Jose Go Rule 119

4/15/2019 SUPREME COURT REPORTS ANNOTATED VOLUME 732
G.R. No. 191015. August 6, 2014.*

PEOPLE OF THE PHILIPPINES, petitioner, vs. JOSE C.
GO, AIDA C. DELA ROSA, and FELECITAS D.
NECOMEDES,** respondents.
Remedial Law; Criminal Procedure; Demurrer to Evidence;

Demurrer to the evidence is “an objection by one of the parties in
an action, to the effect that the evidence which his adversary
produced is insufficient in point of law, whether true or not, to
make out a case or sustain the issue.—Demurrer to the evidence is
“an objection by one of the parties in an action, to the effect that
the evidence which his adversary produced is insufficient in point
of law, whether true or not, to make out a case or sustain the
issue. The party demurring challenges the sufficiency of the whole
evidence to sustain a verdict. The court, in passing upon the
sufficiency of the evidence raised in a demurrer, is merely
required to ascertain whether there is competent or sufficient
evidence to sustain the indictment or to support a verdict of guilt.
x x x Sufficient evidence for purposes of frustrating a
_______________
* SECOND DIVISION.
** Also spelled as “Felicitas D. Nicomedes” in some parts of the records.
217
demurrer thereto is such evidence in character, weight or amount

as will legally justify the judicial or official action demanded
www.central.com.ph/sfsreader/session/0000016a2037cf9804627e14003600fb002c009e/t/?o=False 1/43
according to the circumstances. To be considered sufficient

therefore, the evidence must prove: (a) the commission of the
crime, and (b) the precise degree of participation therein by the
accused.” Thus, when the accused files a demurrer, the court must
evaluate whether the prosecution evidence is sufficient enough to
warrant the conviction of the accused beyond reasonable doubt.
Same; Same; Same; The grant of a demurrer to evidence
amounts to an acquittal and cannot be appealed because it would
place the accused in double jeopardy.—“The grant or denial of a
demurrer to evidence is left to the sound discretion of the trial
court, and its ruling on the matter shall not be disturbed in the
absence of a grave abuse of such discretion.” As to effect, “the
grant of a demurrer to evidence amounts to an acquittal and
cannot be appealed because it would place the accused in double
jeopardy. The order is reviewable only by certiorari if it was
issued with grave abuse of discretion amounting to lack or excess
of jurisdiction.” When grave abuse of discretion is present, an
order granting a demurrer becomes null and void.
Same; Same; Same; The party questioning the acquittal of an
accused should be able to clearly establish that the trial court
blatantly abused its discretion such that it was deprived of its
authority to dispense justice.—Grave abuse of discretion is defined
as “that capricious or whimsical exercise of judgment which is
tantamount to lack of jurisdiction. ‘The abuse of discretion must
be patent and gross as to amount to an evasion of a positive duty
or a virtual refusal to perform a duty enjoined by law, or to act at
all in contemplation of law, as where the power is exercised in an
arbitrary and despotic manner by reason of passion and hostility.’
The party questioning the acquittal of an accused should be able
to clearly establish that the trial court blatantly abused its
discretion such that it was deprived of its authority to dispense
justice.”
Criminal Law; Estafa; Estafa Through Abuse of Confidence;
Elements of.—The elements of estafa through abuse of confidence
under Article 315, par. 1(b) of the Revised Penal Code are: “(a)
that money, goods or other personal property is received by the

offender in trust or on commission, or for administration, or under
any other
218
obligation involving the duty to make delivery of or to return the

same; (b) that there be misappropriation or conversion of such
money or property by the offender, or denial on his part of such
receipt; (c) that such misappropriation or conversion or denial is
to the prejudice of another; and (d) there is demand by the
offended party to the offender.”
Banks and Banking; Loans; A bank takes its depositors’
money as a loan, under an obligation to return the same; thus, the
term “demand deposit.” The contract between the bank and its
depositor is governed by the provisions of the Civil Code on simple
loan; The bank is the debtor and the depositor is the creditor.—
Obviously, a bank takes its depositors’ money as a loan, under an
obligation to return the same; thus, the term “demand deposit.”
The contract between the bank and its depositor is governed by
the provisions of the Civil Code on simple loan. Article 1980 of the
Civil Code expressly provides that “x x x savings x x x deposits of
money in banks and similar institutions shall be governed by the
provisions concerning simple loan.” There is a debtor-creditor
relationship between the bank and its depositor. The bank is the
debtor and the depositor is the creditor. The depositor lends the
bank money and the bank agrees to pay the depositor on demand.
Same; The banking laws impose high standards on banks in
view of the fiduciary nature of banking.—The banking laws
impose high standards on banks in view of the fiduciary nature of
banking. “This fiduciary relationship means that the bank’s
obligation to observe ‘high standards of integrity and
performance’ is deemed written into every deposit agreement
between a bank and its depositor. The fiduciary nature of banking
requires banks to assume a degree of diligence higher than that of
a good father of a family.”
Criminal Law; Estafa; The words ‘convert’ and

‘misappropriate’ connote an act of using or disposing of another’s
property as if it were one’s own, or of devoting it to a purpose or use
different from that agreed upon.—Simply put, the evidence
strongly indicates that Go converted OCBC funds to his own
personal use and benefit. “The words ‘convert’ and
‘misappropriate’ connote an act of using or disposing of another’s
property as if it were one’s own, or of devoting it to a purpose or
use different from that agreed upon. To misappropriate for one’s
own use includes not only conversion to one’s personal
219
advantage, but also every attempt to dispose of the property of

another without right. x x x In proving the element of conversion
or misappropriation, a legal presumption of misappropriation
arises when the accused fails to deliver the proceeds of the sale or
to return the items to be sold and fails to give an account of their
whereabouts. Thus, the mere presumption of misappropriation or
conversion is enough to conclude that a probable cause exists for
the indictment x x x.”
Same; Same; In a prosecution for estafa, demand is not
necessary where there is evidence of misappropriation or
conversion.—On the matter of demand, while it has not been
shown that the bank demanded the return of the funds, it has
nevertheless been held that “[d]emand is not an element of the
felony or a condition precedent to the filing of a criminal
complaint for estafa. Indeed, the accused may be convicted of the
felony under Article 315, paragraph 1(b) of the Revised Penal
Code if the prosecution proved misappropriation or conversion by
the accused of the money or property subject of the Information.
In a prosecution for estafa, demand is not necessary where there
is evidence of misappropriation or conversion.” Thus, strictly
speaking, demand is not an element of the offense of estafa
through abuse of confidence; even a verbal query satisfies the
requirement. Indeed, in several past rulings of the Court, demand
was not even included as an element of the crime of estafa

through abuse of confidence, or under paragraph 1(b).
Same; Same; Falsification of Commercial Documents; Elements of.
—The elements of the crime of falsification of commercial
document under Art. 172 are: “(1) that the offender is a private
individual; (2) that the offender committed any of the acts of
falsification; and (3) that the act of falsification is committed in a
commercial document.” As to estafa through falsification of public,
official or commercial documents, it has been held that— The
falsification of a public, official, or commercial document may be a
means of committing Estafa, because before the falsified
document is actually utilized to defraud another, the crime of
Falsification has already been consummated, damage or intent to
cause damage not being an element of the crime of falsification of
public, official or commercial document. In other words, the crime
of falsification has already existed. Actually utilizing that falsified
public, official or commercial document to defraud another is
estafa. But the damage is caused by the
220
commission of Estafa, not by the falsification of the document.

Therefore, the falsification of the public, official or commercial
document is only a necessary means to commit the estafa.
Remedial Law; Criminal Procedure; Judgments; Void
Judgments; A void judgment or order has no legal and binding
effect, force or efficacy for any purpose. In contemplation of law, it
is nonexistent.—As a result of the Court’s declaration of nullity of
the assailed Orders of the trial court, any dissection of the truly
questionable actions of Prosecutor Campanilla — which should
merit appropriate disciplinary action for they reveal a patent
ignorance of procedure, if not indolence or a deliberate intention
to bungle his own case — becomes unnecessary. It is conceded
that the lack of Campanilla’s approval and/or conformé to PDIC’s
Motion for Reconsideration should have rendered the trial court’s
assailed Orders final and executory were it not for the fact that
they were inherently null and void; Campanilla’s irresponsible

actions almost cost the People its day in court and their right to
exact justice and retribution, not to mention that they could have
caused immeasurable damage to the banking industry. Just the
same, “[a] void judgment or order has no legal and binding effect,
force or efficacy for any purpose. In contemplation of law, it is
nonexistent. Such judgment or order may be resisted in any
action or proceeding whenever it is involved. It is not even
necessary to take any steps to vacate or avoid a void judgment or
final order; it may simply be ignored.”
Same; Same; Demurrer to Evidence; The granting of a
demurrer to evidence should be exercised with caution, taking into
consideration not only the rights of the accused, but also the right
of the private offended party to be vindicated of the wrongdoing
done against him, for if it is granted, the accused is acquitted and
the private complainant is generally left with no more remedy.—It
must be borne in mind that “[t]he granting of a demurrer to
evidence should x x x be exercised with caution, taking into
consideration not only the rights of the accused, but also the right
of the private offended party to be vindicated of the wrongdoing
done against him, for if it is granted, the accused is acquitted and
the private complainant is generally left with no more remedy. In
such instances, although the decision of the court may be wrong,
the accused can invoke his right against double jeopardy. Thus,
judges are reminded
221
to be more diligent and circumspect in the performance of their

duties as members of the Bench.
PETITION for review on certiorari of the decision and

resolution of the Court of Appeals.
The facts are stated in the opinion of the Court.
Office of the Solicitor General for petitioner.
Pacheco Law Office for respondents.
DEL CASTILLO, J.:

The power of courts to grant demurrer in criminal cases
should be exercised with great caution, because not only
the rights of the accused — but those of the offended party
and the public interest as well — are involved. Once
granted, the accused is acquitted and the offended party
may be left with no recourse. Thus, in the resolution of
demurrers, judges must act with utmost circumspection
and must engage in intelligent deliberation and reflection,
drawing on their experience, the law and jurisprudence,
and delicately evaluating the evidence on hand.
This Petition for Review on Certiorari1 seeks to set aside
the September 30, 2009 Decision2 of the Court of Appeals
(CA) in C.A.-G.R. S.P. No. 101823, entitled “People of the
Philippines, petitioner, versus Hon. Concepcion Alarcon-
Vergara, et al., respondents,” as well as its January 22,
2010 Resolution3 denying reconsideration of the assailed
judgment.
_______________
1 Rollo, pp. 10-83.
2 Id., at pp. 85-93; penned by Associate Justice Isaias P. Dicdican and
concurred in by Associate Justices Remedios A. Salazar-Fernando and
Romeo F. Barza.
3 Id., at pp. 94-95.
222
Factual Antecedents
The following facts appear from the account of the CA:
On October 14, 1998, the Monetary Board of the Bangko

Sentral ng Pilipinas (BSP) issued Resolution No. 1427 ordering
the closure of the Orient Commercial Banking Corporation
(OCBC) and placing such bank under the receivership of the
Philippine Deposit Insurance Corporation (PDIC). PDIC, as the
statutory receiver of OCBC, effectively took charge of OCBC’s

assets and liabilities in accordance with its mandate under
Section 30 of Republic Act 7653.
xxxx
While all the aforementioned events were transpiring, PDIC
began collecting on OCBC’s past due loans receivable by sending
demand letters to its borrowers for the immediate settlement of
their outstanding loans. Allegedly among these borrowers of
OCBC are Timmy’s, Inc. and Asia Textile Mills, Inc. which
appeared to have obtained a loan of [P]10 Million each. A
representative of Timmy’s, Inc. denied being granted any loan by
OCBC and insisted that the signatures on the loan documents
were falsified. A representative of Asia Textile Mills, Inc. denied
having applied, much less being granted, a loan by OCBC.
The PDIC conducted an investigation and allegedly came out
with a finding that the loans purportedly in the names of
Timmy’s, Inc. and Asia Textile Mills, Inc. were released in the
form of manager’s checks in the name of Philippine Recycler’s and
Zeta International, Inc. These manager’s checks were then
allegedly deposited to the savings account of the private
respondent Jose C. Go with OCBC and, thereafter, were
automatically transferred to his current account in order to fund
personal checks issued by him earlier.
223
On September 24, 1999, PDIC filed a complaint4 for two (2)

counts of Estafa thru Falsification of Commercial Documents in
the Office of the City Prosecutor of the City of Manila against the
private respondents in relation to the purported loans of Timmy’s,
Inc. and Asia Textile Mills, Inc.
On November 22, 2000, after finding probable cause, the Office
of the City Prosecutor of the City of Manila filed Informations5
against the private respondents which were docketed as Criminal
Case Nos. 00-187318 and 00-187319 in the RTC in Manila.
Upon being subjected to arraignment by the RTC in Manila,
the private respondents pleaded not guilty to the criminal cases
filed against them. A pre-trial was conducted. Thereafter, trial of

the cases ensued and the prosecution presented its evidence. After
the presentation of all of the prosecution’s evidence, the private
respondents filed a Motion for Leave to File Demurrer to Evidence
and a Motion for Voluntary Inhibition. The presiding judge
granted the private respondents’ Motion for Voluntary Inhibition
and ordered the case to be re-raffled to another branch. The case
was subsequently re-raffled to the branch of the respondent RTC
judge.6
In an Order dated December 19, 2006, the respondent RTC
judge granted the private respondents’ Motion for Leave to File
Demurrer to Evidence. On January 17, 2007, the private
respondents filed their Demurrer to Evidence7 praying for the
dismissal of the criminal cases instituted against them due to the
failure of the prosecution to establish their guilt beyond
reasonable doubt.
_______________
4 Id., at pp. 96-105.
5 Id., at pp. 106-109.
6 Presiding Judge Concepcion Alarcon-Vergara of the Regional Trial Court of
Manila, Branch 49.
7 Rollo, pp. 215-246.
224
On July 2, 2007, an Order8 was promulgated by the respondent

RTC judge finding the private respondents’ Demurrer to Evidence
to be meritorious, dismissing the Criminal Case Nos. 00-187318
and 00-187319 and acquitting all of the accused in these cases. On
July 20, 2007, the private prosecutor in Criminal Case Nos. 00-
187318 and 00-187319 moved for a reconsideration of the July 2,
2007 Order but the same was denied by the respondent RTC
judge in an Order9 dated October 19, 2007.10
Surprisingly, and considering that hundreds of

millions of Orient Commercial Banking Corporation
(OCBC) depositors’ money appear to have been lost —

which must have contributed to the bank’s being placed
under receivership, no motion for reconsideration of the
July 2, 2007 Order granting respondents’ demurrer to
evidence was filed by the handling public prosecutor,
Manila Prosecutor Marlo B. Campanilla (Campanilla).
Only complainant Philippine Deposit Insurance
Corporation (PDIC) filed a Motion for Reconsideration, and
the same lacked Campanilla’s approval and/or conformé;
the copy of the Motion for Reconsideration filed with the
RTC11 does not bear Campanilla’s approval/conformé;
instead, it indicates that he was merely furnished with a
copy of the motion by registered mail.12 Thus, while the
prosecution’s copy of PDIC’s
_______________
8 Id., at pp. 339-350. The decretal portion of the Order reads, thus:
WHEREFORE, in view of the foregoing, and finding the Demurrer to
Evidence meritorious, the same is hereby granted. The Informations
against accused Jose C. Go, Aida C. De la Rosa and Felicitas D. Nicomedes
are hereby DISMISSED and all said accused are ACQUITTED of the
charge.
SO ORDERED.
9 Id., at pp. 405-406.
10 Id., at pp. 86-88.
11 Records, Vol. II, pp. 501-555.
12 Id., at p. 554.
225
Motion for Reconsideration13 bore Campanilla’s subsequent

approval and conformity, that which was actually filed by
PDIC with the RTC on July 30, 2007 did not contain the
public prosecutor’s written approval and/or conformity.
Ruling of the Court of Appeals
On January 4, 2008, the prosecution, through the Office

of the Solicitor General (OSG), filed an original Petition for
Certiorari14 with the CA assailing the July 2, 2007 Order of
the trial court. It claimed that the Order was issued with
grave abuse of discretion amounting to lack or excess of
jurisdiction; that it was issued with partiality; that the
prosecution was deprived of its day in court; and that the
trial court disregarded the evidence presented, which
undoubtedly showed that respondents committed the crime
of estafa through falsification of commercial documents.
On September 30, 2009, the CA issued the assailed
Decision with the following decretal portion:
WHEREFORE, in view of the foregoing premises, the petition

filed in this case is hereby DENIED and the assailed Orders of
the respondent RTC judge are AFFIRMED and deemed final and
executory.
SO ORDERED.15
Notably, in dismissing the Petition, the appellate court

held that the assailed July 2, 2007 Order of the trial court
became final since the prosecution failed to move for the
reconsideration thereof, and thus double jeopardy attached.
The CA declared thus —
_______________
13 Rollo, pp. 351-404.
14 Id., at pp. 407-479.
15 Id., at p. 92.
226
More important than the fact that double jeopardy already

attaches is the fact that the July 2, 2007 Order of the trial court
has already attained finality. This Order was received by the
Office of the City Prosecutor of Manila on July 3, 2007 and by the
Private Prosecutor on July 5, 2007. While the Private Prosecutor
filed a Motion for Reconsideration of the said Order, the Public

Prosecutor did not seek for the reconsideration thereof. It is the
Public Prosecutor who has the authority to file a Motion for
Reconsideration of the said order and the Solicitor General who
can file a petition for certiorari with respect to the criminal aspect
of the cases. The failure of the Public Prosecutor to file a Motion
for Reconsideration on or before July 18, 2007 and the failure of
the Solicitor General to file a Petition for Certiorari on or before
September 1, 2007 made the order of the trial court final.
As pointed out by the respondents, the Supreme Court ruled
categorically on this matter in the case of Mobilia Products, Inc.
vs. Umezawa (452 SCRA 736), as follows:
“In a criminal case in which the offended party is the State, the
interest of the private complainant or the offended party is
limited to the civil liability arising therefrom. Hence, if a criminal
case is dismissed by the trial court or if there is an acquittal, a
reconsideration of the order of dismissal or acquittal may be
undertaken, whenever legally feasible, insofar as the criminal
aspect thereof is concerned and may be made only by the public
prosecutor; or in the case of an appeal, by the State only, through
the OSG. The private complainant or offended party may not
undertake such motion for reconsideration or appeal on the
criminal aspect of the case. However, the offended party or
private complainant may file a motion for reconsideration of such
dismissal or acquittal or appeal therefrom but only insofar as the
civil aspect thereof is concerned. In so doing, the private
227
complainant or offended party need not secure the conformity of

the public prosecutor. If the court denies his motion for
reconsideration, the private complainant or offended party may
appeal or file a petition for certiorari or mandamus, if grave abuse
amounting to excess or lack of jurisdiction is shown and the
aggrieved party has no right of appeal or given an adequate
remedy in the ordinary course of law.”16
In addition, the CA ruled that the prosecution failed

to demonstrate that the trial court committed grave abuse
of discretion in granting the demurrer, or that it was
denied its day in court; that on the contrary, the
prosecution was afforded every opportunity to present its
evidence, yet it failed to prove that respondents committed
the crime charged.
The CA further held that the prosecution failed to
present a witness who could testify, based on personal
knowledge, that the loan documents were falsified by the
respondents; that the prosecution should not have relied on
“letters and unverified ledgers,” and it “should have trailed
the money from the beginning to the end;”17 that while the
documentary evidence showed that the signatures in the
loan documents were falsified, it has not been shown who
falsified them. It added that since only two of the alleged
13 manager’s checks were being questioned, there arose
reasonable doubt as to whether estafa was committed, as to
these two checks; instead, there is an “inescapable
possibility that an honest mistake was made in the
preparation of the two questioned manager’s checks since
these checks were made out to the names of different
payees and not in the names of the alleged applicants of
the loans.”18 The appellate court added —
_______________
16 Id., at pp. 91-92.
17 Id., at p. 89.
18 Id., at p. 90.
228
x x x Finally, the petitioner failed to present evidence on where

the money went after they were deposited to the checking account
of the private respondent Jose C. Go. There is only a vague
reference that the money was used to fund the personal checks
earlier issued by x x x Go. The petitioner should have gone further
and identified who were the recipients of these personal checks
and if these personal checks were negotiated and honored. With
all the resources of the public prosecutor’s office, the petitioner
should have done a better job of prosecuting the cases filed
against the private respondents. It is a shame that all the efforts
of the government will go for naught due to the negligence of the
public prosecutors in tying up the chain of evidence in a criminal
case.19
As a final point, the CA held that if errors were made

in the appreciation of evidence, these are mere errors of
judgment — and not errors of jurisdiction — which may no
longer be reviewed lest respondents be placed in double
jeopardy.
The OSG moved for reconsideration, but in the assailed
January 22, 2010 Resolution, the CA stood its ground.
Hence, the instant Petition was instituted.
Issues
In the Petition, it is alleged that —
THE COURT OF APPEALS COMMITTED A
REVERSIBLE ERROR WHEN IT RULED THAT —
(a) NO GRAVE ABUSE OF DISCRETION WAS
COMMITTED BY RESPONDENT RTC JUDGE IN
GRANTING THE DEMURRER TO EVIDENCE;
(b) THE ORDER OF ACQUITTAL HAS ALREADY
ATTAINED FINALITY WHEN IT WAS NOT
CHALLENGED IN A TIMELY AND APPROPRIATE
MANNER; AND
_______________
19 Id.
229
(c) THE LOWER COURT MERELY COMMITTED

ERRORS OF JUDGMENT AND NOT OF
JURISDICTION.20
Petitioner’s Arguments
Petitioner argues that the public prosecutor actually
filed a Motion for Reconsideration of the assailed July 2,
2007 Order of the trial court granting respondents’
demurrer — that is, by “joining” the private prosecutor
PDIC in the latter’s July 20, 2007 Motion for
Reconsideration. Nonetheless, it admitted that while it
joined PDIC in the latter’s July 20, 2007 Motion for
Reconsideration, it had only until July 18, 2007 within
which to seek reconsideration since it received the order on
July 3, 2007, while the private prosecutor received a copy of
the Order only on July 5, 2007; it pleads that the two-day
delay in filing the motion should not prejudice the interests
of the State and the People.
Petitioner assumes further that, since it was belated in
its filing of the required Motion for Reconsideration, it may
have been tardy as well in the filing of the Petition for
Certiorari with the CA, or C.A.-G.R. S.P. No. 101823. Still,
it begs the Court to excuse its mistake in the name of
public interest and substantial justice, and in order to
maintain stability in the banking industry given that the
case involved embezzlement of large sums of depositors’
money in OCBC.
Petitioner goes on to argue that the CA erred in
affirming the trial court’s finding that demurrer was
proper. It claims that it was able to prove the offense
charged, and it has shown that respondents were
responsible therefor.
In its Reply,21 petitioner claims that the July 2, 2007
Order of the trial court granting respondents’ demurrer
was null and void to begin with, and thus it could not have
attained
_______________
20 Id., at p. 25.
21 Id., at pp. 583-607.
230
finality. It adds that contrary to respondents’ submission,

the private prosecutor’s Motion for Reconsideration
contained the public prosecutor’s written conformity, and
that while it may be said that the public prosecutor’s
motion was two days late, still the trial court took
cognizance thereof and passed upon its merits; by so doing,
the trial court thus validated the public prosecutor’s action
of adopting the private prosecutor’s Motion for
Reconsideration as his own. This being the case, it should
therefore be said that the prosecution’s resultant Petition
for Certiorari with the CA on January 4, 2008 was timely
filed within the required 60-day period, counted from
November 5, 2007, or the date the public prosecutor
received the trial court’s October 19, 2007 Order denying
the Motion for Reconsideration.
Petitioner submits further that a Petition for Certiorari
was the only available remedy against the assailed Orders
of the trial court, since the granting of a demurrer in
criminal cases is tantamount to an acquittal and is thus
immediately final and executory. It adds that the denial of
its right to due process is apparent since the trial court’s
grant of respondents’ demurrer was purely capricious and
done with evident partiality, despite the prosecution
having adduced proof beyond reasonable doubt that they
committed estafa through falsification of commercial
documents.
Petitioner thus prays that the assailed CA dispositions
be reversed and that Criminal Case Nos. 00-187318 and
00-187319 be reinstated for further proceedings.
Respondents’ Arguments
Praying that the Petition be denied, respondents Jose C.

Go (Go), Aida C. Dela Rosa (Dela Rosa), and Felecitas D.
Necomedes (Nicomedes) — the accused in Criminal Case
Nos. 00-187318 and 00-187319 — argue in their
Comment22 that
_______________
22 Id., at pp. 533-564.
231
the trial court’s grant of their demurrer to evidence

amounts to an acquittal; any subsequent prosecution for
the same offense would thus violate their constitutional
right against double jeopardy. They add that since the
public prosecutor failed to timely move for the
reconsideration of the trial court’s July 2, 2007 Order, it
could not have validly filed an original Petition for
Certiorari with the CA. Nor can it be said that the
prosecution and the private prosecutor jointly filed the
latter’s July 20, 2007 Motion for Reconsideration with the
trial court because the public prosecutor’s copy of PDIC’s
motion was merely sent through registered mail. Therefore
if it were true that the public prosecutor gave his approval
or conformity to the motion, he did so only after receiving
his copy of the motion through the mail, and not at the
time the private prosecutor actually filed its Motion for
Reconsideration with the trial court.
Next, respondents submit that petitioner was not deprived
of its day in court; the grant of their demurrer to evidence
is based on a fair and judicious determination of the facts
and evidence by the trial court, leading it to conclude that
the prosecution failed to meet the quantum of proof
required to sustain a finding of guilt on the part of
respondents. They argue that there is no evidence to show
that OCBC released loan proceeds to the alleged borrowers,
Timmy’s, Inc. and Asia Textile Mills, Inc., and that these
loan proceeds were then deposited in the account of
respondent Go. Since no loans were granted to the two
borrowers, then there is nothing for Go to misappropriate.
With respect to the two manager’s checks issued to
Philippine Recycler’s Inc. and Zeta International,
respondents contend that these may not be considered to be
the loan proceeds pertaining to Timmy’s, Inc. and Asia
Textile Mills, Inc.’s loan application because these checks
were not in the name of the alleged borrowers Timmy’s,
Inc. and Asia Textile Mills, Inc. as payees. Besides, these
two checks were never negotiated with OCBC, either for
encashment or deposit, since they did not bear the
respective indorsements or signatures and account
numbers of the pay-
232
ees; thus, they could not be considered to have been

negotiated nor deposited with Go’s account with OCBC.
Next, respondents argue that the cash deposit slip used
to deposit the alleged loan proceeds in Go’s OCBC account
is questionable, since under banking procedure, a cash
deposit slip may not be used to deposit checks. Moreover, it
has not been shown who prepared the said cash deposit
slip. Respondents further question the validity and
authenticity of the other documentary evidence presented,
such as the Subsidiary Ledger, Cash Proof,23 Schedule of
Returned Checks and Other Cash Items (RTCOCI), etc.
Finally, respondents claim that not all the elements of
the crime of estafa under Article 315, par. 1(b) of the
Revised Penal Code have been established; specifically, it
has not been shown that Go received the alleged loan
proceeds, and that a demand was made upon him for the
return thereof.
Our Ruling
The Court grants the Petition.

Criminal Case Nos. 00-187318 and 00-187319 for estafa
through falsification of commercial documents against the
respondents are based on the theory that in 1997, fictitious
loans in favor of two entities — Timmy’s, Inc. and Asia
Textile Mills, Inc. — were approved, after which two
manager’s checks representing the supposed proceeds of
these fictitious loans were issued but made payable to two
different entities — Philippine Recycler’s Inc. and Zeta
International — without any documents issued by the
supposed borrowers Timmy’s, Inc. and Asia Textile Mills,
Inc. assigning the supposed loan proceeds to the two
payees. Thereafter, these two manager’s checks — together
with several others totaling P120,819,475.0024 — were
encashed, and then deposited in the OCBC Savings
_______________
23 Exhibit “W,” Folder of Exhibits.
24 P120,819,000.00, in other portions of the record.
233
Account No. 00810-00108-0 of Go. Then, several automatic

transfer deposits were made from Go’s savings account to
his OCBC Current Account No. 008-00000015-0 which
were then used to fund Go’s previously dishonored personal
checks.
The testimonial and documentary evidence of the
prosecution indicate that OCBC, a commercial bank, was
ordered closed by the BSP sometime in October 1998. PDIC
was designated as OCBC receiver, and it took over the
bank’s affairs, assets and liabilities, records, and collected
the bank’s receivables.
During efforts to collect OCBC’s past due loan
receivables, PDIC as receiver sent demand letters to the
bank’s debtor-borrowers on record, including Timmy’s, Inc.
and Asia Textile Mills, Inc. which appeared to have

obtained unsecured loans of P10 million each, and which
apparently remained unpaid. In response to the demand
letters, Timmy’s, Inc. and Asia Textile Mills, Inc. denied
having obtained loans from OCBC. Timmy’s, Inc., through
its designated representative, claimed that while it is true
that it applied for an OCBC loan, it no longer pursued the
application after it was granted a loan by another bank.
When the OCBC loan documents were presented to
Timmy’s, Inc.’s officers, it was discovered that the
signatures therein of the corporate officers were forgeries.
In their defense and to clarify matters, Timmy’s, Inc.’s
corporate officers executed affidavits and furnished official
documents such as their passports and the corporation’s
Articles of Incorporation containing their respective
signatures to show PDIC that their purported signatures in
the OCBC loan documents were forgeries. After its
investigation into the matter, PDIC came to the conclusion
that the signatures on the Timmy’s, Inc. loan documents
were indeed falsified.25
_______________
25 Rollo, pp. 97-99, 155-156; Annex “C” of the Petition, Complaint-
Affidavit dated September 13, 1999 of Honorio E. Franco, Jr. of PDIC, and
designated Assisting Deputy Liquidator of OCBC, filed before the Office of
the City Prosecutor of Manila; Exhibit “BB,”
234
On the other hand, in a written reply26 to PDIC’s

demand letter, Asia Textile Mills, Inc. vehemently denied
that it applied for a loan with OCBC. On this basis, PDIC
concluded that the Asia Textile Mills, Inc. loan was
likewise bogus. Moreover, PDIC discovered other bogus
loans in OCBC.
Through the falsified loan documents, the OCBC Loan

Committee — composed of Go, who was likewise OCBC
President, respondent Dela Rosa (OCBC Senior Vice
President, or SVP, and Chief Operating Officer, or COO),
Arnulfo Aurellano and Richard Hsu — approved a P10
million unsecured loan purportedly in favor of Timmy’s,
Inc. After deducting finance charges, advance interest and
taxes, Dela Rosa certified a net loan proceeds amounting to
P9,985,075.00 covered by Manager’s Check No.
000000334727 dated February 5, 1997.28 The face of the
check bears the notation “Loan proceeds of CL-484,” the
alpha numeric code (“CL-484”) of which refers to the
purported loan of Timmy’s, Inc.29 However, the payee
thereof was not the purported borrower, Timmy’s,
_______________
Affidavit of Arthur Leong dated September 6, 1999 denying that Timmy’s,
Inc. obtained a loan from OCBC; Exhibit “HH,” Letter of Timmy’s, Inc. to
PDIC denying that it obtained a loan from OCBC; Exhibit “KK,”
Certification issued by the Bureau of Immigration of the travel record of
Artimson Leong, dated July 27, 2005, showing that Artimson Leong,
purported signatory to Timmy’s, Inc.’s OCBC loan documents dated
February 5, 1997, was out of the country at the time he allegedly signed
said loan documents; Transcript of Stenographic Notes (TSN), Arthur
Leong, September 13, 2005.
26 Id., at p. 118; Exhibit “A,” Letter of Asian Textile Mills, Inc. dated
February 2, 1999 signed by Carmen G. So, Vice President for Finance.
27 Id., at p. 136; Exhibit “R.”
28 Exhibit “AA,” OCBC Disclosure Statement dated February 2, 1997,
Folder of Exhibits.
29 Rollo, p. 99; Annex “C” of the Petition, Complaint-Affidavit dated
September 13, 1999 of Honorio E. Franco, Jr. of PDIC, and designated
Assisting Deputy Liquidator of OCBC, filed before the Office of the City
Prosecutor of Manila.
235
Inc., but a certain “Zeta International.” Likewise, on even

date, Manager’s Check No. 000000334030 for P9,985,075.00
was issued, and on its face is indicated “Loan proceeds of
CL-477,” which alpha numeric code (“CL-477”) refers to the
purported loan of Asia Textile Mills, Inc.31 Manager’s
Check No. 0000003340 was made payable not to Asia
Textile Mills, Inc., but to “Phil. Recyclers Inc.”
On the same day that the subject manager’s checks were
issued, or on February 5, 1997, it appears that the two
checks — together with other manager’s checks totaling
P120,819,475.00 — were encashed; on the face of the
checks, the word “PAID” was stamped, and at the dorsal
portion thereof there were machine validations showing
that Manager’s Check No. 0000003347 was presented at
6:16 p.m, while Manager’s Check No. 0000003340 was
presented at 6:18 p.m.32
After presentment and encashment, the amount of
P120,819,475.00 — which among others included the
P9,985,075.00 proceeds of the purported Timmy’s, Inc. loan
and the P9,985,075.00 proceeds of the supposed Asia
Textile Mills, Inc. loan — was deposited in Go’s OCBC
Savings Account No. 00810-00108-0 at OCBC Recto
Branch, apparently on instructions of respondent Dela
Rosa.33 The deposit is covered by OCBC Cash Deposit
Slip34 dated February 5, 1997,
_______________
30 Id., at p. 129; Exhibit “K.”
31 Id., at pp. 103, 122, 123; Annex “C” of the Petition, Complaint-
Affidavit dated September 13, 1999 of Honorio E. Franco, Jr. of PDIC, and
designated Assisting Deputy Liquidator of OCBC, filed before the Office of
the City Prosecutor of Manila; Exhibit “C,” OCBC Promissory Note dated
February 5, 1997 purportedly executed by Asian Textile Mills, Inc.;
Exhibit “D,” OCBC Disclosure Statement dated February 5, 1997, Folder
of Exhibits.
32 TSN, Honorio E. Franco, Jr., October 8, 2002, pp. 6-20; TSN,
Virginia Rowella Famirin, June 29, 2005, pp. 6-11.
33 Id.; Exhibit “T,” Folder of Exhibits.
34 Rollo, p. 137; Exhibit “S,” id.
236
with the corresponding machine validation thereon

indicating that the deposit was made at 6:19 p.m.35 The
funds were credited to Go’s savings account.36
It appears that previously, or on February 4, 1997, seven
OCBC checks issued by Go from his personal OCBC
Current Account No. 008-00-000015-0 totaling
P145,488,274.48 were dishonored for insufficiency of
funds.37 After Manager’s Check Nos. 0000003340 and
0000003347, along with several other manager’s checks,
were encashed and the proceeds thereof deposited in Go’s
OCBC Savings Account No. 00810-00108-0 with automatic
transfer feature to his OCBC Current Account No. 008-00-
000015-0, funds were automatically transferred from the
said savings account to the current account, which at the
time contained only a total amount of P26,332,303.69. Go’s
OCBC Current Account No. 008-00-000015-0 was credited
with P120,819,475.00, and thereafter the account
registered a balance of P147,151,778.69. The seven
previously dishonored personal checks were then presented
for clearing, and were subsequently cleared that same day,
or on February 5, 1997.38 Apparently, they were partly
funded by the P120,819,475.00 manager’s check deposits —
which include Manager’s Check Nos. 0000003340 and
0000003347.
_______________
35 Id.; Exhibits “S-9” and “S-10,” id.
36 TSN, Honorio E. Franco, Jr., October 8, 2002, p. 20; Exhibit “T,”
Subsidiary Ledger of Go’s OCBC Savings Account No. 00810-00108-0, id.
37 TSN, Honorio E. Franco, Jr., October 29, 2002, pp. 3-7; TSN,
Virginia Rowella Famirin (Cashier of OCBC Recto Branch), June 28, 2005,
pp. 15-25, 32; Exhibit “X,” OCBC Recto Branch Schedule of Returned
Checks and Other Cash Items (RTCOCI) dated February 4, 1997, id.
38 Id.; Exhibits “T,” “U,” “V” and “W;” id; Honorio E. Franco, Jr.,
October 8, 2002 and October 29, 2005, pp. 22-33 and 4-15, respectively;
TSN, Virginia Rowella Famirin, June 28, 2005, pp. 59-68.
237
During the examination and inquiry into OCBC’s

operations, or on January 28, 1998, Go issued and sent a
letter39 to the BSP, through Maria Dolores Yuviengco,
Director of the Department of Commercial Banks,
specifically requesting that the BSP refrain from sending
any communication to Timmy’s, Inc. and Asia Textile Mills,
Inc., among others. He manifested that he was “willing to
assume the viability and full payment” of the accounts
under investigation and examination, including the
Timmy’s, Inc. and Asia Textile Mills, Inc. accounts.
Demurrer to the evidence40 is “an objection by one of the
parties in an action, to the effect that the evidence which
his
_______________
39 Exhibit “DD,” Folder of Exhibits.
40 Under Section 23, Rule 119 of the Rules of Court:
Sec. 23. Demurrer to evidence.—After the prosecution rests its case,
the court may dismiss the action on the ground of insufficiency of evidence
(1) on its own initiative after giving the prosecution the opportunity to be
heard or (2) upon demurrer to evidence filed by the accused with or
without leave of court.
If the court denies the demurrer to evidence filed with leave of court,
the accused may adduce evidence in his defense. When the demurrer to
evidence is filed without leave of court, the accused waives the right to
present evidence and submits the case for judgment on the basis of the
evidence for the prosecution.
The motion for leave of court to file demurrer to evidence shall
specifically state its grounds and shall be filed within a non-extendible
period of five (5) days after the prosecution rests its case. The prosecution
may oppose the motion within a non-extendible period of five (5) days from
its receipt.
If leave of court is granted, the accused shall file the demurrer to
evidence within a non-extendible period of ten (10) days from notice. The
prosecution may oppose the demurrer to evidence within a similar period
from its receipt.
The order denying the motion for leave of court to file demurrer to
evidence or the demurrer itself shall not be reviewable by appeal or by
certiorari before judgment.
238
adversary produced is insufficient in point of law, whether

true or not, to make out a case or sustain the issue. The
party demurring challenges the sufficiency of the whole
evidence to sustain a verdict. The court, in passing upon
the sufficiency of the evidence raised in a demurrer, is
merely required to ascertain whether there is competent or
sufficient evidence to sustain the indictment or to support a
verdict of guilt. x x x Sufficient evidence for purposes of
frustrating a demurrer thereto is such evidence in
character, weight or amount as will legally justify the
judicial or official action demanded according to the
circumstances. To be considered sufficient therefore, the
evidence must prove: (a) the commission of the crime, and
(b) the precise degree of participation therein by the
accused.”41 Thus, when the accused files a demurrer, the
court must evaluate whether the prosecution evidence is
sufficient enough to warrant the conviction of the accused
beyond reasonable doubt.42
“The grant or denial of a demurrer to evidence is left to

the sound discretion of the trial court, and its ruling on the
matter shall not be disturbed in the absence of a grave
abuse of such discretion.”43 As to effect, “the grant of a
demurrer to evidence amounts to an acquittal and cannot
be appealed because it would place the accused in double
jeopardy. The order is reviewable only by certiorari if it was
issued with grave abuse of discretion amounting to lack or
excess of jurisdiction.”44 When grave abuse of discretion is
present, an order granting a demurrer becomes null and
void.
_______________
41 Gutib v. Court of Appeals, 371 Phil. 293, 300 and 305; 312 SCRA
365, 376 (1999).
42 See Bautista v. Cuneta-Pangilinan, G.R. No. 189754, October 24,
2012, 684 SCRA 521, 538.
43 Te v. Court of Appeals, 400 Phil. 127, 139; 346 SCRA 327, 338
(2000).
44 People v. Sandiganbayan (Third Division), G.R. No. 174504, March
21, 2011, 645 SCRA 726, 731.
239
As a general rule, an order granting the accused’s demurrer to

evidence amounts to an acquittal. There are certain exceptions,
however, as when the grant thereof would not violate the
constitutional proscription on double jeopardy. For instance, this
Court ruled that when there is a finding that there was grave
abuse of discretion on the part of the trial court in dismissing a
criminal case by granting the accused’s demurrer to evidence, its
judgment is considered void, as this Court ruled in People v.
Laguio, Jr.:
By this time, it is settled that the appellate court may review
dismissal orders of trial courts granting an accused’s demurrer
to evidence. This may be done via the special civil action of
certiorari under Rule 65 based on the ground of grave abuse of

discretion, amounting to lack or excess of jurisdiction. Such
dismissal order, being considered void judgment, does not
result in jeopardy. Thus, when the order of dismissal is
annulled or set aside by an appellate court in an original
special civil action via certiorari, the right of the accused
against double jeopardy is not violated.
In the instant case, having affirmed the CA finding grave
abuse of discretion on the part of the trial court when it granted
the accused’s demurrer to evidence, we deem its consequent order
of acquittal void.45
Grave abuse of discretion is defined as “that capricious

or whimsical exercise of judgment which is tantamount to
lack of jurisdiction. ‘The abuse of discretion must be patent
and gross as to amount to an evasion of a positive duty or a
virtual refusal to perform a duty enjoined by law, or to act
at all in contemplation of law, as where the power is
exercised in an arbitrary and despotic manner by reason of
passion and hos-
_______________
45 Mupas v. People, G.R. No. 189365, October 12, 2011, 659 SCRA 56,
67.
240
tility.’ The party questioning the acquittal of an accused

should be able to clearly establish that the trial court
blatantly abused its discretion such that it was deprived of
its authority to dispense justice.”46
In the exercise of the Court’s “superintending control
over inferior courts, we are to be guided by all the
circumstances of each particular case ‘as the ends of justice
may require.’ So it is that the writ will be granted where
necessary to prevent a substantial wrong or to do

substantial justice.”47
Guided by the foregoing pronouncements, the Court
declares that the CA grossly erred in affirming the trial
court’s July 2, 2007 Order granting the respondent’s
demurrer, which Order was patently null and void for
having been issued with grave abuse of discretion and
manifest irregularity, thus causing substantial injury to
the banking industry and public interest. The Court finds
that the prosecution has presented competent evidence to
sustain the indictment for the crime of estafa through
falsification of commercial documents, and that
respondents appear to be the perpetrators thereof. In
evaluating the evidence, the trial court effectively failed
and/or refused to weigh the prosecution’s evidence against
the respondents, which it was duty-bound to do as a trier of
facts; considering that the case involved hundreds of
millions of pesos of OCBC depositors’ money — not to
mention that the banking industry is impressed with public
interest, the trial court should have conducted itself with
circumspection and engaged in intelligent reflection in
resolving the issues.
The elements of estafa through abuse of confidence
under Article 315, par. 1(b) of the Revised Penal Code48
are: “(a) that
_______________
46 Bangayan, Jr. v. Bangayan, G.R. Nos. 172777 & 172792, October
19, 2011, 659 SCRA 590, 602.
47 Supra note 41 at p. 307; p. 378.
48 Art. 315. Swindling (estafa).—Any person who shall defraud
another by any of the means mentioned hereinbelow shall be punished by:
241
money, goods or other personal property is received by the

offender in trust or on commission, or for administration, or
under any other obligation involving the duty to make
delivery of or to return the same; (b) that there be
misappropriation or conversion of such money or property
by the offender, or denial on his part of such receipt; (c)
that such misappropriation or conversion or denial is to the
prejudice of another; and (d) there is demand by the
offended party to the offender.”49
Obviously, a bank takes its depositors’ money as a loan,
under an obligation to return the same; thus, the term
“demand deposit.”
The contract between the bank and its depositor is governed by

the provisions of the Civil Code on simple loan. Article 1980 of the
Civil Code expressly provides that “x x x savings x x x deposits of
money in banks and similar institutions shall be governed by the
provisions concerning simple loan.” There is a debtor-creditor
relationship between the bank and its depositor. The bank is the
debtor and the depositor is the creditor. The depositor lends the
bank money and the bank agrees to pay the depositor on demand.
x x x 50
_______________
xxxx
1. With unfaithfulness or abuse of confidence, namely:
xxxx
(b) By misappropriating or converting, to the prejudice of another,
money, goods, or any other personal property received by the offender in
trust, or on commission, or for administration, or under any other
obligation involving the duty to make delivery of, or to return the same,
even though such obligation be totally or partially guaranteed by a bond;
or by denying having received such money, goods, or other property.
49 Magtira v. People, G.R. No. 170964, March 7, 2012, 667 SCRA 607,
618-619.
50 Central Bank of the Philippines v. Citytrust Banking Corporation, G.R.

No. 141835, February 4, 2009, 578 SCRA 27, 32, citing
242
Moreover, the banking laws impose high standards on

banks in view of the fiduciary nature of banking. “This
fiduciary relationship means that the bank’s obligation to
observe ‘high standards of integrity and performance’ is
deemed written into every deposit agreement between a
bank and its depositor. The fiduciary nature of banking
requires banks to assume a degree of diligence higher than
that of a good father of a family.”51
In Soriano v. People,52 it was held that the President of a
bank is a fiduciary with respect to the bank’s funds, and he
holds the same in trust or for administration for the bank’s
benefit. From this, it may be inferred that when such bank
president makes it appear through falsification that an
individual or entity applied for a loan when in fact such
individual or entity did not, and the bank president obtains
the loan proceeds and converts the same, estafa is
committed.
Next, regarding misappropriation, the evidence tends to
establish that Manager’s Check Nos. 0000003340 and
0000003347 were encashed, using the bank’s funds which
clearly belonged to OCBC’s depositors, and then deposited
in Go’s OCBC Savings Account No. 00810-00108-0 at
OCBC Recto Branch — although he was not the named
payee therein. Next, the money was automatically
transferred to Go’s OCBC Current Account No. 008-00-
000015-0 and used to fund his seven previously-issued
personal checks totaling P145,488,274.48, which checks
were dishonored the day before. Simply put, the evidence
strongly indicates that Go converted OCBC funds to his
own personal use and benefit. “The words ‘convert’ and
‘misappropriate’ connote an act of using or disposing of
another’s property as if it were one’s own, or of devoting it

to a purpose or use different from that agreed
_______________
The Consolidated Bank & Trust Corporation v. Court of Appeals, 457
Phil. 688, 705; 410 SCRA 562, 574 (2003).
51 Id., at p. 706.
52 G.R. No. 162336, February 1, 2010, 611 SCRA 191, 210-211.
243
upon. To misappropriate for one’s own use includes not

only conversion to one’s personal advantage, but also every
attempt to dispose of the property of another without right.
x x x In proving the element of conversion or
misappropriation, a legal presumption of misappropriation
arises when the accused fails to deliver the proceeds of the
sale or to return the items to be sold and fails to give an
account of their whereabouts. Thus, the mere presumption
of misappropriation or conversion is enough to conclude
that a probable cause exists for the indictment x x x.”53
As to the third element of estafa, there is no question
that as a consequence of the misappropriation of OCBC’s
funds, the bank and its depositors have been prejudiced;
the bank has been placed under receivership, and the
depositors’ money is no longer under their unimpeded
disposal.
Finally, on the matter of demand, while it has not been
shown that the bank demanded the return of the funds, it
has nevertheless been held that “[d]emand is not an
element of the felony or a condition precedent to the filing
of a criminal complaint for estafa. Indeed, the accused may
be convicted of the felony under Article 315, paragraph 1(b)
of the Revised Penal Code if the prosecution proved
misappropriation or conversion by the accused of the
money or property subject of the Information. In a
prosecution for estafa, demand is not necessary where there

is evidence of misappropriation or conversion.”54 Thus,
strictly speaking, demand is not an element of the offense
of estafa through abuse of confidence; even a verbal query
satisfies the requirement.55 Indeed, in several
_______________
53 Burgundy Realty Corporation v. Reyes, G.R. No. 181021, December
10, 2012, 687 SCRA 524, 533, 535.
54 Lee v. People, 495 Phil. 239, 250; 455 SCRA 256, 267 (2005); see also
Ceniza-Manantan v. People, 558 Phil. 104, 118; 531 SCRA 364, 376 (2007);
Cosme, Jr. v. People, 538 Phil. 52, 70; 508 SCRA 190, 210 (2006).
55 Asejo v. People, 555 Phil. 106, 114; 528 SCRA 114, 124 (2007), citing
Tubb v. People and Court of Appeals, 101 Phil. 114, 119 (1957).
244
past rulings of the Court, demand was not even included as

an element of the crime of estafa through abuse of
confidence, or under paragraph 1(b).56
On the other hand, the elements of the crime of
falsification of commercial document under Art. 17257 are:
“(1) that
_______________
56 Real v. People, 567 Phil. 14, 21-22; 543 SCRA 15, 19 (2008); Ceniza-
Manantan v. People, supra note 54; Lee v. People, supra note 54.
57 The Revised Penal Code provides:
Art. 171. Falsification by public officer, employee or notary or
ecclesiastic minister.—The penalty of prisión mayor and a fine not to
exceed 5,000 pesos shall be imposed upon any public officer, employee, or
notary who, taking advantage of his official position, shall falsify a
document by committing any of the following acts:
1. Counterfeiting or imitating any handwriting, signature or rubric;
2. Causing it to appear that persons have participated in any act or

proceeding when they did not in fact so participate;
3. Attributing to persons who have participated in an act or
proceeding statements other than those in fact made by them;
4. Making untruthful statements in a narration of facts;
5. Altering true dates;
6. Making any alteration or intercalation in a genuine document
which changes its meaning;
7. Issuing in an authenticated form a document purporting to be a
copy of an original document when no such original exists, or including in
such copy a statement contrary to, or different from, that of the genuine
original; or
8. Intercalating any instrument or note relative to the issuance
thereof in a protocol, registry, or official book.
The same penalty shall be imposed upon any ecclesiastical minister
who shall commit any of the offenses enumerated in the preceding
paragraphs of this article, with respect to any record or document of such
character that its falsification may affect the civil status of persons.
245
the offender is a private individual; (2) that the offender

committed any of the acts of falsification; and (3) that the
act of falsification is committed in a commercial
document.”58 As to estafa through falsification of public,
official or commercial documents, it has been held that —
The falsification of a public, official, or commercial document

may be a means of committing Estafa, because before the falsified
document is actually utilized to defraud another, the crime of
Falsification has already been consummated, damage or intent to
cause damage not being an element of the crime of falsification of
public, official or commercial document. In other words, the crime
of falsification has already existed. Actually utilizing that falsified
public, official or commercial document to defraud another is
estafa. But the damage is caused by the commission of Estafa, not
by the falsification of the document. Therefore, the falsification of

the public, offi-
_______________
Art. 172. Falsification by private individual and use of falsified documents.—
The penalty of prisión correccional in its medium and maximum periods and a fine
of not more than 5,000 pesos shall be imposed upon:
1. Any private individual who shall commit any of the falsifications
enumerated in the next preceding article in any public or official document or
letter of exchange or any other kind of commercial document; and
2. Any person who, to the damage of a third party, or with the intent to cause
such damage, shall in any private document commit any of the acts of falsification
enumerated in the next preceding article.
Any person who shall knowingly introduce in evidence in any judicial
proceeding or to the damage of another or who, with the intent to cause such
damage, shall use any of the false documents embraced in the next preceding
article, or in any of the foregoing subdivisions of this article, shall be punished by
the penalty next lower in degree.
58 Domingo v. People, G.R. No. 186101, October 12, 2009, 603 SCRA 488, 502.
246
cial or commercial document is only a necessary means to commit

the estafa.59
Simulating OCBC loan documents — such as loan

applications, credit approval memorandums, and the
resultant promissory notes and other credit documents —
by causing it to appear that persons have participated in
any act or proceeding when they did not in fact so
participate, and by counterfeiting or imitating their
handwriting or signatures constitute falsification of
commercial and public documents.
As to the respondents’ respective participation in the
commission of the crime, suffice it to state that as the
beneficiary of the proceeds, Go is presumed to be the
author of the falsification. The fact that previously, his
personal checks totaling P145,488,274.48 were dishonored,

and the day after, the amount of P120,819,475.00 was
immediately credited to his account, which included funds
from the encashment of Manager’s Check Nos. 0000003340
and 0000003347 or the loan proceeds of the supposed
Timmy’s, Inc. and Asia Textile Mills, Inc. accounts, bolsters
this view. “[W]henever someone has in his possession
falsified documents [which he used to] his advantage and
benefit, the presumption that he authored it arises.”60
x x x This is especially true if the use or uttering of the forged

documents was so closely connected in time with the forgery that
the user or possessor may be proven to have the capacity of
committing the forgery, or to have close connection with the
forgers, and therefore, had complicity in the forgery.
_______________
59 Ambito v. People, G.R. No. 127327, February 13, 2009, 579 SCRA 69, 100-
101, citing Reyes, The Revised Penal Code, Book II, p. 226, 2001 ed.
60 Chua v. People, G.R. No. 183132, February 8, 2012, 665 SCRA 468, 476.
247
In the absence of a satisfactory explanation, one who is found

in possession of a forged document and who used or uttered it is
presumed to be the forger.
Certainly, the channeling of the subject payments via false
remittances to his savings account, his subsequent withdrawals of
said amount as well as his unexplained flight at the height of the
bank’s inquiry into the matter more than sufficiently establish
x x x involvement in the falsification.61
Likewise, Dela Rosa’s involvement in the scheme has

been satisfactorily shown. As OCBC SVP and COO and
member of the OCBC Loan Committee, she approved the
purported Timmy’s, Inc.’s loan, and she certified and signed
the February 2, 1997 OCBC Disclosure Statement and
other documents.62 She likewise gave specific instructions

to deposit the proceeds of Manager’s Check Nos.
0000003340 and 0000003347, among others, in Go’s OCBC
Savings Account No. 00810-00108-0 at OCBC Recto
Branch.63 Finally, she was a signatory to the two checks.64
On the other hand, respondent Nicomedes as OCBC
Senior Manager for Corporate Accounts — Account
Management Group, among others prepared the Credit
Approval Memorandum and recommended the approval of
the loans.65
In granting the demurrer, the trial court — in its
assailed July 2, 2007 Order — concluded that based on the
evidence adduced, the respondents could not have falsified
the loan documents pertaining to Timmy’s, Inc. and Asia
Textile Mills, Inc. since the individuals who assert that
their handwriting and signatures were forged were not
presented in court to
_______________
61 Id., at pp. 476-477, citing Serrano v. Court of Appeals, 452 Phil. 801,
819-820; 404 SCRA 639, 651 (2003).
62 Exhibits “D,” “Y,” “AA,” Folder of Exhibits.
63 TSN, Virginia Rowella Famirin, June 29, 2005, pp. 6-11.
64 TSN, Virginia Rowella Famirin, June 28, 2005, pp. 19-23.
65 Exhibit “Y,” Folder of Exhibits.
248
testify on such claim; that the prosecution witnesses —

Honorio E. Franco, Jr. (Franco) of PDIC, the designated
Assisting Deputy Liquidator of OCBC, and Virginia
Rowella Famirin (Famirin), Cashier of OCBC Recto Branch
— were not present when the loan documents were
executed and signed, and thus have no personal knowledge
of the circumstances surrounding the alleged falsification;
and as high-ranking officers of OCBC, respondents could
not be expected to have prepared the said documents. The

evidence, however, suggests otherwise; it shows that
respondents had a direct hand in the falsification and
creation of fictitious loans. The loan documents were even
signed by them. By disregarding what is evident in the
record, the trial court committed substantial wrong that
frustrates the ends of justice and adversely affects the
public interest. The trial court’s act was so patent and
gross as to amount to an evasion of positive duty or to a
virtual refusal to perform a duty enjoined by law.
An act of a court or tribunal may only be considered as

committed in grave abuse of discretion when the same was
performed in a capricious or whimsical exercise of judgment
which is equivalent to lack of jurisdiction. The abuse of discretion
must be so patent and gross as to amount to an evasion of positive
duty or to a virtual refusal to perform a duty enjoined by law, or
to act at all in contemplation of law, as where the power is
exercised in an arbitrary and despotic manner by reason of
passion and personal hostility. x x x66
On the charge of estafa, the trial court declared that

since the payees of Manager’s Check Nos. 0000003340 and
0000003347 were not Asia Textile Mills, Inc. and Timmy’s,
Inc., respectively, but other entities — Phil. Recyclers Inc.
and Zeta International, and there are no documents drawn
by the borrowers assigning the loan proceeds to these two
enti-
_______________
66 Litton Mills, Inc. v. Galleon Trader, Inc., 246 Phil. 503, 509; 163
SCRA 489, 494 (1988).
249
ties, then it cannot be said that there were loan proceeds

released to these borrowers. The trial court added that it is
doubtful that the two manager’s checks were presented and

negotiated for deposit in Go’s savings account, since they do
not contain the required indorsements of the borrowers, the
signatures of the tellers and individuals/payees who
received the checks and the proceeds thereof, and the
respective account numbers of the respondents; and the
checks were presented beyond banking hours. The trial
court likewise held that the fact that a cash deposit slip —
and not a check deposit slip — was used to allegedly
deposit the checks raised doubts as to the truth of the
allegation that the manager’s checks were deposited and
credited to Go’s savings account.
The CA echoed the trial court’s observations, adding
that the evidence consisted of mere “letters and unverified
ledgers” which were thus insufficient; that there was an
“inescapable possibility that an honest mistake was made”
in the preparation and issuance of Manager’s Check Nos.
0000003340 and 0000003347, since these two checks are
claimed to be just a few of several checks — numbering
thirteen in all — the rest of which were never questioned
by the receiver PDIC. The appellate court added that the
prosecution should have presented further evidence as to
where the money went after being deposited in Go’s
savings and current accounts, identifying thus the
recipients of Go’s personal checks.
What the trial and appellate courts disregarded,
however, is that the OCBC funds ended up in the personal
bank accounts of respondent Go, and were used to fund his
personal checks, even as he was not entitled thereto. These,
if not rebutted, are indicative of estafa, as may be seen
from the aforecited Soriano case.
The bank money (amounting to P8 million) which came to the

possession of petitioner was money held in trust or administration
by him for the bank, in his fiduciary capacity as the President of
said bank. It is not accurate to say that petitioner became the
owner of the P8
250
million because it was the proceeds of a loan. That would have

been correct if the bank knowingly extended the loan to petitioner
himself. But that is not the case here. According to the
information for estafa, the loan was supposed to be for another
person, a certain “Enrico Carlos”; petitioner, through falsification,
made it appear that said “Enrico Carlos” applied for the loan
when in fact he (“Enrico Carlos”) did not. Through such
fraudulent device, petitioner obtained the loan proceeds and
converted the same. Under these circumstances, it cannot be said
that petitioner became the legal owner of the P8 million. Thus,
petitioner remained the bank’s fiduciary with respect to that
money, which makes it capable of misappropriation or conversion
in his hands.67
Thus, it is irrelevant that the proceeds of the supposed

loans were made payable to entities other than the alleged
borrowers. Besides, the manager’s checks themselves
indicate that they were the proceeds of the purported
Timmy’s, Inc.’s and Asia Textile Mills, Inc.’s loans, through
the alpha numeric codes specifically assigned to them that
are printed on the face of the checks; the connection
between the checks and the purported loans is thus
established. In the same vein, the CA’s supposition that
there is an “inescapable possibility that an honest mistake
was made in the preparation of the two questioned
manager’s checks” is absurd; even so, the bottom line is
that they were encashed using bank funds, and the
proceeds thereof were deposited in Go’s bank savings and
current accounts and used to fund his personal checks.
Furthermore, as correctly pointed out by petitioner, it is
superfluous to require that the recipients of Go’s personal
checks be identified. For purposes of proving the crime, it
has been shown that Go converted bank funds to his own
personal use when they were deposited in his accounts and
his personal checks were cleared and the funds were

debited from his account. This suffices.
_______________
67 Supra note 52.
251
Likewise, the Court agrees that the prosecution’s

reliance on the supposed loan documents, subsidiary
ledgers, deposit slip, cash proof, RTCOCI and other
documents was proper. They are both public and private
documents which may be received in evidence; notably,
petitioner’s documentary evidence was admitted in full by
the trial court.68 With respect to evidence consisting of
private documents, the presumption remains that “the
recording of private transactions has been fair and regular,
and that the ordinary course of business has been
followed.”69
Go’s January 28, 1998 letter to the BSP stating that he
was “willing to assume the viability and full payment” of
the accounts under examination — which included the
Timmy’s, Inc.’s and Asia Textile Mills, Inc.’s accounts,
among others — is an offer of compromise, and thus an
implied admission of guilt under Rule 130, Section 27 of the
Revised Rules on Evidence.70
In addition, appellant’s act of pleading for his sister-in-law’s

forgiveness may be considered as analogous to an attempt to
compromise, which in turn can be received as an implied
admission of guilt under Section 27, Rule 130 x x x.71
_______________
68 Records, Vol. II, pp. 657-658, Order of the court dated May 29, 2006.
69 New Sampaguita Builders Construction, Inc. (NSBCI) v. Philippine
National Bank, 579 Phil. 483, 513; 435 SCRA 565, 595-596 (2004).
70 Sec. 27. Offer of compromise not admissible.—In civil cases, an

offer of compromise is not an admission of any liability, and is not
admissible in evidence against the offeror.
In criminal cases, except those involving quasi-offenses (criminal
negligence) or those allowed by law to be compromised, an offer of
compromise by the accused may be received in evidence as an implied
admission of guilt.
71 People v. Español, 598 Phil. 793, 807; 579 SCRA 326, 339 (2009).
252
As a result of the Court’s declaration of nullity of the

assailed Orders of the trial court, any dissection of the
truly questionable actions of Prosecutor Campanilla —
which should merit appropriate disciplinary action for they
reveal a patent ignorance of procedure, if not indolence or a
deliberate intention to bungle his own case — becomes
unnecessary. It is conceded that the lack of Campanilla’s
approval and/or conformé to PDIC’s Motion for
Reconsideration should have rendered the trial court’s
assailed Orders final and executory were it not for the fact
that they were inherently null and void; Campanilla’s
irresponsible actions almost cost the People its day in court
and their right to exact justice and retribution, not to
mention that they could have caused immeasurable
damage to the banking industry. Just the same, “[a] void
judgment or order has no legal and binding effect, force or
efficacy for any purpose. In contemplation of law, it is
nonexistent. Such judgment or order may be resisted in
any action or proceeding whenever it is involved. It is not
even necessary to take any steps to vacate or avoid a void
judgment or final order; it may simply be ignored.”72 More
appropriately, the following must be cited:
x x x Clearly, the assailed Order of Judge Santiago was issued

in grave abuse of discretion amounting to lack of jurisdiction. A
void order is no order at all. It cannot confer any right or be the
source of any relief. This Court is not merely a court of law; it is

likewise a court of justice.
To rule otherwise would leave the private respondent without
any recourse to rectify the public injustice brought about by the
trial court’s Order, leaving her with only the standing to file
administrative charges for ignorance of the law against the judge
and the prosecutor. A
_______________
72 Land Bank of the Philippines v. Orilla, G.R. No. 194168, February 13, 2013,
690 SCRA 610, 618-619.
253
party cannot be left without recourse to address a substantive

issue in law. 73
Finally, it must be borne in mind that “[t]he granting

of a demurrer to evidence should x x x be exercised with
caution, taking into consideration not only the rights of the
accused, but also the right of the private offended party to
be vindicated of the wrongdoing done against him, for if it
is granted, the accused is acquitted and the private
complainant is generally left with no more remedy. In such
instances, although the decision of the court may be wrong,
the accused can invoke his right against double jeopardy.
Thus, judges are reminded to be more diligent and
circumspect in the performance of their duties as members
of the Bench x x x.”74
WHEREFORE, the Petition is GRANTED. The
September 30, 2009 Decision and January 22, 2010
Resolution of the Court of Appeals are REVERSED and
SET ASIDE. The July 2, 2007 and October 19, 2007
Orders of the Regional Trial Court of Manila, Branch 49 in
Criminal Case Nos. 00187318 and 00-187319 are declared
null and void, and the said cases are ordered
REINSTATED for the continuation of proceedings.
SO ORDERED.
Carpio (Chairperson), Brion, Perez and Villarama,

Jr.,*** JJ., concur.
Petition granted, judgment and resolution reversed and

set aside.
_______________
73 Narciso v. Sta. Romana-Cruz, 385 Phil. 208, 223; 328 SCRA 505,
519 (2000).
74 Supra note 42 at p. 542.
*** Per Raffle dated August 4, 2014.
254
Notes.—In People v. Sandiganbayan, 447 SCRA 291

(2004), this Court elucidated the general rule that the
grant of a demurrer to evidence operates as an acquittal
and is, thus, final and unappealable. (People vs. Atienza,
673 SCRA 470 [2012])
The resolution of a demurrer to evidence should be left
to the exercise of sound judicial discretion. (Singian, Jr. vs.
Sandiganbayan [3rd Division], 706 SCRA 451 [2013])
——o0o——
© Copyright 2019 Central Book Supply, Inc. All rights reserved.

Jose Go Rule 119

Uploaded by

Copyright:

Available Formats

Jose Go Rule 119

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Jose Go Rule 119

Uploaded by

Copyright:

Available Formats

4/15/2019 SUPREME COURT REPORTS ANNOTATED VOLUME 732

G.R. No. 191015. August 6, 2014.*

Remedial Law; Criminal Procedure; Demurrer to Evidence;

** Also spelled as “Felicitas D. Nicomedes” in some parts of the records.

demurrer thereto is such evidence in character, weight or amount

according to the circumstances. To be considered sufficient

that money, goods or other personal property is received by the

obligation involving the duty to make delivery of or to return the

Criminal Law; Estafa; The words ‘convert’ and

advantage, but also every attempt to dispose of the property of

was not even included as an element of the crime of estafa

commission of Estafa, not by the falsification of the document.

they were inherently null and void; Campanilla’s irresponsible

to be more diligent and circumspect in the performance of their

PETITION for review on certiorari of the decision and

DEL CASTILLO, J.:

On October 14, 1998, the Monetary Board of the Bangko

statutory receiver of OCBC, effectively took charge of OCBC’s

On September 24, 1999, PDIC filed a complaint4 for two (2)

filed against them. A pre-trial was conducted. Thereafter, trial of

On July 2, 2007, an Order8 was promulgated by the respondent

Surprisingly, and considering that hundreds of

(OCBC) depositors’ money appear to have been lost —

Motion for Reconsideration13 bore Campanilla’s subsequent

On January 4, 2008, the prosecution, through the Office

WHEREFORE, in view of the foregoing premises, the petition

Notably, in dismissing the Petition, the appellate court

More important than the fact that double jeopardy already

filed a Motion for Reconsideration of the said Order, the Public

complainant or offended party need not secure the conformity of

In addition, the CA ruled that the prosecution failed

x x x Finally, the petitioner failed to present evidence on where

As a final point, the CA held that if errors were made

(c) THE LOWER COURT MERELY COMMITTED

finality. It adds that contrary to respondents’ submission,

Praying that the Petition be denied, respondents Jose C.

the trial court’s grant of their demurrer to evidence

ees; thus, they could not be considered to have been

The Court grants the Petition.

Account No. 00810-00108-0 of Go. Then, several automatic

and Asia Textile Mills, Inc. which appeared to have

On the other hand, in a written reply26 to PDIC’s

Through the falsified loan documents, the OCBC Loan

Inc., but a certain “Zeta International.” Likewise, on even

with the corresponding machine validation thereon

During the examination and inquiry into OCBC’s

adversary produced is insufficient in point of law, whether

“The grant or denial of a demurrer to evidence is left to

As a general rule, an order granting the accused’s demurrer to

certiorari under Rule 65 based on the ground of grave abuse of

Grave abuse of discretion is defined as “that capricious

tility.’ The party questioning the acquittal of an accused

necessary to prevent a substantial wrong or to do

money, goods or other personal property is received by the

The contract between the bank and its depositor is governed by

50 Central Bank of the Philippines v. Citytrust Banking Corporation, G.R.

Moreover, the banking laws impose high standards on

another’s property as if it were one’s own, or of devoting it

upon. To misappropriate for one’s own use includes not