492 Phil. 188
AZCUNA, J.:
That during the month of June 1991, and for sometime subsequent thereto, in the City of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the said accused, conniving and confederating together and mutually helping one another, that [sic] accused Cristina Yap of Majesty Pharmacy and spouses Cesar Gordola and Ava Gordola of Paramount Lending Corporation, with deliberate intent, with intent of gain and by means of false pretenses and fraudulent acts executed prior to or simultaneously with the commission of the fraud, to wit: by falsely pretending to spouses Tomy and Helen Ong and convincing them to invest with Paramount Lending Corporation as the prospect of the returns in terms of interest is bright and higher if compared to the interest rates given by the other banks and that further assuring the said spouses that the money invested will be returned plus interest and inducing the said spouses to entrust to the herein accused the total sum of P7,000,000.00, when in truth and in fact, as the accused very well knew they had no intention of investing the said sum of P7,000,000.00 owned by the herein spouses and that such scheme and other similar deceit were employed merely to obtain possession of the aforesaid sum of money, thereby misappropriating, misapplying and converting to their own personal use and benefit the same and have absconded or run away with the said sum of P7,000,000.00, thus to the damage and prejudice of the said spouses Tomy Ong and Helen Ong in the amount aforestated.When arraigned, respondent Cristina Yap pleaded not guilty. Trial proceeded separately against her.
CONTRARY TO LAW.[1]
WHEREFORE, for insufficiency of evidence, the case is hereby DISMISSED and accused Cristina Yap ACQUITTED.The trial court held that the prosecution failed to prove that respondent Yap conspired with the Gordolas in embezzling petitioners. It also stated, thus:
The bond put up by aforenamed accused for her temporary liberty is hereby CANCELLED and RELEASED.
Costs de oficio.
SO ORDERED.[17]
The apparent involvement of the herein accused was merely to accompany the spouses to the presence of the herein complainant or her presence thereabout. In so doing, there was no pretense whatever on the part of either, for the execution of the unlawful objective, that is to defraud the complainant. For it was possible that the herein accused had no knowledge of the design of her co-accused (spouses Gordola) if there was any, nor of the intended defraudation of the victim by the latter, if there was any. The mere [act of] accompanying her co-accused to the place of the victim, could be interpreted differently if the accused herself was the recipient of the amount, which she was not. The rule is well-settled that if the facts apparently inculpatory may be explained, consistent with one’s innocence, the evidence does not fulfill the test of moral certainty to support conviction (People vs. Jorge, G.R. 99379, April 22, 1994).Petitioners appealed the trial court’s Order dated December 1, 1994 to the Court of Appeals. Respondent Yap opposed the appeal on the ground that said Order granting the demurrer to the evidence amounts to an acquittal; therefore, an appeal is legally barred as it would place her in double jeopardy.
The prosecution drew the inference that accused Yap must be guilty for the reason that she received checks (Exhs. “T,” “U,” “V” to “OOO”) from spouses Gordola. However, said checks are irrelevant to the case at bar. The checks in question are the herein twelve (12) bouncing checks (Exhs. “A” to “L”), [regarding] which the prosecution failed to usher in hard evidence that accused Yap had cooperated with spouses Gordola in embezzling them.
It is noteworthy that the prosecution admitted that not one of the checks in question w[as] made, issued or drawn by accused Yap and that Yap has no connection whatsoever with the PILC, whose owner-operator (the Gordolas) manifestly gypped complainant-spouses Ong.
Wanting in evidence, the prosecution now wanted to shift the burden of proof to the defense by arguing that accused Yap should be placed on the box to explain the character of the checks she had received from spouses Gordola. Such proposition is procedurally improper. As a rule, the burden of proof is never on the accused to establish his/her innocence.. . .
Under the circumstances obtaining, the Court is not inclined to make an inference on the existence of conspiracy based on another inference.
At most, the proofs on hand cast suspicion on accused Yap. But suspicion, however strong, cannot serve as substitute of evidence.[18]
WHEREFORE, the appeal, insofar as the civil aspect is concerned, is hereby given due course.Petitioners raised the following issues before the Court of Appeals: The trial court erred when it did not hold Cristina Yap civilly liable to Spouses Ong for the sum of P7 million and when it did not consider that Cristina Yap is liable for damages and attorney’s fees.[25]
The Clerk of Court of this Branch is directed to transmit the complete records of the case to the appellate court as soon as possible.
SO ORDERED.[24]
WHEREFORE, premises considered, the order (dated December 1, 1994) of the Regional Trial Court (Branch 10) in Cebu City in Criminal Case No. CBU-31101 acquitting the appellee and not making her civilly liable to the appellants is hereby AFFIRMED. No pronouncement as to costs.Petitioners now raise the following issues:
SO ORDERED.[26]
Under the first assigned error, petitioners contend that the Court of Appeals erred in not holding under the facts established by the prosecution that Cristina Yap is civilly liable for fraud and false pretenses in confabulation with the spouses Cesar and Ava Gordola.I THE HONORABLE COURT OF APPEALS COMMITTED GRAVE AND REVERSIBLE ERROR IN NOT HOLDING THAT UNDER THE INCONTROVERTIBLE AND ADMITTED FACTS ESTABLISHED BY THE PROSECUTION DURING THE TRIAL OF CRIMINAL CASE NO. CBU-31101 RESPONDENT CRISTINA YAP IS CIVILLY LIABLE FOR FRAUD AND FALSE PRETENSES PERPETRATED BY HER IN CONFABULATION WITH THE SPOUSES GORDOLA.II THE COURT OF APPEALS COMMITTED A GRAVE AND REVERSIBLE ERROR IN NOT FINDING THAT PREPONDERANCE OF EVIDENCE EXISTS TO HOLD THE PRIVATE RESPONDENT CIVILLY LIABLE FOR THE CRIME CHARGED.[27]
SECTION 1. Preponderance of evidence, how determined. -- In civil cases, the party having the burden of proof must establish his case by a preponderance of evidence. In determining where the preponderance or superior weight of evidence on the issues involved lies, the court may consider all the facts and circumstances of the case, the witnesses’ manner of testifying, their intelligence, their means and opportunity of knowing the facts to which they are testifying, the nature of the facts to which they testify, the probability or improbability of their testimony, their interest or want of interest, and also their personal credibility so far as the same may legitimately appear upon the trial. The court may also consider the number of witnesses, though the preponderance is not necessarily with the greater number.“Preponderance of evidence” is the weight, credit, and value of the aggregate evidence on either side and is usually considered to be synonymous with the term “greater weight of the evidence” or “greater weight of the credible evidence.[29] It is evidence which is more convincing to the court as worthy of belief than that which is offered in opposition thereto.[30]
Tommy Ong’s claim that it was Cristina Yap who induced them to lend money to the spouses Gordolas (pages 11-12, TSN of March 18, 1994) is belied by his (Tommy Ong’s) own admission that he lent the money to the spouses Gordolas believing that, “they are okay, they were going well in their business, also, their house is quite big also and then we were shown the different businesses that they were engaged in, so we decided to let them borrow the money,” in short, the spouses Gordola had “the capacity to pay.” (page 195 of the Record).[34]In addition, Tommy Ong testified that petitioners invested the P2.5 million derived from their Metrobank loan with Paramount Lending Investors because of the profit expected and that they realized said profit in the beginning, thus:
Clearly, therefore, the Ongs, based on their personal judgment, were convinced that the Gordolas had the capacity to pay and that they would profit from the interest involved. In fact, Tommy Ong admitted that they realized profits in the beginning.. . .
Q Now after this transaction Mr. Ong, were there other transactions of similar nature wherein you also continued investing in the said lending business under the same procedure that post-dated check would be issued to you?
A Ah, yes. After the first transaction, a few days or weeks after, Cristina Yap and Ava Gordola, from time to time, would contact us either through the telephone or personally and then since Cristina Yap knew of our other real estate properties also situated at Singson Compound, Guadalupe, they again persuaded us, prodded us and [they were] very persistent and finally convinced us to apply for a loan from Metro Bank using the real estate property as collateral. And from this we were able to obtain a loan of P2.5 million from Metrobank at that time.
ATTY JACINTO:
Q Was this amount also invested in the same business?
WITNESS:
A Yes, because during that time, the interest that Ava Gordola was paying was five (5) percent per month and then when we borrowed from the bank during that time, the interest was only about 24 percent per annum or approximately two percent per month, so we were finally convinced that we would make a net profit of about three (3) percent.
Q And so you are telling the court now that aside from the early transaction that you had wherein you invested your money with Paramount Lending Corporation, you obtained loans for the purpose also of investing these amounts with the same corporation because of the profit that you will realize?
A Yes, sir.
Q Did you in effect realize these profits Mr Ong?
A In the beginning, yes.
Q What do you mean, will you clarify that?
A Well, it is a fact that the checks of Ava Gordola started to bounce within 1992 so before tha[t], we were able to get some of the interest supposedly.[35]