361 Phil. 463
DAVIDE JR., C.J.:
Based on plaintiff’s evidence, it appears that plaintiff is a depositor in good standing of defendant bank’s branch at Sucat, Parañaque, under current checking account no. 210-0053-60. Plaintiff claims that on March 23 and 24, 1987, three (3) checks all payable to cash and all drawn against plaintiff’s aforementioned current account were presented for encashment at defendant’s Sucat Parañaque branch, to wit: Security Bank check nos. 466779 and 466777, both dated March 23, 1987 in the amount of P150,000.00 and P130,000.00, respectively; and Security Bank Check no. 466780 dated March 24, 1987 in the amount of P20,000.00. (Exhs. A, A-1 to A-3, B, B-1 to B-3, C, C-1 to C-3) Plaintiff also claims that due to defendant bank’s gross negligence and inexcusable negligence in exercising ordinary diligence in verifying from plaintiff the encashment of plaintiff’s checks whose amount exceed P10,000.00 and in determining the forgery of drawer’s signatures, the aforesaid three (3) checks were encashed by unauthorized persons to the damage and prejudice of the plaintiff corporation. (Exhs. D, D-1, D-2) Plaintiff then requested the defendant to credit back and restore to its account the value of the checks which were wrongfully encashed in the amount of P300,000.00 but despite due demand the defendant failed to pay its liability. (Exhs. F, F-1, F-2) Finally, plaintiff claims that per findings of the PC Crime Laboratory, the signatures of Co Yok Teng and Yu Chun Kit, the authorized [signatories] of plaintiff were forged. (Exhs. E, E-1 to E-4, G, G-1, G-2, H, I, I-1, I-2)On the basis of such factual environment, the trial court found no preponderance of evidence to support private respondent’s complaint. The private respondent failed to show that the signatures on the subject checks were forged. It did not even present in court the originals of the checks. Neither did it bother to explain its failure to do so. Thus, it could be presumed that the original checks were wilfully suppressed and would be adverse to private respondent’s case if produced. Moreover, the signatures on the checks were not compared with the specimen signature appearing on the specimen signatures cards provided by the private respondent upon opening its current account with petitioner. Thus, the opinion of the expert witness is not worthy of credit. Besides, the private respondent failed to present Mr. Co Yok Teng, one of the signatories of the checks in question, to deny the genuineness of the signatures.
Upon the other hand, the defendant bank claims that on June 19, 1985 the plaintiff corporation opened savings account no. 3220-0529-79 and current account no. 3210-0053-60 with defendant bank’s branch in Sucat, Parañaque, Metro Manila. In order to make the said current and savings account operational, the plaintiff herein provided the defendant with the requisite specimen signature cards which in efect authorized defendant bank to honor withdrawals on the basis of any two of three signatures affixed thereon, specifically those of Mr. Dee Kong, Mr. Co Yok Teng and Mr. Chun Yun Kit, the president, treasurer and general manager, respectively, of plaintiff corporation. (Exhs. 3, 4) Subsequently, plaintiff executed an automatic transfer agreement authorizing defendant bank to transfer cleared funds from plaintiff’s savings account to its current account at any time whenever funds in the current account are insufficient to meet withdrawals therefrom or are below the stipulated minimum balance. (Exhs. 5, 6, 6-A) Defendant also claims that the savings account pass book and the check booklets were kept by the plaintiff in its filing cabinet but on March 23, 1987 the plaintiff herein discovered that the door of his office was forced open including that of the filing cabinet where the check booklets and other bank documents were being kept by the plaintiff. (pp. 32-33, TSN of August 15, 1988) Defendant further claims that the incident was not reported to the police authorities by the plaintiff nor was there any advise given to defendant bank and that on the same day of the discovery by plaintiff of the burglary, said plaintiff nevertheless made three separate deposits in a total amount of P374,554.10. (Exhs. 1, 1-A, 1-B, 2-A, 2-B) Defendant also claims that immediately after the said deposit of P374,554.10 has been made by the plaintiff, three checks namely: check no. 466779 dated March 23, 1987 in the amount of P130,000.00; check no. 466779 dated March 23, 1987 of P150,000.00 and check no. 466780 dated March 24, 1987 in the amount of P20,000.00 which [were] all payable to cash were successively presented to defendant bank for encashment which was given due course by the latter after said checks have passed through the standard bank procedure for verification of the check signatures and the regularity of the material particulars of said checks. (pp. 6, 19, 20, 39, TSN of February 1, 1989, p. 21, TSN of August 15, 1988)[4]
According to the Court of Appeals, the expert witness, contrary to the trial court’s finding, was able to examine the signatures on the original checks and compared them with the standard signatures of the signatories. The photographic enlargements of the questioned checks, which she identified in court, were in fact taken from the original checks. With the bank’s admission in its answer, as well as the unrebutted testimony of the expert witness and of Chun Yun Kit, there could be no doubt that the signatures on the questioned checks were forged.
14.Plaintiff was guilty of negligence substantially contributing to the unauthorized signatures or forgery of the signatures on the checks mentioned in the complaint.
… 15. The alleged forged signatures on the checks were sufficiently adroit as to escape detection even under the officer’s scrutiny. … 20.3 Anna P. Naval and Roberto N. Gabutao verbally admitted that the checks were forged. … 21. Anna Naval and Roberto Gabutao are now facing charges for estafa thru Falsification of Commercial Documents under Criminal Case No. 30004 pending with the Regional Trial Court, National Capital Judicial Region, sitting at Makati, Metro Manila.
In the first assigned error, the petitioner alleges that the best evidence of the forgery were the original checks bearing the alleged forged signatures of private respondent’s officers. In spite of the timely objection made by the petitioner, the private respondent introduced in evidence mere photocopies of the questioned checks. The failure to produce the originals of the checks was a fatal omission inasmuch as there would be no evidentiary basis for the court to declare that the instruments were forgeries. Likewise such failure amounted to a willful suppression of evidence, which created a presumption that its production would be unfavorable to respondent’s case.[6] It could also be presumed that “the checks in question [were] genuine checks regularly issued by the respondent in the course of its business, bearing the genuine signatures of the officers whom it authorized to sign in its behalf.”[7] Also, an unfavorable inference could be drawn from the unexplained failure of private respondent to call as its witness Mr. Co Yok Teng, whose signature was among those allegedly forged.I
…THE SIGNATURES ON THE CHECKS IN QUESTION WERE FORGEDII
…WHETHER THE SIGNATURES WERE FORGED IS NO LONGER AN ISSUE IN THE CASE CONSIDERING THE AFFIRMATIVE DEFENSES SET FORTH IN PETITIONER’S ANSWERIII
… THE PETITIONER ITSELF WAS NEGLIGENT AND THAT THE RESPONDENT EXERCISED DUE CARE IN THE CUSTODY OF ITS CHECKS AND OTHER RELATED DOCUMENTSIV
… RESPONDENT IS ENTITLED TO REIMBURSEMENT OF P300,000.00 PLUS INTEREST THEREOF AS WELL AS ATTORNEY’S FEES.
In this case, the originals of the alleged forged checks had to be produced, since it was never shown that any of these exceptions was present. What the private respondent offered were mere photocopies of the checks in question marked as Exhibits “A,” “B,” and “C.”[13] It never explained the reason why it could not produce the originals of the checks. Its expert witness Crispina Tabo admitted though that the original checks were taken back by the investigating policeman, Glenn Ticson; thus:
1. When the original has been lost or destroyed, or cannot be produced in court, without bad faith on the part of the offeror;
2. When the original is in the custody or under the control of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice; 3. When the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time, and the fact sought to be established from them is only the general result of the whole; and 4. When the original is a public record in the custody of a public officer or is recorded in a public office.
ATTY. NARAG:Yet, the said policeman was not presented to produce the original checks.
…
Q Do you have a copy, Madam Witness of the checks which were submitted to you under question?
A It was only a xerox copy, because the original was withdrawn by the investigating policeman, which is in (sic) the name of Glenn Ticzon, sir.Q Do you want to impress the court that the originals of these checks were submitted to you? A Yes, sir. Q Do you have a copy of the originals of the checks under (sic) standards? A Xerox copies only, because it was also withdrawn by the investigating policeman, who is Mr. Glenn Ticzon.[14]
SEC. 22. How genuineness of handwriting proved. – The handwriting of a person may be proved by any witness who believes it to be the handwriting of such person because he has seen the person write, or has seen writing purporting to be his upon which the witness has acted or been charged, and has thus acquired knowledge of the handwriting of such person. Evidence respecting the handwriting may also be given by a comparison, made by the witness or the court, with writings admitted or treated as genuine by the party against whom the evidence is offered, or proved to be genuine to the satisfaction of the judge.In BA Finance v. Court of Appeals,[22] we had the occasion to the rule that the genuineness of a standard writing may be established by any of the following: (1) by the admission of the person sought to be charged with the disputed writing made at or for the purposes of the trial, or by his testimony; (2) by witnesses who saw the standards written or to whom or in whose hearing the person sought to be charged acknowledged the writing thereof; (3) by evidence showing that the reputed writer of the standard has acquiesced in or recognized the same, or that it has been adopted and acted upon by him in his business transactions or other concerns.
Our review of the testimony of private respondent’s expert witness, Crispina V. Tabo, fails to convince us that she was a credible document examiner, despite petitioner’s admission that she was. She was candid enough to admit to the court that although she had testified more or less three hundred times as an expert, her findings were sustained by the courts in more or less ten cases only. Thus:
Q These question [sic] signatures and the specimen signatures or standard were just given to you by the police of Parañaque?
A It was submitted to the Administrative Branch and the Administrative Branch endorsed that to the Question Document Branch and the Chief of the Document branch assigned that case to me, sir. That is why I received it and examined it.COURT: Q How do you know that, that is the genuine signature? ATTY. REVILLA Yes, how do you know that, that is the genuine signatures when you were not able to see him personally write his signature?A Because I examined the genuine signatures of Co Yok Teng which was submitted to the office by the investigator and it is said to be genuine, and I compared the signatures whether it is genuine or not. And upon comparing, all the specimen signatures were written by one, and also comparing all question [sic] signatures, this one (pointing to the chart) are written by one so, they were written, the question [sic] and specimen were written by two different persons.Q You did not ask the person to personally give his signature in order that there will be basis of comparison between standard signature and the question [sic] signature?A Your Honor, if the specimen signature is not sufficient enough to arrive at a conclusion, we will tell the investigator to let the person involved to come to our office to write and sign his signature, if it is not sufficient to arrive at a conclusion we let him sign.Q So, you do not normally demand his income tax for example, the residence certificate or other documents which contained this undisputed signature?A We did not ask anymore additional specimen because the submitted document is sufficient enough to arrive at the conclusion.ATTY. REVILLA: Q So, you just relied on what were given to you by the investigator as they informed you that these were genuine and standard signatures?A Yes, sir.Q And who was that person who gave you this document?
A It was the Administrative Branch who [sic] endorsed this document to the Documentation Branch. I do not know the person who brought that.Q You do not know the person who brought this document to the Administrative branch?A Yes, sir I do not know.Q When you started making comparison and analysis of this question [SIC] signatures and standard signatures, you did not anymore require the person, Mr. Co Yok Teng to appear personally to you?A I did not, sir.[25] …ATTY. REVILLA Q Mrs. Tabo, like the question [sic] signature of Mr. Co Yok Teng, you also did not personally see or observe how Mr. Co Yok Teng write this standard signature?A Yes, sir.Q And this [sic] standard signatures were just submitted to you?A Yes, it was submitted to the office, sir.Q And when you made the examination and analysis of these documents the standard and the question [sic] signature you did not require any other signature from these two personalities except those which were delivered to you?A Yes, sir. …COURT Q When this standard signature were submitted to you, you were just told that this is the genuine signature of the person involved, you were just told?A Yes, your Honor. As stated in the request it is the genuine signature.Q So that was your basis in claiming that this is the genuine signature of the persons involved?A I examined first the specimen, all the specimen whether it was written by….Q What are those specimen submitted to you?A The same checks, your Honor, and the written standard.
Q Did you confront Co Yok Teng?ATTY. REVILLA A She said no, your Honor. COURT Q Did you confront Yu Chun Kit whether those were actually his genuine signature? No, your Honor.Q So you just relied on the claim of the person who submitted to you that these are the genuine signatures?A Yes, your Honor.Q And on the basis of that you compare the characteristic handwriting between the alleged genuine and question [sic] signature?A Yes, your Honor.[26] (underscoring ours for emphasis).
Besides, under the circumstances obtaining in this case, Tabo could by no yardstick be considered to have adequate knowledge of the genuine signatures of the parties whose signatures on the questioned checks were claimed to be forged. That knowledge could be obtained either by (a) seeing the person write some other documents or signatures (ex visu scriptionis); (b) seeing documents otherwise known to him to have been written by the person in question (ex scriptis olim visis); or (c) examining, in or out of court, for the express purpose of obtaining such knowledge, the documents said to have been written by the person in question (ex comparatione scriptorum).[28] Tabo could not be a witness under the first and the second. She tried to be under the third. But under the third, it is essential that (a) certain specimens of handwriting were seen and considered by her and (b) they were genuinely written by the person in question.[29] Now, as stated above, Tabo had no adequate basis for concluding that the alleged specimen signatures in the long bond paper were indeed the signatures of the parties whose signatures in the checks were claimed to have been forged. Moreover, we do not think that the alleged specimens before were sufficient in number.[30]
Court: Q How many times have you testified in Court?
A More or less three hundred (300) times, your Honor. Q How many were sustained by the Court? A More or less ten (10), sir. Q Out of 300? A Yes, your Honor.[27]
On the issue of negligence, the Court of Appeals held:We do not agree. During the hearing on 1 February 1989, Felicidad Dimaano denied having such agreement with the private respondent. Rather, the agreement was that “all encashments over the counter of P10,000.00 and above should be accompanied by one of the signatories” of private respondent. But this agreement was made only on 31 March 1987, or a few days after the encashment of the checks in question.[32]
[T]here is overwhelming evidence to show that appellee (petitioner herein) was less than prudent in the treatment of appellant’s (private respondents’) account.
According to Chun Yun Kit, they had an agreement with Appellee’s Assistant branch manager, Felicidad Dimaano, that appellant should be informed whenever a check for than P10,000.00 is presented for encashment. Dimaano did not controvert Chun Kit’s testimony on this point. Such an arrangement was not observed by appellee with respect to the payment of the checks in question. (Emphasis supplied).
Neither did any of private respondent’s officers or employees report the incident to the police authorities,[36] nor did anyone advise the petitioner of such incident so that the latter could adopt necessary measures to prevent unauthorized encashments of private respondent’s checks. Hence, as correctly held by the trial court, it is the private respondent, not the petitioner, which must bear the loss.
Q You said also during the last hearing that on the morning of March 23, 1987 you found out in the morning that the doors of the office were forced opened?
A Yes, sir.Q And you also testified during the last hearing that the locked [sic] of the filing cabinet were also forced opened?A Yes, sir.Q And you found out on that same time and date on March 23, 1987 that the documents in the filing cabinet were not in their proper position?A Yes, sir.Q What did you do when you found out this [sic] circumstances on March 23, 1987?A We did not do anything because nothing was lost.Q Did it not occur to you Mr. Witness, that considering that burglary was committed in your office, the doors of your office were forced opened, the locks of the filing cabinet were forced opened, the documents placed in the filing cabinet were not in their proper position, it did not occur to you to check the checks of the company as being placed in the filing cabinet?A When we examined the check booklet, we did not discover anything lost.Q You did not at all bother Mr. Witness or your treasurer to check something might have lost in the check [sic], considering that the burglery [sic] and the filing cabinet were forced opened?A No, sir.Q Did you notice anything lost?A No, sir.[35]