SECOND DIVISION

G.R. No. 123567 June 5, 1998

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ROBERTO TONGKO, accused-appellant.

PUNO, J.:

This is an appeal by accused Roberto Tongko from the Decision of the RTC of Pasig City, Branch
156 finding him guilty of estafa under Article 315 (2) (d) of the Revised Penal Code. He was
sentenced to suffer twenty seven (27) years of reclusion perpetua and to indemnify Carmelita v.
Santos by way of actual damges in the sum of P100,000.00 and to pay the cost of suit.

Accused was charged under the following Information:

That on or about the 20th day of August, 1993, in the Municipality of Pasig, Metro
Manila, Philippines and within the jurisdiction of this Honorable Court, the above-
named accused, by means of deceit and false pretenses committed prior to or
simultaneously with the commission of the fraudulent acts, did then and there
willfully, unlawfully and feloniously make or draw and issue to one, Carmelita Santos
to apply on account or for value, the check described below:

BANK CHECK NO. DATE AMOUNT

Phil. Amanah Bank 203729 12-20-93 P10,000.00

Phil. Amanah Bank 203730 12-20-93 10,000.00

Phil. Amanah Bank 203731 12-20-93 10,000.00

Phil. Amanah Bank 203732 12-20-93 10,000.00

Phil. Amanah Bank 203733 12-20-93 10,000.00

Phil. Amanah Bank 203737 12-20-93 10,000.00

Phil. Amanah Bank 203738 12-20-93 10,000.00

Phil. Amanah Bank 203739 12-20-93 10,000.00

Phil. Amanah Bank 203740 12-20-93 10,000.00

Phil. Amanah Bank 203741 12-20-93 10,000.00

 said accused well knowing at the time of issue he did not have sufficient funds in or
credit with the drawee bank for the payment in full of the face amount of such check
upon presentment which check when presented for payment within ninety (90) days
from the date thereof was subsequently dishonored by the drawee bank for the
reason "Account Closed" and despite the lapse of three (3) banking days from
receipt of notice that said check has been dishonored, the accused failed to pay said
payee the face amount of such check or to make arrangement for full payment
thereof, to the damage and prejudice of said Carmelita Santos in the total amount of
P100,000.00.

CONTRARY TO LAW.

Accused pled not quilty and underwent trial.

The evidence for the prosecution shows that on September 21, 1990, accused opened savings and
current account with Amanah Bank. In the morning of August 20, 1993, Marites Bo-ot brought
1

the accused to the office of Carmelita V. Santos at Room 504 Pacific Place, Pearl Drive,
Ortigas Center, Pasig City to borrow money. The accused asked for P50,000.00 to be paid
2

not later than December 1993. He assured Santos that his receivables would come in by
3

November 1993. He persuaded Santos to give the loan by issuing five (5) check, each in the
sum of P10,000.00, postdated December 20, 1993 and by signing a promissory note. The 4

promissory note was co-signed by Bo-ot. In the afternoon of the same date, the accused
returned to Santos and borrowed an additional P50,000.00. Again, he issued five (5) checks,
each worth P10,000.00 postdated December 20, 1993. He also signed a promissory note
together with Bo-ot. 5

On September 14, 1993, Amanah Bank closed accused's current account for lack of funds.
On October 19, 1993, accused himself requested for the closing of his savings account. 6

Santos did not present accused's checks to the drawee bank on their due date upon the
request of accused himself. Instead, the checks were presented on March 1, 1994 but were
7

dishonored as accused's accounts had been closed. Accused was informed that his checks
8

had bounced. He promised to make good the checks. He failed to redeem his promise, hence,
the case at bar. 9

The accused testified for himself. Nobody corroborated his testimony. He admitted the
evidence of the prosecution but alleged that the postdated checks were issued a day or two
after he signed the promissory notes. Obviously, he was relying on the defense that the
10

checks were in payment of a pre-existing obligation.

As aforestated, the trial court convicted the accused. He appealed to this Court and changed
his counsel. He now contends:
11

THE TRIAL COURT ERRED IN HOLDING THAT THE ISSUANCE OF THE TEN
(10) POSTDATED CHECKS (EXHS. "C" TO "L") BY THE ACCUSED-APPELLANT
CONSTITUTED FRAUD WHICH INDUCED THE PRIVATE COMPLAINANT TO
EXTEND THE LOANS. IT IS RESPECTFULLY SUBMITTED THAT THE
INDUCEMENT WAS THE EXECUTION OF THE TWO (2) PROMISSORY NOTES
AS WELL AS THE CO-SIGNING THEREOF BY MA. THERESA DEL ROSARIO
 BO-OT (WHO INTRODUCED ACCUSED-APPELLANT TO PRIVATE
COMPLAINANT), IN A JOINT AND SEVERAL CAPACITY.

II

THE TRIAL COURT ERRED IN NOT HOLDING THAT THE POST-DATED

CHECKS WERE IN PAYMENT OF PRE-EXISTING OBLIGATIONS.

III

THE TRIAL COURT ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY

OF ESTAFA AS CHARGED, AND IN IMPOSING A STIFF PRISON TERM OF 27
YEARS OF RECLUSION PERPETUA, A PENALTY "TOO HARSH AND OUT OF
PROPORTION" AS TO BE VIOLATIVE OF THE CONSTITUTION.

The appeal is without merit.

Estafa, under Article 315, paragraph 2(d) of the Revised Penal Code, as amended by Republic
Act. No. 4885, has the following elements: (1) postdating or issuance of a check in payment
of an obligation contracted at the time the check was issued; (2) lack of sufficiency of funds
to cover the check; and (3) damage to the payee thereof.

To avoid the first element, appellant contends that he was able to borrow P100,000.00 from
Santos due to the promissory notes he co-signed with Bo-ot and not due to the postdated
checks he issued. We reject this contention. Firstly, this contention was contrived only after
appellant's conviction in the trial court. The records show that appellant did not raise this
defense in the trial court. He cannot fault the trial court for failing to consider a defense
which he never raised. Secondly, Santos is the best person who can testify on what induced
her to lend P100,000.00 to the appellant. Santos categorically declared that it was the
issuance of postdated checks which persuaded her to part with her money. We quote her
testimony, viz.: 12

Q What happened to those checks you mentioned in the

promissory note?

A When presented to the bank they were all returned by the bank
for reason, account closed.

Q Before this was deposited to the bank when the accused came
to your office and loaned money from you, what was his
representation if any to you?

A That his collection will come in by Nov. 1993 and also the
checks issued to me will be definitely funded on the date that it
will become due.

Q Were you persuaded as a result of the statement of the

accused that these checks will be good that you parted away the
amount?

A Yes, sir.
There is likewise no merit to the submission of appellant that his postdated checks were in
payment of a pre-existing obligation. Again, we note appellant's change of theory in foisting
this argument. In the trial court, appellant testified that he issued the postdated checks, thru
Bo-ot, a day or two after he obtained the P100,000.00 loan from Santos. The falsity of the
13

uncorroborated claim, however, is too obvious and the trial court correctly rejected it. The
claim cannot succeed in light of Santos' testimony that the issuance of said checks
persuaded her to grant the loans. A look at the two promissory notes will show that they bear
the date August 20, 1993 and they referred to the postdated checks issued by the appellant.
There could be no reference to the postdated checks if they were issued a day or two after
the loans. In this appeal, however, appellant offers the new thesis that since the checks were
postdated December 1993, ergo, they were issued in payment of the P100,000.00 he got from
Santos on August 20, 1993. The postdating of the checks to December 1993 simply means
that on said date the checks would be properly funded. It does not mean that the checks
should be deemed as issued only on December 1993.

Lastly, appellant contends that the penalty of twenty seven (27) years of reclusion perpetua is
too harsh and out of proportion to the crime he committed. He submits that his sentence
violates section 19(1), Article III of the Constitution which prohibits the infliction of cruel,
degrading or inhuman punishment. We are not persuaded. In People v. de la Cruz, we held 14

that ". . . the prohibition of cruel and unusual punishments is generally aimed at the form or
character of the punishment rather than its severity in respect of duration or amount, and
apply to punishments which never existed in America or which public sentiment has
regarded as cruel or obsolete . . . for instance those inflicted at the whipping post, or in the
pillory, burning at the stake, breaking on the wheel, disemboweling, and the like . . ."
In People v. Estoista, we further held:
15

It takes more than merely being harsh, excessive, out of proportion, or severe
for a penalty to be obnoxious to the Constitution. The fact that the punishment
authorized by the statute is severe does not make it cruel and unusual.
Expressed in other terms, it has been held that to come under the ban, the
punishment must be "flagrantly and plainly oppressive," "wholly
disproportionate to the nature of the offense as to shock the moral sense of
the community."

The legislature was not thoughtless in imposing severe penalties for violation of par.
2(d) of Article 315 of the Revised Penal Code. The history of the law will show that the
severe penalties were intended to stop the upsurge of swindling by issuance of
bouncing checks. It was felt that unless aborted, this kind of estafa ". . . would erode
the people's confidence in the use of negotiable instruments as a medium of
commercial transaction and consequently result in the retardation of trade and
commerce and the undermining of the banking system of the country." The Court16

cannot impugn the wisdom of Congress in setting this policy.

IN VIEW WHEREOF, the Decision dated January 16, 1996 of the RTC of Pasig City, Br. 156 in
Criminal Case No. 106614 convicting appellant is affirmed. Costs against appellant.

SO ORDERED.

Regalado, Mendoza and Martinez, JJ., concur.

Melo, J., is on leave.

Footnotes

1 TSN, November 16, 1994, p. 3.

2 TSN, September 20, 1994, p. 4.

3 Ibid., pp. 5-6.

4 Ibid., p. 6.

5 Ibid., p. 10.

6 TSN, November 16, 1994, pp. 9-10.

7 TSN, November 9, 1994, p. 10.

8 Ibid., pp. 7, 8, 10.

9 Ibid., pp. 11-12.

10 TSN, June 7, 1995, pp. 9-11.

11 In the trial court, accused was represented by Atty. Fernando Fernandez. On

appeal, he hired the services of Atty. Manuel Tomacruz.

12 TSN, November 9, 1994, p. 7.

13 TSN, June 7, 1995, p. 7.

14 92 Phil. 906 [1953].

15 93 Phil. 647 [1954].

16 See "whereas" clauses of P.D. 818.

353 Phil. 37

PUNO, J.:
This is an appeal by accused Roberto Tongko from the Decision
of the RTC of Pasig City, Branch 156 finding him guilty of estafa
under Article 315(2)(d) of the Revised Penal Code. He was
sentenced to suffer twenty seven (27) years of reclusion perpetua
and to indemnify Carmelita V. Santos by way of actual damages
in the sum of P100,000.00 and to pay the cost of suit.
Accused was charged under the following Information:
"That on or about the 20th day of August, 1993, in the
Municipality of Pasig, Metro Manila, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused,
by means of deceit and false pretenses committed prior to or
simultaneously with the commission of the fraudulent acts, did
then and there willfully, unlawfully and feloniously make or draw
and issue to one, Carmelita Santos to apply on account or for
value, the check described below:
BANK CHECK NO. DATE AMOUNT
Phil. Amanah Bank 203729 12-20-93 P10,000.00
Phil. Amanah Bank 203730 12-20-93 P10,000.00
Phil. Amanah Bank 203731 12-20-93 P10,000.00
Phil. Amanah Bank 203732 12-20-93 P10,000.00
Phil. Amanah Bank 203733 12-20-93 P10,000.00
Phil. Amanah Bank 203737 12-20-93 P10,000.00
Phil. Amanah Bank 203738 12-20-93 P10,000.00
Phil. Amanah Bank 203739 12-20-93 P10,000.00
Phil. Amanah Bank 203740 12-20-93 P10,000.00
Phil. Amanah Bank 203741 12-20-93 P10,000.00
said accused well knowing at the time of issue he did not have
sufficient funds in or credit with the drawee bank for the
payment in full of the face amount of such check upon
presentment which check when presented for payment within
ninety (90) days from the date thereof was subsequently
dishonored by the drawee bank for the reason "Account Closed"
and despite the lapse of three (3) banking days from receipt of
notice that said check has been dishonored, the accused failed to
pay said payee the face amount of such check or to make
arrangement for full payment thereof, to the damage and
prejudice of said Carmelita Santos in the total amount of
P100,000.00.
CONTRARY TO LAW."
Accused pled not guilty and underwent trial.
The evidence for the prosecution shows that on September 21,
1990, accused opened savings and current accounts with
Amanah Bank.[1] In the morning of August 20, 1993, Marites Bo-
ot brought the accused to the office of Carmelita V. Santos at
Room 504 Pacific Place, Pearl Drive, Ortigas Center, Pasig City
to borrow money.[2] The accused asked for P50,000.00 to be paid
not later than December 1993.[3] He assured Santos that his
receivables would come in by November 1993. He persuaded
Santos to give the loan by issuing five (5) checks, each in the sum
of P10,000.00, postdated December 20, 1993 and by signing a
promissory note.[4] The promissory note was co-signed by Bo-ot.
In the afternoon of the same date, the accused returned to
Santos and borrowed an additional P50,000.00. Again, he issued
five (5) checks, each worth P10,000.00 postdated December 20,
1993. He also signed a promissory note together with Bo-ot.[5]
On September 14, 1993, Amanah Bank closed accused's current
account for lack of funds. On October 19, 1993, accused himself
requested for the closing of his savings account.[6]
Santos did not present accused's checks to the drawee bank on
their due date upon the request of accused himself.[7] Instead, the
checks were presented on March 1, 1994 but were dishonored as
accused's accounts had been closed.[8] Accused was informed
that his checks had bounced. He promised to make good the
checks. He failed to redeem his promise, hence, the case at bar.[9]
The accused testified for himself. Nobody corroborated his
testimony. He admitted the evidence of the prosecution but
alleged that the postdated checks were issued a day or two after
he signed the promissory notes.[10] Obviously, he was relying on
the defense that the checks were in payment of a pre-existing
obligation.
As aforestated, the trial court convicted the accused. He
appealed to this Court and changed his counsel.[11] He now
contends:
"I
THE TRIAL COURT ERRED IN HOLDING THAT THE ISSUANCE
OF THE TEN (10) POSTDATED CHECKS (EXHS. "C" TO "L") BY
THE ACCUSED-APPELLANT CONSTITUTED FRAUD WHICH
INDUCED THE PRIVATE COMPLAINANT TO EXTEND THE
LOANS. IT IS RESPECTFULLY SUBMITTED THAT THE
INDUCEMENT WAS THE EXECUTION OF THE TWO (2)
PROMISSORY NOTES AS WELL AS THE CO-SIGNING
THEREOF BY MA. THERESA DEL ROSARIO BO-OT (WHO
INTRODUCED ACCUSED-APPELLANT TO PRIVATE
COMPLAINANT), IN A JOINT AND SEVERAL CAPACITY.
II
THE TRIAL COURT ERRED IN NOT HOLDING THAT THE POST-
DATED CHECKS WERE IN PAYMENT OF PRE-EXISTING
OBLIGATIONS.
III
THE TRIAL COURT ERRED IN FINDING THE ACCUSED-
APPELLANT GUILTY OF ESTAFA AS CHARGED, AND IN
IMPOSING A STIFF PRISON TERM OF 27 YEARS OF
RECLUSION PERPETUA, A PENALTY "TOO HARSH AND OUT
OF PROPORTION" AS TO BE VIOLATIVE OF THE
CONSTITUTION."
The appeal is without merit.
Estafa, under Article 315, paragraph 2(d) of the Revised Penal
Code, as amended by Republic Act No. 4885, has the following
elements: (1) postdating or issuance of a check in payment of an
obligation contracted at the time the check was issued; (2) lack
of sufficiency of funds to cover the check; and (3) damage to the
payee thereof.
To avoid the first element, appellant contends that he was able to
borrow P100,000.00 from Santos due to the promissory notes he
co-signed with Bo-ot and not due to the postdated checks he
issued. We reject this contention. Firstly, this contention was
contrived only after appellant's conviction in the trial court. The
records show that appellant did not raise this defense in the trial
court. He cannot fault the trial court for failing to consider a
defense which he never raised. Secondly, Santos is the best
person who can testify on what induced her to lend P100,000.00
to the appellant. Santos categorically declared that it was the
issuance of postdated checks which persuaded her to part with
her money. We quote her testimony, viz.:[12]
"Q What happened to those checks you mentioned in the
promissory note?
A When presented to the bank they were all returned by the bank
for reason, account closed.
Q Before this was deposited to the bank when the accused came
to your office and loaned money from you, what was his
representation if any to you?
A That his collection will come in by Nov. 1993 and also the
checks issued to me will be definitely funded on the date that it
will become due.
Q Were you persuaded as a result of the statement of the
accused that these checks will be good that you parted away the
amount?
A Yes, sir."
There is likewise no merit to the submission of appellant that his
postdated checks were in payment of a pre-existing obligation.
Again, we note appellant's change of theory in foisting this
argument. In the trial court, appellant testified that he issued the
postdated checks, thru Bo-ot, a day or two after he obtained the
P100,000.00 loan from Santos.[13] The falsity of the
uncorroborated claim, however, is too obvious and the trial court
correctly rejected it. The claim cannot succeed in light of Santos'
testimony that the issuance of said checks persuaded her to
grant the loans. A look at the two promissory notes will show
that they bear the date August 20, 1993 and they referred to the
postdated checks issued by the appellant. There could be no
reference to the postdated checks if they were issued a day or
two after the loans. In this appeal, however, appellant offers the
new thesis that since the checks were postdated December 1993,
ergo, they were issued in payment of the P100,000.00 he got
from Santos on August 20, 1993. The postdating of the checks to
December 1993 simply means that on said date the checks would
be properly funded. It does not mean that the checks should be
deemed as issued only on December 1993.
Lastly, appellant contends that the penalty of twenty seven (27)
years of reclusion perpetua is too harsh and out of proportion to
the crime he committed. He submits that his sentence violates
section 19(1), Article III of the Constitution which prohibits the
infliction of cruel, degrading or inhuman punishment. We are not
persuaded. In People v. de la Cruz,[14] we held that "x x x the
prohibition of cruel and unusual punishments is generally aimed
at the form or character of the punishment rather than its
severity in respect of duration or amount, and apply to
punishments which never existed in America or which public
sentiment has regarded as cruel or obsolete x x x for instance
those inflicted at the whipping post, or in the pillory, burning at
the stake, breaking on the wheel, disemboweling, and the like..."
In People v. Estoista,[15] we further held:
"It takes more than merely being harsh, excessive, out of
proportion, or severe for a penalty to be obnoxious to the
Constitution. The fact that the punishment authorized by the
statute is severe does not make it cruel and unusual. Expressed
in other terms, it has been held that to come under the ban, the
punishment must be "flagrantly and plainly oppressive," "wholly
disproportionate to the nature of the offense as to shock the
moral sense of the community."
The legislature was not thoughtless in imposing severe penalties
for violation of par. 2(d) of Article 315 of the Revised Penal Code.
The history of the law will show that the severe penalties were
intended to stop the upsurge of swindling by issuance of
bouncing checks. It was felt that unless aborted, this kind of
estafa "... would erode the people's confidence in the use of
negotiable instruments as a medium of commercial transaction
and consequently result in the retardation of trade and
commerce and the undermining of the banking system of the
country."[16] The Court cannot impugn the wisdom of Congress in
setting this policy.
IN VIEW WHEREOF, the Decision dated January 16, 1996 of
the RTC of Pasig City, Br. 156 in Criminal Case No. 106614
convicting appellant is affirmed. Costs against appellant.
SO ORDERED.
Regalado (Chairman), Mendoza, and Martinez, JJ., concur.
Melo, J., on leave.