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595 Phil. 1103


[ G.R. No. 177944, December 24, 2008 ]




For Review under Rule 45 of the Revised Rules of Court is the Decision[1] dated 27 October 2006 and Resolution dated 24 April 2007 of the Court of Appeals in CA-G.R. CEB CR. No. 00241 entitled, People of the Philippines v. Judith P. Ortega, affirming the Decision[2] rendered by the Regional Trial Court (RTC) of the 7th Judicial Region, Cebu City, Branch 21, in Criminal Case No. CBU-53833, finding accused-appellant Judith P. Ortega guilty of Estafa.

Based upon an Affidavit[3] executed by complainant Marilou Oljol Adorable (Adorable) on 12 July 1999, accused-appellant Judith Perez Ortega (Ortega) was charged by the City Prosecutor in an Information dated 19 November 1999, filed before the RTC of Cebu City, with the crime of Estafa.

The Information reads:
That on or about the 5th day of September 1998, and for sometime subsequent thereto, in the City of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the said accused, with deliberate intent, with intent to gain, and by means of deceit, fraudulent acts and false pretenses executed  prior to or simultaneously with the commission of the fraud, to wit: by falsely pretending to one Marilou Oljol Adorable that she is a real estate agent and offered the latter that she could transfer the name of said Marilou Oljol Adorable in the tax declaration even without a Deed of Sale because of her connections, and by reason of such false pretenses or fraudulent acts of inducement, said Marilou Oljol Adorable was induced to give the total amount of P27,450.00 as processing fees, when in truth and in fact, as the said accused very well knew that she could not facilitate the same, and that such misrepresentation were resorted to only for the purpose of obtaining money from said Marilou Oljol Adorable, and once in possession of the amount, the said accused misappropriated, misapplied and converted the same into her own personal use and benefit and, in spite of repeated demands, said accused failed and refused, and up to the present time still fails and refuses, to return the money, to the damage and prejudice of said Marilou Oljol Adorable in the amount aforestated.[4]
The case was docketed as Criminal Case No. CBU-53833.

On her arraignment and with the assistance of counsel, accused-appellant pleaded not guilty to the charge.  Thereafter, a pre-trial conference was conducted and terminated on 5 February 2001.

During trial, the prosecution presented Adorable, complainant; and one Epifania Laranjo, a co-teacher of Adorable.  On the other hand, the defense presented accused-appellant as its lone witness.

The prosecution's version of the facts, as adopted from the trial court's Decision dated 19 April 2005 is as follows:
On (sic) August 1998, Marilou Adorable, a public school teacher of Don Sergio Sr. Memorial High School was introduced by her co-teacher Epifania to the accused Judith P. Ortega.

Judith P. Ortega has a son who is studying [in] said school as a first year student. On (sic) August 1998, the accused went to the school in order to follow up the status of her son. When she was introduced to the accused by Epifania, the accused inquired from her if she would like to purchase land and she replied she is interested but doesn't have the money. The accused said there is an agricultural land, a parcel of land with an area of 1,000 square meters which is for sale for the amount of P50,000.00 in installments. The accused made sweet convincing words in offering the land for sale. After their conversation, she said she would come back to bring the papers for that parcel of land.

When she came back, she asked Mrs. Adorable to give the sum of P1,200.00 (Exhibit A) for the payment of notarial documents.  On September 12, 1998, she asked from Mrs. Adorable for the sum of P6,000.00 (Exhibit B) which was for the payment of fees for the Registry Deeds, Bureau of Lands and BIR. Accused never issued any official receipt.

On September 18, 1998, she came back and asked for P8,000.00 for the payment of capital gains tax. Mrs. Adorable gave the sum of P8,000.00 where she identified the receipt as Exhibit C.

On September 25, 1998, the accused came back again and asked for the amount of P4,000.00 for the approved plan. Marilou Adorable gave P500.00 cash and she pawned her ring and cassette recorder for P3,500.00 to make a total of P4,000.00.  She identified Exhibit "D," the receipt. Again, on October 10, 1998, the accused came back and requested the sum of P4,000.00 which was for the payment of the affidavit of no landholdings and improvements.  She identified (sic) as Exhibit E and E-1.

At this point, Mrs. Adorable doubted the accused why she did not give her official receipts.  So she confronted her for the official receipt.  The accused promised to bring the tax declaration on her name.  Thus, on November 26, 1998, accused came back and told Mrs. Adorable to wait as the tax declaration is already prepared and transferred in her name. The accused again asked P500.00 fee which the accused issued a receipt (Exhibit F and F-1).

On December 2, 1998, again the accused came back to see Mrs. Adorable and asked for the payment of P750.00 for the titling of the lot. She identified Exhibit G and G-1 which was (sic) the receipt.

The accused gave to Mrs. Marilou Adorable, a tax declaration no. 97-G.R.-07-050-00093 in the name Adorable, Marilou. It was a Xerox copy because the original copy was taken back by the accused. She went to a lending company to secure a loan. In fact, she went to several lending companies to secure a loan and she was told that the tax declaration has to be authenticated.  She went to the City Assessor's Office for the tax declarations (Exhibit "H") for the authentication.  She was informed that it was the tax declaration print out but it was not in her name that appears in the record of the assessor's office. What she received was a fake tax declaration according to the assessor's office. She confronted the accused why her name did not appear in the tax declaration. The accused said why she did not inform her about her going to the assessor's office as she would have told her that it was not yet entered in the computer.

She waited for a while for the accused to deliver the real and genuine tax declaration. She waited for so long until she lost her patience. She demanded from the accused the return of her money but the accused refused. She went to the Lupong Barangay and there she met the accused. At the time of their meeting at the Lupong Barangay, the accused informed her that Mrs. Adorable did not pay her anything. And because of this, Mrs. Adorable had so much indebtedness. The accused never returned the money and she was disappointed. Mrs. Adorable wanted her money back. She identified the certification from the barangay as Exhibit I.[5]
The defense presented a version entirely different from the narration of facts by the prosecution.  Testifying for and on her own behalf, Ortega denied the allegations of the complainant. In fact, accused-appellant explained that she knew Adorable to be the teacher of her son.  According to her, it was Adorable who sought her help regarding the many loans she had to settle. According to Ortega, Adorable visited her at her house on 16 February 1999 and asked for assistance regarding the property involved, because the latter had some debts.  At the instance of Adorable, Ortega made it appear that the former had sought her help in the processing of the application for title to the land to show to her creditors how she had spent their money.  As requested, Ortega issued receipts for the benefit of Adorable so the latter could show to her creditors that her property papers were being processed.  Ortega was also told to prepare another note that the receipts were not genuine, but she was afraid to get involved and get prejudiced by the receipts prepared by her.  To show that it was just a scheme, she presented a document allegedly signed by Adorable, in which  Adorable admitted that her land title application was just for show to her creditors.  Ortega claims that it was Adorable who dictated what was to be written on the receipts and that the receipts were done in the penmanship of Ortega's daughter, although signed by her.  On Adorable's claim that she pawned her Singer Sewing Machine so she could give P4,000.00, Ortega countered that the sewing machine was pawned only for P1,500.00.  Furthermore, Ortega denied knowledge of Adorable's fake tax declaration and of any know-how regarding the transfer of lots.  Ortega denied knowing Manuel Cabingatan, the registered owner of the parcel of land subject of the Deed, and denied having ties with anybody from the Assessor's Office, Register of Deeds or the DENR.  Finally, Ortega testified that she was supposed to present a vital witness, a certain Lila Chin, to corroborate and support her version.  Said witness, though always present and ready to testify during the scheduled hearings, was unable to testify because the defense counsel was always absent.

On 23 February 2005, when defense counsel again failed to appear, the trial court considered the case submitted for decision.

In its decision dated 19 April 2005, the RTC of Cebu City convicted Ortega of the crime of estafa under Article 315, paragraph 2(a) of the Revised Penal Code, disposing as follows:
WHEREFORE, premises considered, the Court finds the accused Judith P. Ortega, guilty beyond reasonable doubt of the crime of estafa as defined in subsection 2 par. (a) of Art. 315 of the Revised Penal Code, for which she is hereby sentenced to suffer an indeterminate penalty of 1 year 8 months and 21 days of prision correctional, as minimum to 8 years of prision mayor as maximum and to indemnify Mrs. Marilou Adorable the sum of P27,450.00, the amount of which she has been defrauded.[6]
Resolving the case based on the sole issue of credibility, the RTC gave more weight and probative value to the positive testimony of complainant Marilou Adorable, corroborated by her co-teacher Epifania Laranjo, that it was Ortega who deceived Adorable into purchasing a land in installments after having paid the amount of P27,450.00, for which she was later on to be given a fake tax declaration.

On the ground of newly discovered evidence, Ortega filed a Motion for Reconsideration/Motion for New Trial[7] before the same court. The RTC, however, found the Motion to be fatally defective.[8]

On Notice of Appeal, Ortega appealed to the Court of Appeals, which docketed the case as CA-G.R. CEB No. 0024, raising the following issues:


Sustaining the RTC's finding of guilt beyond reasonable doubt, the Court of Appeals resolved:
WHEREFORE, the appeal filed by the accused-appellant is hereby DENIED. Accordingly, the assailed Decision of the Regional Trial Court, Branch 21, of Cebu City, dated 19 April 2005 is AFFIRMED in toto.[9]
In convicting Ortega, the Court of Appeals gave more credence to the testimonies of the prosecution witnesses and scant consideration to the version of the defense.  The Court of Appeals explained that were it not for the deceitful representations of Ortega, Adorable would have had no reason to make advances for the payment of the documents relating to the purchase and titling of the property.

Hence, the present Petition for Review on Certiorari in which Ortega raises the sole issue for resolution by this Court, to wit:


Accused-appellant Ortega prays for her acquittal and asks that the Court of Appeals Decision dated 27 October 2006 and Resolution dated 24 April 2007 be set aside. Maintaining her innocence, she contends that the penalty of eight (8) years is too stiff since it would deprive her of the right to apply for probation and will have the effect of orphaning her ten (10) children, the youngest being only three (3) years old.

Ortega claims that the Court of Appeals gravely erred in convicting her of Estafa and admits that although her petition involves questions of fact, Philippine National Bank v. Court of Appeals[10] held that this Court has authority to review and reverse factual findings of the lower court where the court a quo's findings do not conform to the evidence on record.

The prosecution maintains that it was able to prove accused-appellant's guilt beyond reasonable doubt.

The petition has no merit.

Ortega claims that the prosecution's evidence does not support a finding of guilt beyond reasonable doubt.  She denies the charges, countering that it was Adorable who visited her house asking for assistance regarding a certain property to be disposed of by Adorable to pay off debts to creditors. Under Article III, Section 14, paragraph 2, as provided under the Bill of Rights of the 1987 Philippine Constitution, a defendant in a criminal action shall be presumed innocent until the contrary is proved.  This burden of proving an accused's guilt beyond reasonable doubt belongs exclusively to the prosecution, and once there is reasonable doubt that an accused's guilt has been satisfactorily shown, the accused shall be entitled to an acquittal.

The petition being a petition for review, the jurisdiction of this Court is confined to reviewing questions of law.[11]  The issues ultimately focus on the credibility of witnesses and whether the evidence for the prosecution - as opposed to petitioner's alibi - is sufficient to warrant petitioner's conviction for commission of the crime of Estafa as alleged in the Information.  The core issue being raised by accused-appellant is essentially a factual issue.  It is well-settled in criminal jurisprudence that where the issue is one of credibility of witnesses, the appellate court will generally not disturb the findings of the trial court, considering it was in a better position to settle such issue.[12]  The issue concerning the credibility of witnesses has almost always been considered to be a matter that is best addressed to the sound judgment of the trial court.  Its vantage point over that of an appellate court in that determination can hardly be doubted. Indeed, the trial court has the advantage of hearing the witness and observing his conduct during trial, circumstances which carry a great weight in appreciating his credibility.[13]

The reason behind this policy is that it is a fundamental and settled rule that factual findings of the trial court and its calibration of the testimonies of the witnesses and its conclusions anchored on its findings are accorded by the appellate court high respect, if not conclusive effect, more so when affirmed by the Court of Appeals, which is the situation in the case at bar.  Judicial experience has revealed that trial courts are in a better position to decide the question, having heard the witnesses themselves and observed their deportment and manner of testifying during the trial.  It can thus more easily detect whether a witness is telling the truth or not.[14] Therefore, it is but proper that findings of facts and assessment of credibility of witnesses is a matter best left to the trial court because of its unique position of having observed that elusive and incommunicable evidence of the witnesses' deportment on the stand while testifying, which opportunity is denied the appellate courts.  Thus, the trial court's findings are accorded finality, unless there appears in the record some fact or circumstance of weight; which the lower court may have overlooked, misunderstood or misappreciated, and which, if properly considered, would alter the result of the case.

The exception applies when it is established that the trial court ignored, overlooked, misconstrued or misinterpreted cogent facts and circumstances which, if considered, will change the outcome of the case.  None of these exceptions are found in the case at bar.

In reviewing the records, this Court has seen nothing to make a conclusion that the trial court has overlooked any fact of substance and value to warrant a reversal of its factual assessments. Ortega's denial is an intrinsically weak defense, which must be buttressed by strong evidence of non-culpability to merit credence.  The defense failed to controvert the prosecution's strong and solid evidence proving Ortega's guilt beyond reasonable doubt.  The testimony of complainant Adorable, corroborated by her co-teacher Laranjo and supported by documentary exhibits, satisfactorily and conclusively shows her culpability.

Estafa committed thru False Pretenses is defined under Article 315, paragraph 2(a) of the Revised Penal Code. Under said provision, the offense is committed as follows:
Article 315. Swindling (estafa). - Any person who shall defraud another by any of the means mentioned hereinbelow shall be punished by:

x x x x

2. By means of any of the following false pretenses or fraudulent acts executed prior to or simultaneously with the commission of fraud:

(a) by using fictitious name, or falsely pretending to possess power, influence, qualifications, property, credit, agency, business or imaginary transactions, or by means of other similar deceits.
From the foregoing, swindling or estafa by false pretenses or fraudulent acts executed prior to or simultaneously with the commission of the fraud is committed by "using fictitious name, or falsely pretending to possess power, influence, qualifications, property, credit, agency, business or imaginary transactions, or by other similar deceits."[15]

In order to sustain a charge and conviction under paragraph 2(a) of Article 315 of the Revised Penal Code, the prosecution must be able to prove beyond reasonable doubt the concurrence of the following elements:
the accused has defrauded another by abuse of confidence or by means of deceit; and

damage or prejudice capable of pecuniary estimation is caused to the offended party or third person.[16]
Fraud, in its general sense, is deemed to comprise anything calculated to deceive, including all acts, omissions, and concealment involving a breach of legal or equitable duty, trust, or confidence justly reposed, resulting in damage to another, or by which an undue and unconscientious advantage is taken of another.  On the other hand, deceit is the false representation of a matter of fact, whether by words or conduct, by false or misleading allegations, or by concealment of that which should have been disclosed; and which deceives or is intended to deceive another so that he shall act upon it, to his legal injury.

From the preceding facts, it is evident that accused-appellant employed deceitful tactics to make Adorable part with her money in order to purchase the lot purportedly offered for sale by Ortega to the former. Ortega's act of misrepresenting herself as having the requisite authority to sell the alleged property belonging to Manuel Cabingatan set in motion a chain of events that led to the eventual parting of Adorable with her hard-earned money.  Without the representation from petitioner that she was authorized to sell the property, Adorable would not have parted with her money to make advances for the payment of notarial documents, titling and other documentary fees necessary for the transfer of title of the said property from Manuel Cabingatan to her.  Ortega could have simply returned the money wrongfully taken from Adorable after her failure to transfer the property, but instead denied receiving a single centavo from Adorable.

We are not convinced by Ortega's insistence that the receipts in question were issued by her on behalf of Adorable, to assist in the processing of the latter's debts in favor of her creditors.  This feeble defense deserves scant consideration in light of the straightforward and convincing testimony of Adorable regarding the advances she made for the purchase of the property for which the said receipts were issued by accused-appellant.  The same testimony was corroborated by Laranjo.  Moreover, the prosecution presented documentary evidence to buttress the allegations of complainant.  It was simply illogical for Adorable to make payments to Ortega, who is not really a creditor of Adorable, if we are going to accept the theory of Ortega.

When Adorable started to doubt Ortega's representations, she asked her for the official receipts pertaining to the above advances.  Instead of producing the official receipts, Ortega promised to give the tax declaration over the said property. Ortega thereafter presented Adorable with an alleged photocopy of Tax Declaration No. 97-GR-07-050-00093 in the latter's name.  Upon verification with the City Assessor's Office, Adorable realized that she was duped by Ortega and learned that said tax declaration was not in her name.  Although Ortega promised that the genuine tax declaration would soon be issued in Adorable's name, none was issued.  Furthermore, the defense could have presented Ortega's daughter to testify in her defense but failed to do so.

Finally, Ortega should be faulted for the non-presentation of defense witness Lila Chin. She was given several opportunities to present said witness, but failed to do so for the repeated failure of her counsel to appear.

Finding that the prosecution has established accused-appellant Ortega's guilt beyond reasonable doubt for the crime of Estafa/Swindling thru False Pretenses, this Court shall now determine the proper penalties to be imposed.

The penalty for estafa depends on the amount defrauded. Article 315 of the Revised Penal Code provides, to wit:
Art. 315. Swindling (estafa). Any person who shall defraud another by any of the means mentioned hereinbelow shall be punished by:

1st. The penalty of prision correccional in its maximum period to prision mayor in its minimum period, if the amount of the fraud is over P12,000.00 but does not exceed P22,000.00 pesos, and if such amount exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its maximum period, adding one year for each additional P10,000.00 pesos; but the total penalty which may be imposed shall not exceed twenty years. In such case, and in connection with the accessory penalties which may be imposed and for the purpose of the other provisions of this Code, the penalty shall be termed prision mayor or reclusion temporal, as the case may be.[17]  (Emphasis supplied.)
In addition to indemnifying Adorable in the sum of P27,450.00, the RTC of Cebu City sentenced Ortega to suffer an Indeterminate Penalty of 1 year 8 months and 21 days of prision correccional, as minimum, to 8 years of prision mayor, as maximum.[18]

Under the Indeterminate Sentence Law, if the offense is punished by the Revised Penal Code, such as estafa, the court shall sentence the accused to an indeterminate penalty, the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the rules of the Revised Penal Code; and the minimum term of which shall be within the range of the penalty next lower than that prescribed by the Code 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.

Inasmuch as the amount of P27,450.00 is more than the benchmark of P22,000.00 provided under Article 315 of the Revised Penal Code, the maximum period of prision mayor minimum (6 years, 8 months and 21 days to 8 years) is applicable. Applying the Indeterminate Sentence Law, the minimum penalty is prision correccional in its minimum and medium periods, in any of its periods, the range of which is from six (6) months and one (1) day to four (4) years and two (2) months, which is the penalty next lower in degree than the basic penalty.  The period of 1 year 8 months and 21 days of prision correccional, the minimum period imposed, is within this range.

Finding no error in the computation and application of the Indeterminate Sentence Law by the RTC, we sustain the indeterminate penalty imposed by the court a quo.

Ortega bewails the penalty of eight (8) years, claiming it is simply too harsh, considering the amount involved. Ortega pleads that this penalty will make her ineligible for probation and will have the effect of having her ten (10) children, the youngest being only three (3) years old, orphaned.

We are aware of Ortega's extreme predicament, but this Court has no alternative but to apply the law.  As harsh and as painful its effects may be, dura lex, sed lex.  The law is harsh, but it is the law.

WHEREFORE, premises considered, the petition for review is hereby DENIED.  The Decision of the Court of Appeals in CA-G.R. 00241, which sustained the conviction of accused-appellant Judith P. Ortega for the crime of Estafa in Criminal Case No. CBU-53833, is hereby AFFIRMED.


Ynares-Santiago, (Chairperson), Austria-Martinez, Nachura, and Reyes, JJ., concur.

[1] Penned by Associate Justice Pampio A. Abarintos with Associate Justices Agustin S. Dizon and Priscilla Baltazar-Padilla, concurring; rollo, pp. 59-67.

[2] Penned by Presiding Judge Eric F. Menchavez of the RTC of Cebu City, Branch 21.

[3] Records, pp. 5-7.

[4] Id. at 1.

[5] Id. at 152-154.

[6] Id. at 159-160.

[7] Motion for Reconsideration/Motion for New Trial dated 27 April 2005.

[8] 24 May 2005.

[9] Rollo, pp. 66-67.

[10] G.R. No. 43972, 24 July 1990, 187 SCRA 735, 739.

[11] Superlines Transportation Co. v. ICC Leasing & Financing Corp., 446 Phil. 669, 681 (2003).

[12] People v. Agliday, 419 Phil. 555, 561 (2001); People v. Canoy, 459 Phil. 933, 942 (2003).

[13] Ibasco v. Court of Appeals, 330 Phil. 154, 168 (1996); Ong v. People, 399 Phil. 686, 694 (2000).

[14] People v. Vallador, 327 Phil. 303, 311 (1996).

[15] People v. Balasa, 356 Phil. 362, 382 (1998).

[16] De la Cruz v. Court of Appeals, 333 Phil. 126, 138 (1996); People v. Bautista, 311 Phil. 227, 236 (1995); People v. Ong, G.R. No. 93849, 20 December 1991, 204 SCRA 942, 952; Garcia v. People, 457 Phil. 713, 720 (2003).

[17] Article 315, Revised Penal Code.

[18] Records, p. 52.

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