THIRD DIVISION

G.R. No. 146424. November 18, 2005.

ALBINO JOSEF, petitioner, vs. PEOPLE OF THE PHILIPPINES and AGUSTIN ALARILLA, respondents.

David Rigor Advincula for petitioner.

The Solicitor General for public respondent.

Pablo C. Cruz for private respondent.

SYLLABUS

1. CRIMINAL LAW; VIOLATION OF

2. ID.; ID.; PENALTY; IMPOSITION OF EITHER FINE OR IMPRISONMENT REMAINS ENTIRELY WITHIN THE SOUND DISCRETION OF THE JUDGE TRYING THE CASE. Clearly, the imposition of either a fine or imprisonment remains entirely within the sound discretion of the judge trying the case, based on his assessment of the offender and the facts. Justice Villarama premised his dissent on the absence of a distinction in

3. REMEDIAL LAW; EVIDENCE; BEST EVIDENCE RULE; ACCUSED'S PRODUCTION OF ORIGINAL CHECKS IN OPEN COURT AND ADMISSION THAT OTHERS WERE LOST RENDER PHOTOCOPIES THEREOF PRESENTED BY PROSECUTION ADMISSIBLE UNDER THE BEST EVIDENCE RULE. By admitting that the originals were in his possession and even producing them in open court, petitioner cured whatever flaw might have existed in the prosecution's evidence. The fact that these originals were all stamped "account closed" merely confirmed the allegations of the respondent that the checks were dishonored by reason of the account being closed. Because they were entirely consistent with its main theory, the prosecution correctly adopted these originals as its own evidence. In addition, by petitioner's own admission, five of the original checks were lost, thus rendering the photocopies thereof admissible as exceptions to the Best Evidence Rule.

D E C I S I O N

CORONA, J p:

This is a petition for review on certiorari of a decision of the Court of Appeals in CA-G.R. CR no. 23234, which affirmed the decision of the Regional Trial Court of Malolos Bulacan convicting Albino Josef of 26 counts of violation of

By way of a preliminary clarification, this is a petition for review of the CA's decision affirming Albino Josef's conviction for 26 counts of violation of Nonetheless, petitioner, in filing this petition, incorrectly entitled it Albino Josef v. Agustin Alarilla. In accord with Section 6, Rule 1 of the we have allowed petitioner Josef to subsequently implead the People of the Philippines as respondent in this case.

Now, the facts.

From June to August, 1991, petitioner, a Marikina-based manufacturer and seller of shoes, purchased materials from respondent Agustin Alarilla, a seller of leather products from Meycauayan, Bulacan, for which the former issued a total of 26 postdated checks against his account with the Associated Bank and Far East Bank & Trust Company (Marikina Branches). When private respondent presented these checks for encashment, they were dishonored because the accounts against which they were drawn were closed. Private respondent informed petitioner of the dishonor and demanded payment of their value. After some negotiations, petitioner drew and delivered a new set of postdated checks in replacement of the dishonored ones. Private respondent, in turn, returned to petitioner the originals of the dishonored postdated checks but retained photocopies thereof. When private respondent deposited the replacement checks in his account with the Westmont Bank, these were also dishonored by the drawee bank. As a result, the private respondent filed criminal complaints against petitioner for violation of People v. Josef, Criminal Case Nos. 2113-M-93 to 2138-M-93, for the original 26 postdated checks.

The trial court convicted petitioner on all counts and imposed the penalty of six months for each conviction. The Court of Appeals, in the assailed decision, affirmed the trial court. EcHIAC

Petitioner admits having issued the 26 dishonored checks. However, he claims the following defenses: 1) he has already paid private respondent the amount of the checks in cash; 2) the trial court was incorrect to accept as evidence photocopies of the original checks and 3) he acted in good faith. He likewise adopts the dissenting opinion of CA Justice Martin Villarama, Jr., which states that the penalty of imprisonment was incorrectly imposed on petitioner in the light of

The petition is without merit.

The elements of violation of

1) making, drawing and issuing any check to apply on account or for value;

2) knowledge of the maker, drawer or issuer that at the time of issue he does not have sufficient funds in or credit with the drawee bank for the payment of the check in full upon its presentment; and

3) subsequent dishonor of the check by the drawee bank for insufficiency of funds or credit, or dishonor of the check for the same reason had not the drawer, without any valid cause, ordered the bank to stop payment.

All three elements are present here.

Petitioner categorically admits the fact of issuance of the checks and their dishonor, the first and third elements. He has likewise failed to rebut the statutory presumption of knowledge of insufficient funds, the second element, which attaches if the check is presented and dishonored within 90 days from its issuance. While petitioner alleges to have paid private respondent the amount of the checks, he failed to specify if he had done so within five banking days from receiving notice of the checks' dishonor and to present any evidence of such payment. In addition, his unsubstantiated claim of cash payment contradicts his earlier defense that he had replaced the checks.

Moving onto the procedural aspects of the case, petitioner claims that, under the Best Evidence Rule, the trial court should not have admitted in evidence the photocopies of the checks until after he had been given reasonable notice to produce the originals. The Court of Appeals, in disposing of this contention, said:

However, in the light of the factual milieu in the present recourse, (we) find and so declare that the Court a quo did not commit any reversible error in admitting in evidence the photostatic copies of the subject checks in lieu of the originals thereof in the possession of the Petitioner. It bears stressing that the raison d'etre of the proscription against the admission of secondary evidence in lieu or in substitution of the original thereof is to prevent the commission of fraud on the part of the offeror who is in possession of the best evidence but, in lieu thereof, adduced secondary evidence:

xxx xxx xxx

When he testified in the Court a quo, the Petitioner brought out the originals of the checks and even marked the same in evidence as Exhibits "1" to "21", except five (5) of the subject checks, which he claimed as missing and the Prosecution even adopted the original checks as its evidence:

xxx xxx xxx

The Petitioner admitted, before the Court a quo, that the originals of the subject checks were in his possession. The Petitioner never alleged that the photostatic copies of the checks marked and offered in evidence by the Prosecution were not faithful copies of the originals of the checks. In point of fact, when he testified in the Court a quo, he was shown, by his counsel, the photostatic copies of the subject checks . . . and admitted that the originals of said checks were in his possession on his claim that he had paid the Private Complainant the amount of P600,000.00 in cash and the balance in the form of checks which he drew and issued to the Private Complainant by way of replacement of the aforesaid other checks:

xxx xxx xxx

By his testimony, the Petitioner thereby admitted that the photostatic copies of the checks marked and offered in evidence by the Prosecution were the faithful reproductions of the originals of the checks in his possession. Hence, the Prosecution may mark and offer in evidence the photostatic copies of the checks.

xxx xxx xxx

Having admitted, albeit impliedly, that the photostatic copies of the checks admitted in evidence by the Court a quo were the faithful reproduction of the original copies in his possession, the Petitioner was thus estopped from invoking Section 3, Rule 130 of the Revised Rules of Evidence. cEaCAH

We agree with the Court of Appeals. By admitting that the originals were in his possession and even producing them in open court, petitioner cured whatever flaw might have existed in the prosecution's evidence. The fact that these originals were all stamped "account closed" merely confirmed the allegations of the respondent that the checks were dishonored by reason of the account being closed. Because they were entirely consistent with its main theory, the prosecution correctly adopted these originals as its own evidence. In addition, by petitioner's own admission, five of the original checks were lost, thus rendering the photocopies thereof admissible as exceptions to the Best Evidence Rule.

Regarding petitioner's allegation of good faith, suffice it to say that such a claim is immaterial, the offense in question being malum prohibitum. The gravamen of the offense is the issuance of a bad check and therefore, whether or not malice and intent attended such issuance is unimportant.

In invoking of

In its decision in Eduardo Vaca, v. Court of Appeals the Supreme Court (Second Division) per Mr. Justice V. Mendoza, modified the sentence imposed for violation of

Petitioners are first-time offenders. They are Filipino entrepreneurs who presumably contribute to the national economy. Apparently, they brought this appeal, believing in all good faith, although mistakenly that they had not committed a violation of

In the recent case of Rosa Lim v. People of the Philippines, the Supreme Court en banc, applying Vaca also deleted the penalty of imprisonment and sentenced the drawer of the bounced check to the maximum of the fine allowed by

All courts and judges concerned should henceforth take note of the foregoing policy of the Supreme Court on the matter of the imposition of penalties for violations of

Considerable confusion arose as a result of this circular. Like Justice Villarama, many came to believe that the policy enunciated in this circular was to altogether remove imprisonment as an alternative penalty for violation of for the specific purpose of clarifying exactly what the implications of

The clear tenor and intention of Administrative Order No. 12-2000 is not to remove imprisonment as an alternative penalty, but to lay down a rule of preference in the application of the penalties provided for in B.P. Blg. 22.

The pursuit of this purpose clearly does not foreclose the possibility of imprisonment for violators of B.P. Blg. 22. Neither does it defeat the legislative intent behind the law.

Thus, Blg. 22 such that where the circumstances of both the offense and the offender clearly indicate good faith or a clear mistake of fact without taint of negligence, the imposition of a fine alone should be considered as the more appropriate penalty. Needless to say, the determination of whether the circumstances warrant the imposition of a fine alone rests solely upon the Judge. Should the Judge decide that imprisonment is the more appropriate penalty, . CDHacE

Clearly, the imposition of either a fine or imprisonment remains entirely within the sound discretion of the judge trying the case, based on his assessment of the offender and the facts. Justice Villarama premised his dissent on the absence of a distinction in

WHEREFORE, the petition is hereby DENIED. The decision of the Court of Appeals in CA-G.R. CR No. 23234 is hereby AFFIRMED.

Costs against petitioner.

SO ORDERED.

Panganiban, Carpio Morales and Garcia, JJ., concur.

Sandoval-Gutierrez, J., is on leave.

Footnotes

** This case is originally entitled Josef v. Alarilla. Upon the filing of this petition, petitioner Josef neglected to implead the proper indispensable party, the People of the Philippines, an omission which has since been corrected.

1. This petition for review was filed under Rule 45 of the

2. Dated December 18, 2000, penned by Associate Justice Romeo J. Callejo, Sr., (now Associate Justice of the Supreme Court) and concurred in by Associate Justices Presbitero J. Velasco, Eliezer R. De los Santos, and Juan Q. Enriquez, Jr., and concurred and dissented in by Associate Justice Martin S. Villarama, Jr., all of the Special Seventeenth Division of the Court of Appeals; Rollo, pp. 49-70.

3. Dated November 19, 1998, penned by Judge Basilio R. Gabo, Jr. of the Regional Trial Court of Malolos, Bulacan, Branch 11; Rollo, pp. 131-134.

4. "Review of decisions of the Court of Appeals. The procedure for the review by the Supreme Court of decisions in criminal cases rendered by the Court of Appeals shall be the same as in civil cases."

5. "Construction. These Rules shall be liberally construed in order to promote their objective of securing a just, speedy and inexpensive disposition of every action and proceeding."

6. Rollo, pp. 49-51.

7. Rollo, p. 70.

8. Issued on November 21, 2000.

9. , G.R. No. 144887, 17 November 2004; , 359 Phil. 187 (1998); , G.R. No. 112389-90, 1 August 1994, 234 SCRA 639.

10. Rollo, p. 42.

11. , G.R. Nos. 76262-63, 16 March 1989, 171 SCRA 305 (1989).

12. Section 2,

13. Rollo, pp. 55-57.

14. Section 3(a), Rule 130,

15. .

16. , G.R. No. 108738, 17 June 1994, 233 SCRA 301.

17. Issued on February 14, 2001.