"(f) Neglecting or refusing, after due demand or

request, without sufficient justification, to act
within a reasonable time on any matter pending before
him for the purpose of obtaining, directly or
indirectly, from any person interested in the matter

some pecuniary or material benefit or advantage, or for

purpose of favoring his own interest or giving undue
advantage in favor of or discriminating against any
other interested party."

Here, the neglect or refusal to act within a reasonable

time is the criminal act, not the causing of undue
injury. Thus, its elements are:

"1) The offender is a public officer;

2) Said officer has neglected or has refused to act
without sufficient justification after due demand or
request has been made on him;
3) Reasonable time has elapsed from such demand or
request without the public officer having acted on the
matter pending before him; and
4) Such failure to so act is 'for the purpose of
obtaining, directly or indirectly, from any person
interested in the matter some pecuniary or material
benefit or advantage in favor of an interested party,
or discriminating against another."

However, petitioner is not charged with a

Sec. 3[f]. Hence, further disquisition is
Neither may this Court convict petitioner
3[f] without violating his constitutional
process. (Llorente v. Sandiganbayan)

violation of
not proper.
under Sec.
right to due

SUSPPENSION (PREVENTIVE) OF LOCAL OFFICIALS SHALL ONLY

BE FOR 60 DAYS

On the other hand, we find merit in petitioner's second

assigned error. The Sandiganbayan erred in imposing a
90 day suspension upon petitioner for the single case
filed against him. Under Section 63 (b) of the Local
Government Code, "any single preventive suspension of
local elective officials shall not extend beyond sixty
(60) days." (Rios v. Sandiganbayan; GR 129913, Set. 26,
1997)

APPROVAL OF LEAVE OF ABSENCE NOT A BAR TO SUSPENSION

Since the petitioner is an incumbent public official

charged in a valid information with an offense
punishable under the Constitution and the laws (RA 3019
and PD 807), the law's command that he "shall be
suspended from office" pendentelite must be obeyed. His
approved leave of absence is not a bar to his
preventive suspension for as indicated by the Solicitor
General, an approved leave, whether it be for a fixed
or indefinite period, may be cancelled or shortened at
will by the incumbent. (Doromal v. Sandiganbayan; GR
85468, Sepr. 7, 1989)

UNDUE DELAY IN PRELIMINARY INVESTIGATIONS VIOLATIVE OF

DUE PROCESS AND A GROUND TO DISMISS

After a careful review of the facts and circumstances

of this case, we are constrained to hold that the
inordinate delay in terminating the preliminary
investigation and filing the information in the instant
case is violative of the constitutionally guaranteed
right of the petitioner to due process and to a speedy
disposition of the cases against him. Accordingly, the
informations in Criminal Cases Nos. 10499, 10500,
10501, 10502 and 10503 should be dismissed. In view of
the foregoing, we find it unnecessary to rule on the
other issues raised by petitioner. (Tatad v.
Sandiganbayan)

DEATH PENALTY LAW

(RA 7659)

PROSTITUTES CAN BE A VICTIM OF RAPE